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City of Greenville, Illinois, et al v. Syngenta

December 4, 2012

CITY OF GREENVILLE, ILLINOIS, ET AL.,
PLAINTIFFS,
v.
SYNGENTA CROP PROTECTION, INC., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Frazier, Magistrate Judge:

MEMORANDUMANDORDER

Before the Court is a motion to unseal documents and a motion to maintain confidentiality designations for documents filed under seal (Part of Doc. No. 165, Doc. No. 251). These motions were referred to the undersigned on June 12, 2012 (Doc. No. 302). This order resolves all remaining disputes about plaintiffs' response to the defense motion to dismiss for lack of jurisdiction (Doc. No. 112) and the exhibits supporting that response.

I. Procedure

The Court has evaluated information regarding the sealed documents submitted by the parties and interveners, as well as all arguments in support of and in opposition to these motions, along with Judge Gilbert's discussions, rulings, and Orders. The Court will assume that all who read this Order are familiar with Seventh Circuit jurisprudence pertaining to the good cause standard for maintaining documents under seal, which has been discussed at length in prior orders and is not repeated here. The Court reviewed each of the remaining transcript excerpts and sealed documents in light of authorities cited and justifications offered as good cause for keeping the material secret in order to avoid anticipated prejudice to the defendants. Where supporting details were sparse, reasonable efforts were made to ascertain a context in which the justifications offered could be fairly evaluated. To the extent the justifications offered were well-supported, the Court balanced those interests with the general public's interest in open and transparent judicial proceedings and decision-making. In performing these tasks, the Court considered and weighed a variety of factors, including: information about the individuals who created or authored the documents, information about the individuals who received the documents, circumstances surrounding the creation of documents, information revealing the steps taken to restrict distribution beyond the intended recipients or to protect the documents from outside access, information demonstrating that certain content could create a commercial advantage, information demonstrating that public disclosure might give other commercial entities a competitive edge, and information explaining how particular content has been used by the defendants or will be used in the future. Deposition transcripts are discussed as a group. The remaining discussion has been organized according to the particular good cause justifications offered by the defendants.

II. Excerpts from Deposition Transcripts

(1). Exhibit 2

Defendants suggest that there is good cause to seal portions of a transcript of deposition testimony taken from Mr. Christoph Maeder on October 14, 2010. Specific justifications for sealing the listed portions of Mr. Maeder's deposition testimony were not offered. Rather, the Court was informed that someone had redacted "confidential information" from this transcript (Doc. No. 182-1 p. 2). In the absence of specific justifications, the Court reviewed all listed portions of the transcript in search of glaring or obvious reasons to maintain questions and/or responses under seal. None were found.

(2). Exhibit 3

Defendants suggest that there is good cause to seal portions of a transcript of deposition testimony taken from Dr. John Atkin on October 15, 2010. Specific justifications for sealing the listed portions of Mr. Atkin's deposition testimony were not offered. In the absence of specific justifications, the Court reviewed all listed portions of the transcript in search of glaring and obvious reasons to maintain questions or responses under seal. None were found

(3). Exhibit 6

Defendants suggest that there is good cause to seal portions of a transcript of deposition testimony taken from Mr. Peter Hertl on November 4, 2010. Specific justifications for redacting portions of Mr. Hertl's deposition testimony were not been offered. In the absence of specific justifications, the Court reviewed the listed portions of the transcript for glaring and obvious justifications supporting a finding of good cause. Two were found on page 77, lines 6 and 23. A question and a response on that page disclose Mr. Hertl's salary. Because Mr. Hertl is a witness and not a litigant in this proceeding, his salary remains his own private information. If disclosed to the public, the amount of Mr. Hertl's salary would not shed light on the rationale supporting any issue, argument, or judicial decision made in this case. Accordingly, statements disclosing the amount (and only the amount) of Mr. Hertl's salary will be maintained under seal.

