4:12-cv-11758-GAD-MKM Doc # 597 Filed 08/26/15 Pg 1 of 6 Pg ID 50804
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`Case No. 12-cv-11758
`
`UNITED STATES DISTRICT COURT JUDGE
`GERSHWIN A. DRAIN
`
`UNITED STATES MAGISTRATE JUDGE
`MONA K. MAJZOUB
`
`ORDER REQUIRING MOTION AND CANCELLING
`AUGUST 31, 2015 HEARING
`
`
`
`
`
`
`
`EVERLIGHT ELECTRONICS CO., LTD.,
`and EMCORE CORPORATION,
`
`Plaintiffs,
`
`v.
`
`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION
`
`Defendants and
`Counter-Plaintiffs.
`
`v.
`
`EVERLIGHT ELECTRONICS CO., LTD.,
`EMCORE CORPORATION, and
`EVERLIGHT AMERICAS, INC.,
`
`Counter-Defendants.
` /
`
`
`I. INTRODUCTION
`
`Presently before the Court is Nichia Corporation’s (“Nichia”) Request to Redact
`
`Confidential Trial Testimony from Public Versions of the Phase 2 Trial Transcripts [592].
`
`Everlight Electronics Co., Ltd. (“Everlight”) objects to Nichia’s request arguing that “Nichia’s
`
`motives for its broad sealing request have nothing to do with protecting ‘particularly sensitive’
`
`information” and argues that instead “Nichia wants to ensure that any evidence demonstrating
`
`that it did not make YIG and that GAG did not emit light remains securely out of view from the
`
`public.” Dkt. No. 595 at 2. The Court will order a Motion be filed prior to ruling on this request.
`
`-1-
`
`

`
`4:12-cv-11758-GAD-MKM Doc # 597 Filed 08/26/15 Pg 2 of 6 Pg ID 50805
`
`
`
`II. BACKGROUND
`
`The parties entered into a Stipulated Protective Order (“Protective Order”) [81] on May
`
`6, 2013, which was meant to govern this case. Additionally, the parties entered a Sealed Joint
`
`Final Pretrial Order (“Pretrial Order”) [457] prior to the commencement of trial in this matter on
`
`April 1, 2015. This Pretrial Order covers the bench trial conducted between June 15, 2015 and
`
`June 18, 2015 (“Phase II of the Trial”). Each of these Orders, which were agreed upon by the
`
`parties, have relevant information pertaining to the instant dispute.
`
`For example, the Protective Order indicated what information would be considered
`
`confidential throughout this dispute and how it would be labeled:
`
`The designation “Confidential – Attorneys’ Eyes Only” shall refer to Discovery
`Materials that include non-public proprietary information or information, the
`disclosure of which would cause serious commercial injury to the Disclosing
`Party, including but not limited to, trade secrets, manufacturing processes,
`customer
`lists, costs and pricing of products and/or services,
`technical
`information, business/marketing strategies and plans,
`financial
`records,
`proprietary technical information and specifications, manufacturing techniques,
`research and development information, sales information, cost information,
`pricing information, and other competitively sensitive information. Discovery
`Materials so designated are referred to as “Confidential – Attorneys’ Eyes Only
`Information.”
`
`Dkt. No. 81 at ¶ 1(a). The Pretrial Order specified how both parties would handle confidential
`
`information at trial:
`
`The Parties request that the trial be open to the public and not sealed unless a
`party requests that a particularly sensitive portion be sealed and not open. The
`Parties propose to jointly give the Court by April 3, 2015, a list of non-public
`proprietary documents and topics for testimony that they believe the disclosure of
`which would cause serious commercial injury to themselves, their customers
`and/or their licensees, such that they request that the portion of the trial disclosing
`such documents and/or testimony be sealed and not open. Further, each party
`requests to be able to make such requests during the trial, subject to objections
`from the opposing party and obtaining the Court’s approval, and for good cause
`shown.
`
`-2-
`
`

`
`4:12-cv-11758-GAD-MKM Doc # 597 Filed 08/26/15 Pg 3 of 6 Pg ID 50806
`
`Dkt. No. 457 at § XIII, ¶6. Notably, the Pretrial Order indicated that in “all such instances where
`
`the trial shall be closed and sealed, the courtroom will be cleared of those individuals not
`
`qualified under the Protective Order entered into this case to be present when such documents
`
`and testimony are disclosed.” Id. This did not happen during Phase II of the trial.
`
`
`
`III. LEGAL STANDARD
`
`The legal standards governing Nichia’s request to seal trial documents are well
`
`established. It is long-settled, for instance, that the Court “has supervisory power over its own
`
`records and files,” Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 55
`
`L.Ed.2d 570 (1978), and that this authority includes allowing parties to file certain documents
`
`under seal. See FED. R. CIV. P. 26(c). The Court, however, must balance this power with the
`
`“long-established legal tradition” of public access to court documents. Brown & Williamson
`
`Tobacco Corporation v. Federal Trade Commission, 710 F.2d 1165, 1177 (6th Cir. 1983). “Only
`
`the most compelling reasons can justify non-disclosure of judicial records.” In re Knoxville
`
`NewsSentinel Co., Inc., 723 F.2d 470, 476 (6th Cir. 1983). Trial courts have always been
`
`afforded the power to seal their records when interests of privacy outweigh the public’s right to
`
`know. Nevertheless, “the decision as to when judicial records should be sealed is left to the
`
`sound discretion of the district court, subject to appellate review for abuse.” Id. at 474.
`
`IV. DISCUSSION
`
`To begin, the Court emphasizes the discretion this Court has when deciding to seal trial
`
`
`
`records. See In re Knoxville NewsSentinel Co., Inc., 723 F.2d at 474. Nichia emphasizes that it
`
`minimized disruptions at trial for the benefit of the Court, and “certainly did not understand that
`
`failure to clear the courtroom would mean that a document discussed in part during trial could
`
`thereafter be filed in whole publicly.” Dkt. No. 596 at 2-3 (emphasis in original). This being the
`
`-3-
`
`

