In Re: McCormick & Company, Inc., Pepper Products Marketing and Sales Practices Litigation ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN RE: MCCORMICK & COMPANY, INC.,
PEPPER PRODUCTS MARKETING AND
SALES PRACTICES LITIGATION
MDL Docket No. 2665
Misc. No. 15-1825 (ESH)
This Document Relates to:
ALL CONSUMER CASES
MEMORANDUM OPINION
Before the Court are several motions relating to the sealing and redaction of documents.
Plaintiffs filed a Motion to Unseal Opening Class Certification Papers (ECF No. 174 (“Mot. to
Unseal”)), arguing that defendants’ confidentiality designations as to materials produced during
discovery are overly broad, and since defendants have failed to justify these designations, all
documents should be unsealed and unredacted in full.1 Also at issue are defendants’ several
motions to seal documents (ECF Nos. 160, 163, 177, and 179), which plaintiffs oppose, as well
as plaintiffs’ two motions to seal documents (ECF Nos. 157 and 172), which plaintiffs filed in
compliance with the parties’ Stipulated Protective Order (ECF No. 48), but they argue against
the sealing of these documents.
The question is whether defendants’ confidentiality designations justify allowing
significant redactions to pleadings and related declarations, in addition to the complete sealing of
hundreds of pages of exhibits. Last year, this Court addressed potential redactions in a judicial
opinion related to plaintiffs’ amended complaint. See In re McCormick & Co., Inc., Pepper
1
Defendants are McCormick & Co. (“McCormick”) and Wal-Mart Stores, Inc. (“Wal-Mart”).
Prods. Mktg. & Sales Practices Litig., 275 F. Supp. 3d 218 (D.D.C. 2017). The Court,
concluding that the public interest in access to judicial records outweighed McCormick’s interest
in avoiding reputational harm, overruled McCormick’s objections and published its opinion
without redactions. In re McCormick & Co., Inc., No. 15-mc-1825, 2017 WL 2560911, at *1
(D.D.C. June 13, 2017). Now, pleadings and declarations associated with the plaintiffs’ motion
for class certification, the motion to unseal, and the joint motion to exclude plaintiffs’ expert,
Armando Levy, are at issue. In addition to the extensive redaction of multiple pleadings and
declarations, defendants ask that hundreds of pages of exhibits attached to these declarations
remain under seal.
BACKGROUND
Plaintiffs, who are purchasers of defendant McCormick’s black pepper, allege in their
complaint that defendants “had a statutory duty to refrain from unfair or deceptive acts or
practices in the promotion and sale of McCormick black pepper or store-branded black pepper,”
(Second Am. Compl. Consol. Class Action Compl. ¶ 115, ECF No. 128), and that they “violated
this duty by selling black pepper in non-transparent containers containing nonfunctional slack-
fill.” (Id. ¶ 116.)
I. CLASS CERTIFICATION
On July 21, 2017, plaintiffs moved to certify three multistate classes under the consumer
protection and unjust enrichment laws of more than thirty states and the District of Columbia,
claiming that McCormick and Wal-Mart violated these laws when they knowingly sold black
pepper in non-transparent containers containing non-functional slack fill, intending to minimize
or eliminate consumers’ ability to notice the reduced quantity of pepper by maintaining the same
price and container size. (See Mot. for Class Cert. at 1–15, ECF No. 157-2.)
2
A. Redacted Pleadings
When plaintiffs filed their memo in support of class certification, they moved to file it
under seal (ECF No. 157) pursuant to the parties’ Protective Order, and they filed a redacted
version on the public docket as well. (ECF No. 159.) Redactions appear in the Table of
Contents and on the following pages: 1–2, 4–5, 7–15, 18, 21, 23–24, 35, and 37–39. McCormick
also filed a redacted version of its opposition to class certification (ECF No. 161) and moved to
file an unredacted version under seal.2 (ECF No. 160.) These redactions appear on the
following pages: 1 n.2, 4–6, 10, 19, 23–25, and 25 n.29. Finally, plaintiffs filed a redacted reply
to McCormick’s opposition to class certification (ECF No. 168) and moved to file an unredacted
version under seal. (ECF No. 172.) Plaintiffs’ reply includes redactions on the following pages:
8–9 & n. 10, and 10.
Apart from the class certification pleadings, Wal-Mart filed its opposition to plaintiffs’
motion to unseal with redactions and attached two redacted exhibits (ECF No. 180) and moved
to file an unredacted version under seal. (ECF No. 179.) Exhibit A is the letter Wal-Mart’s
attorney Andrew Klevorn wrote in response to plaintiffs’ initial challenge to defendants’
confidentiality designations. (“Klevorn Letter,” ECF No. 179-1.) Exhibit B is the Declaration of
Wal-Mart employee Kassie Keeter, which identifies and explains commercially sensitive
information that appears in Wal-Mart’s exhibits. (“Keeter Decl.,” ECF No. 179-1.)
In sum, three redacted class certification pleadings are at issue—plaintiffs’ motion,
McCormick’s opposition, and plaintiffs’ reply to McCormick—as well as Wal-Mart’s opposition
2
Defendants filed separate oppositions to class certification. Wal-Mart’s opposition (ECF
No. 165) and plaintiffs’ reply thereto (ECF No. 169) are not redacted and therefore are not at
issue.
3
to plaintiffs’ motion to unseal and the two exhibits attached to the opposition. Plaintiffs
challenge all redactions.3
B. Declarations and Reports
Both plaintiffs and McCormick attach declarations, reports, and exhibits to their class
certification pleadings. Several of these documents are heavily redacted or filed entirely under
seal.
i. Fegan Declaration
Plaintiffs’ Fegan Declaration—describing plaintiffs’ underlying merits case—was filed as
an affidavit in support of the class certification motion. (ECF No. 157-3.) Large swathes of the
Fegan Declaration are redacted (ECF No. 158), including portions of pages 2, 5–17, 20–26, and
30–32. Most of the redacted information comes from defendants’ documents, produced in
discovery, which were filed as Exhibits 101–143 to the Fegan Declaration. (See ECF No. 157.)
