NimbeLink Corp. v. Digi International Inc.

U.S. District Court, District of Minnesota

NimbeLink Corp. v. Digi International Inc.

Trial Court Opinion

                 UNITED STATES DISTRICT COURT                            
                     DISTRICT OF MINNESOTA                               


NimbeLink Corp.,                      Case No. 22-cv-2345 (NEB/DJF)      

      Plaintiff,                                                         

v.                                            ORDER                      

Digi International Inc.,                                                 

      Defendant.                                                         


    This matter is before the Court on the parties’ Joint Motions for Continued Sealing (ECF 
Nos. 94, 95, 149, 215, 216, 217).  The parties agree on the continued sealing or unsealing of each 
document addressed by the motions filed at ECF Nos. 94, 95, 149 and 215 (“Agreed Joint 
Motions”).   The Court grants the Agreed Joint Motions.                   
    The parties have set forth certain disagreements in the Joint Motion for Continued Sealing 
at ECF No. 216 (the “216 Motion”), which addresses documents filed under temporary seal in 
connection with Digi International Inc.’s (“Digi”) Motion to Compel (ECF No. 190).  The Court 
grants the 216 Motion as to those documents for which the parties agree on continued sealing or 
unsealing.  The remaining, disputed documents in the 216 Motion are ECF Nos. 192, 195, 195-1, 
195-2, 195-3, 195-4, 195-5, 195-10 and 195-11.                            
    The parties completely disagree in their Joint Motion for Continued Sealing at ECF No. 
217 (the “217 Motion”), which addresses documents filed under temporary seal in connection with 
Digi’s Motion for Leave to File an Amended Answer and Counterclaims (ECF No. 157).  The 
documents in dispute in the 217 Motion are ECF Nos. 159, 161, 161-1, 161-2, 161-3, 161-4, 161-
5, 161-6, 161-7, 174, 177 and 179.                                        
     “There is a common-law right of access to judicial records.”  IDT Corp. v. eBay, 
709 F.3d 1220, 1222
 (8th Cir. 2013).  “[A]ll documents properly filed by a litigant seeking a judicial 
decision are judicial records and entitled to a presumption of public access.”  Marden’s Ark, Inc. 
v. UnitedHealth Group, Inc., 
534 F. Supp. 3d 1038
, 1045 (D. Minn. 2021); see also Local Rule 

5.6, 2017 Advisory Committee Note (“[T]he public does have a qualified right of access to 
information that is filed with the court.  Even if such information is covered by a protective order, 
that information should not be kept under seal unless a judge determines that a party or nonparty’s 
need for confidentiality outweighs the public’s right of access.”).  “This right of access bolsters 
public confidence in the judicial system by allowing citizens to evaluate the reasonableness and 
fairness of judicial proceedings[.]”  IDT Corp., 
709 F.3d at 1222
 (quotation and citation omitted). 
It also provides a measure of accountability to the public at large, which pays for the courts.  
Id.
 
(citation omitted).                                                       
    However, this presumption of the “right to inspect and copy judicial records is not 
absolute.”  
Id.
 at 1222 (quoting Nixon v. Warner, 
435 U.S. 589
, 597–98 (1978)).  “[T]he weight to 

be given to the presumption of [public] access must be governed by the role of the material at issue 
in the exercise of Article III judicial power and resultant value of such information to those 
monitoring the federal courts.”  Id. at 1224.  When the documents at issue played a material role 
in the exercise of Article III power or are of value to those monitoring the federal courts, “the 
presumption of public access to judicial records may be overcome if the party seeking to keep the 
records under seal provides compelling reasons for doing so.”  Flynt v. Lombardi, 
885 F.3d 508, 511
 (8th Cir. 2018).  On the other hand, when the documents at issue did not play a material role 
in the exercise of Article III power or are of little value to those monitoring the courts, the 
presumption of public access instead “amounts to … a prediction of public access absent a 
countervailing reason.”  IDT Corp., 
709 F.3d at 1224
 (quoting United States v. Amodeo, 
71 F.3d 1044, 1049
 (2d Cir. 1995)).                                               
    I.   The 216 Motion                                                  
    Since the undersigned heard and resolved the Motion to Compel—a non-dispositive 

discovery motion that did not involve the exercise of Article III judicial power—there is merely a 
prediction of public access to the documents at issue in the 216 Motion absent a countervailing 
reason.  See 
id.
 (quoting Amodeo, 
71 F.3d at 1049
).  For each of the documents in question, 
NimbeLink Corp. (“NimbeLink”) argues for continued sealing and Digi argues for unsealing.  (See 
ECF No. 216.)  NimbeLink argues that, even though it has waived privilege with respect to certain 
documents, its privilege waiver does not necessarily destroy any document’s confidentiality.  
NimbeLink cites Peterson v. Washington Cnty., 18-cv-2640 (DWF/ECW), 
2021 WL 2292275
, at 
*1 (D. Minn. June 4, 2021), to support its position.  In that case, the plaintiff waived any applicable 
privilege over his health information, but the court held Fed. R. Civ. P. 26(c) nevertheless 
permitted  the  sealing  of  certain  documents  to  protect  the  plaintiff  “from  annoyance, 