`
`4:12-cv-11758-GAD-MKM Doc # 597 Filed 08/26/15 Pg 4 of 6 Pg ID 50807
`
`case Nichia argues that “[a]t a minimum, only the portions of these documents actually displayed
`
`at trial should now be considered public.” Id. at 3. The Court agrees; everything not displayed at
`
`trial should remain sealed. The larger question, however, is whether the Court should allow the
`
`redaction to the extent requested by Nichia. The Court will not.
`
`Nichia is correct that the Protective Order remains in full affect because nowhere in the
`
`Joint Pretrial Order does it indicate that the Joint Pretrial Order was meant to supersede the
`
`Protective Order. See Dkt. No. 81 at ¶ 2; Dkt. No. 457. Nonetheless, there is something to be said
`
`for Everlight’s contention that some of this information that will be redacted does not involve
`
`sensitive information. See Dkt. No. 595 at 3. Indeed, the entire trial transcript does not contain
`
`sensitive information. As Nichia impliedly concedes, the trial testimony and “the portions of []
`
`documents actually displayed at trial should now be considered public.” Dkt. No. 596 at 3.
`
`Overall, when exercising its discretion to seal judicial records, the Court must balance the
`
`public’s common law right of access against the interests favoring nondisclosure. See Nixon, 435
`
`U.S. at 599, 98 S.Ct. 1306, 55 L.Ed.2d 570 (stating that the court must consider “relevant facts
`
`and circumstances of the particular case”). Nichia contends that these documents involve the
`
`same kind of product information that Everlight sealed during the jury trial concerning its own
`
`products. Everlight contends that this is “yet another attempt to use patent litigation to further
`
`[Nichia’s] business interest.” Dkt. No. 593 at 4. While this may be true, it must be noted that
`
`Everlight may be attempting to use this as an opportunity to use confidential information in other
`
`actions. Cf. Dkt. No. 81 at ¶ 3(c) (“All Discovery Materials produced in this case designated
`
`‘Confidential – Attorneys’ Eyes Only,’ shall be used solely for purposes of this Action and for
`
`no other purpose.”). Rather than assume bad faith on behalf of either of the parties, the Court will
`
`-4-
`
`

`
`4:12-cv-11758-GAD-MKM Doc # 597 Filed 08/26/15 Pg 5 of 6 Pg ID 50808
`
`assume positive intent on behalf of both parties. As such, the Court will grant in part Nichia’s
`
`request as it appears to be consistent with the parties’ past behavior. See Dkt. No. 596 at 3.
`
`V. CONCLUSION
`
`Specifically, the Court will permit the redaction of testimony and documents that include
`
`(1) actual trade secrets and confidential information and (2) things that were not presented at
`
`trial. However, the broad swath of information that Nichia seeks to exclude contains things like
`
`Everlight’s opening statement and the trial testimony at large. Such a broad exclusion is
`
`unwarranted, and the portions of testimony and documents actually displayed at trial that don’t
`
`constitute trade secrets will ultimately be considered public
`
`This is a broad characterization of what the Court will permit. There still remains the
`
`issue of specifying exactly what will be redacted. Nichia only stated broadly which portions of
`
`the trial transcript it wanted to exclude. Rather than going through each line of the transcript and
`
`attempting to decipher what is important, the Court HEREBY ORDERS Nichia to abide by the
`
`Court’s Local Rules for the sealing of the requested documents.
`
`IT IS ORDERED that by September 4, 2015 Nichia provide the Court with a Motion
`
`that complies with the following parameters:
`
`[The] motion . . . to authorize sealing must:
`(i)
`state the authority for sealing;
`(ii)
`include an identification and description of each item proposed for
`sealing;
`state the reason that sealing each item is necessary;
`state the reason that a means other than sealing is not available or
`unsatisfactory to preserve the interest advanced by the movant in support
`of the seal;
`have a supporting brief.
`
`(iii)
`(iv)
`
`(v)
`
`
`
`-5-
`
`

`
`4:12-cv-11758-GAD-MKM Doc # 597 Filed 08/26/15 Pg 6 of 6 Pg ID 50809
`
`E.D. Mich. L.R 5.3(b)(2)(A) (emphasis added). The Motion and supporting brief should not
`
`exceed ten (10) pages. Nichia would have to submit a proposed Order with the Motion. See
`
`E.D. Mich. L.R. 5.3(b)(2)(B). Taking this course of action will allow the Court to engage in the
`
`balancing of interests that is required by law with respect to every aspect of the transcript that
`
`Nichia seeks to have redacted. Everlight would then be able to file a Response—not to exceed
`
`ten (10) pages—and Nichia could file a Reply—not to exceed five (5) pages—in accordance
`
`with the schedule provided by the Court’s Local Rules. See E.D. Mich. L.R. 7.1(e)(2).1
`
`
`
`The hearing on August 31, 2015 at 2:00 p.m. is HEREBY CANCELLED.
`
`IT IS SO ORDERED.
`
`Dated: August 26, 2015
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/Gershwin A Drain
`HON. GERSHWIN A. DRAIN
`United States District Court Judge
`
`
`
`
`
`
`1 Ideally, now that the Court has given the parties a broad idea of what the Court will permit, the parties should be
`able to narrow down what information is going to be public and what should be redacted. This Order does
`NOT foreclose the parties from reaching a resolution on their own.
`
`-6-