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IDC Financial Publishing Inc. v. Bonddesk Group LLC

United States District Court, E.D. Wisconsin

October 26, 2017

BONDDESK GROUP, LLC, et al., Defendants.



         On September 7, 2017, the plaintiff filed two motions: (1) a Civil L.R. 7(h) expedited, non-dispositive motion to compel production of un-redacted documents, dkt. no. 46; and (2) a motion to restrict documents submitted in support of the motion to compel, dkt. no. 45. The defendants join in the plaintiff's motion to restrict documents, dkt. no. 48, and filed their response in opposition to the plaintiff's motion to compel on September 14, 2017.

         1. The Plaintiff's Motion to Restrict Documents (Dkt. No. 45)

         The plaintiff's motion seeks to restrict from public view portions of Exhibits A, D, E, F, G, H, I, J, K, L and M, which are attached to John Kirtley's declaration in support of the plaintiff's Civil L.R. 7(h) motion to compel. Dkt. No. 47. The plaintiff states that “these documents and declaration should be sealed because they reference, describe, and quote from documents and information that TradeWeb has designated as CONFIDENTIAL or ATTORNEYS EYES ONLY” under the court's February 15, 2016 protective order (dkt. no. 30). The Seventh Circuit, however, has held that courts should not restrict documents solely because the parties have agreed to restrict them: “Documents that affect the disposition of federal litigation are presumptively open to public view, even if the litigants strongly prefer secrecy, unless a statute, rule, or privilege justifies confidentiality.” In re Specht, 622 F.3d 698, 701 (7th Cir. 2010) (citing Baxter Int'l, Inc. v. Abbott Laboratories, 297 F.3d 544 (7th Cir. 2002)).

         In their request to join the plaintiff's motion, the defendants more specifically detail the sensitive nature of the documents. Dkt. No. 48. They state that the materials to be restricted include “drafts of contracts between Tradeweb and its customers and . . . internal Tradeweb comments concerning negotiations of one of those contracts. [Certain Exhibits] relate to the specific customizations of the functionality of Tradeweb's electronic platform to meet the specific trading needs of individual customers.” Dkt. No. 48 at 2. They allege that the documents “contain commercially sensitive, non-public, and proprietary business information relating to Tradeweb's business and its relationship with numerous of its customers.” Id. at 1. They assert that disclosure of the information in the documents “would be commercially harmful to Tradeweb's relationship with its customers, and “would . . . provide unwarranted access to competitively sensitive information to Tradeweb's competitors and to competitors of its customers[.]” Id. at 2.

         The court finds that the defendants have stated good cause to restrict the documents, and the court will grant the motion.

         2. The Plaintiff's Civil L.R. 7(h) Motion to Compel (Dkt. No. 46)

         The plaintiff's motion to compel seeks production of un-redacted documents from the defendants. Specifically, the plaintiff alleges that while defendant TradeWeb has produced more than 6, 000 documents in discovery, the plaintiffs have found that over 600 of the documents have been “unilaterally redacted.” Dkt. No. 46 at 1. The plaintiff states that the redactions are broad; the defendants have redacted nearly all the text in “dozens of emails, contracts, and spreadsheets.” Id. The plaintiff says that “there is no debate that the documents at issue fall within th[e] scope [of discovery][, ]” and argue that the defendants should not be allowed redact large swaths of information in an otherwise responsive document on the ground that the defendants have deemed such information irrelevant. Id. (emphasis in original). The plaintiff notes that the defendant “cannot identify any prejudice from the production of unredacted documents[, ]” and argues that if the defendants disagree about the relevance of information contained in a document, “an objection is appropriate upon its introduction, ” rather than large scale redactions at the discovery stage. Id.

         The defendants respond that the material they have redacted from the documents is not relevant to the case. Dkt. No. 49 at 1. The defendants aver that they have produced all of TradeWeb's discussions with its customers about “whether to include IDC financial strength ratios as a search criteria for CDs[, ]” and argue that the parameters of this case do not allow the plaintiffs to peruse and explore all other aspects of the TradeWeb's contractual and financial relationships with its customers. Id. at 2. The defendants argue that the redactions are “necessary to protect business information that is wholly unrelated to IDC's ratings data.” Id. at 4. In short, defendants argue that “IDC does not get to probe all of TradeWeb's business dealings just because one contract is at issue.” Id.

         Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed.R.Civ.P. 26(b). Although the 2015 Amendments to Rule 26(b) placed a renewed emphasis on proportionality with regard to discovery requests (see advisory committee notes, 2015 Amendment; Milwaukee Elec. Tool Corp. v. Snap-On Inc., No. 14-CV-1296-JPS, 2017 3130414, at *1 (E.D. Wis. July 24, 2017)), the rule still provides that “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” Id. District courts maintain broad discretion in discovery matters. Kuttner v. Zaruba, 819 F.3d 970, 974 (7th Cir. 2016).

         The plaintiff submits exhibits with examples of the sorts of redactions that the defendants have performed. For example, exhibit D to the Kirtley declaration shows more than thirty of its thirty-seven pages redacted as “non-responsive.” Dkt. No. 47-6. In exhibit H to the Kirtley declaration, the defendants have redacted pages five through thirty of the document. Dkt. No. 47-14. The defendants have gone beyond the sort-of “line-item” redactions of personal information or account numbers sanctioned by Fed.R.Civ.P. 5.2. Instead, they have blocked out large chunks of information on documents that, by virtue of producing them, they admit are discoverable.

         Although the defendants have provided the court with a description of each of the redacted documents through the declaration of Michael Kleinman, (dkt. no. 50 at 2, ¶5), these descriptions do not suffice to cure the extensive redactions. As another district court has found, “[t]he practice of redacting for nonresponsiveness or irrelevance finds no explicit support in the Federal Rules of Civil Procedure, and the only bases for prohibiting a party from seeing a portion of a document in the Rules are claims of privilege and work-product protections.” Burris v. Versa Products, Inc., Civil No. 07-3938 (JRT/JJK), 2013 WL 608742, at *3 (D. Minn. Feb. 19, 2013) (citing Fed.R.Civ.P. 26(b)(5)). Further,

[p]arties making such redactions unilaterally decide that information within a discoverable document need not be disclosed to their opponents, thereby depriving their opponents of the opportunity to see information in its full context and fueling mistrust about the redactions' propriety. And if the Court were to allow such a practice it would improperly incentivize parties to hide as much as they dare. That is a result at odds with the liberal discovery policies, the adversary process, and the Court's obligation to read the Rules ‘to secure the just, speedy, and inexpensive determination of every action and proceeding.' Fed.R.Civ.P. 1. None of this is intended to imply that [redacting party] or its counsel attempted to hide the ball here. But because these ...

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