Defendants say very little about the Fegan Declaration.
ii. Levy Report
Plaintiffs also filed a sealed copy of the report written by their damages expert, Armando
Levy, as Exhibit 100 to the Fegan Declaration. (“Levy Report,” ECF No. 157-4). McCormick
does not object to unsealing the Levy Report so long as “any references . . . to confidential
materials [are] appropriately redacted.” (McCormick Opp. to Unseal at 3 n.2, ECF No. 176.)
Wal-Mart appears to adopt a similar position, but expresses concern that the report shows how
many “units of select McCormick-supplied black pepper products” Wal-Mart sold in each state
for each month over the course of more than two years, as well as “Wal-Mart’s net sales of those
3
See Mot. to Unseal; Pls.’ Opp. to McCormick’s Mot. to File Opp. to Class Certification Under
Seal, ECF No. 173 (“Opp. to Sealing McCormick Opp.”); Pls.’ Opp. to Wal-Mart’s Mot. to File
Opp. to Unseal Under Seal, ECF. 183 (“Opp. to Sealing Wal-Mart Opp.”).
4
products in each state for the same period.” (Wal-Mart Opp. to Unseal at 3, ECF No. 179-1; see
also id. at 7 (requesting that the Court maintain under seal “Wal-Mart documents attached to
Plaintiffs’ Motion for Class Certification and referenced in Dr. Levy’s report”).)
iii. Schmitt Declaration Exhibits
McCormick filed the Schmitt Declaration as an affidavit in support of its opposition to
class certification. (ECF No. 162.) Though the Schmitt Declaration itself contains no redacted
material, McCormick moved to file three attachments to it under seal. (ECF No. 160.) These
include the Hester Declaration as Exhibit 16 (ECF No. 160-3 (hereinafter “Hester Decl.”)); the
Johnson Expert Report as Exhibit 19 (ECF No. 160-4 (hereinafter “Johnson Report”)); and
selected Levy Deposition Excerpts as Exhibit 20. (ECF No. 160-5 (hereinafter “Levy Deposition
Excerpts”).)
a. Hester Declaration
To support its argument that the Hester Declaration contains confidential business
information, McCormick relies on the Declaration of Richard M. Morse, McCormick’s Vice
President of Global Customers. (ECF No. 176-6.) McCormick cites Morse to show that the
Hester Declaration contains “information regarding the sourcing and density of McCormick
pepper, packaging processes and strategy, and historical filling practices” (McCormick’s Reply
to Seal Opp. to Class Cert. at 4), and argues that its disclosure “could harm McCormick”
(McCormick Opp. to Unseal at 10), and that “none of this information is already available to the
public.” (Id. at 6.) Plaintiffs respond that the Hester Declaration “is devoid of any information
that could harm Defendants,” characterizing it as containing “general, historical discussions.”
(Opp. to Sealing McCormick Opp. at 7.)
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b. Johnson Report
The Johnson Report receives limited attention from the parties. Plaintiffs oppose the
motion to file it under seal and lump together their analysis of the Levy Report, the Johnson
Report, and the Hester Declaration. (See, e.g., Opp. to Sealing McCormick Opp. at 5 (referring
to all three documents and explaining that they “were filed with the Court and introduced into
evidence as part of the class certification briefing”).) Plaintiffs describe “Dr. Johnson’s report
[as] focused on refuting the conclusions in Dr. Levy’s report.” (Id. at 7.) McCormick states that
the Johnson Report refers to “market research on changes to the pepper containers and reaction
to those changes, third-party sales data, McCormick documents discussing the qualities and
sourcing of pepper, and filling practices, and fill weights of McCormick pepper containers.”
(McCormick’s Reply in Supp. of Mot. to Seal Opp. to Class Certification at 5, ECF No. 175
(“McCormick’s Reply to Seal Opp. to Class Cert.”).)
Plaintiffs argue that no redactions to these documents (the Fegan Declaration, the Hester
Declaration, the Levy Report, and the Johnson Report) are justified.4
C. Fegan Declaration Exhibits 101–143
Attached to the Fegan Declaration, plaintiffs filed 45 sealed exhibits consisting of more
than 200 pages. Forty-three of these are company documents that defendants produced in
discovery and designated as “confidential” or “highly confidential.” (McCormick Opp. to
Unseal at 4–5; Wal-Mart Opp. to Unseal at 2.) McCormick produced forty of these documents,
and Wal-Mart produced three.5 (McCormick Opp. to Unseal at 2.) As above, plaintiffs argue
4
See Mot. to Unseal; Opp. to Sealing McCormick Opp.
5
Wal-Mart identifies these three documents as WALBPL00000760, WALBPL00000760,
WALBPL00000765, which correlate to Fegan Declaration Exhibits 127–129. Wal-Mart also
identifies a fourth document (WALBPL00030103) as containing transactional data incorporated
in the Levy Report. (Klevorn Letter.)
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that defendants have failed to demonstrate that these documents are properly designated as
confidential and therefore challenge all designations and oppose sealing all Fegan Declaration
Exhibits. (Mot. to Unseal ¶¶ 1, 9.)
II. MOTION TO EXCLUDE EXPERT REPORT & OPINIONS
On August 28, 2017, defendants jointly moved to exclude the report and opinions of
plaintiffs’ expert, Dr. Armando Levy. (ECF No. 164 (“Mot. to Exclude”).) Plaintiffs retained
Levy to calculate class-wide damages. He relied on facts and data in defendants’ documents to
draw conclusions about pepper sales and fill levels in the pepper containers and to explain his
damage calculations. (See, e.g., id. ¶ 20 n.16 & Ex. B-2.)
