The Volokh Conspiracy

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Top Secret Stuffed Rainbow Poodles

Improvident sealing, plus zombie toddlers.


From Magistrate Judge Jeffrey Cole's decision Tuesday in Ty, Inc. v. Target Corp. (N.D. Ill.):

The plaintiff has filed what it terms a "renewed" motion to compel production of documents relating to the development of defendant's little stuffed rainbow poodle design. [Details omitted. -EV]

{It should be noted that the plaintiff filed a motion—which I granted "without objection"— to file much of its motion to compel under seal. The plaintiff claimed that the portions of the motion and supporting documents it was redacting were designated "Confidential" but never indicated why. As a result, words like "pink" or phrases such as "for example", "strategy documents", "line plans", "renderings or photographs", "line reviews" and similar innocuous words or phrases that could not rationally be argued to be confidential were redacted.

Arguments and allegations were redacted as well: they included "she had no role in the search for, identification of, or collection of materials potentially responsive to Ty's specific requests" or "she herself made no effort to search her emails or any relevant Target system or database.["] Longer passages, page after page, with nothing in any way confidential about then, were given similar secretive treatment, from something like "including documents and emails reflecting the product development of the Accused Design showing a prior pink poodle that MGS presented to Target as a second round sample" to a summary of a public court hearing.

But unfortunately, the Motion to Seal did not comport with applicable law on filing documents under seal. The federal courts are financed by the public and exist for the public good. Consequently, cases must be conducted in public to the maximum extent consistent with respecting trade secrets and other facts that should be held in confidence. Matter of Hussain, 866 F.3d 832, 835 (7th Cir. 2017) (a party hoping to seal documents must show good "reason to depart from the strong norm that judicial proceedings are open to public view."); Hicklin Engineering L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006); Motorola Sols., Inc. v. Hytera Commc'ns Corp., 367 F. Supp. 3d 813, 816 (N.D. Ill. 2019). Closed proceedings breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for law. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 595 (1980).

"The determination of good cause [to seal materials] cannot be elided by allowing the parties to seal whatever they want." Citizens First Nat. Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999). A party hoping to file materials in secret must justify the claim of secrecy and "analyze the applicable legal criteria or contend that any document … may … legitimately may be kept from public inspection despite its importance to the resolution of the litigation." Baxter Int'l, Inc. v. Abbott Labs., 297 F.3d 544, 546 (7th Cir. 2002). Neither side has done that here.

In hindsight, I improvidently granted the Motions to Seal. If the logic of the parties' positions were accepted, I think we would have to file this Opinion under seal if words like "pink" or "strategy document" or quotes and summaries from hearings are confidential….

Oh, and a fun passage unrelated to the motion to seal, but focusing on the motion dating back over two years:

Certainly, the age of the motion—it's a toddler by now, albeit a zombie toddler—and plaintiff's lethargy are remarkable and give the impression that the issues discussed in them were never terribly important to plaintiff or counsel. Plaintiff didn't even report the discovery dispute as ongoing in the mandatory status report of May 18, 2020. Rule 26(b) mandates that discovery—which has become a runaway train, Eggleston v. Chicago Journeymen Plumbers' Loc. Union No. 130, U. A., 657 F.2d 890, 901 (7th Cir. 1981)—a monster on the loose, A.H. Robins Co. v. Piccinin, 788 F.2d 994, 1013 (4th Cir. 1986)—be throttled by the concept of "proportionality." Courts are required by the Federal Rules of Civil Procedure to look at discovery requests with an eye toward "the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit."

This case is about a little, three-dollar, stuffed dog toy and the defendant selling $116,000 worth of the little dogs; so the amount in controversy is certainly small. The plaintiff, well aware of how that sounds, suggests that money isn't everything. And money is what drives most civil litigation in this country. Hence, the abstract over-arching principles alluded to in the plaintiff's motion cannot decide this case. If it were otherwise, a party would simply need to invoke the majesty and importance of the copyright (or similar) act to ensure victory. But "general propositions do not decide concrete cases." According to plaintiff's motion, plaintiff has received at least a number of the types of documents it claims the defendant has from a third party. So, one must ask if dragging this out for two years, nearly all of that delay due to the plaintiff, is worth it. And, given how slowly plaintiff has moved over the last two years, one has to wonder if the discovery at issue is really significant at all?