United States District Court, D. Colorado
Kristen L. Mix, United States Magistrate Judge.
matter is before the Court on Plaintiff's Motion
to Restrict in Part Access to Plaintiff's Notice of
Identification of Representative Trade Secrets
[#110] (the “Motion”). Defendants
filed a Response [#112] in opposition to the Motion and
Plaintiff filed a Reply [#116]. The Motion [#110] has been
referred to the undersigned for disposition pursuant to 28
U.S.C. § 636(b)(1) and D.C.COLO.L.CivR 72.1(c).
See [#114]. For the reasons set forth below, the
Motion [#110] is GRANTED.
background relevant to the Motion [#110] is as follows.
Plaintiff initiated this action to protect its
alleged trade secrets on October 3, 2018, against Defendants
Live Power Intelligence Company NA, LLC (“LPI”)
and William P. Townsend (“Townsend”). See
Compl. [#1]. Subsequently, Plaintiff filed its First
Amended Complaint [#78] on May 14, 2019, naming Yes Energy
LLC (“Yes Energy”) as an additional Defendant.
Plaintiff asserts several claims against Defendants, both
individually and collectively, based on Defendant
Townsend's previous employment with Plaintiff and
Defendants' alleged misappropriation of Plaintiff's
trade secrets. See First Am. Compl. [#78]
¶¶ 21-23, 26-28, 39-43. These claims include
violations of the Defend Trade Secrets Act of 2016, 18 U.S.C.
§ 1836 et seq., the Colorado Uniform Trade
Secrets Act, Colo. Rev. Stat. § 7-74-101 et
seq., the Kentucky Uniform Trade Secrets Act, Ky. Rev.
Stat. § 365.880 et seq., and the Computer Fraud
and Abuse Act, 18 U.S.C. § 1030 by all Defendants;
violations of the New Jersey Computer Related Offenses Act,
N.J. Stat. Ann. § 2A:38A-3 by Defendants LPI and
Townsend; civil theft pursuant to Colo. Rev. Stat. §
18-4-405 by Defendants LPI and Townsend; conversion by
Defendants LPI and Townsend; breach of contract and breach of
fiduciary duty by Defendant Townsend; aiding and abetting
breach of fiduciary duty by Defendants LPI and Yes Energy;
and civil conspiracy by all Defendants. See Id.
[#78] ¶¶ 57-168.
2, 2019, Magistrate Judge Nina Y. Wang held a Telephonic
Discovery Conference with counsel for Plaintiff and
Defendants LPI and Townsend. Courtroom Minutes/Minute
Order [#76] at 2. During that Conference, Judge Wang
ordered Plaintiff to file a list with the Court, identifying
25 “representative trade secrets” to assist the
parties in defining the scope of discovery in this case.
Id. Magistrate Judge Wang further ordered Plaintiff
to file this list on or before June 14, 2019, and in
compliance with D.C.COLO.L.Civ. R. 7.2(c). Id.
Pursuant to Judge Wang's Order, Plaintiff filed its
Notice of Identification of Representative Trade Secrets
[#100] (the “Notice”) on June 14, 2019, under
Level 2 Restriction. Level 2 restriction limits access to the
filing party and the Court. D.C.COLO.LCivR 7.2(b).
to D.C.COLO.L.Civ. R. 7.2, Plaintiff filed the instant Motion
[#110] on June 28, 2019. In the Motion, Plaintiff seeks to
maintain its Notice [#100] under Level 2 Restriction on the
grounds that the Notice contains: (1) information regarding
Plaintiff's trade secrets and confidential proprietary
business information; (2) confidential and sensitive business
information from a subpoenaed third-party; and (3) reference
to material that Defendants have designated as, or likely
would designate as, “Confidential” or
“Attorneys' Eyes Only” pursuant to the
Protective Order [#27] in this case, as amended [#65].
Motion [#110] at 2-3. With respect to the first
category, Plaintiff argues that its “interest in
maintaining the confidentiality of commercially and
competitively sensitive information outweighs the presumption
of public access to this information.” Id.
