United States District Court, E.D. Pennsylvania
MEMORANDUM RE MOTION CONCERNING CONFIDENTIALITY DESIGNATIONS
MICHAEL M. BAYLSON, District Judge.
In this action for copyright infringement, defendants seek to retain confidentiality of portions of deposition testimony under this Court's Umbrella Protective Order (ECF 37), by filing a motion following a dispute between the parties (ECF 15). Plaintiff challenges the confidentiality designations and Defendants filed a motion to confirm the confidentiality designations under the umbrella protective order (ECF 68). The Court held a hearing on February 5, 2014.
I. Factual and Procedural Background
This Court issued an Umbrella Protective Order in this copyright infringement case on May 8, 2013. Both plaintiff and defendants agreed on the propriety and principal terms of this Order, although disputed some minor details. The Protective Order provides for counsel to prevent disclosure of discovery materials by designating a document "Confidential Information" when a "party has determined in good faith [that it] implicates common law and statutory privacy interests of confidential information." (ECF 37). The Order lists the following as examples of confidential information:
non-public confidential proprietary data, non-public confidential proprietary business information, and non-public confidential research, development, personnel or commercial information that the designating party has taken reasonable steps to keep secret, the disclosure of which would leave to competitive, commercial, or economic harm.
Defendants designated portions of depositions of corporate-designees Leonard Behnke and Rachel Norton as confidential, contending the testimony revealed confidential business information that had never been publicly disclosed. Plaintiff objected to the designations.
Defendants have the burden under the Order of satisfying the Court of the propriety of confidentiality. The actual testimony has been filed under seal.
II. Parties' Arguments
Defendants contend testimony regarding an internal "process" would reveal confidential information to competitors. Defendants contend this information would harm McGraw-Hill "by providing its competitors and vendors with insights into McGraw-Hill's internal decision-making processes and future corporate conduct." Tiska Decl. at ¶ 10.
Plaintiff argues the testimony is not confidential information that could result in harm to Defendants. Plaintiff contends the information Defendants seek to protect is not a trade secret, company research, development or commercial information. Plaintiff further argues that Defendants have failed to show disclosure would result in cognizable harm because they have failed to show how the information could be used by competitors to its harm. Plaintiff concludes Defendants have failed to show good cause to designate this testimony as confidential.
"Courts have inherent power to grant orders of confidentiality over materials not in the court file." Pansy v. Borough of Stroudsburg , 23 F.3d 772, 785 (3d Cir. 1994). The party seeking to enforce confidentiality bears the burden to show there is good cause by establishing "disclosure will work a clearly defined and serious injury to the party seeking closure.
This Court notes that in most of the Third Circuit decisions that the parties have cited involved some aspect where the public interest or governmental interest were paramount. In Pansy, the issue concerned newspaper access to certain affairs of public agencies. 23 F.3d at 786 (finding "privacy interests are diminished when the party seeking protection is a public person subject to legitimate public scrutiny"). In E.E.O.C. v. Kronos Inc., there were issues about possible destruction of government documents. 620 F.3d 287, 302 (3d Cir. 2010) ("[T]here is a strong presumption against entering an order of confidentiality whose scope would prevent disclosure of information that would otherwise be accessible under a relevant freedom of information law."). "Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not support a good cause showing." Id . (quoting Pansy , 23 F.3d at 786) ("The injury must be shown with specificity."). See also, Shingara v. Skiles , 420 F.3d 301, 307 (3d Cir. 2005) (finding a public official's interest in avoiding embarrassment was not a substantial privacy interest).
In general the Third Circuit cases require the following factors be considered to determine ...