A. Redacted Pleadings
Defendants filed a redacted version of their memo in support of the motion to exclude the
Levy Report (ECF No. 164-1) and moved to file the unredacted version under seal. (ECF
No. 163.) Redactions appear on the following pages: 2 & n.4, 3–7. Plaintiffs filed a redacted
version of their opposition (ECF No. 170) and moved to file an unredacted version under seal.
(ECF No. 172.) These redactions appear on the following pages: 2–3, 5, 7 & n.2, 9, 14. Finally,
defendants filed a redacted reply (ECF No. 178) and moved to file an unredacted version under
seal. (ECF No. 177.) Defendants’ reply includes redactions on the following pages: 3–4, 7 n.6.
As a result, three redacted pleadings relating to the motion to exclude are at issue. Plaintiffs
oppose all redactions. (Pls.’ Opp. to Defs.’ Mot. to File Mot. to Exclude Under Seal, ECF
No. 173.)
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B. Levy Deposition Excerpts
Defendants also filed three sealed exhibits as attachments to the motion to exclude. Two
of these are the Levy Report and the Hester Declaration.6 As for the deposition excerpts, certain
excerpted pages were filed as Exhibit B to the motion to exclude (ECF No. 163-4) and narrower,
but overlapping, excerpts were filed as Exhibit 20 to the Schmitt Declaration.7 (ECF No. 160-5.)
Together, the sealed exhibits include the following excerpts from the Levy Deposition: 29–30,
40–41, 43, 51–60, 65–66, 74–77, 89–90, 108, 113, 115, and 120. As with the Levy Report,
McCormick does not object to unsealing the deposition excerpts “subject to the provision that
any references . . . to confidential materials be appropriately redacted.” (McCormick Opp. to
Unseal at 3 n.2.) Wal-Mart has not clearly articulated its position as to the deposition excerpts.
III. THE PARTIES’ POSITIONS
In their motion to unseal, plaintiffs argue that defendants’ designations “(1) contain[]
information already available to the public, (2) concern[] business protections no longer
applicable given the passage of time, and/or (3) [do] not fall under one or more of the categories
permitted under the Stipulated Protective Order.” (Mot. to Unseal ¶ 8.) McCormick and Wal-
Mart filed separate oppositions to the motion to unseal, and they maintain that their
confidentiality designations are appropriate. Specifically, they argue that the confidentiality
6
The Levy Report appears on the docket as both Exhibit 100 to the Fegan Declaration and
Exhibit A to defendants’ motion to exclude. (ECF No. 163-3.) The Hester Declaration appears
as both Exhibit 16 to the Schmitt Declaration and Exhibit C to defendants’ motion to exclude.
(ECF No. 163-5.)
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Exhibit B includes pages 29–30, 40–41, 43, 51–60, 74–77, 89–90, 108, 113, 115, and 120 of
the deposition. Exhibit 20 includes pages 53–58, 65–66, 74–77, 90, and 115. In other words, the
deposition excerpts included with the Schmitt Declaration only add pages 65 and 66 to the
excerpts included with the motion to exclude.
8
designations are appropriate under the protective order8 (McCormick Opp. to Unseal at 6; Wal-
Mart Opp. to Unseal at 3–4), that plaintiffs’ objections are untimely (McCormick’s Opp. to
Unseal at 3, 4; Wal-Mart’s Opp. to Unseal at 1–2), and that there is no heightened presumption
of public access in the class action context. (McCormick Opp. to Unseal at 6–8; Wal-Mart Opp.
to Unseal at 7.)
To support its confidentiality designations of the forty sealed McCormick documents
attached to the Fegan Declaration, McCormick relies on an index that lists each document and
provides a description of the document and a generic explanation for the confidentiality
designation. (McCormick Opp. to Unseal at 5; see id. Ex. D.)9 McCormick argues that this
index, in combination with the Morse Declaration, shows that the materials in question “clearly
contain information which, if disclosed, (1) would reveal a trade secret or other research,
development, or financial information that is commercially sensitive and/or (2) would cause
McCormick to suffer a significant competitive or commercial disadvantage by revealing trade
8
The Stipulated Protective Order defines confidential materials as those the producing party
“reasonably believes may reveal a trade secret or other research, development, or financial
information that is commercially sensitive or is personal information relating to an identified or
identifiable natural Person that is protected from disclosure by statute, regulation, or otherwise is
entitled to protection from public disclosure.” (Stipulated Protective Order ¶ 19(a).) Highly
confidential materials are those the producing party “reasonably believes contains or reflects
trade secrets, ‘know-how,’ customer information, financial and marketing information, or other
competitively sensitive commercial information (including, but not limited to, cost information,
pricing, or sales information), the disclosure of which to another Party or non-party would create
a substantial risk of causing the Producing Party to suffer a significant competitive or
commercial disadvantage.” (Id. ¶ 19(b).) It is the producing party’s burden “to demonstrate the
appropriateness of its confidentiality designation.” (Id. ¶ 21(b).)
9
McCormick characterizes the motion to unseal as being about “internal and confidential
business documents,” and distinguishes the arguments plaintiffs make on that basis, explaining
that it is easier to justify disclosure of a judicial opinion than confidential business documents.
(McCormick’s Opp. to Unseal at 7 n.3.) As a result, McCormick does not separately address
redactions in the briefs or the Fegan Declaration, though they are also the subject of plaintiffs’
motion to unseal.
9
secrets, ‘know-how,’ customer information, financial and marketing information, or other
competitively sensitive commercial information (including, but not limited to, cost information,
pricing, or sales information).” (Id. at 6.) McCormick repeats that “the documents in question
contain confidential and proprietary business information, the disclosure of which could harm
McCormick” (id. at 10) and which is not already public. (Id. at 6.) (But see infra note 3.)