Plaintiff further avers that Level 2, rather than Level 1,
Restriction is appropriate because “allowing Defendants
themselves (Plaintiff's competitors)-as opposed to their
counsel, as provided under the Protective Order-to access the
restricted information would cause competitive injury to
Plaintiff.” Motion [#110] at 2. Plaintiff
represents that on June 14, 2019, it provided an unredacted
version of the Notice to Defendants' counsel via email,
in accordance with the Protective Order. Motion
[#110] at 2-3.
attaches to the Motion, at Exhibit A [#110-1], a redacted
version of the Notice for public filing
(“Plaintiff's First Redacted Notice”).
Plaintiff's First Redacted Notice [#110-1] redacts
several portions of the Notice which, according to Plaintiff,
include “highly sensitive and confidential information
relating to, among other things, [Plaintiff's] monitoring
locations, methods and capabilities, its calibration
processes, business strategies, and its customers.”
Motion [#110] at 2.
Response [#112], Defendants do not argue that the Level 2
Restriction on Plaintiff's Notice [#100] should be
lifted. Rather, Defendants argue that a majority of the
redactions found in Plaintiff's First Redacted Notice
[#110-1] are either unnecessary for purposes of business
confidentiality or “go far beyond what is needed to
protect any purportedly sensitive business
information.” Response [#112] at 2. As an
alternative, Defendants provide a version of Plaintiff's
Notice [#100] at Exhibit A [#113] which proposes fewer
redactions (“Defendants' Proposed
Redactions”). According to Defendants, their
[o]mit[ ] reference to [Plaintiff's] customers,
information that [Plaintiff] collects from its customers,
[Plaintiff's] pricing policies, and any other conceivably
sensitive business information of [Plaintiff], while allowing
information that is either already publicly available or
would cause no competitive harm to [Plaintiff] to be included
in the public record of this case.
Response [#112] at 2-3.
Reply [#116], Plaintiff maintains that a majority of its
redactions in the First Redacted Notice [#110-1] are
appropriate. Nevertheless, Plaintiff accepts many of
Defendants' proposed alternative redactions and attaches
to its Reply [#116], at Exhibit B [#116-1], a new redacted
version of the Notice for public filing
(“Plaintiff's Second Redacted
Supreme Court has acknowledged a common law right of the
public to access judicial records.” Slivka v. Young
Men's Christian Ass'n of Pikes Peak Region, __
F.Supp.3d __, __, No. 19-cv-00313-PAB, 2019 WL 3059905, at *3
(D. Colo. July 11, 2019) (citing Nixon v. Warner
Commc'ns, Inc., 435 U.S. 589, 597 (1978)).
“This right is premised upon the recognition that
public monitoring of the courts fosters important values such
as respect for the legal system.” Slivka, 2019
WL 3059905, at *3 (citing In re Providence Journal Co.,
Inc., 293 F.3d 1, 9 (1st Cir. 2002)). “There is a
presumption that documents essential to the judicial process
are to be available to the public, but they may be restricted
when the public's right of access is outweighed by
interests which favor non-disclosure.” Slivka,
2019 WL 3059905, at *3 (citing United States v.
McVeigh, 119 F.3d 806, 811 (10th Cir. 1997)). In matters
concerning confidential business information, the Tenth
Circuit has noted that “a party may overcome the
presumption in favor of public access to judicial records by
demonstrating the pages [at issue] contain ‘sources of
business information that might harm a litigant's
competitive standing.'” Deherrera v. Decker
Truck Line, Inc., 820 F.3d 1147, 1162 n.8 (10th Cir.
2016) (quoting Nixon v. Warner Commc'ns, Inc.,
435 U.S. 589, 598, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978)).
However, “[t]he decision as to access is one best left
to the sound discretion of the trial court, a discretion to
be exercised in light of the relevant facts and circumstances
of the particular case.” SOLIDFX, LLC v. Jeppesen
Sanderson, Inc., No. 11-cv-01468-WJM-BNB, 2012 WL
2917116, at *2 (D. Colo. July 16, 2012) (citing United
States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985)).
motion to restrict access must (1) “identify the
document or the proceeding for which restriction is
sought”; (2) “address the interest to be
protected and why such interest outweighs the presumption of
public access”; (3) “identify a clearly defined
and serious injury that would result if access is not
restricted”; (4) “explain why no alternative to
restriction is practicable or why only restriction will