Opinion
Case No. 17cv205-MMA (MDD)
04-20-2020
AYA HEALTHCARE SERVICES, INC., and AYA HEALTHCARE, INC., Plaintiffs, v. AMN HEALTHCARE, INC., et al., Defendants.
GRANTING IN PART AND DENYING DEFENDANTS' MOTION TO FILE DOCUMENTS UNDER SEAL;
[Doc. No. 96]
GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO FILE DOCUMENTS UNDER SEAL;
[Doc. No. 123]
GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO FILE DOCUMENTS UNDER SEAL; AND
[Doc. No. 128]
GRANTING IN PART AND DENYING DEFENDANTS' MOTION TO FILE DOCUMENTS UNDER SEAL;
[Doc. No. 131]
Plaintiffs Aya Healthcare Services, Inc. and Aya Healthcare, Inc. (collectively, "Plaintiffs" or "Aya") and Defendants AMN Healthcare, Inc., AMN Healthcare Services, Inc., AMN Healthcare Services LLC, Medefis, Inc. ("Medefis"), and Shiftwise Inc. ("Shiftwise"), (collectively, "Defendants" or "AMN") move to file under seal certain documents and exhibits in connection with Defendants' motion for summary judgment and motion to exclude certain opinion testimony by Patricia G. Donohoe ("Daubert motion"). See Doc. Nos. 96, 123, 128, 131. Plaintiffs raised objections to Defendants' initial motion to seal (Doc. No. 96), see Doc. No. 102, and Defendants responded to those objections. See Doc. No. 105. Plaintiffs also raised objections to Defendants' confidentiality designations in connection with Plaintiffs' opposition to Defendants' motion for summary judgment. See Doc. Nos. 129, 130. The parties have provided declarations withdrawing some of their designations and supporting other designations. See Doc. Nos. 96, 101, 121, 127, 131, 139. Upon review of the parties' submissions, the Court finds these matters suitable for determination on the papers and without oral argument. See SD CIVLR 7.1.d.1; Fed. R. Civ. P. 78(b). For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Defendants' motions to file documents under seal (Doc. Nos. 96, 131) and GRANTS IN PART and DENIES IN PART Plaintiffs' motions to file documents under seal (Doc. Nos. 123, 128).
LEGAL STANDARD
Courts have historically recognized a "general right to inspect and copy public records and documents, including judicial records and documents." Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 n.7 (1978). "Unless a particular court record is one 'traditionally kept secret,' a 'strong presumption in favor of access is the starting point." Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). "The presumption of access is 'based on the need for federal courts, although independent—indeed, particularly because they are independent—to have a measure of accountability and for the public to have confidence in the administration of justice." Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)).
When a party moves to file under seal a motion or documents attached to a motion, the focus is on the underlying motion and whether it is "more than tangentially related to the underlying cause of action." Ctr. for Auto Safety, 809 F.3d at 1099. If the motion is more than tangentially related to the merits, like here, the movant must show compelling reasons for overcoming the presumption in favor of public access. See id. at 1096-99.
Generally, a party seeking to seal a judicial record can overcome the presumption in favor of access by "articulat[ing] compelling reasons supported by specific factual findings . . . that outweigh the general history of access and the public policies favoring disclosure, such as the public interest in understanding the judicial process." Kamakana, 447 F.3d at 1178 (citations omitted) (internal quotation marks omitted). "In turn, the court must 'conscientiously balance[ ] the competing interests' of the public and the party who seeks to keep certain judicial records secret." Id. at 1179 (quoting Foltz, 331 F.3d at 1135). "Compelling reasons must continue to exist to keep judicial records sealed." In re Midland Nat. Life Ins. Co. Annuity Sales Practices Litig., 686 F.3d 1115, 1119 (9th Cir. 2012) (citing Kamakana, 447 F.3d at 1179).
"What constitutes a 'compelling reason' is 'best left to the sound discretion of the trial court.'" Ctr. For Auto Safety, 809 F.3d at 1097 (quoting Nixon, 435 U.S. at 599). "Examples include when a court record might be used to 'gratify private spite or promote public scandal,' to circulate 'libelous' statements, or 'as sources of business information that might harm a litigant's competitive standing.'" Id. (quoting Nixon, 435 U.S. at 598-99). "The mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records." Kamakana, 447 F.3d at 1179 (citing Foltz, 331 F.3d at 1136).
D ISCUSSION
Defendants move to file under seal various exhibits in support of their motion for summary judgment and Daubert motion, as well as portions of their motion for summary judgment, reply memorandum in support thereof, Separate Statement of Undisputed Material Facts, Response to the Separate Statement of Undisputed Material Facts, Daubert motion, and reply in support thereof. See Doc. Nos. 96, 131. Plaintiffs also move to file under seal their opposition memorandum to Defendants' motion for summary judgment, exhibits submitted in support thereof, and memoranda objecting to certain of Defendants' confidentiality designations. See Doc. Nos. 123, 128.
1. Defendants' Motions to File Documents Under Seal (Doc. Nos. 96, 131)
Defendants move to file under seal three categories of information in exhibits submitted in connection with their motion for summary judgment and Daubert motion and in the motions themselves. Such categories are: (a) information that Defendants have designated as confidential, (b) purportedly confidential information from Staffing Industry Analysts ("SIA"), and (c) information that Plaintiffs have designated as confidential. Plaintiffs object to Defendants' motion to seal information to the extent Defendants seek to file under seal (1) Defendants' confidentiality and non-solicitation agreements with their employees, and (2) Defendants' contracts with other healthcare staffing agencies. See Doc. Nos. 102, 103, 106. Defendants responded to Plaintiffs' objections by (1) agreeing to de-designate references to confidentiality and non-solicitation agreements with employees that were previously filed publicly in state court proceedings, and (2) maintaining the propriety of their designations of contracts with other healthcare staffing agencies. See Doc. No. 105. The Court addresses each exhibit and source of information subject to Defendants' requests in turn.
