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Wood v. Robert Bosch Tool Corp.

United States District Court, E.D. Missouri, Eastern Division

December 2, 2016

DONALD WOOD, Plaintiff,
v.
ROBERT BOSCH TOOL CORPORATION, Defendant.

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE.

         Defendant[1] Robert Bosch Tool Corporation moves to seal unredacted volumes of the trial transcript [ECF No. 243], and requests the sealing of other portions of the record [ECF Nos. 216, 238, and 242], [2] including: numerous trial exhibits; trial testimony focused on those exhibits; the entire trial testimony of two witnesses, Eric Laliberte and Ralph Dammertz; and specified portions of other testimony. Defendant acknowledges the Court did not retain the trial exhibits, which "are in the custody of the parties' attorneys."[3] With respect to Mr. Dammertz's testimony, Defendant states it presented Mr. Dammertz's testimony by videotaped deposition, the deposition was not recorded during trial except to state "prior deposition testimony was presented, " and the transcript of that deposition is marked "confidential."[4]

         In support, Defendant refers the Court to the argument and case law in Defendant's memorandum supporting its pretrial motion to seal certain confidential material provided by third parties.[5] In the memorandum, Defendant requested the sealing of confidential material presented at trial under the common-law right of access and First Amendment right of access to judicial records.

         Plaintiff Donald Wood opposes Defendant's post-trial motions to seal on the ground that Defendant's request is overbroad. Plaintiff further argues Defendant has not demonstrated a basis for sealing records under the common-law right of access to judicial records and has not established good cause for sealing materials as required by Local Rule 83-13.05.

         I. Background

         This case arises out of hand injuries Plaintiff sustained while using one of Defendant's table saws with its blade-guarding features. The issues during discovery and trial focused on the table saw's actual and possible features for guarding against a user's physical contact with the saw's rotating blade. During discovery, the parties obtained confidential materials from SawStop, [6]other saw manufacturers, and related safety organizations regarding the development and feasibility of blade-guarding features that would reduce or eliminate injuries during use of a table saw. Defendant also shared with Plaintiff materials Defendant designated as confidential regarding its development and consideration of blade-guarding features. Prior to and during trial, Defendant successfully sought protection from public disclosure of SawStop's and Defendant's confidential materials. Defendant now seeks to maintain the protection with respect to trial exhibits and testimony.

         A. Pretrial agreed protective order

         The parties agreed to the terms of a protective order to preclude the public disclosure of confidential business-related materials they shared or received during discovery.[7] The Agreed Protective Order ("APO") defines "confidential materials" as

any documents, information or things that constitute, reflect or contain trade secrets or other non-public, proprietary or business-sensitive information or things, including, without limitation, confidential research, development, financial, corporate, or other commercial information belonging to or concerning a party or conveying party and that a party or conveying party designates as "CONFIDENTIAL" or "CONFIDENTIAL-2 . . . ."

         Under the terms of the APO, a party may designate as confidential "[d]ocuments, information and things produced by a party during the course of this litigation, including but not limited to responses to discovery requests and interrogatories"; "information disclosed at a deposition, including questions, testimony, documents or exhibits"; "motion papers, briefs, memoranda or any other papers filed or lodged with the Court and/or served on opposing counsel"; and information disclosed at a hearing. When a party invokes confidential status during a deposition, the party may ask the reporter to designate the relevant portion of the deposition transcript as confidential. Additionally, during a deposition, the party designating information as confidential "may exclude from the room any person who is not authorized" to receive the information under the agreed protective order. A party also "may designate information disclosed at a hearing" as confidential by asking "the Court [to] receive the information in camera and designate the transcript appropriately."

         For information designated as confidential, the APO provides that the information "shall not be disclosed to anyone other than this Court and the persons entitled access to such materials" under the terms of the APO. The APO expressly prohibits the disclosure to SawStop of information designated as "Confidential-2."[8]

         The APO permits use of the confidential information "solely for the purposes of preparing for and conducting this action." Specifically, the APO allows the parties to use the confidential information during pretrial preparation and proceedings, trial proceedings, and appellate proceedings for this and "Similar Cases." "Similar Cases" are "claims filed against [Defendant] by one or more of the attorneys representing Plaintiff in this case in which allegations are made that a [Defendant's] saw is defective or unreasonably dangerous." The parties may only use the confidential information for other purposes when "agreed to in writing by all parties to this action or authorized by order of the Court."

         While the APO does not "govern proceedings during trial, [it expressly] does [not] prohibit either party from seeking a protective order to govern proceedings during trial." The APO also sets forth requirements for challenging a designation of information as confidential, for modification of the order, and for the return or disposition at the termination of the litigation of materials protected by the order.

