Case 1:22-cv-00311-WCB Document 337 Filed 01/24/24 Page 1 of 4 PageID #: 20806
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 22-311 (WCB)
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`IMPOSSIBLE FOODS INC.,
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`Plaintiff,
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`v.
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`MOTIF FOODWORKS, INC. and
`GINKGO BIOWORKS, INC.,
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`Defendants.
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`JOINT LETTER TO SEAL PORTIONS OF COURT’S ORDER (D.I. 336)
`CONCERNING PLAINTIFF IMPOSSIBLE FOOD INC.’S MOTION FOR LEAVE TO
`FILE FOURTH AMENDED COMPLAINT
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`OF COUNSEL:
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`Joseph M. Paunovich
`Ryan Landes
`Sandra L. Haberny
`Sarah Cork
`Razmig Messerian
`Patrick T. Schmidt
`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`865 South Figueroa Street
`10th Floor
`Los Angeles, CA 90017
`(213) 443-3000
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`Stephen Q. Wood
`Trevor J. Quist
`Derek Huish
`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`2755 E. Cottonwood Parkway
`Suite 430
`Salt Lake City, UT 84121
`(801) 515-7300
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`January 24, 2024
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jeremy A. Tigan (#5239)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jtigan@morrisnichols.com
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`Geoffrey A. Kirsner
`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`51 Madison Avenue, 22nd Floor,
`New York, NY 10010
`(212) 849-7000
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`Sandy Shen
`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`1300 I Street, NW, Suite 900
`Washington, D.C. 20005
`(202) 538-8000
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`Attorneys for Defendant Motif FoodWorks, Inc.
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`Case 1:22-cv-00311-WCB Document 337 Filed 01/24/24 Page 2 of 4 PageID #: 20807
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`Dear Judge Bryson:
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`Pursuant to the Court’s Order requesting that the parties advise the Court whether any
`portions of the January 19, 2024 Order (the “Order”) should remain under seal (D.I. 336 at 4), the
`parties conferred regarding potential redactions to the Order. Plaintiff Impossible Foods, Inc.
`(“Impossible”) and Defendant Gingko Bioworks, Inc. (“Gingko”) have informed the undersigned
`that they have no proposed redactions to the Order. Defendant Motif FoodWorks, Inc. (“Motif”)
`proposes certain limited redactions, and provides a proposed redacted version of the Court’s Order
`removing Motif’s highly confidential information, attached hereto as Exhibit A.
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`The limited redactions omit the identity of a third party partner Motif engaged to perform
`industry research for Motif (“Confidential Information”). The Court should maintain that
`information under seal in order to prevent serious and real harm to Motif, including competitive
`harm, as discussed below.
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`I.
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`Legal Standard
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`Third Circuit common law presumes a public right of access to judicial records, however
`it also protects business and financial information when access would cause economic harm,
`including competitive harm. In re Avandia Mktg., Sales Pracs. & Prod. Liab. Litig., 924 F.3d 662,
`672 (3d Cir. 2019). “Although the common law right to public access is a recognized and
`venerated principle, courts have also recognized the accompanying principle that the right is not
`absolute.” In re Cendant Corp., 260 F.3d 183, 194 (3d Cir. 2001) (citations and quotations
`omitted); see also Littlejohn v. Bic Corp., 851 F.2d 673, 678 (3d Cir. 1988) (“Despite the
`presumption, courts may deny access to judicial records, for example, where they are sources of
`business information that might harm a litigant’s competitive standing.”).
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`This presumption is overcome where a movant shows “that the interest in secrecy
`outweighs the presumption.” In re Avandia Mktg., 924 F.3d at 672 (quoting Bank of Am. Nat’l Tr.
`& Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986)). This showing may
`be made by demonstrating that disclosure will work a clearly defined and serious injury to the
`movant and that the material is the kind of information that courts will protect. See In re Avandia
`Mktg., 924 F.3d at 672 (citing Miller v. Ind. Hosp., 16 F.3d 549, 551 (3d Cir. 1994)). The Court
`will apply a “good cause” standard justifying sealing or redacting judicial records, requiring a
`“balancing process, in which courts weigh the harm of disclosing information against the
`importance of disclosure to the public.” Mosaid Techs. Inc. v. LSI Corp., 878 F. Supp. 2d 503,
`507-08 (D. Del. 2012) (citing Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 (3d Cir. 1994)).