a. Exhibit 1
Exhibit 1 is a contract memorializing an agreement between Defendants and Plaintiffs to terminate their "prior agreements" and extend certain services provided by Plaintiffs under such prior agreements. Defendants assert that the termination agreement is among those contracts properly designated by Defendants as "Confidential" or "Highly Confidential - Attorneys' Eyes Only" under the Protective Order because it, like the other designated contracts, contains "detailed, non-public, confidential information concerning AMN's commercial relationships, including its agreements with Aya and other third parties, its business dealings with Aya and other third parties, its contract negotiation and other business strategies." Doc. No. 96-1 at 3; see also Doc. No. 96-4 at 2. The Court finds that Defendants have failed to articulate compelling reasons to seal the termination agreement in its entirety. The fact that the parties have terminated their prior business relationships does not appear to warrant sealing, since this is a fact alleged by Plaintiffs publicly and is key to Plaintiffs' theory of retaliatory damages. See, e.g., Doc. Nos. 37 at 44, 64. Therefore, the Court cannot conclude that the strong presumption of public access to judicial records is outweighed here by Defendants' interest in maintaining secrecy over the terms of the termination agreement with Plaintiffs. While the parties may be able to articulate to the Court why discrete portions of the termination agreement should be sealed, it is not this Court's duty to speculate what those reasons might be. Kamakana, 447 F.3d at 1182 ("When sealing documents attached to a dispositive pleading, a district court must base its decision on a compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture.") (internal citation, quotation marks, and emphasis omitted). As such, the Court DENIES Defendants' request to seal Exhibit 1. However, this ruling is without prejudice to Defendants filing, if they so choose, a renewed motion no later than ten (10) business days from the date this Order is filed setting forth compelling reasons to seal portions of Exhibit 1.
b. Exhibit 2
Exhibit 2 is an "Associate vendor Agreement" between Defendants and Plaintiffs. Defendants assert that the agreement should be sealed because it, like the other designated contracts, contains "detailed, non-public, confidential information concerning AMN's commercial relationships, including its agreements with Aya and other third parties, its business dealings with Aya and other third parties, its contract negotiation and other business strategies." Doc. No. 96-1 at 3; see also Doc. No. 96-4 at 2-3 (stating that disclosure of such a contract would harm Defendants' competitive standing and have a chilling effect on Defendants' ability to negotiate the terms of future associate vendor agreements). The Court agrees that compelling reasons exist to seal this information. See In re Google Inc. Gmail Litig., No. 13-MD-02430-LHK, 2014 WL 10537440, at *5 (N.D. Cal. Aug. 6, 2014) (granting motion to seal Google's Apps contract because the specific terms constitute trade secrets that would cause Google competitive harm if disclosed publicly). Unlike the termination agreement discussed above, the associate vendor agreement between the parties is discussed specifically by Defendants' President of Professional Services and Staffing in a declaration as "reflect[ing] terms upon which AMN is willing to do business with its associate vendors" and other competitively sensitive business information, such as pricing and fill requirements. See Doc. No. 96-4 at 3. As such, the specific terms of the agreement constitute trade secrets that present a threat of competitive harm to Defendants if the terms are disclosed publicly. The Court GRANTS Defendants' request to seal Exhibit 2 and references thereto. For the reasons discussed in detail below, the Court overrules Plaintiffs' objection to Defendants' request to seal their associate vendor agreements and references thereto.
c. Exhibit 3
Exhibit 3 is a chart reflecting certain terms of the associate vendor agreements between the parties. The Court agrees that compelling reasons exist to seal Exhibit 3 and references thereto. The specific terms of Defendants' associate vendor agreements constitute trade secrets that, if disclosed, could cause competitive harm to Defendants. In re Google Inc. Gmail Litig., supra, 2014 WL 10537440, at *5. Thus, the Court GRANTS Defendant's request to seal Exhibit 3.
d. Exhibits 5, 6, and 18
Exhibits 5, 6, and 18 are various reports on statistics in the healthcare staffing industry by SIA. Defendants assert that the reports should be sealed because "SIA makes these reports and lists available for a fee and recipients of SIA materials agree to keep the materials confidential." Doc. No. 96-1 at 7; see also Doc. No. 96-4 at 4-5. The Court agrees that compelling reasons exist to seal the SIA reports and references thereto. See McMorrow v. Mondelez Int'l, Inc., No. 17-CV-2327-BAS-JLB, 2020 WL 406314, at *3 (S.D. Cal. Jan. 24, 2020) (granting motion to seal portions of reports that contain market research data by a third party market research company). Accordingly, the Court GRANTS Defendants' request to seal Exhibits 5, 6, and 18.
e. Exhibits A and B
Exhibits A and B to the Declaration of Amanda Fitzsimmons in support of Defendants' Daubert motion are excerpts of the report and deposition, respectively, of Plaintiffs' putative expert, Patricia G. Donohoe. Defendants assert that the Court should grant their motion to seal references made in Exhibits A and B to: (i) associate vendor agreements between Defendants and third parties and employee confidentiality and non-competition agreements, (ii) Defendants' vendor management agreements and managed service provider agreements, (iii) a settlement agreement and amendments thereto between Defendants and a third party ("Settlement Agreement"), and (iv) Defendants' other confidential and proprietary business documents and communications. Doc. Nos. 96-4 at 2; 96-1 at 3-7. The Court addresses these requests in turn.
i. Defendants' Associate Vendor Agreements and Employee Confidentiality and Non-Competition Agreements
Plaintiffs object to Defendants' motion to seal associate vendor agreements, affiliated vendor agreements, supplier agreements, and employee confidentiality and non-competition agreements. See Doc. Nos. 102, 106. Plaintiffs argue that the associate vendor agreements and references thereto should not be sealed because they are "non-negotiable, boilerplate" contracts, "which AMN has successfully prevailed on most of its competitors to accept without negotiation." Doc. Nos. 102 at 9-14; 106 at 1-2. Plaintiffs also argue that the confidentiality and non-competition agreements and references thereto should not be sealed because these agreements were previously disclosed publicly by Defendants in state court filings. See Doc. No. 7-8. Defendants responded to these objections by withdrawing its request to seal the portions of the Donohue Report that reference the provisions in Defendants' confidentiality and non-competition agreements with their employees. See Doc. No. 105 at 2. Defendants also argued that Plaintiffs' objections to the sealing of the various associate vendor agreements are meritless because the counterparties expect the agreements to remain confidential, and because the evidence cited by Plaintiffs does not show that most of Defendants' competitors know the terms in the agreements. See Doc. No. 105 at 2-4.
First, the Court agrees that the references in the Donohoe Report and deposition to provisions in Defendants' confidentiality and non-competition agreements with employees should not be sealed since such agreements were previously disclosed publicly by Defendants in prior court proceedings. See Fed. Trade Comm'n v. Qualcomm Inc., No. 17-CV-00220-LHK, 2018 WL 2317835, at *6 (N.D. Cal. May 22, 2018) (denying motion to seal documents already filed publicly on the court's docket). Accordingly, the Court DENIES Defendants' request to seal references in the Donohoe Report and deposition to Defendants' confidentiality and non-competition agreements with employees.