         B. Trial proceedings

         Prior to the start of trial, Defendant moved[9] to seal SawStop documents designated "Confidential - Attorneys' Eyes Only" filed during trial, as well as any part of the record discussing confidential SawStop documents.[10] Defendant further requested the Court to close proceedings to "the public, the press, and any employee of [Defendant]" when the confidential SawStop documents were discussed during trial.[11] In the motion, Defendant stated it "anticipate[d] that its expert witness, Peter Domeny, will discuss documents that are designated as 'Confidential - Attorney's Eyes Only' during his trial testimony."[12] At the final pretrial conference, the Court granted Defendant's pretrial motion to seal.[13]

         The parties agreed prior to trial that the Court would read a statement to the jury stating, "Ladies and Gentlemen, due to some earlier rulings by the Court, during certain testimony various people will leave the courtroom. You are not to consider this in your consideration of this case."[14]

         Before voir dire began, Defendant sought the same protection for confidential and proprietary information in documents and testimony addressing Defendant's "development of its flesh-detection saw."[15] In seeking protection, Defendant's counsel referenced the testimony of Eric Laliberte.[16] Defendant also asked the Court to seal the record to protect the above information contained in any transcript later ordered.[17] The Court orally granted Defendant's requests and directed Defendant to file a document reflecting the Court's decision.[18]

         During trial, Plaintiff presented the testimony of four witnesses: expert witness Darry Robert Holt, who testified for two days; Plaintiff; expert witness Kelly Mehler; and Plaintiff's wife.[19] Defendant presented three witnesses: Mr. Dammertz (by videotaped deposition), Mr. Laliberte, and Mr. Domeny, an expert witness who testified during two days.[20] The Court admitted one hundred of the parties' exhibits during trial.[21] The jury awarded Plaintiff $100, 000 in damages and found Plaintiff partially at fault on each claim.[22] The Court entered judgment in favor of Plaintiff in the total amount of $40, 000.00[23] and taxed costs in Plaintiff's favor.[24]Plaintiff filed and then withdrew a motion for new trial on damages.[25]

         Pursuant to Local Rule 83-7.02(B), on the day the jury reached its verdict, the Court returned to the parties the exhibits and deposition transcripts they had introduced during trial.[26]Later, a court reporter filed with the Court redacted and unredacted versions of Volumes I, II, and V of the trial transcript.[27] Those volumes encompass the testimony of Mr. Holt (Volumes I and II) and part of the testimony of Mr. Domeny (Volume V). The unredacted versions of those volumes are maintained under seal and the redacted versions of those volumes are not maintained under seal. The record does not include any redacted or unredacted version of any other volume of trial transcript.

         Neither party has filed a notice of appeal to date. Plaintiff has filed a satisfaction of judgment.[28]

         C. Pending post-trial motions to seal

         Defendant filed its first motion to seal after trial concluded. In the motion, Defendant asks the Court to seal forty-four exhibits, which are identified by number only. Defendant also requests the Court to seal the testimony related to those exhibits and the entire testimony of Mr. Laliberte and Mr. Dammertz.

         In its second motion to seal, Defendant designates for sealing specified portions of Volumes I, II, and V of the trial transcript, as well as forty-eight exhibits, which are identified by number only, including twenty listed in Defendant's first motion to seal. The redacted versions of Volumes I, II, and V of the trial transcript, which are available in the public record, comply with Defendant's designation for sealing portions of those volumes.

         For its third motion to seal, Defendant asks the Court to seal identified portions of Volumes III, IV, and VI of the trial transcript, as well as Mr. Dammertz's testimony and seventy-nine exhibits, including sixty-four exhibits listed in Defendant's first two motions to seal. Defendant notes Mr. Dammertz's prior deposition testimony was presented at trial by playing the videotaped recording of the deposition testimony and was not recorded by the Court during trial, the transcript for this deposition was marked "confidential, " and the transcript "will continue to be treated as confidential by the parties." Additionally, Defendant acknowledges the parties retained their trial exhibits and would protect the confidential nature of listed trial exhibits because they were marked as "confidential" when they were produced during discovery.

         In its fourth motion to seal, Defendant states it anticipates the filing of redacted versions of Volumes III, IV, and VI of the trial transcript. Defendant asks the Court "to seal the unredacted trial transcript in all volumes and to allow access only to the redacted trial transcripts." The record does not yet include Volumes III, IV, and VI of the trial transcript.

         For legal principles and argument supporting its four post-trial motions to seal, Defendant refers to the memorandum it filed in support of its pre-trial motion to seal SawStop documents.[29]In that memorandum, Defendant discusses the common-law and First Amendment rights of access to judicial records and documents.

         Plaintiff opposes Defendant's post-trial motions to seal on the ground that Defendant seeks protection of materials beyond the confidential SawStop documents. Plaintiff does not object to the continued protection of the confidential SawStop documents. Citing IDT Corp. v. eBay, 709 F.3d 1220 (8th Cir. 2013), Plaintiff urges Defendant has not demonstrated a basis for sealing records other than the SawStop documents under the common-law right of access to judicial records. Plaintiff also argues Defendant has not established "good cause" for sealing the materials under Local Rule 83-13.05.

         II. Discussion

         A. Right of access to judicial records and files

         1. Common-law right of access ...


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