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`II.
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`Argument
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`Good cause exists here to seal the limited Confidential Information contained in the Order.
`Disclosure of such information would cause real and serious competitive harm to Motif and the
`information does not need to be disclosed to the public to understand the filings at issue.
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`Although the public’s presumptive common law right of access to judicial records attaches
`to materials filed in connection with a motion of a non-discovery nature, this right is “not absolute”
`and may be overcome by a showing that the material sought to be sealed “is the kind of information
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`Case 1:22-cv-00311-WCB Document 337 Filed 01/24/24 Page 3 of 4 PageID #: 20808
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`that courts will protect and will work a clearly defined and serious injury to the party seeking
`closure.” In re Avandia Mktg., 924 F.3d 662, 673 (3d Cir. 2019) (citation omitted). Here, the
`limited Confidential Information—two instances where the identity of a third-party is revealed—
`is of the kind that relates to Motif’s confidential business.
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`There is significant competition in the plant-based and animal-free foods industry and any
`non-public information about these companies, even seemingly minor information, may prove
`competitively advantageous, making revelation of about certain business partners those companies
`use or employ to conduct their internal business all the more harmful. Here, Motif seeks limited
`redactions to the identity of a business partner Motif uses to conduct industry research about the
`plant-based and animal-free foods industry. This information is not public, and its publication
`would give Motif’s competitors insight into the specific companies that Motif uses to conduct
`industry and competitive research that would give Motif’s competitors a significant competitive
`advantage, as they could make decisions about which entities to also employ to conduct similar
`research. Moreover, given the industry and competitive research Motif’s business partner
`performs, attempts by others in the industry to use the same company to perform the same or
`similar research may raise conflict of interest issues that may undermine Motif’s ability to use its
`business partner’s services for future work. Motif does not disclose its internal business strategies
`and partners outside of Motif without ensuring adequate technical or legal safeguards are in place
`to prevent disclosure of such information to unauthorized entities. Hence, disclosure of such
`information would “work a clearly defined and serious injury” to Motif. See Pansy, 23 F.3d at
`786.
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`Furthermore, because this “case involves private litigants” and their confidential
`information, there is “little legitimate public interest” in the proposed redactions. Id. at 788. Under
`such circumstances, Motif’s interest in maintaining the confidentiality of the proposed redacted
`information outweighs any countervailing public interest. See id. (“[I]f a case involves private
`litigants, and concerns matters of little legitimate public interest, that should be a factor weighing
`in favor of granting or maintaining an order of confidentiality.”); Leucadia, Inc. v. Applied
`Extrusion Tech., Inc., 998 F.2d 157, 166 (3d Cir. 1993) (“Documents containing trade secrets or
`other confidential business information may be protected from disclosure” and explaining that the
`court has “framed the inquiry as whether the need for secrecy outweighs the presumption of access
`that normally attaches to such documents”); Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598
`(1978) (“[C]ourts have refused to permit their files to serve as … sources of business information
`that might harm a litigant’s competitive standing.”).
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`Motif’s proposed redactions redact the specific confidential material at issue, namely the
`identity of the business partner Motif uses for industry and competitive research, leaving the
`remainder of the Order unredacted. These proposed redactions are narrow such that the public’s
`ability to understand the Order is not impaired any less than necessary to prevent the release of
`Motif’s sensitive information to its competitors, preventing clear competitive harm.
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`Case 1:22-cv-00311-WCB Document 337 Filed 01/24/24 Page 4 of 4 PageID #: 20809
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`Respectfully,
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`/s/ Jeremy A. Tigan
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`Jeremy A. Tigan (#5239)
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`JAT:lo
`Attachment
`cc:
`All Counsel of Record (via CM/ECF and e-mail)
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`3
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