Second, the Court agrees with Defendants that compelling reasons exist to seal the associate vendor agreements, affiliated vendor agreements, and supplier agreements. Plaintiffs' argument that Defendants have successfully executed such agreements with various staffing agencies misses the mark. The counterparties to these agreements are aware of the terms embodied in their individual, respective agreements with Defendants, but that does not mean each of the counterparties actually know the terms embodied in Defendants' separate agreements with other healthcare staffing agencies. Nor does it follow that the contractual terms in these agreements do not constitute trade secrets that warrant sealing. Unlike the employee confidentiality and non-competition agreements, the agreements with healthcare staffing agencies have not been publicly disclosed. Thus, as discussed above, the contractual terms embodied in these agreements constitute trade secrets such that the agreements and references thereto should be sealed. See In re Google Inc. Gmail Litig., supra, 2014 WL 10537440, at *5. Accordingly, the Court overrules Plaintiffs' objection and GRANTS Defendants' request to seal references in the Donohoe Report and deposition to the associate vendor agreements, affiliated vendor agreements, and supplier agreements.
ii. Defendants' Vendor Management Agreements and Managed Service Provider Agreements
Defendants also request to seal references in the Donohoe Report to vendor management agreements and managed service provider agreements. Doc. Nos. 96-1 at 3-5; 96-4 at 2-3. Defendants assert that the information in these agreements is competitively sensitive business information, the disclosure of which would cause them irreparable harm because it would provide Defendants' competitors the terms and business practices with Defendants' clients and thereby give competitors an unfair competitive advantage. See Doc. 96-1 at 4. The Court agrees that compelling reasons exist to seal references to these agreements in the Donohoe Report and deposition. See In re Google Inc. Gmail Litig., supra, 2014 WL 10537440, at *5. The Court therefore GRANTS Defendants' request to seal portions of the Donohoe Report and deposition that reference Defendants' vendor management agreements and managed service provider agreements.
iii. Settlement Agreement
Defendants next request that references in the Donohoe Report and deposition to the Settlement Agreement with a third party be sealed. Defendants assert that the Settlement Agreement contains "competitively sensitive business information, the disclosure of which would . . . provide others in the market with information . . . regarding Defendants' terms and practices with respect to its relationships with third parties in settling disputes" and "deprive the [settling] parties . . . of the benefit of their bargain for confidentiality." Doc. No. 96-1 at 5; see also Doc. No. 96-4 at 3. The Court is convinced these are compelling reasons to seal references to the Settlement Agreement in the Donohoe Report and deposition. See San Diego Comic Convention v. Dan Farr Prods., No. 14-CV-1865 AJB (JMA), 2018 WL 2717880, at *1 (S.D. Cal. June 5, 2018) (granting motion to seal references to confidential settlement discussions); Brightwell v. McMillan Law Firm, No. 16-CV-1696 W (NLS), 2017 WL 5885667, at *1-2 (S.D. Cal. Nov. 29, 2017) (sealing communications regarding the terms of a settlement). The Court therefore GRANTS Defendants' request to seal portions of the Donohoe Report and deposition that reference the Settlement Agreement.
It appears Defendants also request that the Settlement Agreement itself be filed under seal, as Defendants were under the impression that they "identified [it] in Exhibit A" of the Henderson Declaration. Doc. No. 96-1 at 5. However, Exhibit A to the Henderson Declaration does not identify the Settlement Agreement, and therefore the Court only addresses Defendants' request to seal references to the Settlement Agreement in the Donohoe Report and deposition.
iv. Defendants' Other Confidential and Proprietary Business Documents and Communications
Defendants further seek to file under seal other confidential and proprietary business documents and communications referenced in the Donohoe Report. See Doc. No. 96-1 at 6. Defendants assert that such information includes "strategic documents and business review materials . . . relating to AMN's strategic objectives, competitive analyses, financial information, and other proprietary information." Id. In the Henderson Declaration, Defendants elaborate that such confidential information includes their responses to requests for information or for proposals from hospitals, strategic documents and business review materials, email correspondence between Defendants and third party clients or associate vendors concerning agreements and business dealings with these third parties, and "[o]ther reports prepared strictly for AMN's use." See Doc. No. 96-4 at 2-4. The Court agrees that compelling reasons exist to seal references in the Donohoe Report to Defendants' proprietary business records that detail sensitive financial terms, proprietary business strategies, and confidential negotiations and agreements with third parties. See In re Qualcomm Litig., No. 317CV00108GPCMDD, 2019 WL 1557656, at *3 (S.D. Cal. Apr. 10, 2019) (granting motions to seal "confidential business information of the parties, including trade secrets, proprietary business records, discussions of internal strategy, company dealings, and materials designated as 'Highly Confidential'"). Therefore, the Court GRANTS Defendants' request to the extent the Donohoe Report and depositions contain references to information detailing Defendants' sensitive financial terms, proprietary business strategies, and confidential negotiations and agreements with third parties.
f. Information Designated by Plaintiffs as Confidential
Defendants also request that the Court permit them to file under seal information designated by Plaintiffs as "Confidential" or "AEO." See Doc. Nos. 96-1 at 7-8; 131-1 at 1. Plaintiffs have submitted declarations withdrawing some of its prior designations and explaining the grounds for other designations of exhibits submitted by Defendants in support of their motion for summary judgment. See Doc. Nos. 101, 139. The Court has reviewed Plaintiffs' grounds for such designations in Exhibits 4, 6, 7, 8, 9, 11, 13, and 14 submitted by Defendants in support of their motion for summary judgment, and finds compelling reasons to seal references in the Exhibits 4, 6, 7, 8, 9, 11, 12, and 14 to Plaintiffs' customer names, sales revenues and financial records, names of Plaintiffs' employees, Plaintiffs' compensation arrangements with healthcare staffing professionals and associate vendors, and Plaintiffs' confidential business practices. See In re Qualcomm Litig., supra, 2019 WL 1557656, at *3 (granting motions to seal "confidential business information of the parties, including trade secrets, proprietary business records, discussions of internal strategy, company dealings, and related materials designated as 'Highly Confidential'"). Plaintiffs have modified their designations so that they are narrowly tailored to the aforementioned proprietary information, withdrawing some of their designations in Exhibits 4, 6, 7, 8, 9, 12, and 14, and all of their designations in Exhibit 13. Accordingly, the Court GRANTS Defendants' request to seal portions of Exhibits 4, 6, 7, 8, 9, 12, and 14 and DENIES Defendants' request to seal portions of Exhibit 13, in accordance with Plaintiffs' modified designations. See Doc. No. 101 at 2-3.
g. Defendants' Memoranda
Defendants' request that they be permitted to file under seal portions of their motion for summary judgment, Daubert motion, reply briefs in support of such motions, Separate Statement of Undisputed Material Facts, and Response to the Separate Statement of Undisputed Material Facts ("SS Response") that reference information that this Court finds warrants sealing. See Doc. Nos. 96-1 at 1-2, 9; 131 at 1-5. The Court GRANTS IN PART and DENIES IN PART Defendants' request in accordance with the Court's rulings herein concerning the underlying information. No later than ten (10) business days from the date this Order is filed, Defendants must file an appropriately redacted version of its motion for summary judgment, Daubert motion, reply briefs in support of such motions, Separate Statement of Undisputed Material Facts, and SS Response.