(4). Exhibit 7

Defendants suggest that there is good cause to seal portions of a transcript of deposition testimony taken from Vernon Richard Hawkins on November 9, 2010. Specific justifications for redacting portions of Mr. Hawkins's deposition testimony were not offered. In the absence of specific justifications, the Court reviewed the listed portions of the transcript for glaring and obvious justifications supporting a finding of good cause. One was found, on page 7, line 21. A response discloses Mr. Hawkins's home address. Because Mr. Hawkins is a witness and not a litigant in this proceeding, his home address remains his private information. If disclosed the public, the address would not shed light on the rationale supporting any judicial decision in this case. Accordingly, testimony regarding Mr. Hawkins' street address(and not the city or state where he resides) will be maintained under seal.

(5). Exhibit 8

Defendants suggest that there is good cause to seal portions of a transcript of deposition testimony taken from Dirk Cooper Drost, PhD, on November 10, 2010. Specific justifications for redacting portions of Dr. Drost's deposition testimony were not offered. The Court reviewed the listed portions of the transcript for glaring and obvious justifications supporting a finding of good cause. None were found.

(6). Exhibit 9

Defendants suggest that there is good cause to seal portions of a transcript of deposition testimony given by Jason Fogden on November 11, 2010. Specific justifications for redacting portions of Mr. Fogden's testimony were not been offered. The Court reviewed the listed portion of the transcript for glaring and obvious justifications supporting a finding of good cause. None were found.

(7). Exhibit 11

Defendants suggest that there is good cause to seal portions of a transcript of deposition testimony taken from Janis McFarland on November 17, 2010. Specific justifications for redacting portions of Ms. McFarland's testimony were not offered (Doc. No. 182-1, p. 3). The Court reviewed the listed portions of the transcript for glaring and obvious justifications supporting a finding of good cause. None were found.

(8). Exhibit 365

This is an excerpt from a deposition transcript, taken in litigation filed in Texas state court in 2001. The testimony pertains to a shared services agreement, a line of credit agreement, and a cash sweep agreement. Specific financial information is not revealed, and the document does not reasonably permit the inference that the testimony was confidential and remains confidential or that public disclosure would likely create a commercial advantage or disadvantage.

III. Documents Disclosing a Trade Secret

Disclosure of a trade secret was briefly mentioned as a possible justification for maintaining information under seal (Doc. No. 182, p. 7). That specific justification was not offered with respect to any of the items remaining under seal (Doc. No. 182-1). To the extent disclosure of a trade secret is offered as a justification for a finding of good cause, this rationale has not been substantiated.

IV. Documents Disclosing Confidential Product Development

Defendants' justification for maintaining information regarding product development under seal is based on the decision in Bayer Healthcare, LLC v. Norbrook Laboratories, LTD., No. 08-953, 2009 WL 3444938 (E.D. Wisc. Oct. 23, 2009), where the Honorable Judge Randa sealed eight exhibits, including three exhibits found to disclose "confidential development and commercial information," including a list of distributors used by Norbrook for some products not at issue in that litigation. Because Judge Randa's decision is unreported, his decision is helpful but is not binding on this Court. Anderson v. Romero, 72 F.3d 518, 525 (7th Cir. 1995).

(1). Exhibit 1.

This is a 39-page summary of each of the 365 exhibits presented with plaintiffs' response to the motion to dismiss. The defendants have not directed the Court's attention to particular remarks revealing confidential information regarding products in development. The document itself does not permit a finding that the information revealed in the summary could be harmful to the defendants or could reasonably be expected to create an competitive advantage for other companies in the industry.

(2). Exhibit 19.

This appears to be a 57- page copy of presentation excerpts from 2001, when Syngenta AG was a relatively new company. More than ten years have passed since the document was created. The document itself does not indicate confidentiality, either at the time of creation or at present. The defendants have not pointed to information other than the document itself to show that the presentation excerpts reveal secret information about research and development or product development proposals. The Court declines to comb through the materials in an effort to find that information, if it exists. See Northwestern Nat. Ins. Co. v. Baltes, 15 F.3d 660, 662-63 (7th Cir. 1994)(judges are not archaeologists excavating masses of papers in search of tidbits).