By contrast, Wal-Mart has provided more detailed reasons to support the sealing of its
three documents—Fegan Declaration Exhibits 127–29 (ECF Nos. 157-31–157-33). For
example, Wal-Mart explains that these documents “contain highly sensitive information about
Wal-Mart’s internal processes and systems for executing product changes; the names of Wal-
Mart personnel who are involved in the aforementioned process; and the individuals with whom
Wal-Mart transacts [business].” (Id. at 2–3.) Moreover, Wal-Mart argues that if its “internal
processes are disclosed, competitors might be able to replicate or improve upon such processes
to Wal-Mart’s detriment.” (Id. at 3.) Wal-Mart uses the Keeter Declaration to support the
contention that “disclosure of these materials might cause Wal-Mart to suffer a significant
competitive or commercial disadvantage.” (Id. at 6.)
Plaintiffs characterize both oppositions as insufficient and conclusory and argue that
defendants have failed to overcome the presumptive public right of access to judicial records.
(Pls.’ Reply to Defs.’ Opps. to Unseal at 1, ECF No. 181 (“Reply to Unseal”).)
IV. The Court’s Conclusions
Having reviewed the relevant unredacted documents and the parties’ arguments, and for
the reasons discussed herein, the Court concludes that many of defendants’ confidentiality
designations have resulted in overbroad redactions that do not comport with the presumptive
right of public access. Accordingly, the Court will grant in part and deny in part plaintiffs’
10
motion to unseal (ECF No. 174) and one of plaintiffs’ motions to seal (ECF No. 157), but will
deny the remaining motions to seal (ECF Nos. 160, 163, 172, 177, and 179).
Specifically, the Court will require the unsealing of the pleadings related to class
certification, plaintiffs’ motion to unseal, and defendants’ motion to exclude. With respect to the
Fegan Declaration, the Hester Declaration, the Levy Report, the Johnson Report, and all Levy
Deposition Excerpts, the defendants will be required to file, by June 29, 2018, these documents
with limited redactions and more detailed justifications of the proposed redactions. Finally, the
Court will deny without prejudice plaintiffs’ motion to unseal (ECF No. 174), insofar as it relates
to Fegan Declaration Exhibits 101–143, to be revisited after the underlying motion for class
certification has been resolved.
ANALYSIS
I. GOVERNING PRINCIPLES OF LAW
As this Court has explained previously, see In re McCormick, 2017 WL 2560911, at *1,
there is a “strong presumption in favor of public access to judicial proceedings.” EEOC v. Nat’l
Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996) (quoting Johnson v. Greater Se. Cmty.
Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991)). “This right extends to judicial records[;]
. . . whether something is a judicial record depends on ‘the role it plays in the adjudicatory
process.’” In re Fort Totten Metrorail Cases, 960 F. Supp. 2d 2, at 6 (D.D.C. 2013) (quoting
United States v. El-Sayegh, 131 F.3d 158, 163 (D.C. Cir. 1997)). “A court proceeding . . . is in
its entirety and by its very nature a matter of legal significance; all of the documents filed with
the court . . . are maintained as the official ‘record’ of what transpired.” Wash. Legal Found. v.
11
U.S. Sentencing Comm’n, 89 F.3d 897, 906 (D.C. Cir. 1996). “Indeed, the meaning and legal
import of a judicial decision is a function of the record upon which it was rendered.” Id.
In “cases involving motions to seal or unseal judicial records, the Hubbard test . . . serves
. . . [to] ensure[] that we fully account for the various public and private interests at stake.”
Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 666 (D.C. Cir. 2017). Under
United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980), courts consider six factors that may act
to overcome the presumption in favor of public access to judicial proceedings:
(1) the need for public access to the documents at issue; (2) the extent of previous
public access to the documents; (3) the fact that someone has objected to
disclosure, and the identity of that person; (4) the strength of any property and
privacy interests asserted; (5) the possibility of prejudice to those opposing
disclosure; and (6) the purposes for which the documents were introduced during
the judicial proceedings.
Nat’l Children’s Ctr., 98 F.3d at 1409 (citing Hubbard, 650 F.2d at 317–22).
Public access to judicial records is not limitless, however, and may be denied “to protect
trade secrets . . . and to minimize the danger of an unfair trial by adverse publicity.” Hubbard,
650 F.2d at 315; cf. Press-Enterprise Co. v. Super. Ct. of Cal., 464 U.S. 501, 510 (1984) (“The
presumption of openness may be overcome only by an overriding interest based on findings that
closure is essential to preserve higher values and is narrowly tailored to serve that interest.”).
“Protecting an entity’s ‘competitive standing’ through retained confidentiality in business
information has been recognized as an appropriate justification for restriction of public or press
access.” New York v. Microsoft Corp., No. 98-cv-1233, 2002 WL 1315804, at *1 (D.D.C. May
8, 2002) (quoting Nixon v. Warner Comms., 435 U.S. 589, 598 (1978)); see Metlife, 865 F.3d
at 671 (“For documents containing sensitive business information and trade secrets, those factors
often weigh in favor of sealing and . . . courts commonly permit redaction of that kind of
information.”).
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The burden to rebut the presumption of disclosure rests with the objecting party.
Grynberg v. BP P.L.C., 205 F. Supp. 3d 1, 3 (D.D.C. 2016). And, “a party seeking to seal court
documents must ‘come forward with specific reasons why the record, or any part thereof, should
remain under seal.’” Friedman v. Sebelius, 672 F. Supp. 2d 54, 58 (D.D.C. 2009) (quoting
Johnson, 951 F.2d at 1278).10
A. The Role of a Protective Order
“‘[T]he District Court cannot abdicate its responsibility to . . . determine whether filings
should be made available to the public’ by allowing the parties to control public access pursuant
to a protective order.” Aristotle Int’l, Inc. v. NGP Software, Inc., 714 F. Supp. 2d 1, 20 (D.D.C.