2. Plaintiffs' Motion to File Documents Under Seal (Doc. No. 123)
Plaintiffs request the Court's leave to file documents under seal in connection with their opposition to Defendants' motion for summary judgment. See Doc. No. 123. The categories of documents subject to Plaintiffs' motion to seal are Plaintiffs' own information designated as confidential, information designated by third parties as confidential, and information designated by Defendants as confidential. The Court addresses each category in turn.
a. Plaintiffs' Confidential Information
Plaintiffs request that the Court allow them leave to file under seal portions of the Declaration of Alan Braynin; the Declaration of Alexis Ogilvie; the Declaration of John Martins; Exhibits 3, 4, and 5 to the Declaration of Alan Braynin; Exhibit 1 to the Declaration of Jeff Pierson; Exhibits 1 and 2 to the Declaration of Alexis Ogilvie; and Exhibits 1 and 2 to the Declaration of Kylie Stein. See Doc. No. 119-1. The Court has reviewed the materials and hereby GRANTS IN PART and DENIES IN PART Plaintiffs' motion to seal this information. Specifically, Plaintiffs' requests, except with respect to Exhibit 4 to the Declaration of Alan Braynin, all concern Plaintiffs' financial data, customer names, settlement negotiations with Defendants, strategic business information, and employee information. For the reasons discussed above, the Court agrees that there are compelling reasons to seal this information. See In re Qualcomm Litig., 2019 WL 1557656, at *3 (granting motions to seal "confidential business information of the parties, including trade secrets, proprietary business records, discussions of internal strategy, company dealings, and related materials designated as 'Highly Confidential'").
Separately, Plaintiffs appear to have mistakenly included Exhibit 4 to the Declaration of Alan Braynin. This exhibit is Defendants' employee confidentiality and non-competition agreement. See Doc. No. 108-92. The Court has already ruled that there is no compelling reason to seal references to such agreements, which were disclosed in public state court filings. Therefore, the Court DENIES Plaintiffs' request to file the document under seal, consistent with the Court's prior ruling.
b. Third Parties' Confidential Information
Plaintiffs also request that the Court allow them leave to file under seal certain information designated by third parties as confidential. The only reason for this request is because the parties have agreed to respect the confidentiality designations of third parties. See Doc. No. 123 at 2. The Court DENIES the request. An agreement to treat information designated by a third party as confidential under a protective order is insufficient to justify sealing the information. See Nalco Co., v. Turner Designs, Inc., No. 13-CV-02727 NC, 2014 WL 12642193, at *4 (N.D. Cal. Oct. 30, 2014) (denying motion to seal certain information designated by a third party as confidential under a protective order absent a supporting declaration); U.S. Ethernet Innovations, LLC v. Acer, Inc., No. C 10-3724 CW, 2013 WL 4426507, at *2 (N.D. Cal. Aug. 14, 2013) (same). However, this ruling is without prejudice to Plaintiffs filing, if they so choose, a renewed motion no later than ten (10) business days from the date this Order is filed setting forth compelling reasons, supported by declarations from the designating third parties, as to why such information should be sealed.
c. Defendants' Confidential Information
Plaintiffs further seek to file under seal certain information designated by Defendants as confidential. See Doc. No. 123. Defendants submitted a declaration addressing which exhibits in support of Plaintiffs' opposition should be sealed in whole or in part and withdrawing some designations. See Doc. No. 127. Plaintiffs objected to Defendants' designations. See Doc. Nos. 129, 130. The Court has reviewed the parties' submissions and GRANTS IN PART and DENIES IN PART Plaintiffs' motion to seal information designated by Defendants. The below chart sets forth the Court's rulings.
The Court has observed certain objections to purported designations of exhibits even where Defendants have not requested the information be sealed. See, e.g., Doc. No. 129-1 at 4 of 29 (stating reasons for not sealing Exhibit 20 even though Defendants have not designated the exhibit). The Court will not address such objections since there is no dispute between the parties.
| MarkhamDeclarationExhibit | Defendants'Designation | Court's Ruling on Plaintiffs' Motion to Seal |
|---|---|---|
| 7 | 55:1-4; 56:7-17 | GRANTED IN PART and DENIED IN PART. Thereis no compelling reason to seal 55:1-4, since thedeposition excerpt is unclear as to what is beingdiscussed as an alternative to "a locally available nurseto perform an assignment." There is, however, acompelling reason to seal 56:7-17 as non-public,proprietary information showing where Defendants doand do not serve a customer's hospitals. |
| 11 | 152:1-6;153:21-25 | GRANTED IN PART and DENIED IN PART. Thereis no compelling reason to seal 152:1-6, as thistestimony only concerns a vague question posed to thethird party. There is, however, a compelling reason forDefendants to request 153:21-25 be sealed, since thistestimony concerns proprietary information regardinghow Defendants pay their recruiter employees. |
| 13 | 5:7-17 | GRANTED. The designated portion is a chartreflecting the number of certain employees Defendantshave employed on average each year since January 1,2010. Plaintiffs fail to provide any support for its bareassertion that Defendants have "publicly disclosedcomparable information." On the other hand,Defendants have supported their designation with asworn statement from its President of ProfessionalServices and Staffing that disclosure of the statistics,which is non-public confidential information, would |
| provide competitors "with information they would nototherwise have about AMN's business and strategy."The Court agrees with Defendants that compellingreasons exist to seal Defendants' employee statistics. | ||
| 15 | EntireDocument | DENIED. Exhibit 15 is an internal script forDefendants' third-quarter earnings call. The Court findsthat Defendants have failed to provide a particularized,compelling reason as to how they would suffer prejudiceby disclosure of the internal script. It is insufficient thatDefendants merely view the internal script as"something that AMN considers and treats asconfidential." Doc. No. 127-4 at 6. |
|---|---|---|
