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Malibu Media, LLC v. Harrison

United States District Court, Southern District of Indiana, Indianapolis Division

November 3, 2014

MALIBU MEDIA, LLC, Plaintiff,
v.
MICHAEL HARRISON, Defendant.

REPORT AND RECOMMENDATION ON PLAINTIFF’S MOTION FOR SANCTIONS AND ORDER ON MOTION TO SEAL

Mark J. Dinsmore, United States, Magistrate Judge

This matter comes before the Court on Plaintiff’s Motion to Maintain Docket No. 201 Under Seal, [Dkt. 240], and Plaintiff’s Motion for Sanctions Against Defense Counsel Gabriel Quearry for Publicly Disclosing and Disseminating Confidential Information Twice in Violation of the Protective Order Entered on April 29, 2014. [Dkt. 235.] For the reasons set forth below, the Court DENIES Plaintiff’s Motion to Maintain Docket No. 201 Under Seal, and the Magistrate Judge recommends that the Court DENY Plaintiff’s Motion for Sanctions.

I. Background

Malibu Media, LLC (“Plaintiff”) filed suit against Michael Harrison (“Defendant”) and others, alleging direct and contributory copyright infringement. [Dkt. 59 at 1.] The Court entered a protective order on April 29, 2014. [Dkt. 177.] The order provides that parties may designate information as “Confidential” or “Confidential—Attorney’s Eyes Only” if 1) the information has Case 1:12-cv-01117-WTL-MJD Document 265 Filed 11/03/14 Page 2 of 12 PageID #: 1994 “has not been made public;” 2) the information “relates to the processes, operations, type of work, or apparatus, or to the production, type and volume of sales, shipments, purchases, transfers, identification of customers, inventories, amount or source of any income, profits, losses, or expenditures of any persons, firm, partnership, corporation, or other organization;” and 3) the disclosure of the information “may have the effect of causing harm to the competitive position of the person, firm, partnership, corporation, or to the organization from which the information was obtained.” [Id. ¶ 1.] “Confidential” information may be viewed only by “qualified persons” as defined in the order. [Id. ¶¶ 3, 6.] The order further provides that any material designated as confidential “shall not, in fact, be confidential nor shall disclosure be limited” if the information is, at the time of the disclosure, “in the public domain by publication or otherwise.” [Id. ¶ 8.]

If a party receives information designated as confidential but wishes to challenge that designation, the order states “the receiving party shall notify the disclosing party in writing and request a release of confidentiality. If such release is not forthcoming in writing within five (5) business days, the receiving party may apply to the Court for an order requiring the release of confidentiality.” [Id. ¶ 9.]

On May 16, 2014, Plaintiff produced copies of Malibu Media, LLC’s tax forms, which Plaintiff designated as “Confidential—Attorney’s Eyes Only.” [Dkt. 235 at 3.] On June 13, 2014, Plaintiff again produced documents designated “Confidential—Attorney’s Eyes Only.” [Id.] Defendant did not object to these designations. [Id.]

On July 21, 2014, Defendant publicly filed his Final Witness and Exhibits List, [Dkt. 201], which contained three names that were included in documents that Plaintiff had designated “Confidential—Attorney’s Eyes Only.” [Dkt. 235 at 4.] On August 14, 2014, Defendant publicly filed his “Response to Plaintiff’s Expedited Motion for Leave to Appear Telephonically at the Deposition of Its 30(b)(6) Corporate Representative.” [Dkt. 208.] This response included information referencing Malibu Media’s yearly income, despite the previous designation of Malibu Media’s tax forms as “Confidential—Attorney’s Eyes Only.” [Dkt. 235 at 4.]

On August 19, 2014, the Court sealed Defendant’s brief in response to Plaintiff’s motion. [Dkt. 215.] On September 16, 2014, at the request of Plaintiff’s counsel, the Court ordered Plaintiff’s witness list to be sealed and directed Plaintiff to file a motion to maintain the document under seal. [Dkt. 234.]

On September 17, 2014, Plaintiff filed the current motion for sanctions against Defendant’s counsel, [Dkt. 235], based on counsel’s public filing of Docket Nos. 201 and 208. The Court referred this motion to the Magistrate Judge for proposed findings and recommendations. [Dkt. 263.] On September 25, 2014, Plaintiff filed the current motion to maintain Defendant’s witness list under seal. [Dkt. 240.] The Court will address the motion to seal and then the motion for sanctions.

II. Discussion: Motion to Seal

Rule 26 contemplates filing under seal for “good cause.” Fed.R.Civ.P. 26. “The determination of good cause cannot be elided by allowing the parties to seal whatever they want.” Citizens First Nat. Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999). The public “at large pays for the courts and therefore has an interest in what goes on at all stages of a judicial proceeding.” Id. Hence, the judge is “duty-bound” to “review any request to seal the record.” Id.

When information is filed with a court, it may “influence or underpin the judicial decision” and is therefore “open to public inspection unless” the information “meets the definition of trade secrets or other categories of bona fide long-term confidentiality.” Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002). A motion asking to seal such information has “no prospect of success” unless it analyzes “in detail, document by document, the propriety of secrecy, providing reasons and legal citations.” Id. at 548. General assertions that the information is “commercial” or otherwise sensitive will not suffice. Id. at 546.

Plaintiff’s motion to maintain Defendant’s witness and exhibit list under seal does not comply with the requirements set forth above. Plaintiff relies on its designation of the information contained in the list as confidential, [1] [Dkt. 240 at 1-3], but this is not enough. As the Seventh Circuit explained in Baxter, “[s]ecrecy is fine at the discovery stage, before the material enters the judicial record, ” 297 F.3d at 545, but once material is filed with the court, it is presumptively “open to public inspection.” Id.

Thus, while Plaintiff may have properly designated its information as confidential during discovery, [Dkt. 240 at 2], Defendant has now made that information part of the judicial record, and Plaintiff must do more to justify keeping that information secret. In particular, Plaintiff must provide reasons and legal authority that specifically support the sealing of each item of information Plaintiff hopes to keep sealed. Baxter, 297 F.3d at 545; see also Cameron v. Myers, No. 3:07-CV-008 PPS, 2009 WL 2346508, ...


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