2010) (quoting Procter & Gamble v. Bankers Trust, 78 F.3d 219, 227 (6th Cir. 1996)); cf.
Gynber v. BP PLC, 205 F. Supp. 3d 1, 3 (D.D.C. 2016) (“Although confidentiality agreements
between private parties may weigh against disclosure, they do not dictate whether documents can
be filed under seal.”); United States v. ISS Marine Servs., Inc. 905 F. Supp. 2d 121, 141 (D.D.C.
2012) (“[T]he mere fact that a case was, at one time, placed under seal is not a reason, in and of
itself, to indefinitely maintain that seal and thus negate the public’s access to judicial records,
which the D.C. Circuit has described as ‘fundamental to a democratic state.’”) (quoting
Hubbard, 650 F.2d at 315 n.79).
Though defendants rely on the protective order to justify their confidentiality
designations, that order preserves only “legitimate proprietary and privacy interests” and protects
10
McCormick appears incorrectly to fault plaintiffs for failing to carry their burden. (See, e.g.,
McCormick Opp. to Unseal at 6; Wal-Mart Opp. to Unseal at 6); see also, United States v. ISS
Marine Servs., Inc. 905 F. Supp. 2d 121, 140–41 (D.D.C. 2012) (“It is not the Government’s
burden to proffer a need for public access; the burden is instead the respondent’s to demonstrate
the absence of a need for public access because the law presumes that the public is entitled to
access the contents of judicial proceedings.”).
13
only “confidential business and trade secret information . . . consistent with the public’s right of
access to the Court’s records and processes.” (Stipulated Protective Order ¶ 17.) Indeed, it
advises the parties not to “seek to file under seal any more of the papers than is reasonably
necessary to protect Confidential Information from disclosure.” (Id. ¶ 28.)
B. The Class Action Context
The parties argue over whether the presumption in favor of public access is heightened in
the class action context. The Third and Sixth Circuits have concluded, for example, that “[t]he
right of public access is particularly compelling . . . [where] many members of the ‘public’ are
also plaintiffs in the class action.” In re Cendant Corp., 260 F.3d 183, 193 (3d Cir. 2001); see
Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016) (“[I]n
class actions—where by definition some ‘members of the public are also parties to the [case]’—
the standards for denying public access to the record ‘should be applied . . . with particular
strictness.’”) (quoting Cendant, 260 F.3d at 194). The D.C. Circuit has not expressly embraced a
heightened standard, but the fact that a case is a class action is not irrelevant under Hubbard. By
applying the Hubbard factors, courts can assess whether and how class action status weighs in
evaluating the public interest in access to the judicial records. There “is a stronger presumption
of transparency in some judicial proceedings than in others,” Friedman, 672 F.2d at 57, and by
its nature, a class action may create a greater need for public access. See, e.g., Cochran v. Volvo
Grp. N. Am., LLC, 931 F. Supp. 2d 725, 730 (M.D. N.C. 2013) (noting that class actions offer
“public benefits” and that once certified, class actions “bind members of the class, even if they
are not named parties” and may “affect the rights of persons who are not parties to the case”).
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II. WHICH DOCUMENTS SHOULD BE UNSEALED
A. Class Certification Papers & the Motion to Unseal
i. Class Certification Pleadings
As described above, plaintiffs moved to unseal the class certification pleadings either
through their motion to unseal or by opposing defendants’ motions to seal. Plaintiffs also oppose
Wal-Mart’s motion to file under seal its opposition to the motion to unseal. The Hubbard factors
weigh heavily in favor of unsealing each of these pleadings.
Defendants make only conclusory arguments about the proprietary nature of the redacted
information in the class certification pleadings. To carry their burden under Hubbard,
defendants must specifically identify the commercially sensitive information contained in the
redactions and explain why its disclosure would harm their competitive standing.11 See, e.g.,
R&R, United States v. Aetna Inc., No. 16-cv-01494 (JDB), 2016 WL 8739257, at *4 (D.D.C.
Dec. 4, 2016) (summarizing defendant’s declaration which asserts which exhibits contain “core
sensitive commercial information,” describes the information specifically, and explains the type
of harm defendant would suffer if it were disclosed). In Friedman v. Sebelius, plaintiffs asked
the court “to maintain a blanket seal of the case rather than requesting only that the allegedly
damaging portions of the record remain under seal—despite the fact that the purported harm
11
McCormick makes some effort to argue that information in its opposition to class certification
derived from the Hester Declaration is “confidential business information regarding the sourcing
and density of McCormick pepper, packaging processes and strategy, and historical filling
practices.” (McCormick’s Reply to Seal Opp. to Class Cert. at 4.) The Hester Declaration may
contain some sensitive business information, but the Court remains skeptical that the same
argument applies with equal force to McCormick’s opposition. By way of example, the fact that
“there are various types of black pepper” is not a business secret nor is the fact that weight and
volume are not always precisely correlated. (See Opp. to Class Cert. at 4.) In other words,
McCormick’s redactions are overbroad. Moreover, McCormick has not identified in its
opposition the specific language that reveals proprietary information.
15
[would] be caused by the release of only a few documents in the record.” 672 F. Supp. 2d at 58.
Here, defendants fail to specifically identify commercially sensitive information, but instead,
they make overbroad requests to maintain information in confidence that is relevant to the
Court’s decision-making, and which should therefore be presumptively accessible to the public.