| 16 | EntireDocument | GRANTED IN PART and DENIED IN PART. TheCourt agrees that the internal email between Defendants'employees does not warrant sealing in its entirety. Atmost, Defendants have a compelling reason to seal theemail to the extent it reveals Defendants' most valuablepartners and suppliers other than Plaintiffs. Asdiscussed above, the fact that Plaintiffs and Defendantshave terminated their prior business relationships ispublicly available information. Therefore, the Courtorders that the following statements concerningPlaintiffs be unredacted, while the remaining portionsmay be redacted.• At AMN0000444334: "For Aya, we need todiscuss with Landry/Ralph as they have hiredseveral (13 I think) of our internal team membersand therefore are looking at suspending them asan AV from what I understand."• At id.: "Yikes - didn't know that about Aya...theyhave been our largest for the past 2 years and Iknow they are probably on most of our MSPs atthis point..." |
| 17 | 494:14-15;496:125 | DENIED. The testimony designated by Defendantsconcerns the information discussed above that the Courtfinds should be unsealed. Defendants have not provideda compelling reason for sealing such information. |
| 19 | 184:18-25;193:1-25 | DENIED. The testimony designated by Defendantsconcerns Defendants' employee confidentiality and non-competition agreements. As discussed above,Defendants have admitted that these agreements were |
| filed publicly in state court proceedings and accordinglyhave withdrawn similar designations referencing theterms of the agreements. Therefore, the Court findsDefendants have failed to provide a compelling reasonfor sealing deposition testimony concerning theemployee confidentiality and non-competitionagreements. See Fed. Trade Comm'n v. Qualcomm Inc.,supra, 2018 WL 2317835, at *6. | ||
|---|---|---|
| 22 | 205:5-7;205:18-25;208:2-7; 277:1-23; 357:24-25;358:11-12;359:3-7; 403:1-6; 425:22-25 | GRANTED IN PART and DENIED IN PART. Thetestimony designated by Defendants at 205:5-7, 205:18-25, 208:2-7, 277:1-23, and 403:1-6 concernsDefendants' employee confidentiality and non-competition agreements. For the reasons noted above,the Court finds Defendants have failed to provide acompelling reason for sealing deposition testimonyconcerning the employee confidentiality and non-competition agreements. See Fed. Trade Comm'n v.Qualcomm Inc., supra, 2018 WL 2317835, at *6. Thetestimony designated by Defendants at 357:24-25 and358:11-12 concern the names of their customers. Forthe reasons discussed above with respect to Plaintiffs'customers' names, the Court finds that such testimonywarrants sealing. The testimony designated byDefendants at 359:3-7 and 425:22-25 concerns theplatform agreement for Medefis. The Court agrees withDefendants that there are compelling reasons to seal thisinformation as non-public information concerningDefendants' proprietary contractual agreements. See Inre Google Inc. Gmail Litig., supra, 2014 WL 10537440,at *5. |
| 26 | 350:16-25;351:1-8;351:12-25;352:1-10;353:21 | GRANTED. The testimony designated by Defendantsconcerns a customer's name and the purposes of theirassociate vendor agreement. For the reasons discussedabove with respect to customer names and the associatevendor agreements, the Court agrees that compellingreasons support the sealing of this information. |
| 27 | 143:1-15 | GRANTED as to 143:5-15. This testimony concerns athird party's associate vendor relationship withDefendants pursuant to their associate vendoragreement. For the reasons discussed above with respectto the associate vendor agreements, the Court agrees that |
| compelling reasons support the sealing of thisinformation. | ||
| 28 | 179:6-25;181:1-20;181:23-182:17 | GRANTED. The third party's testimony concerns thepurpose and terms of the associate vendor agreementwith Defendants. For the reasons discussed above withrespect to the associate vendor agreements, the Courtagrees that compelling reasons support the sealing ofthis information. |
|---|---|---|
| 29 | 192:13-193:10;193:11-194:7;194:8-195:12;195:23-196:3;196:10-197:9;197:10-19;197:20-23;198:8-20;198:21-199:3;199:5-10;199:11-13;199:14-200:3;200:4-201:6;201:11-14;201:23-202:11;202:12-15;202:16-203:7;203:8-13;203:14-25;204:1-7;204:14-20;205:9-206:16;206:21-209:3;209:21-25 | GRANTED. The testimony designated by Defendantsconcerns the purpose of terms of Defendants' associatevendor agreements. For the reasons discussed abovewith respect to the associate vendor agreements, theCourt agrees that compelling reasons support the sealingof this information. |
| 33 | 118:21-119:4119:10-25 | GRANTED. The testimony designated by Defendantsconcerns the commission that Medefis earns pursuant tothe terms of a platform agreement, which the Court hasalready ruled is sealable information. The designatedtestimony is also narrowly tailored to encompass onlythis confidential information. |
| 33.1 | 49:23-25 | GRANTED. The testimony designated by Defendantsconcerns the amount of travel nurses that Defendants |
| place via the Medefis platform—a statistic that isconfidential, non-public business information. | ||
| 34 | 138:1-11;139:1-10;139:21-140:14;140:15-19;141:11-142:12;142:24-143:9;143:12-147:12;147:20-151:25 | GRANTED. As Plaintiffs recognize, the designatedtestimony concerns Defendants' contract with a thirdparty customer and those parties' performance of theterms of that contract. For the reasons set forth above,the Court agrees there are compelling reasons to sealreferences to Defendants' contractual terms with theircustomers, including performance thereof. |
|---|---|---|
| 35 | EntireDocument | GRANTED. Exhibit 35 is a platform agreementbetween Medefis and a third party customer. For thereasons set forth above with respect to Defendants' non-public contracts, Exhibit 36 may be sealed. |
| 36 | EntireDocument | GRANTED. Exhibit 36 is a platform agreementbetween Medefis and a third party associate vendor. Forthe reasons set forth above with respect to Defendants'non-public contracts, Exhibit 36 may be sealed. |
| 37 | 301:1-304:1;304:10-309:25 | GRANTED. The testimony designated by Defendantsconcerns contractual performance pursuant to a platformagreement between Shiftwise and Plaintiffs. For thereasons set forth above with respect to Defendants' non-public contracts, Exhibit 37 may be sealed in accordancewith Defendants' designations. |
| 38 | EntireDocument | GRANTED. Exhibit 38 is a platform agreementbetween Shiftwise and a third party customer. For thereasons set forth above with respect to Defendants' non-public contracts, Exhibit 38 may be sealed. |
| 39 | EntireDocument | GRANTED. Exhibit 39 is a draft supplier serviceagreement for the Shiftwise platform. For the reasonsset forth above with respect to Defendants' non-publiccontracts, Exhibit 39 may be sealed. |
| 41 | AMN Depo.383:10-384:13;384:21-25 CHIDepo. 107:18-24 | GRANTED. The testimony designated by Defendantsconcerns the manner in which the billing rate is set for athird party customer pursuant to a platform agreementbetween that third party and Shiftwise. The manner inwhich Defendants set their billing rate for a customerpursuant to a confidential agreement between thoseparties is proprietary information that warrants sealing.See In re Google Inc. Gmail Litig., supra, 2014 WL10537440, at *5; In re Qualcomm Litig., supra, 2019 |
