BBK Tobacco & Foods LLP v. Skunk Incorporated ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 BBK Tobacco & Foods LLP, No. CV-18-02332-PHX-JAT 10 Plaintiff, ORDER 11 v. 12 Skunk Incorporated, et al., 13 Defendants. 14 15 Pending before the Court is, among other motions, Plaintiff BBK Tobacco & Foods 16 LLP’s Motion for Order Permitting Filing Under Seal (Doc. 277). The Court now rules on 17 the motion. 18 In the Court’s previous Order addressing the parties’ other motions to seal, the Court 19 set forth the standard applicable to motions to seal and described the exhibits Doc. 277 20 seeks to seal: 21 A. Motions to File Under Seal 22 Because there is a strong presumption in favor of public access to court documents, a party seeking to seal a judicial 23 record “bears the burden of overcoming this strong presumption by meeting the ‘compelling reasons’ standard.” 24 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (internal citation omitted). This means 25 “the party must articulate compelling reasons supported by specific factual findings that outweigh the general history of 26 access and the public policies favoring disclosure.” Id. at 1178–79 (internal quotations omitted). These compelling 27 reasons must be shown in order to seal judicial records attached to a dispositive motion, even if the dispositive motion, or its 28 attachments, were previously filed under seal or protective order. Id. at 1179. 1 After conscientiously balancing the competing interests of the public and the party who seeks to keep certain judicial 2 records secret, “if the court decides to seal certain judicial records, it must base its decision on a compelling reason and 3 articulate the factual basis for its ruling, without relying on hypothesis or conjecture.” Id. (internal quotations omitted). 4 Where a party shows that its documents contain sources of business information that might harm its competitive standing, 5 the need for public access to the records is lessened. See Nixon v. Warner Comm’ns, Inc., 435 U.S. 589, 598 (1978). 6 1. Doc. 277 7 In its first motion, Plaintiff moves to file under seal two 8 exhibits that are referenced in its motion for partial summary judgment, namely Exhibits 9 and 57. Defendants have not filed 9 an opposition to the motion. 10 Exhibit 9 is a collection of invoices to several of Plaintiff’s customers. These invoices contain the customers’ 11 names and addresses, as well as wholesale pricing information. The invoices also list the types and volume of products sold. 12 Exhibit 57 contains a list of customers to whom Plaintiff sold its “Skunk Sack” products, the date of each sale, the price at 13 which the product was sold, and calculation of total sales revenues by month between November 2014 and November 14 2019. 15 (Doc. 369 at 2–3). The Court also noted that although Plaintiff referenced a declaration of 16 its general counsel, Brendan Mahoney, to support its motion, Mahoney’s declaration was 17 not attached an exhibit. (Id. at 3). Pursuant to the Court’s Order, Plaintiff has since filed 18 Mahoney’s declaration. (Doc. 373-1). 19 Mahoney’s declaration provides that Plaintiff maintains the information contained 20 in Exhibits 9 and 57 as confidential and protects the information from disclosure to its 21 competitors. (Id. at 3). Mahoney further asserts that public disclosure of its customers, their 22 contact information, wholesale prices, sales numbers, and revenue information would 23 result in a competitive disadvantage to Plaintiff. (Id. at 3–4). The Court finds that public 24 disclosure of this information would result in a competitive disadvantage to Plaintiff that 25 outweighs the policy in favor of public disclosure. See B2B CFO Partners, LLC v. 26 Kaufman, No. CV 09-2158-PHX-JAT, 2011 WL 6297930, at *3 (D. Ariz. Dec. 16, 2011) 27 (“The Court finds that disclosure of . . . customer invoices could harm Defendants’ 28 competitive standing because it would give competitors the ability to directly undercut || Defendants’ pricing and thereby win clients away from Defendant.”). 2 Accordingly, 3 IT IS ORDERED that Plaintiff's Motion for Order Permitting Filing Under Seal (Doc. 277) is GRANTED. 5 The Clerk of the Court shall file under seal Exhibit 9 (currently lodged at Doc. 278) || and Exhibit 57 (currently lodged at Doc. 279). 7 Dated this 2nd day of December, 2020. 8 10 ll _ James A. Teil Org Senior United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-