Based on the record before it, the Court concludes that the Hubbard factors favor
disclosure of the class certification pleadings. The first factor is the need for public access to the
documents at issue. Pleadings are the clearest expression of relevant evidence and
argumentation on any given disputed issue and necessarily influence a Court’s decision. See
Metlife, 865 F.3d at 668 (“Without access . . . it is impossible to know which . . . materials
persuaded the court and which failed to do so.”). The second factor considers prior public
access. See Hubbard, 650 F.2d at 318. Some redacted information is already available through
the Court’s prior opinion. For example, the motion for class certification quotes extensively
from previously disclosed language. See, e.g., In re McCormick & Co., Inc., Pepper Prods.
Mktg. & Sales Practices Litig., 275 F. Supp. 3d 218, 222 (D.D.C. 2017) (“McCormick also
‘feared that a unilateral reduction [in quantity of pepper in a tin] might be ‘deceptive and could
very well back fire on us.’”); (June 13, 2017 Mem. Op., ECF No. 148 at 2 (“Plaintiffs alleged
that ‘[s]ince 2010 the cost of raw black pepper has increased by approximately 500%.’
. . . Although the containers noted the new weight, they were the ‘exact same size’ as before.”).
Defendants make no effort to distinguish what is publicly available from what is not. So, factors
one and two weigh in favor of disclosure. By virtue of defendants’ opposition to the motion to
unseal and various motions to seal, the third factor, which considers the identity of a party
objecting to disclosure, weighs in favor of closure. Hubbard, 650 F.2d at 320.
16
Hubbard’s fourth factor considers the strength of the property and privacy interests
asserted in the class certification papers, id., and points in favor of disclosure in large part
because neither defendant gives any reason why particular redactions in the pleadings are
necessary. The fifth “considers whether disclosure of the documents will lead to prejudice in
future litigation to the party seeking the seal.” Friedman, 672 F. Supp. 2d at 60. Wal-Mart does
not address this factor and McCormick argues that it favors McCormick “because there is no
prejudice to Plaintiffs.” (McCormick’s Opp. to Seal at 10.) The correct question is whether
defendants will be prejudiced in future litigation if the class certification pleadings are unsealed.
Nothing suggests defendants will be prejudiced. The sixth factor looks to “the purposes for
which the documents were introduced during the judicial proceedings.” Nat’l Children’s Ctr.,
98 F.3d at 1409. Though documents obtained through discovery “are afforded a stronger
presumption of privacy,” Friedman, 672 F. Supp. 2d at 61, briefing relating to a potentially
dispositive motion that is intended to play a crucial role in a court’s analysis should be accessible
to the public unless an overriding privacy interest controls. See, e.g., Hardaway v. Dist. of
Columbia Housing Auth., 843 F.3d 973, 980–81 (D.C. Cir. 2016) (reversing the district court’s
denial of a motion to seal the “complaint, all medical records, and all non-dispositive materials,”
explaining that the “public has no need for access to documents that describe [plaintiff’s]
disability” and that “descriptions of [her] disability contained in any filing—including appellate
briefs and appendices—should be or remain redacted”). Accordingly, the fourth, fifth, and sixth
factors weigh in favor of disclosing the parties’ class certification briefing in full.
Given the weight of the Hubbard factors and defendants’ failure to identify any specific
information in the pleadings that might cause them competitive harm, the Court will unseal the
class certification pleadings.
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ii. Wal-Mart’s Opposition to the Motion to Unseal
Wal-Mart argues that its opposition to plaintiffs’ motion to unseal should remain redacted
because it refers to the existence of confidential materials. (See Wal-Mart Opp. to Unseal.) The
Court disagrees.
Arguing that it “has a strong privacy interest in the contents of the Opposition and might
be harmed competitively if it were disclosed to the public,” Wal-Mart cites the Keeter
Declaration for the idea that disclosure, “even by reference, poses a business risk.” (Id. at 4.)
But the Keeter Declaration states only that “[i]f the information contained in the four sealed Wal-
Mart documents were released to the public, Wal-Mart’s business and competitive standing
would likely be harmed. Competitors and suppliers would be able to gain insights . . . which
they could utilize to Wal-Mart’s competitive disadvantage.” (Keeter Decl. ¶ 5.) The law does
not support the proposition that mere references to the existence of information should be sealed.
Even in the cases Wal-Mart cites, courts do not redact non-substantive descriptions of the
confidential information. See Onex Credit Partners, LLC v. Atrium 5 LTD., No. 13-cv-5629,
2017 WL 4284490, at *3 (D.N.J. Sept. 27, 2017) (granting a motion to seal certain documents
and describing in specific terms what plaintiff sought to seal or redact); Gaudin v. Saxon
Mortgage Servs, Inc., No. 11-cv-01663, 2013 WL 2631074, at *2 (N.D. Cal. June 11, 2013)
(granting a motion to seal and describing generally the material to be sealed).
As the Supreme Court has noted, there is “a general right to inspect and copy public
records and documents, including judicial records and documents.” Nixon, 435 U.S. at 597.
While the Court finds Wal-Mart has shown that its four documents labeled “highly confidential,”
contain “sensitive commercial information, the disclosure of which could threaten Wal-Mart’s
competitive standing” (Wal-Mart’s Reply in Supp. of its Mot. for Leave to File Opp. to Pls.’
18
Mot. to Seal Under Seal at 2, ECF. No. 184 (“Wal-Mart’s Reply to File Opp. Under Seal”)), non-
substantive references to or general discussions of those documents are not similarly protected.
Cf. ISS Marine Servs., 905 F. Supp. 2d at 141 (“[R]espondent relies entirely on the privacy
interests that would be implicated by revealing the fact that it is the subject of some kind of
government investigation, but these nebulous privacy interests are unavailing.”).