| WL 1557656, at *3. Plaintiffs' objection, that AlanBraynin spoke to this topic in his declaration, isOVERRULED. Mr. Braynin noted the commonsensepoint that Defendants and customers negotiate prices forthe Shiftwise platform, but provided no particular detailas to how the prices are negotiated and set. | ||
|---|---|---|
| 42 | 125:12-17;125:19-21;125:23-25;131:3-9;131:15-25;132:1-5;132:12;132:14-25 | GRANTED. The testimony designated by Defendantsconcerns the contractual terms of a Medefis platformagreement with a third party associate vendor. For thereasons set forth above with respect to Defendants' non-public contracts, the designated testimony in Exhibit 42may be sealed. |
| 43 | 63:21-64:23;65:19-25 | GRANTED. The testimony designated by Defendantsconcerns the contractual terms of a Medefis platformagreement with a third party customer. For the reasonsset forth above with respect to Defendants' non-publiccontracts, the designated testimony in Exhibit 43 may besealed. |
| 44 | 31:3-25; 36:3-13 | GRANTED. The testimony designated by Defendantsconcerns their contractual relationship with a third partycustomer. For the reasons set forth above with respect toDefendants' non-public contracts, the designatedtestimony in Exhibit 44 may be sealed. |
| 45 | EntireDocument | GRANTED. Exhibit 45 is a managed service provideragreement between Defendants and a third partycustomer. For the reasons set forth above with respect toDefendants' non-public contracts, the designatedtestimony in Exhibit 45 may be sealed. |
| 47 | 205:5-7;205:18- 206:25 | DENIED. The testimony designated by Defendantsconcerns how often they have sent cease and desistletters to former employees concerning their obligationsunder Defendants' employee confidentiality and non-solicitation agreements. Defendants have already agreedto withdraw its request to seal portions of the DonohoeReport referencing the provisions of such agreements.See Doc. No. 105 at 2. Defendants have not provided acompelling reason to support their designation oftestimony concerning cease and desist letters that theysent to enforce the terms of such agreements. |
| 50 | 88:10-89:4;89:14-90:10;93:14-94:11;94:12-13;94:22-95:1;95:3-25; 115:1-4; 115:5-9;115:19-116:8;116:9-11;116:12-117:22;117:23-118:14;118:25 | DENIED. The testimony designated by Defendantsconcerns an oral agreement between one of itsemployees and an employee of a third party healthcarestaffing agency. Defendants make a passing reference tothe agreement and correspondence concerning it in adeclaration as "contain[ing] detailed, non-public,confidential information concerning AMN's commercialrelationships . . .." Doc. 127-4 at 6. But this generalexplanation of Defendants' view of the oral agreementas confidential is not a compelling reason and providesno credible basis for concluding Defendants wouldsuffer prejudice or "irreparable harm" by disclosure ofreferences to the oral agreement. |
|---|---|---|
| 51 | EntireDocuments | DENIED. Exhibit 51 includes several email exchangesbetween employees from Defendants and a third partyhealthcare staffing agency concerning the oral agreementdiscussed directly above in Exhibit 50. For the samereasons provided above, Defendants have failed toprovide a compelling reason to seal Exhibit 51. |
| 52 | 102:1-17;102:19-103:19 | DENIED. The testimony designated by Defendantsconcerns the oral agreement discussed above in Exhibits50 and 51. For the same reasons provided above,Defendants have failed to provide a compelling reason toseal Exhibit 52. |
| 53 | EntireDocument | GRANTED. Exhibit 53 is the settlement agreementbetween Defendants and a third party healthcare staffingagency. For the reasons provided above with respect toDefendants' motion to seal references to the SettlementAgreement, the Court will allow the SettlementAgreement to be sealed in its entirety. |
| 54 | 247:1-2; 247:9-16; 247:17-21 | GRANTED IN PART and DENIED IN PART. As to247:9-16 and 247:17-21, the testimony concerns theSettlement Agreement discussed above with respect toExhibit 53. For the same reasons provided there, Exhibit54 may be sealed as to 247:9-16 and 247:17-21. Thedesignated testimony at 247:1-2 do not reference anyconfidential information and therefore does not warrantsealing. |
| 56 | 248:2-6;248:13; 249:4-10; 249:11-13; | GRANTED IN PART and DENIED IN PART.Except as to 248:13, 249:16, and 251:11, which do notreference any confidential information, the testimony |
| 249:16; 250:4-9; 250:14-19;250:22-251:3;251:11 andemailcorrespondence | designated by Defendants concerns contractualperformance of the Settlement Agreement discussedabove. For the same reasons set forth above, suchtestimony may be sealed.Plaintiffs correctly note that Defendants have notidentified the email correspondence that follows thedeposition testimony presented in Exhibit 56. Therefore,the Court must defer ruling on whether the informationmay be sealed. However, Defendants' oversight likelyresulted from Plaintiffs presenting the emailcorrespondence subsequent to the deposition testimony,as opposed to presenting the correspondence in aseparate exhibit. Accordingly, Defendant may designatethe correspondence and identify any compelling reasonfor sealing the same no later than ten (10) days from thedate this Order is filed. | |
|---|---|---|
| 57 | EntireAmendmentand HendersonDepo. 542:22-543:1; 543:5-13; 543:16-24 | GRANTED. Exhibit 57 includes an amendment to theSettlement Agreement between Defendants and a thirdparty healthcare staffing agency, as well as depositiontestimony concerning the amendment. For the reasonsset forth above, the amendment and references theretomay be sealed. |
| 77 | 527:1-529:8;529:12-25;531:1-16;531:22-24;532:2-15;532:21-22 | DENIED. The testimony designated by Defendantsconcern their communication with a third party customerregarding a disruption of services that may be due in partto a disagreement between Defendants and Plaintiffs.Defendants have not provided a particularized,compelling reason for sealing this information. |
| 78 | EntireDocument | DENIED. Exhibit 78 is email correspondence betweenemployees of Defendants and employees of a third partycustomer regarding a disruption of services that may bedue in part to a disagreement between Defendants andPlaintiffs. As noted above, Defendants have notprovided a particularized, compelling reason for sealingthis information. |
| 79 | 113:3-6;113:22-25;98:9-12; 98:14-99:6; 99:8- | DENIED. The testimony designated by Defendantsconcerns the oral agreement discussed above in Exhibits50, 51, and 52. For the same reasons provided above,Defendants have failed to provide a compelling reason toseal Exhibit 79. |
| 100:8; 100:23-25 |
3. Plaintiffs' Opposition Memorandum
Plaintiffs further request permission to file under seal portions of their opposition memorandum to Defendants' motion for summary judgment. See Doc. No. 123 at 2. The Court GRANTS IN PART and DENIES IN PART Plaintiffs' request. Plaintiffs must file under seal portions of their opposition memorandum in accordance with the Court's rulings on the parties' sealing requests herein.