(3). Exhibit 23.

This is a 42-page document from March, 2001, pertaining to a corn crop herbicide. Confidentiality cannot be ascertained from the exhibit itself and there is no supporting information demonstrating that the document as a whole or specific parts have been maintained in confidence for more than a decade. If particular statements within this document reveal secret information regarding products in development, the Court was not directed to that information.

(4). Exhibit 25.

This is a 1-page application pertaining to initial introduction of an active ingredient in 2001. Confidentiality cannot be ascertained from the exhibit itself and there is no supporting information demonstrating that the document as a whole or specific parts have been maintained in confidence for more than a decade. If particular statements reveal secret information about products still in development, the Court was not directed to that information.

(5). Exhibit 28.

This is a 40-page document of presentation excerpts regarding a corn crop herbicide. It appears that the presentation was made in 2001. Confidentiality cannot be ascertained from the exhibit itself and there is no supporting information demonstrating that the presentation excerpts have been maintained in confidence for more than a decade. If particular statements reveal secret information about products still in development, the Court was not directed to that information.

(6). Exhibit 59.

This is a 26-page document reflecting discussions and conclusions reached by a development committee at a meeting in August, 2002. On pages 21-22, there is a paragraph discussing circulation of information presented to and evaluated by the committee. The remarks reveal a goal of protecting some information from wider distribution in order to avoid a risk of harm to commercial interests. To the untrained, uneducated eye, this might be something of interest to business competitors, yet there is substantiation indicating why or how that might be so. No attempt was made to identify particular content for which harm via wider distribution was a legitimate concern. The committee may have been referring to reading material in a shared folder, which is not part of this exhibit. In short, the Court is not able to identify particular material that warrants protection from public view. Moreover, the Court cannot ascertain which information deemed highly confidential in 2002 would still hold such status in 2012. Furthermore, it appears that information was shared with a "number of colleagues," and the Court has no information indicating that the decision to widen distribution was accompanied by safeguards to protect against redistribution or whether those efforts (if any) remained in force over many years. If particular content reveals secret information about products in development, the Court was not directed to that information. While there are references to long-term strategy, the longest period mentioned ended in 2007. In sum, the Court is not persuaded that these minutes divulge current confidential details that could harm valid commercial interests.

(7). Exhibit 60.

This 8-page document pertains to a regional presentation from 2002. Confidentiality -- at the time of presentation or at the current time -- cannot be ascertained from the exhibit itself, and the defendants have not tendered an affidavit or pointed to other information demonstrating that the exhibit in whole in part reveals secret information about products in development. Many years have passed since the document was created. If particular statements within this document reveal secret information regarding product development, the Court was not directed to that information through a specific reference to particular pages or paragraphs.

(8). Exhibit 69.

This is a 30-page document reflecting discussions and conclusions reached by a development committee at a meeting in September, 2002. The document itself does not demonstrate that the minutes as a whole or specific parts were maintained in confidence over many years. If particular statements reveal secret information about products still in development, the Court was not directed to that information. There is no indication that discussions in 2002 about future development reveal confidential details regarding products that are currently in development. Planning for the future appears to be relatively short term, as indicated by a list of development investment ending in 2004 and a list of proposed "milestones" ending in 2007. Absent is any persuasive information demonstrating that public access to these minutes could harm important commercial interests.

(9). Exhibit 107.

This is a 25-page document which appears to be a partial presentation from 2003. The document itself does not reveal what information, if any, pertains to products currently in development. Also, the document does not demonstrate that information was confidential in 2003 and has remained secret over many years. The Court has not been directed to any particular content that could harm defendants' business interests if released to the public.

(10). Exhibit 116.

This appears to be a 22-page document pertaining to a presentation from 2004. The document itself does not reveal what information, if any, pertains to products currently in development. Also, the document does not demonstrate that information was held secret in 2004 and has remained secret over many years. The Court has not been directed to any particular content that could harm defendants' business interests if released to the public.

