Plaintiffs in trade secret cases are often torn between two conflicting interests: the need to state their trade secrets with enough specificity to survive a motion to dismiss, and the necessity of keeping their trade secrets confidential. In order to resolve this dilemma, plaintiffs often seek to file their complaints under seal, so that the contents are withheld from the public but still available to the parties and the court.
In deciding whether to seal a court filing, the court must balance the need for privacy against the public’s “general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Comm., 435 U.S. 589, 597 (1978). In federal court, in order to succeed on a motion to seal, a plaintiff must state compelling reasons, supported by specific factual findings, that outweigh the public’s right of access to court filings and the public policies favoring disclosure of court documents. In re Hewlett-Packard Co., 2015 WL 8570883, *2 (N.D. Cal. 2015); see also Sherwin Williams Co. v. Courtesy Oldsmobile Cadillac, Inc., 2015 WL 8665601, *1 (E.D. Cal. 2015). State courts employ similar standards. For example, in California, in order to seal a document the moving party must demonstrate: (1) There is an overriding interest that overcomes the right to public access to the record; (2) the overriding interest supports sealing the record; (3) there is a substantial probability that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) there is no less restrictive means to achieve the overriding interest. California Rule of Court 2.550(d).
In trade secret cases, very recent guidance suggests it is not enough to simply claim that a document contains trade secrets. Rather, the moving party must provide the court with sufficient information to determine that the specific passages to be sealed contain confidential information which would cause the moving party harm if disclosed. For example, in Sherwin Williams, the plaintiff asked that a supply agreement, which it intended to use as an exhibit in a motion, be sealed because it contained trade secrets and confidential information. 2015 WL 8665601 at *1 (E.D. Cal. Dec. 14, 2015). The court rejected the motion to seal, finding that plaintiff’s motion simply made “conclusory arguments” and “blanket” assertions that the document was confidential, which failed to provide the court with sufficient information to determine if the document actually contained trade secrets. Conversely, in In re Hewlett-Packard, a special master tasked by the court in making recommendations on sealing thousands of documents submitted by Hewlett-Packard (HP), recommended that HP’s motion to seal be granted, but only after HP substantially narrowed the scope of the motion from over 2000 pages, to 140. 2015 WL 8570883 at *3-4 (N.D. Cal. Nov. 18, 2015). The special master noted that HP identified specific trade secrets contained in these documents, primarily involving HP’s corporate governance and negotiations over a previous settlement, and that HP had identified the potential harm it would suffer if the documents were disclosed, including harm to HP’s ability to pursue acquisitions and harm to an ongoing government investigation into criminal activity. Id. at *3-6.
These cases highlight why it is important to be as specific as possible in a motion to seal. Courts treat the public’s right to information seriously, and will closely scrutinize any request to seal. Blanket assertions of confidentiality are not enough. A party must provide specific reasons, including clear statements of the potential harm the party will suffer, in order to justify sealing. Further, the request must be narrowly drawn to cover only that information which is truly confidential. An otherwise meritorious motion may be defeated if the party tries to redact more information than necessary.