United States District Court, E.D. Wisconsin
ORDER GRANTING THE PLAINTIFF'S MOTION TO RESTRICT
DOCUMENTS (DKT. NO. 45) AND GRANTING THE PLAINTIFF'S
CIVIL L.R. 7(H) NON-DISPOSITIVE MOTION TO COMPEL (DKT. NO.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
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.
The Plaintiff's Motion to Restrict Documents (Dkt.
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)).
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.
court finds that the defendants have stated good cause to
restrict the documents, and the court will grant the motion.
The Plaintiff's Civil L.R. 7(h) Motion to Compel
(Dkt. No. 46)
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.
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.
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.
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
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.
[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 ...