United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE
matter is before the Court on (1) a Motion to Seal Sazze,
Inc.'s Counterclaim [DE 92], filed by Defendant and
Counterclaimant Sazze, Inc. d/b/a DealsPlus
(“Sazze”) on July 7, 2016; (2) a Motion for Leave
to File Sealed Documents: CouponCabin's Answer and
Associated Motion to Sazze's Counterclaim [DE 98], filed
by Plaintiff and Counterclaim Defendant CouponCabin LLC
(“CouponCabin”) on July 28, 2016; (3) a Motion to
Seal Sazze, Inc. d/b/a DealsPlus' Opposition to
Counterclaim Defendant CouponCabin, LLC's Motion to Sever
and Transfer Sazze, Inc.'s Counterclaim and Declaration
of Greg Kim in Support Thereof [DE 103], filed by Sazze on
August 15, 2016; and (4) a Motion for Leave to File Sealed
Documents [DE 110], filed by CouponCabin on August 22, 2016.
No responses were filed to any of the motions.
motion at docket entry 92, Sazze moves, pursuant to Local
Rule 5-3, for leave of court to file its Answer to
CouponCabin's Complaint and its Counterclaim under seal.
In its Counterclaim, Sazze alleges that CouponCabin breached
the parties' Content Sharing Agreement. The Content
Sharing Agreement contains certain confidentiality terms that
require the parties to that agreement to maintain the
confidentiality of, among other things, the terms of the
Content Sharing Agreement. As a result, Sazze asserts that it
may not make the terms of the agreement public by filing the
contract in open court. Sazze's Counterclaim extensively
quotes from and/or paraphrases the terms of the Content
Sharing Agreement. Sazze attached a copy of the Content
Sharing Agreement as an exhibit to the Counterclaim.
motion, Sazze represents that it does not currently believe
that the Content Sharing Agreement should be sealed; Sazze
offers no basis for this belief. Nevertheless, because Sazze
believes that the terms of the Content Sharing Agreement
ostensibly require Sazze to maintain the confidentiality of
the terms of the agreement, Sazze filed the motion. In the
motion, Sazze invites CouponCabin to provide the Court with
justification that the general presumption of the openness of
court proceedings is overcome because “the property and
privacy interests of the litigants . . . predominate in
th[is] particular case.” (EDF 92, p. 2 (quoting
Citizens First Nat'l Bank v. Cincinnati Ins.
Co., 178 F.3d 943, 945 (7th Cir. 1999)). CouponCabin did
not file a response.
three weeks later, CouponCabin filed its own motion, at
docket entry 98, asking the Court for leave to file under
seal its Answer to Sazze's Counterclaim and to file under
seal its Motion to Sever and Transfer or Dismiss Defendant
Sazze, Inc.'s Counterclaim. In its own motion,
CouponCabin asks the Court to maintain the confidentiality of
the Content Sharing Agreement. However, CouponCabin does not
cite Citizens First or any case law and offers no
justification for maintaining these filings under seal other
than the parties' agreement in the Content Sharing
Agreement. CouponCabin simply states that it “believes
the terms of the Agreement require the parties to maintain
confidentiality.” (ECF 98, ¶ 5). CouponCabin also
incorrectly represents that Sazze desires to maintain the
confidentiality of the agreement. Id. at ¶ 3.
keeping with its original motion, Sazze moves the court, at
docket entry 103, for leave to file under seal its opposition
to CouponCabin's Motion to Sever and Transfer or Dismiss
Defendant Sazze, Inc.'s Counterclaim. Sazze again states
that it “does not currently believe that the Content
Sharing Agreement or information related thereto ought to be
sealed, the terms of the Content Sharing Agreement ostensibly
require Sazze to take steps to maintain the confidentiality
of this information.” (ECF 103, ¶ 5). Sazze again
invites CouponCabin to justify keeping the Content Sharing
Agreement and related pleadings under seal. CouponCabin again
did not respond.