(11). Exhibit 152.

This is a 23-page document reflecting discussions and conclusions reached by a development committee at a meeting in December, 2005. The document itself does not demonstrate that the minutes as a whole or specific sections were maintained in confidence over many years. If particular statements reveal secret information about products still in development, the Court was not directed to that information. The committee's primary focus was on the near future and while some very general future product development objectives and milestones were mentioned, no information extends beyond the first part of 2010. Absent is any persuasive information demonstrating that public access to these minutes could harm valued commercial interests.

(12). Exhibit 182.

This is a one-page email exchange between a research and development scientist and a global technical manager for herbicides, in 2006. There are references to a product which may still be in development. No details are provided about the product, which is referenced by code number. The document, without more, does not demonstrate that the information exchanged remains secret or that public access could harm valued commercial interests.

(13). Exhibit 218.

This is an 11-page document reflecting discussions and conclusions reached by a development committee in connection with a meeting in May, 2007. The minutes suggest wide distribution. There are references to products, identified by code. The committee's primary focus was on the near future, without any mention of products in development beyond 2009. Absent is any persuasive information demonstrating that public access to these minutes could harm valued commercial interests.

(14). Exhibit 222.

This is a 17-page spreadsheet compilation of reports prepared in June and July, 2007. The spreadsheet lists ideas, giving brief descriptions. Details are not provided regarding the creators, use, distribution, effort to maintain secrecy, or any commercial advantage or harm that may be anticipated with disclosure in 2012. To the extent that the spreadsheet reveals a strategy, there is no basis to conclude that this particular strategy is unique, secret, and useful enough to have current commercial value or create an unfair advantage for competitors who may gain access.

(15). Exhibit 225.

This is an 18-page document reflecting discussions and conclusions reached by a development committee in connection with a meeting in August, 2007. The minutes suggest wide distribution. There are references to products and plans -- only one of which appears to be relatively current (page 3) and does not have particular pertinence to these proceedings. The Court is not persuaded that the remaining products are in secret stages of development. The defendants will be directed to refile this exhibit with page 3 redacted.

(16). Exhibit 226.

This is a 2-page email chain from 2007. It is not apparent from the document that it reveals commercially valuable information about products in secret stages of development.

(17). Exhibit 238.

This is a 23-page document reflecting discussions and conclusions reached by a development committee in connection with a meeting held in January, 2008. These minutes focus on finished product sales rather than products in secret stages of development. An attachment makes brief reference to products in development in 2007. The document itself does not permit a finding that it contains commercially valuable information that must be protected from public access in 2012.

(18). Exhibit 241. This is an email chain pertaining to an event tagged as the Midwest Corn Tour in June, 2008. The document itself does not permit a finding that it reveals secret product development information that could harm the defendants if public access is allowed.

(19). Exhibit 255.

This is a 14-page document reflecting discussions and conclusions reached by a development committee in connection with a meeting in August, 2008. These minutes refer to some products by code . It is not revealed whether these products are currently in development, whether the information was generated secret in 2008 and has been maintained in secret over the years, or whether the information could be useful to a competitor if revealed in 2012. The document itself is not persuasive evidence of good cause to maintain the notes under seal.

(20). Exhibit 272.

This is a 28-page draft spreadsheet created in February, 2009, which appears to list crop protection project proposals. The column entries are not self-explanatory and the scope of distribution is not known. Project titles are brief and do not appear to reveal important details regarding products being developed in secret stages. The document itself does not permit a confident inference that release to the general public would harm valued commercial interests.

(21). Exhibit 273.

This is an email chain describing preliminary efforts to finalize a product development budget for 2009. Ongoing efforts to develop products in secret are not revealed.

(22). Exhibit 274.

This is an email chain describing preliminary efforts to finalize a product development budget for 2009. Ongoing efforts to develop products in secret are not revealed.

(23). Exhibit 275.

This is another draft spreadsheet created in February, 2009, similar to Exhibit 272. ...


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