4. Plaintiffs' Motion to File Documents under Seal (Doc. No. 128)
Plaintiffs additionally request permission to file under seal their Reply to Defendants' Arguments on Sealing Evidence and an accompanying Appendix A. See Doc. No. 128. The Court GRANTS IN PART and DENIES IN PART Plaintiffs' request. Plaintiffs must file under seal those portions of such filings that reference information that the Court has ruled herein warrants sealing.
5. The Donohoe and Rothman Reports
The parties have also requested permission to file under seal portions of the Donohoe and Rothman Reports as well as references thereto. See Doc. Nos. 96-1 at 3-4, 6-8; 123 at 2; 127-2 at 3; 131-1 at 4. Plaintiffs have not requested the Court's permission to file under seal portions of the reports that reference their purported confidential information, but Plaintiffs indicate they are prepared to de-designate the reports in accordance with the Court's ruling. See Doc. No. 106 at 3. The Court understands that only Defendants' designated information is referenced in the reports, and the Court has already ruled on Defendants' sealing requests with respect to such designated information. Therefore, the Court GRANTS IN PART and DENIES IN PART the parties' requests to file the reports and references thereto under seal. The parties must file the reports and references thereto under seal to the extent they reference information that the Court has concluded herein warrants sealing.
CONCLUSION
Based on the foregoing, the Court:
• GRANTS IN PART and DENIES IN PART Defendants' motion to file documents under seal (Doc. No. 96). Specifically, the Court GRANTS Defendants' motion with respect to Exhibits 2, 3, 4, 5, 6, 7, 8, 9, 12, 14, and 18. The Court also GRANTS Defendants' motion with respect to Defendants' request to seal references in their motion for summary judgment, Daubert motion, Defendants' Separate Statement of Undisputed Material Facts, Exhibit A (the Donohoe Report), and Exhibit B (the Donohoe deposition) to Defendants' associate vendor agreements, affiliated vendor agreements, supplier agreements, vendor management agreements, managed service provider agreements, Settlement Agreement, and proprietary business records that detail sensitive financial terms, proprietary business strategies, and confidential negotiations and agreements with third parties. The Court DENIES Defendants' motion with respect to Defendants' request to seal Exhibits 1 and 13 and references in Exhibit A (the Donohoe Report) and Exhibit B (the Donohoe deposition) to Defendants' confidentiality and non-competition agreements with employees. Defendants may file a renewed motion no later than ten (10) business days from the date this Order is filed setting forth compelling reasons to seal portions of Exhibit 1. Accordingly, the Court DIRECTS the Clerk of Court to FILE UNDER SEAL:
? Exhibit 2 (lodged as Doc. No. 97-3);
? Exhibit 3 (lodged as Doc. No. 97-4);
? Exhibit 4 (lodged as Doc. No. 97-5);
? Exhibit 5 (lodged as Doc. No. 97-6);
? Exhibit 6 (lodged as Doc. No. 97-7);
? Exhibit 7 (lodged as Doc. No. 97-8);
? Exhibit 8 (lodged as Doc. No. 97-9);
? Exhibit 9 (lodged as Doc. No. 97-10);
? Exhibit 12 (lodged as Doc. No. 97-12);
? Exhibit 14 (lodged as Doc. No. 97-14);
? Exhibit 18 (lodged as Doc. No. 97-15);
? Exhibit A (lodged as Doc. No. 97-17);
? Exhibit B (lodged as Doc. No. 97-18);
? Defendants' motion for summary judgment (lodged as Doc. No. 97). Defendants must file an appropriately redacted version of their motion for summary judgment consistent with the Court's ruling no later than ten (10) business days from the date this Order is filed;
? Defendants' Daubert motion (lodged as Doc. No. 97-16). Defendants must file an appropriately redacted version of their Daubert motion consistent with the Court's ruling no later than ten (10) business days from the date this Order is filed; and
? Defendants' Separate Statement of Undisputed Material Facts (lodged as Doc. No. 97-1). Defendants must file an appropriately redacted version of their Separate Statement of Undisputed Material Facts consistent with the Court's ruling no later than ten (10) business days from the date this Order is filed.