CouponCabin, at docket entry 110, asks the Court for leave to
file under seal its reply in support of its Motion to Sever
and Transfer or Dismiss Defendant Sazze, Inc.'s
Counterclaim. CouponCabin again cites no law or justification
for maintaining any aspect of this litigation under seal.
general presumption is that judicial records are public, but
this can be overridden when “the property and privacy
interests of the litigants . . . predominate in the
particular case” such that “there is good cause
for sealing a part or the whole of the record.”
Citizens First Nat'l Bank v. Cincinnati Ins.
Co., 178 F.3d 943, 945 (7th Cir. 1999). The bar is quite
high: “Any step that withdraws an element of the
judicial process from public view makes the ensuing decision
look more like fiat and requires rigorous
justification” by the Court. Hicklin Eng'g,
L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006).
motion to file documents under seal must justify the claim of
secrecy, analyzing the applicable legal criteria. See
Citizens First, 178 F.3d at 945; see also,
Cnty Materials Corp. v. Allan Block Corp., 502 F.3d
730, 740 (7th Cir. 2007); Baxter Int'l v. Abbott
Lab., 297 F.3d 544, 547 (7th Cir. 2002); Union Oil
Co. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000).
“The determination of good cause cannot be elided by
allowing the parties to seal whatever they want, for then the
interest in publicity will go unprotected unless the media
are interested in the case and move to unseal.”
Citizens First, 178 F.3d at 945.
Notwithstanding an agreement of parties to seal documents,
the decision of whether good cause exists to file a document
under seal rests solely with the Court. Id.
cause may exist if the documents are sealed in order to
maintain the confidentiality of trade secrets, privileged
information, including documents covered by the
attorney-client privilege, and other non-public financial and
business information. See Baxter Int'l, 297 F.3d
at 546; Metavante Corp. v. Emigrant Sav. Bank, No.
05-CV01221, 2008 WL 4722336, at *9-10 (E.D. Wis. Oct. 24,
2008). Trade secrets are defined as any information that
derives economic and competitive value from not generally
being known and is subjected to reasonable efforts to
maintain its secrecy. See Cook Inc. v. Boston Scientific
Corp., 206 F.R.D. 244, 247-48 (S.D. Ind. 2001).
instance, CouponCabin has offered no analysis of why the
Content Sharing Agreement or the related pleadings should be
sealed from the public in this litigation despite
longstanding Seventh Circuit Court of Appeals precedent on
the issue as well as an invitation by Sazze in both of its
motions to seal to provide such a justification. In addition,
the confidentiality clause of the Content Sharing Agreement
expired on July 9, 2016, just two days after Sazze's
Answer and Counterclaim were filed. The contract was entered
into on July 10, 2010. See (ECF 93, Ex. A, 1). The
term of the contract was twelve months, resulting in an end
of July 9, 2011. Id. at ¶ 5.a. The
“Confidential Information” provision provides:
“During the Term and for five (5) years thereafter,
each party . . . shall retain in strict confidence the terms
of this Agreement and all other non-public information and
know-how of the other party . . . .” Id. at
¶ 7.a. Based on the contract terms, the confidentiality
clause ended on July 9, 2016. Thus, CouponCabin would be hard
pressed to offer a basis for a finding of good cause to
maintain the Content Sharing Agreement and other related
information confidential at this point in the litigation.
the Court hereby DENIES (1) the Motion to
Seal Sazze, Inc.'s Counterclaim [DE 92]; (2) the Motion
for Leave to File Sealed Documents: CouponCabin's Answer
and Associated Motion to Sazze's Counterclaim [DE 98];
(3) the Motion to Seal Sazze, Inc. d/b/a DealsPlus'
Opposition to Counterclaim Defendant CouponCabin, LLC's
Motion to Sever and Transfer Sazze, Inc.'s Counterclaim
and Declaration of Greg Kim in Support Thereof [DE 103]; and
(4) the Motion for Leave to File Sealed Documents [DE 110].
Court DIRECTS the Clerk of Court to
UNSEAL docket entries 93, 99, ...