United States District Court, W.D. Kentucky
CAUDILL SEED AND WAREHOUSE COMPANY, INC. PLAINTIFF
JARROW FORMULAS, INC. DEFENDANT
MEMORANDUM OPINION AND ORDER
CHARLES R. SIMPSON III, SENIOR JUDGE
“[t]his case is before the Court for a determination
regarding the unending saga of sealed documents in this
case.” Caudill Seed & Warehouse Co., Inc. v.
Jarrow Formulas, Inc., No. 3:13-CV-82-CRS, 2019 WL
281307, at *1 (W.D. Ky. Jan. 22, 2019). Specifically,
Defendant Jarrow Formulas, Inc. has filed several pending
motions to seal. DNs 295, 310, 313, 322, 329, 332, 335.
Plaintiff Caudill Seed and Warehouse Company, Inc. has not
objected. Therefore, these matters are ripe for review.
Ultimately, the Court will: grant the motions to seal at DNs
310 and 335; deny the motions to seal at DNs 295, 322, and
332; and grant in part and deny in part the motions to seal
at DNs 313 and 329.
Court has previously explained the standards governing
sealing. See Caudill Seed, 2019 WL 281307 at *1-2.
Those standards have been recently affirmed by the Sixth
Circuit. See Kondash v. Kia Motors Am., Inc., No.
18-3181, 2019 WL 1418168 (6th Cir. March 29, 2019) (slip
court's discretion to seal records is bounded by a
‘long-established legal tradition' of the
‘presumptive right of the public to inspect and copy
judicial documents and files.'” Id. at *2
(quoting In re Knoxville News-Sentinel Co., Inc.,
723 F.2d 470, 474 (6th Cir. 1983)). “The party seeking
to seal records has the heavy burden of overcoming that
‘strong presumption in favor of openness.'”
Id. (quoting Shane Grp., Inc. v. Blue Cross Blue
Shield, 825 F.3d 299, 305 (6th Cir. 2016) (additional
citation omitted)). To meet this burden, the party must show
“(1) a compelling interest in sealing the records; (2)
that the interest in sealing outweighs the public's
interest in accessing the records; and (3) that the request
is narrowly tailored.” Id. (citing Shane
Grp., 825 F.3d at 305 (additional citations omitted)).
In undertaking this inquiry, the Court must “analyze in
detail, document by document, the propriety of secrecy,
providing reasons and legal citations.” Id.
(quoting Shane Grp., 825 F.3d at 305-06 (additional
citation omitted)). Valid reasons for sealing could include
court records that are “sources of business information
that might harm a litigant's competitive standing,
” Nixon v. Warner Commc'ns, Inc., 435 U.S.
589, 598 (1978), as well as documents containing “trade
secrets, information covered by a recognized privilege (such
as the attorney-client privilege), and information required
by statute to be maintained in confidence (such as the name
of a minor victim of sexual assault), ” Rudd Equip.
Co., Inc. v. John Deere Constr. & Forestry Co., 834
F.3d 589, 589 (6th Cir. 2016).
the Court must remain mindful of issues arising in the
context of trade secrets. “In those cases, ‘[t]he
strong presumption of access is improper.'”
Caudill Seed, 2019 WL 281307, at *1 (quoting Kyle J.
Mendenhall, Can You Keep a Secret?, 62 Drake L. Rev.
885, 910 (2014)). “Instead, ‘[d]istrict courts
should be able to use their sound discretion in weighing the
competing interests for and against sealing court documents
without such a misbalanced starting presumption.'”
Id. (quoting Mendenhall, supra, at 910).
That is important in trade secret cases because there is an
inherent “discord between litigating to protect
confidential information and disclosing that same
confidential information during the litigation.”
Id. (quoting United States v. Roberts, No.
3:08-CR-175, 2010 WL 1010000, at *5 (E.D. Tenn. March 17,
2010)). “It would, of course, be idle to the point of
flat absurdity for the trial judge to compel the plaintiff to
publicly disclose its processes in the act of protecting them
from disclosure.” Id. (quoting
Roberts, 2010 WL 1010000, at *5 (additional citation
omitted)). “Otherwise, the Court sets a plaintiff
alleging misappropriation of trade secrets sailing
‘twixt Scylla and Charybdis.” Id.
the Court may consider whether the information is protectable
as a trade secret, “the Court's decision on sealing
should be ‘completely separate' from the merits of
the case or admissibility of the evidence.” Caudill
Seed, 2019 WL 281307, at *3 (quoting Rudd, 834
F.3d at 593). “Put simply, where the issue boils down
to the ‘plaintiff claiming the processes were secret,
but the defendant claiming they were not,' unsealing the
documents is improper.” Id. (quoting
Roberts, 2010 WL 1010000, at *5). Since Caudill has
survived summary judgment, the Court has already held that
“to the extent that Caudill alleges a document contains
a trade secret and it appears to the Court that a genuine
issue of material fact exists as to whether that information
is a trade secret, the Court will maintain the seal on the
document rather than implicate itself in an improper ruling
on the merits of Caudill's claims.” Caudill
Seed, 2019 WL 281307, at *2. With that frame of
reference, the Court must examine each document individually.
Jarrow's Motion to File Exhibit Under Seal (DN
seeks to seal Exhibit G to its Memorandum of Law in Support
of Its Motion in Limine to Preclude the Testimony of William
Wingate on Compensatory Damages (DN 291-8). The exhibit is a
verified complaint which was filed sealed in the underlying
state court action. However, in this action the complaint has
been previously filed in the record unsealed. See DN
124-48. Therefore, the interest in sealing does not outweigh
the interest of the public in accessing the records and the
motion will be denied.
Jarrow's Motion to Seal (DN 310)
seeks to seal an unredacted copy of its Memorandum of Law in
Opposition to Plaintiff's Motion to Exclude Expert
Testimony and Reports of Leslie West and Kean Ashurst;
Exhibit A thereto, comprised of deposition testimony of Dr.
Leslie West; and Exhibit G thereto, comprised of deposition
testimony of Caudill Seed's Rule 30(b)(6) witness Joseph
Lyons (DNs 311-1, 311-2, 311-3).
Court has already found that portions of West's
deposition should remain sealed. Caudill Seed, 2019
WL 281307, at *2 (leaving tab 34 sealed). Similarly, the
excerpted portion of Lyons's deposition have been
maintained under seal. Id. (leaving tab 17 sealed).
The testimony discusses Caudill's manufacturing
processes. Caudill has created a genuine issue of material
fact as to whether this is a trade secret. There is a
compelling interest in protecting disclosure of alleged trade
secrets, as such disclosure could cause irreparable harm.
See Rudd, 834 F.3d at 589. Further, Caudill does not
object. Therefore, the motion to seal will be granted.