Accordingly, Wal-Mart’s motion to seal (ECF No. 179) is denied and its opposition to the
motion to unseal, including exhibits,12 will be unsealed.
iii. Declarations and Reports
This category of documents consists of the Fegan Declaration, the Hester Declaration, the
Levy Report, and the Johnson Report. As explained herein, defendants have indiscriminately
redacted far more than is necessary to protect confidential information in each of these
documents; they have failed to identify the specific proprietary information that should remain
under seal and have failed to give particularized reasons for the withholdings. Without such a
showing, defendants cannot overcome the presumption in favor of public access. Therefore,
defendants will be required to refile these documents with limited redactions and an
accompanying supplemental memorandum of law, consistent with this Memorandum Opinion,
that justifies their withholdings.
a. The Fegan Declaration
Defendants offer little justification to support the sealing of the Fegan Declaration. For
many of the reasons described above in relation to the class certification pleadings, the Court
finds that the redactions of the Fegan Declaration are far greater than are necessary.
12
The Court notes that the information redacted in the attached exhibits does not reveal
confidential information, and that the Klevorn Letter is already unsealed elsewhere on the
docket. (See McCormick Opp. to Seal Ex. C, ECF No. 176-4.)
19
Two differences, however, place the Fegan Declaration in a category separate from the
pleadings. First, while the Fegan Declaration provides support for plaintiffs’ reasoning and
arguments in favor of class certification, it may be less crucial to the Court’s certification
decision. Second, though both defendants defend the Fegan Declaration redactions without
specificity, the declaration draws from the attached exhibits extensively, portions of which
arguably contain confidential information.
Some of the Fegan Declaration redactions are obviously overbroad. (Compare In re
McCormick, 275 F. Supp. 3d at 222 (“McCormick also ‘feared that a unilateral reduction [in
quantity of pepper in a tin] might be ‘deceptive and could very well back fire on us[,]’ since the
private label competitors would likely ‘advertise ‘10% more vs [McCormick]’’ and thus ‘point[]
this deception out to our loyal branded customer.’”) with Fegan Decl. ¶ 37 (beginning with
exactly the same sentence).); see also Berliner Corcoran & Rowe LLP v. Orian, 662 F. Supp. 2d
130, 135 (D.D.C. 2009) (weighing the fifth Hubbard factor and commenting that defendants’
proposed redacted statements “do not reveal any substantive information that is not already
discernable from other, public portions” of the opinion). Other portions appear to contain
proprietary information that might harm defendants’ competitive standing if disclosed, but
redactions must be narrowly tailored and specifically supported.13 See, e.g., In re Document
Techs. Litig., 282 F. Supp. 3d 743, 747 (S.D.N.Y. 2017) (“Documents may nonetheless be sealed
or redacted ‘if specific, on the record findings are made demonstrating that closure is essential to
13
Exhibit D to McCormick’s opposition to the motion to unseal is the index “listing each
document and providing a description of the document and the basis for the confidentiality
designation.” (McCormick Opp. to Unseal at 5.) This index is conclusory and not specifically
tailored to the information it seeks to redact in contrast to the description of the parties’ filings in
Apple Inc. v. Samsung Electronics Co., Ltd., 727 F.3d 1214, 1223–24 (Fed. Cir. 2013).
20
preserve higher values and is narrowly tailored to serve that interest.’”) (quoting Lugosch v.
Pyramid Co. of Onandaga, 435 F.3d 110, 120 (2d Cir. 2006)).
b. The Hester Declaration
The Hester Declaration, as noted above, was filed as an exhibit to the Schmitt
Declaration, which was in turn filed in support of McCormick’s opposition to class certification.
The Hester Declaration was, in other words, filed to oppose class certification in the same way
the Fegan Declaration was filed to support it.
McCormick explains that the Hester Declaration “contains confidential business
information regarding the sourcing and density of McCormick pepper, packaging processes and
strategy, and historical filling practices (not just for the relevant period)” (McCormick’s Reply to
Seal Opp. to Class Cert. at 4), and provides the Morse Declaration as support for its assertion that
“public disclosure of such information would be harmful to McCormick’s business.” (Id.)
While the Morse Declaration suffices to establish that the Hester Declaration contains
“confidential and proprietary business information [that] . . . would not be made available to the
public in the ordinary course of business” or shared with competitors (Morse Decl. ¶ 7), it does
not specifically identify that information. See In re Platinum & Palladium Commodities Litig.,
828 F. Supp. 2d 602, 603 (S.D.N.Y. 2011) (denying plaintiffs’ motion to file under seal without
prejudice because the redactions were overbroad); Pfizer, Inc. v. Teva Pharms. USA, Inc., Nos.
08-cv-1331, 08-cv-2137(DMC), 2010 WL 2710566, at *5–6 (D.N.J. July 7, 2010) (denying a
motion to redact a transcript where the requests to seal were ‘not supported by a brief or
particularized argument,’ were ‘overbroad and only supported by general allegations of harm,’
and left ‘unexplained how the disclosure of this type of information could result in a specific and
serious injury’).
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c. The Levy & Johnson Reports
McCormick does not object to unsealing the Levy Report so long as “any references . . .
to confidential materials be appropriately redacted.” (McCormick Opp. to Unseal at 3 n.2.)
Wal-Mart implies a similar position. (Wal-Mart Opp. to Unseal at 7.) The Johnson Report
refutes many of the findings in the Levy Report and McCormick discusses it only briefly. In
fact, where McCormick mentions the Johnson Report, it specifically cites only six paragraphs
and Appendix C as referring to potentially sensitive commercial information. (McCormick Opp.
to Unseal at 5 (describing confidential information in the Johnson Report at ¶¶ 22–23, 26–27,
30–31, and Appendix C).) While mere references to confidential materials cannot, as explained
above, be redacted, the Court will accept defendant’s offer to refile the reports with limited
redactions and, consistent with this Memorandum Opinion, particularized argument explaining
why the redactions are necessary.
