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United States of America, and the v. Dish Network

May 3, 2013

UNITED STATES OF AMERICA, AND THE
STATES OF CALIFORNIA, ILLINOIS, NORTH CAROLINA, AND OHIO, PLAINTIFFS,
v.
DISH NETWORK, L.L.C., DEFENDANT.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

E-FILED Monday, 06 May, 2013 01:05:32 PM Clerk, U.S. District Court, ILCD

OPINION

This cause is before the Court on Defendant Dish Network L.L.C.'s Motion to Maintain Seal on Certain Documents Previously Filed Under Seal in this Action (d/e 273). The Motion is GRANTED IN PART and DENIED IN PART. The parties have reached an agreement regarding 40 of the disputed documents. The Court accepts the parties' agreements regarding those documents. The remaining six documents will be unsealed.

I. BACKGROUND

In its March 12, 2013 Opinion, this Court noted that numerous pleadings were sealed in the Court file and advised the parties that the Court intended to unseal those documents. See Opinion, p. 21-22 (d/e 258). However, the Court gave the parties leave to file a motion identifying specific documents that should remain sealed and gave the non-moving party leave to respond to any such motion.

On April 11, 2013, Defendant filed a Motion to Maintain the Seal on Certain Documents Previously Filed Under Seal in this Action (d/e 273) and a memorandum in support thereof. Defendant identifies 46 documents that Defendant believes should remain sealed. These documents include: (1) 40 documents containing "personally identifying information"; (2) five sets of documents reflecting settlement communications between Defendant and the Federal Trade Commission (Settlement Documents) (see d/e 135-22; 143-25; 143-26; 143-30; and 203-8); and (3) one document that Defendant describes as a "confidential and sensitive business document" that contains the terms of payments made by Defendant to several retailers (Retailer Payment Document) (d/e 50-5).

Plaintiffs object to Defendant's Motion. First, Plaintiffs assert that many of the documents containing personally identifying information can be redacted and has provided redacted versions of those filings. See d/e 282 (corrected version). Plaintiffs also claim that several of those documents have already been made public and therefore should be unsealed. Second, Plaintiffs assert that the Settlement Documents should be unsealed because there is no generally recognized privilege over such documents. Finally, Plaintiffs argue that the Retailer Payment Document does not contain trade secrets and contains information Plaintiffs will use to prove their claims.

The Court granted Defendant leave to file a Reply. In that Reply, Defendant agrees with Plaintiffs' suggested handling of the documents containing personally identifying information. Defendant asserts, however, that good cause exists to maintain the seal on the Settlement Documents and the Retailer Payment Document. Defendant also submits redacted versions of some of those documents. See d/e 284, Exhibits A and B.

The Court granted Plaintiffs leave to file a surreply. In their surreply, Plaintiffs object to Defendant's proposed redactions to the Settlement Documents and Retailer Payment Document.

II. LEGAL STANDARD

A presumption exists that the court record will be open absent compelling reasons. Charvat v. Echostar Satellite, LLC, 269 F.R.D. 654, 656 (S.D. Ohio 2010). The Seventh Circuit has "insisted that litigation be conducted in public to the maximum extent consistent with respecting trade secrets, the identities of undercover agents, and other facts that should be held in confidence." Hicklin Eng'g L.C. v. R.J. Bartell, 439 F.3d 346, 348 (7th Cir. 2006).

Documents may be sealed only upon a showing of good cause. Citizens First National Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 946 (7th Cir. 1999). "[O]nly genuine trade secrets or information within the scope of a requirement such as Fed.R.Crim.P. 6(c)(2) ("matters occurring before the grand jury"), may be held in long-term confidence." Union Oil Co of Cal. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000); see also Fed.R.Civ.P. 26(c)(1)(G) (providing that a court, for good cause shown, may issue a protective order "requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specific way").

III. ANALYSIS

A. Some of the Documents Containing Personally Identifying Information Shall Be Unsealed while Others Shall Remain Sealed With Redacted Versions Included in the Record In its Motion, Defendant seeks to keep 40 documents sealed on the basis that the documents contain consumer personally identifying information. Defendant asserts that these documents contained personally identifying information, including names of non-party consumers, telephone numbers, mailing addresses, and email addresses. Plaintiffs respond that: (1) 31 of the documents should remain sealed but that copies redacting the personally identifying information should be made available in the public record; Plaintiffs provided those redacted copies at d/e 281 and d/e 282 (corrected version); (2) the documents contained at docket entries 50-24, 206-23 (Exhibit 23), 245-1 (Exhibit A), 252-1 (Exhibit A), and 226-11 (Exhibit K), should be unsealed because either the document or the information contained therein is already in the public docket; (3) the letter at d/e 95-41 (Exhibit 40) should be unsealed because the only personally identifying ...


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