• GRANTS IN PART and DENIES IN PART Plaintiffs' motion to file documents under seal (Doc. No. 123). Specifically, the Court GRANTS Plaintiffs' motion with respect to the Declaration of Alan Braynin; the Declaration of Alexis Ogilvie; the Declaration of John Martins; Exhibits 3 and 5 to the Declaration of Alan Braynin; Exhibit 1 to the Declaration of Jeff Pierson; Exhibits 1 and 2 to the Declaration of Alexis Ogilvie; and Exhibits 1 and 2 to the Declaration of Kylie Stein. The Court also GRANTS Plaintiffs' motion with respect to specified portions of Markham Declaration Exhibits 7, 11, 13, 16, 22, 26, 27, 28, 29, 33, 33.1, 34, 37, 41, 42, 43, 44, 54, 56, 57, and 81 to Markham Declaration Exhibits 35, 36, 38, 39, 45, and 53. The Court DENIES Plaintiffs' motion with respect to Exhibit 4 to the Declaration of Alan Braynin and Plaintiffs' request to seal
information designated by third parties. Plaintiffs may file a renewed motion no later than ten (10) business days from the date this Order is filed setting forth compelling reasons, supported by declarations from the designating third parties, as to why such information should be sealed. The Court further DENIES Plaintiffs' motion with respect to specified portions of Markham Declaration Exhibits 7, 11, 16, 22, 54, and 56 and to Markham Declaration Exhibits 15, 17, 19, 47, 50, 51, 52, 77, 78, and 79. Accordingly, the Court DIRECTS the Clerk of Court to FILE UNDER SEAL:
? Declaration of Alan Braynin (lodged as Doc. No. 108-88);
? Declaration of Alexis Ogilvie (lodged as Doc. No. 108-97);
? Declaration of John Martins (lodged as Doc. No. 108-103);
? Exhibit 3 to the Declaration of Alan Braynin (lodged as Doc. No. 108-91);
? Exhibit 5 to the Declaration of Alan Braynin (lodged as Doc. No. 108-93);
? Exhibit 1 to the Declaration of Jeff Pierson (lodged as Doc. No. 108-102)
? Exhibit 1 to the Declaration of Alexis Ogilvie (lodged as Doc. No. 108-98);
? Exhibit 2 to the Declaration of Alexis Ogilvie (lodged as Doc. No. 108-99);
? Exhibit 1 to the Declaration of Kylie Stein (lodged as Doc. No. 108-107);
? Exhibit 2 to the Declaration of Kylie Stein (lodged as Doc. No. 108-108);
? Exhibit 7 to the Markham Declaration (lodged as Doc. No. 108-10);
? Exhibit 11 to the Markham Declaration (lodged as Doc. No. 108-14);
? Exhibit 13 to the Markham Declaration (lodged as Doc. No. 108-16);
? Exhibit 16 to the Markham Declaration (lodged as Doc. No. 108-19);
? Exhibit 22 to the Markham Declaration (lodged as Doc. No. 108-25);
? Exhibit 26 to the Markham Declaration (lodged as Doc. No. 108-29);
? Exhibit 27 to the Markham Declaration (lodged as Doc. No. 108-30);
? Exhibit 28 to the Markham Declaration (lodged as Doc. No. 108-31);
? Exhibit 29 to the Markham Declaration (lodged as Doc. No. 108-32);
? Exhibit 33 to the Markham Declaration (lodged as Doc. No. 108-36);
? Exhibit 33.1 to the Markham Declaration (lodged as Doc. No. 108-37);
? Exhibit 34 to the Markham Declaration (lodged as Doc. No. 108-38);
? Exhibit 35 to the Markham Declaration (lodged as Doc. No. 108-39);
? Exhibit 36 to the Markham Declaration (lodged as Doc. No. 108-40);
? Exhibit 37 to the Markham Declaration (lodged as Doc. No. 108-41);
? Exhibit 38 to the Markham Declaration (lodged as Doc. No. 108-42);
? Exhibit 39 to the Markham Declaration (lodged as Doc. No. 108-43);
? Exhibit 41 to the Markham Declaration (lodged as Doc. No. 108-45);
? Exhibit 42 to the Markham Declaration (lodged as Doc. No. 108-46);
? Exhibit 43 to the Markham Declaration (lodged as Doc. No. 108-47);
? Exhibit 44 to the Markham Declaration (lodged as Doc. No. 108-48);
? Exhibit 45 to the Markham Declaration (lodged as Doc. No. 108-49);
? Exhibit 53 to the Markham Declaration (lodged as Doc. No. 108-56);
? Exhibit 54 to the Markham Declaration (lodged as Doc. No. 108-57);
? Exhibit 56 to the Markham Declaration (lodged as Doc. No. 108-59);
¦ Defendant may designate the correspondence in Exhibit 56 to the Markham Declaration and identify any compelling reason for sealing the same no later than ten (10) days from the date this Order is filed;
? Exhibit 57 to the Markham Declaration (lodged as Doc. No. 108-60);
? Exhibit 81 to the Markham Declaration (lodged as Doc. No. 108-85); and
? Plaintiffs' opposition to Defendants' motion for summary judgment (lodged as Doc. No. 108). Plaintiffs must file an appropriately redacted version of their opposition to Defendants' motion for summary judgment consistent with the Court's ruling no later than ten (10) business days from the date this Order is filed.
• GRANTS IN PART and DENIES IN PART Plaintiffs' motion to file documents under seal (Doc. No. 128). Specifically, the Court GRANTS Plaintiffs' motion with respect to sealing portions of their Reply to Defendants' Arguments on
Sealing Evidence and an accompanying Appendix A to the extent such filings reference information that the Court has ruled herein warrants sealing. The Court DENIES Plaintiffs' motion with respect to sealing portions of such filings that do not reference information that the Court has ruled herein warrants sealing. Accordingly, the Court DIRECTS the Court of Clerk to FILE UNDER SEAL:
? Plaintiffs' Reply to Defendants' Arguments on Sealing Evidence (lodged as Doc. No. 129). Plaintiffs must file an appropriately redacted version of their Reply to Defendants' Arguments on Sealing Evidence consistent with the Court's ruling no later than ten (10) business days from the date this Order is filed; and
? Appendix A (lodged as Doc. No. 129-1). Plaintiffs must file an appropriately redacted version of their Appendix A consistent with the Court's ruling no later than ten (10) business days from the date this Order is filed.
• GRANTS IN PART and DENIES IN PART Defendants' motion to file documents under seal (Doc. No. 131). Specifically, the Court GRANTS Defendants' motion with respect to sealing portions of their reply in support of their motion for summary judgment, reply in support of their Daubert motion, the Rothman Report, and SS Response to the extent such filings reference information that the Court has ruled herein warrants sealing. The Court DENIES Defendants' motion with respect to sealing portions of such filings that do not reference information that the Court has ruled herein warrants sealing. Accordingly, the Court DIRECTS the Court of Clerk to FILE UNDER SEAL:
? Exhibit 6 (lodged as Doc. No. 132-2);
? Defendants' reply in support of their motion for summary judgment (lodged as Doc. No. 132). Defendants must file an appropriately redacted version of their reply in support of their motion for summary judgment consistent with the Court's ruling no later than ten (10) business days from the date this
Order is filed;
? Defendants' reply in support of their Daubert motion (lodged as Doc. No. 132-4). Defendants must file an appropriately redacted version of their reply in support of their Daubert motion consistent with the Court's ruling no later than ten (10) business days from the date this Order is filed; and
? Defendants' SS Response (lodged as Doc. No. 132-3). Defendants must file an appropriately redacted version of their SS Response consistent with the Court's ruling no later than ten (10) business days from the date this Order is filed.
Consistent with this District's Electronic Case Filing Administrative Policies and Procedures Manual, if a "motion to seal is denied, the document will remain lodged under seal without further consideration absent contrary direction from the Court." Accordingly, with respect to the exhibits that the Court has found do not meet the compelling reasons standard, the parties may either: (1) take no action and the Court will not consider those exhibits in ruling on the pending dispositive motions; or (2) re-file the exhibits on the public docket, in which case the Court will consider the exhibits in ruling on the pending dispositive motions. If the parties choose to re-file the exhibits publicly, they must do so no later than five (5) business days from the date this Order is filed.
IT IS SO ORDERED. Dated: April 20, 2020
/s/_________
HON. MICHAEL M. ANELLO
United States District Judge