United States District Court, E.D. Wisconsin
MILWAUKEE ELECTRIC TOOL CORPORATION, METCO BATTERY TECHNOLOGIES LLC, AC MACAO COMMERCIAL OFFSHORE LIMITED, and TECHTRONIC INDUSTRIES CO. LTD., Plaintiffs,
HILTI, INC., Defendant. MILWAUKEE ELECTRIC TOOL CORPORATION, METCO BATTERY TECHNOLOGIES LLC, AC MACAO COMMERCIAL OFFSHORE LIMITED, and TECHTRONIC INDUSTRIES CO. LTD., Plaintiffs,
CHERVON NORTH AMERICA, INC. Defendant. MILWAUKEE ELECTRIC TOOL CORPORATION, METCO BATTERY TECHNOLOGIES LLC, AC MACAO COMMERCIAL OFFSHORE LIMITED, and TECHTRONIC INDUSTRIES CO. LTD., Plaintiffs,
POSITEC TOOL CORPORATION and POSITEC USA, INC., Defendants. MILWAUKEE ELECTRIC TOOL CORPORATION, METCO BATTERY TECHNOLOGIES LLC, AC (MACAO COMMERCIAL OFFSHORE) LIMITED, and TECHTRONIC INDUSTRIES CO. LTD., Plaintiffs,
SNAP-ON INCORPORATED, Defendant.
Stadtmueller U.S. District Judge.
of these four related patent cases, two motions have arisen
that can be addressed collectively. The first is
Plaintiffs' motion to seal and replace certain documents
that were publicly filed on the Court's docket. The
second is Defendants' motion for an order setting trial
dates for each of the four cases. For the reasons stated
below, Plaintiffs' motion will be granted and
Defendants' motion will be denied.
Motion to Restrict Documents
ask the Court to seal certain of their public filings in each
of the four cases. (Docket #119). These documents are,
according to Plaintiffs, properly designated as confidential
under the protective order because they contain sensitive
business or technical information relating to research and
development. However, they were not filed under seal and do
not bear the proper confidentiality designation. Plaintiffs
attribute this to inadvertence.
Rule of Civil Procedure 26(c)(1)(G) authorizes a court,
“for good cause, ” to enter an order
“requiring that a trade secret or other confidential
research, development, or commercial information not be
revealed or be revealed only in a specified way.”
Fed.R.Civ.P. 26(c)(1)(G); see also Gen. L. R.
79(d)(3). However, filing documents under seal conflicts with
the general rule that litigation in federal courts is open to
the public. Bond v. Utreras, 585 F.3d 1061, 1074
(7th Cir. 2009); Union Oil Co. of Cal. v. Leavell,
220 F.3d 562, 567 (7th Cir. 2000). As such, a party seeking
to seal a document-prospectively or retroactively-must carry
the heavy burden of showing that the document contains
information listed in Rule 26(c)(1)(G) and what specific harm
will result from public disclosure of the information.
Baxter Intern., Inc. v. Abbott Labs., 297 F.3d 544,
545 (7th Cir.2002); see also In re Violation of Rule
28(D), 635 F.3d 1352, 1360 (Fed. Cir. 2011) (“Rule
26(c)(1)(G) is limited to commercial information that has. .
.genuine competitive or commercial significance.”).
Mere desire that certain information not be made public, or
vague assertions of potential harm, are not sufficient.
Union Oil Co., 220 F.3d at 567; In re
Specht, 622 F.3d 697, 701 (7th Cir. 2010); Chicago
Mercantile Exch., Inc. v. Tech. Research Group, LLC, 276
F.R.D. 237, 241 (N.D. Ill. 2011).
documents Plaintiffs want sealed fall into several
categories. See (Docket #121) (declaration of
counsel with each relevant document attached). First are
documents that Plaintiffs produced without a confidentiality
designation and subsequently filed on the public docket. Next
are a series of documents that Defendants received from a
third party without any confidentiality designation and then
filed on the public docket. Lastly, there is a portion of a
deposition transcript of an employee of Plaintiff Milwaukee
Electric Tool Corporation, Jeffrey Zeiler. All of these
documents have been publicly available since no later than
resist Plaintiffs' request to seal these documents,
arguing that the request comes far too late and is actually a
ploy to remove from the public record certain information
which they believe is damaging to Plaintiffs' claims.
(Docket #125 at 7-10). They also assert that the documents,
to the extent they contain any technical information, concern
only first-generation lithium-ion batteries, which are not at
issue in these suits. Id. at 9-10. Plaintiffs reply
that the documents comprise meeting notes, correspondence,
and testimony about its past research and development efforts
and, as such, they easily fall within the protections of the
protective order and Rule 26(c)(1)(G). (Docket #129 at 4-5).
Plaintiffs further contend that some of the documents are
covered by confidentiality agreements with third parties.
