United States District Court, D. Colorado
BP AMERICA PRODUCTION COMPANY, a Delaware corporation, Plaintiff,
WESLEY HAMER, an individual, KENNETH NGUYEN, an individual, READYWORK LLC, a Colorado limited liability company d/b/a TASQ, Defendants.
ORDER GRANTING PLAINTIFF'S MOTION TO RESTRICT AND
MOTION TO PRESENT WITNESS TESTIMONY BY TELEPHONE
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff BP America Production
Company's Motion to Restrict Courtroom Proceedings and
Certain Proferred [sic] Exhibits Related to [Plaintiff's]
Trade Secrets (Doc. # 19) and Plaintiff's Motion for
Leave to Present Witness Testimony by Telephone (Doc. # 20).
Defendants have not filed a Response to either Motion.
the Court notes that both Motions are opposed because
Defendants' counsel does not “believe evidence will
be taken by the Court at the hearing, either in the form of
witness testimony or documents.” (Doc. # 19 at 1.)
Although the Court is unaware of the basis of defense
counsel's belief, the Court endeavors to correct his
misimpression by indicating that it does, in fact, intend to
accept evidence from both
parties at the hearing. Unless Defendants
intend to concede the factual assertions in Plaintiff's
Motion for Temporary Restraining Order and Preliminary
Injunction (Doc. # 2), the Court is especially interested in
what evidence Defendants will submit that rebuts those
MOTION TO RESTRICT HEARING
“requests that the Court restrict access to the
courtroom at the parties' December 23, 2019 hearing to
Court personnel and the parties (along with their attorneys,
agents, representatives, and witnesses).” (Doc. # 19 at
1.) Plaintiff also “requests that exhibits proffered as
[Plaintiff's] trade secrets be admitted into evidence
under Level 2 restriction.” (Id.)
district's local rule regarding public access to
documents and proceedings indicates that:
Unless restricted by statute, rule of civil procedure, or
court order, the public shall have access to all documents
filed with the court and all court proceedings. . . . Any
person may file an objection to [a] motion to restrict no
later than three court business days after posting. Absent
exigent circumstances, no ruling on a motion to restrict
shall be made until the time for objection has passed.
circumstances exist in this case. On December 19, 2019, the
Court set a hearing on Plaintiff's Motion for preliminary
injunctive relief for December 23, 2019. (Doc. # 8.)
Therefore, even if Plaintiff filed a motion to restrict on
the same day that the Court set the hearing, the
three-business-day objection period would not end until
December 24, 2019. As a result, a ruling on Plaintiff's
Motion prior to the expiration of the objection period is
to the merits of Plaintiff's request, “[a]ll courts
have supervisory powers over their own records and files.
Thus a court, in its discretion, may seal documents if the
public's right of access is outweighed by competing
interests.” United States v. Hickey, 767 F.2d
705, 708 (10th Cir. 1985) (internal citations and quotation
marks omitted). At the same time, there is a well-established
presumption against restricting access to court documents.
See, e.g., Lanphere & Urbaniak v. State of
Colo., 21 F.3d 1508, 1511 (10th Cir. 1994) (“[The
right of access to court documents] is an important aspect of
the overriding concern with preserving the integrity of the .
. . judicial process.” (internal quotation marks
omitted)); M.M. v. Zavaras, 939 F.Supp. 799, 801 (D.
Colo. 1996) (noting that judges have a responsibility to
avoid secrecy in court proceedings because “secret
court proceedings are anathema to a free society”).
Moreover, the Tenth Circuit has warned that “parties
should not routinely or reflexively seek to seal materials
upon which they predicate their arguments for relief . . .
.” See Lucero v. Sandia Corp., 495 Fed.Appx.
903, 913 (10th Cir. 2012).
Court finds that restriction is appropriate in this case.
With respect to orders to preserve confidentiality, the
Defend Trade Secrets Act (“DTSA”) provides that
courts “shall enter such orders and take such other
action as may be necessary and appropriate to preserve the
confidentiality of trade secrets, consistent with the
requirements of the Federal Rules of Criminal and Civil
Procedure, the Federal Rules of Evidence, and all other
applicable laws.” 18 U.S.C. § 1835(a). The DTSA
further indicates that courts “may not authorize or
direct the disclosure of any information the owner asserts to
be a trade secret unless the court allows the owner the
opportunity to file a submission under seal that describes
the interest of the owner in keeping the information
confidential.” 18 U.S.C. § 1835(b).
Complaint as well as its Motion for preliminary injunctive
relief, Plaintiff alleges that certain confidential business
information constitutes a trade secret. That information
includes, but is not limited to, Plaintiff's source code
and its production data. See generally (Doc. ## 1,
2). Plaintiff indicates that it actively maintains procedures
to keep that information secret, and the information derives
independent economic value from not being generally known to
the public. See, e.g., (Doc. # 2 at 20-22).
the same information is relevant to Plaintiff's Motion
for preliminary injunctive relief because Plaintiff must
show, inter alia, a substantial likelihood of
success on the merits of its case, which requires Plaintiff
to establish a prima facie case for trade secret
misappropriation. Importantly, one of the elements of that
claim is the existence of a trade secret, which entails a
description of what the trade secrets are. Arctic Energy
Servs., LLC v. Neal, No. 18-cv-00108-PAB-KLM, 2018 WL
1010939, at *2 (D. Colo. Feb. 22, 2018). Additionally,
Plaintiff indicates that its witnesses “will
necessarily have to disclose trade secret ...