B. Motion to Exclude
i. Pleadings
The parties have filed three pleadings in conjunction with defendants’ joint motion to
exclude Levy as an expert. Defendants suggest that these pleadings should remain redacted.
(McCormick’s Reply to Seal Opp. to Class Cert. at 2.) McCormick notes that the Hester
Declaration is referred to twice in the motion to exclude (id. at 4), and argues that the three
redactions in defendants’ reply in support of the motion to exclude constitute information
derived from the Hester Declaration. (Defs.’ Mot. to File Reply to Mot. to Exclude Under Seal
at 1–2, ECF No. 177.) Otherwise, defendants offer no justifications for the redactions.
The same reasoning applies to these pleadings as applied to the class certification
pleadings. See In re Fort Totten, 960 F. Supp. 2d at 14 (explaining that the documents at issue
22
were “judicial records subject to the common law right of access because they . . . were filed
with the Court and were the subjects of judicial action”). Accordingly, the Court will unseal the
pleadings related to the motion to exclude.
ii. Levy Deposition Excerpts
The sealed excerpts of the Levy Deposition include the following pages as exhibits under
seal : 29–30, 40–41, 43, 51–60, 65–66, 74–77, 89–90, 108, 113, 115, and 120. As with the Levy
Report, McCormick does not object to unsealing the deposition excerpts “subject to the provision
that any references . . . to confidential materials be appropriately redacted.” (McCormick Opp.
to Unseal at 3 n.2.) Wal-Mart has not made clear its position as to the deposition excerpts.
Again, while mere references to confidential materials should not be redacted, defendants
shall file the deposition excerpts with limited redactions and particularized justifications for these
redactions.
C. Fegan Declaration Exhibits 101–143
Defendants argue that the company documents attached as Fegan Declaration Exhibits
101–143 should remain under seal. Although the Court does not find these arguments wholly
persuasive, at this stage the Court lacks the necessary information to apply the Hubbard factors
to these documents and will therefore deny plaintiffs’ motion to unseal as to the exhibits. See
R&R, Aetna Inc., 2016 WL 8739257, at *1 (“With respect to the first and final [Hubbard]
factors, namely, the need for public access to the documents at issue and the purposes for which
the documents were introduced during the judicial proceedings, the Special Master lacks
sufficient information to conclude that either factor outweighs the Defendants’ interests in
maintaining the confidentiality of these documents because the documents have not yet been
23
used at trial.”). Should it later become apparent that these documents are necessary to the
Court’s class certification decision, plaintiffs may renew their motion to unseal.
The Court is aware, however, that these exhibits include some information that will be
disclosed as a result of the Court’s other rulings herein. But these documents present a more
complicated question than do the pleadings and documents already discussed. First, significant
portions appear to include sensitive business information (see, e.g., Fegan Decl. Ex. 132, at 4),
while other portions are not proprietary. (See, e.g., Fegan Decl. Ex. 104, at 5–7 (copies of news
reports).) Second, much of the proprietary and non-proprietary information is interspersed—
especially in emails—such that redaction would be inefficient and ineffectual. See, e.g., Sullivan
v. Prudential Ins. Co. of Am., No. 2:12-cv-01173, 2012 WL 3783904, at *1 (E.D. Cal. Aug. 12,
2012) (finding that the parties’ joint representation that “the Administrative Record ‘is replete’
with personal identifying information . . . and that redacting such information would be too
burdensome, is considered sufficient to justify granting the parties’ request under the good cause
standard at this stage of the proceedings”); cf. Matter of Search of Office Suites for World &
Islam Studies Enter., 925 F. Supp. 738, 743–44 (M.D. Fla. 1996) (finding that “[r]edaction might
protect the parties named in the affidavits, however, it offers no shield against revealing the other
aspects of the Government’s investigation” and so maintaining the documents under seal for the
time being). Third, many of the documents refer to details of internal operations that may not be
revealing to a layperson’s eye, but may be of use to defendants’ competitors.
Finally, and importantly, disclosing original source documents, as opposed to pleadings
and declarations, may be of less value to public’s understanding of the judicial process. See
Hyatt v. Lee, 251 F. Supp. 3d 181, 185 (D.D.C. 2017) (concluding that “having reviewed
proposed redactions—including the Court’s rulings on dispositive motions—the Court notes that
24
[the first Hubbard] factor weighs heavily in favor of disclosing the Court’s orders and those
materials relied upon by the Court . . . [but] it does not weigh as heavily for disclosing
confidential patent information ancillary to the Court’s orders or the parties’ briefs”).
CONCLUSION
For the foregoing reasons, the Court will grant in part and deny in part plaintiffs’ motion
to unseal (ECF No. 174) and plaintiffs’ related motion to seal (ECF No. 157), and will deny the
remaining motions to seal (ECF Nos. 160, 163, 172, 177, and 179) as detailed in the Order
accompanying this Memorandum Opinion.
Specifically, the Court finds that the presumptive right of public access in pleadings
outweighs any privacy interest articulated by defendants. Accordingly, all of the pleadings
described above—related to class certification, plaintiffs’ motion to unseal, and defendants’
motion to exclude—will be unsealed. The Court will also require defendants to file narrowly
redacted or unredacted versions of the following documents: the Fegan Declaration, the Hester
Declaration, the Levy Report, the Johnson Report, and all Levy Deposition Excerpts. In other
words, none of these shall remain entirely under seal, and only narrowly tailored, specifically
supported redactions shall be permitted. In addition, the Court will grant motions to seal Fegan
Declaration Exhibits 101–143 (ECF Nos. 157-5 through 157-47), without prejudice to revisiting
that decision after the Court resolves the substantive motion to which these exhibits relate.
/s/ Ellen Segal Huvelle
ELLEN SEGAL HUVELLE
United States District Judge
Date: June 11, 2018
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