Id. at 8-12.
Court, having reviewed the parties' submissions and each
document in question, finds that Plaintiffs have met their
burden to show that the documents concern non-public past
research and development efforts. Moreover, Plaintiffs have
established that disclosure of such information would place
them at a competitive disadvantage in the marketplace and
would be inconsistent with their obligations under
third-party confidentiality agreements. See Wis. Alumni
Research Found. v. Apple, Inc., No. 14-cv-062-wmc, 2015
WL 6453837, at *2 (W.D. Wis. Oct. 26, 2015) (granting motion
to seal documents containing product development
correspondence); In re Praxada (Dabigatran Etexilate)
Prods. Liab. Lit., MDL No. 2385, 2014 WL 1715206, at *2
(S.D. Ill. Apr. 30, 2014) (denying motion to de-designate
documents containing non-public research and development
information and information covered by confidentiality
agreements with third parties); In re Yazmin
& Yaz (Drospirenone) Mktg., Sales Practices & Prods.
Liab. Lit., MDL No. 2100, 2011 WL 5507057, at *4 (S.D.
Ill. Nov. 10, 2011) (denying de-designation of documents
containing non-public research). Despite public disclosure of
certain aspects of Plaintiffs' research efforts, their
internal communications on the matter are not thereby
automatically made public. See Lynk Labs, Inc. v. Juno
Lighting LLC, No. 15 C 4833, 2016 WL 6135711, at *3
(N.D. Ill. Oct. 21, 2016). As such, good cause exists for
retroactively sealing these documents.
Defendants' opposition does not meaningfully address why
the documents do not contain information contemplated by Rule
26(c)(1)(G); instead, Defendants allege only that Plaintiffs
are trying to conceal unfavorable information. But whether
the information at issue militates against Plaintiffs'
claims bears no relation to the propriety of sealing it. To
the extent that Defendants desire to use this information
against Plaintiffs, they are at liberty to do so. All that
this Order requires is that the documents be sealed from the
public. See Culinary Foods, Inc. v. Raychem Corp.,
151 F.R.D. 297, 300 (N.D. Ill. 1993) (once good cause shown,
burden shifts to opposing party to show why information
should not be sealed).
persuasive is Defendants' argument that Plaintiffs have
waited too long to rectify their filing errors. Yet
considering Plaintiffs' present efforts to correct those
errors, their unchallenged assertion that their oversight was
accidental, and the lack of prejudice to Defendants, the
Court finds that the delay alone is not sufficient to warrant
denial of the motions. Rather, considering the documents at
issue and the applicable legal principles, the Court finds
that the motions to restrict should be granted.
docket entries Plaintiffs identified in each of the four
cases will be sealed. However, the Court cannot grant
Plaintiffs' request to replace those docket entries with
documents that bear the proper confidentiality designation.
See (Docket #119 at 1). While the Court appreciates
Plaintiffs' interest in ensuring that every extant copy
of these documents bears the correct confidentiality stamp,
it is not the policy of the Court to alter documents once
filed. The most relief it will give is to seal the identified
entries, and it leaves to Plaintiffs the task of policing
confidentiality designations in future filings.
Defendants' Motion for Trial Dates
Defendants' motion, they seek guidance from the Court as
to the exact trial dates for each of these four cases. In its
trial scheduling order, the Court set trial in all four cases
to begin on October 16, 2017. The parties agree that they
cannot try the four cases jointly, because a special
provision of the Patent Act prevents consolidation of trials
against competitors. See 35 U.S.C. § 299(a). In
order to promote early scheduling and availability of
witnesses and counsel, most of whom are from out of town,
Defendants propose that the Court presently set a schedule
for these trials, allowing two weeks per trial. Defendants
propose the following schedule: (1) trial in Case No.
14-CV-1289, involving Defendant Chervon North America, Inc.,
to begin October 16, 2017; (2) trial in Case No. 14-CV-1288,
involving Defendant Hilti, Inc., to begin October 30, 2017;
(3) trial in Case No. 14-CV-1295, involving Defendants
Positec Tool Corporation and Positec USA, Inc., to begin
November 13, 2017, with a break for the Thanksgiving holiday;
and (4) trial in Case No. 14-CV-1296, involving Defendant
Snap-On Incorporated, to begin December 4, 2017.
oppose Defendants' request as premature. They contend
that there are too many other matters left open at this time
to warrant setting firm trial dates. These include the
possibility of narrowing issues through summary judgment or
claim construction, which might obviate the need for trial or
reduce the length of time needed for each trial, and the
possibility that one or more of the cases may settle. In
Plaintiffs' view, it will be of no use to set trial dates
now only to have them almost certainly change as the time for
trial gets closer. Additionally, to the extent a schedule is
set, Plaintiffs think a break between the first and second
trials is appropriate so that the parties can re-evaluate