embarrassment, oppression, or undue burden.” Fed. R. Civ. P. 26(c)(1).  Nimbelink contends that, 
in addition to attorney-client communications, each of the disputed filings contains information 
that is “highly confidential” and includes “competitively sensitive business planning information.” 
(ECF No. 216.)                                                            
    Digi responds that Peterson is inapposite because it dealt with medical information as 
opposed to confidential business information.  (See id.)  Unlike the documents at issue in Peterson, 
the documents at issue here raise no specter of annoyance, embarrassment, oppression, or undue 
burden for NimbeLink.  Digi further contends none of the documents at issue contain “confidential 
or competitively sensitive information (such as contractual terms, pricing information, business 
planning,  or  other  competitively  sensitive  information).”    Digi  argues  continued  sealing  is 
unwarranted for these reasons.  (See id.)                                 
    Since NimbeLink disclosed the communications at issue to Digi in connection with its 
privilege waiver, NimbeLink has forfeited the confidentiality of those communications to the 

extent  such  confidentiality  is  predicated  solely  on  the  formerly  privileged  nature  of  the 
communications.  But the Court agrees that a waiver of privilege does not necessarily waive a 
party’s claim to confidentiality over its attorney-client communications if the waiving party 
continues to protect their confidentiality.                               
    Based on the record before the Court, it appears NimbeLink has continued to regard and 
treat these documents as confidential.  So, the question before the Court is whether NimbeLink 
has offered a countervailing reason to keep the documents sealed that is sufficient to outweigh the 
weak “prediction of public access” applicable to the 216 Motion.  IDT Corp., 
709 F.3d at 1224
.  
The Court finds that, with respect to most of these documents, it has.    
    Though NimbeLink is not faced with the same threat of personal embarrassment as the 

Plaintiff in Peterson was, it claims the documents at issue contain confidential or sensitive business 
information  or  communications.    Such  communications  or  information  “include  formulae, 
proprietary technical data, customer lists, or financial information,” Willis Elec. Co. v. Polygroup 
Ltd. (Macao Com. Offshore), No. 15-cv-3443 (WMW/KMM), 
2019 WL 2574979
, at *2 (D. Minn. 
June 24, 2019), “private financial and strategic information,” see Hoffmann Bros. Heating & Air 
Conditioning, Inc. v. Hoffmann Air Conditioning & Heating, LLC, No. 4:19-cv-200 (SEP), 
2022 WL 1718882
, at *5 (E.D. Mo. May 27, 2022), and documents containing trade secrets or other 
proprietary information.  Am. Achievement Corp. v. Jostens, Inc., No. 21-cv-2613 (NEB/DJF), 
2023 WL 3815697
, at *2 (D. Minn. June 5, 2023).  But, “[t]he fact that a communication may be 
unflattering does not warrant [its] sealing.” Willis Elec. Co., 
2019 WL 2574979
, at *2.   
    The Court has reviewed the documents (or subparts of documents) that NimbeLink seeks 
to keep sealed.  Based on its review, the Court is persuaded that unsealing most of them would 

raise  at  least  moderate  concerns  about  the  disclosure  of  confidential  business  strategy 
communications that are sufficient to outweigh the weak presumption of public access applicable 
to documents supporting the 216 Motion, as to which the District Judge, the Honorable Nancy E. 
Brasel, has not issued a decision.  The Court thus permits the continued sealing of ECF Nos. 192, 
195, 195-1, 195-3, 195-4, 195-5, 195-10 and 195-11.  In contrast, ECF No. 195-2 is a scheduling 
email that appears to contain little, if any, business strategy information.  The Court therefore 
orders ECF No. 195-2 to be unsealed.                                      
    II.  The 217 Motion                                                  
    With respect to each of the documents disputed in the 217 Motion, NimbeLink seeks 
continued sealing and Digi seeks unsealing (see ECF No. 217).  The Court assigns greater weight 

to the public’s potential interest in the documents at issue in the 217 Motion because Judge Brasel 
issued a decision granting the underlying motion, Digi’s Motion to Amend (see ECF No. 209).  
C.f. Lusk v. Akradi, 15-cv-1911 (JRT/BRT), 
2018 WL 1634408
, at *2 n.2 (D. Minn. Apr. 5, 2018) 
(finding the public interest in sealed documents related to a motion to amend would be greater “if 
the Proposed Amended Complaint had been allowed”).  So while the parties’ arguments in 
connection with the 217 Motion are similar to the arguments they advanced in connection with the 
216 Motion (compare ECF No. 216, with ECF No. 217), the Court’s analysis differs in view of 
the public’s potentially weightier right to access to these documents.  See Lusk, 
2018 WL 1634408
, 
at *2 n.2.  In evaluating how much weight to give to the public’s entitlement to access these 
documents, the Court considers not only the nature of the underlying motion, but also the role each 
document (or part of a document) appears to have played in Judge Brasel’s analysis.  See Flynt, 
885 F.3d at 511
.                                                          
    In this instance, Judge Brasel ruled from the bench on Digi’s Motion to Amend, having 

never reached the merits of the proposed amendment because NimbeLink did not oppose the 
motion on futility grounds.  (See Transcript, ECF No. 232 at 44.)  During the hearing on that 
motion, the parties discussed some of the potentially confidential information included in the 
communications at issue in open court.  (See ECF No. 232 at 17-18.)  Though the Transcript is 
presently restricted, it will become accessible to the public on May 21, 2024 (see ECF No. 232). 
And though both parties had an opportunity to seek redactions to the transcript before it becomes 
public, neither party exercised its right to do so (see ECF Nos. 232, 237, 238).  The Court can 
discern no rational basis to continue sealing information that NimbeLink has itself allowed to 
become public in this fashion.                                            
    Taking these factors into consideration, along with the public’s greater right of access to 

the core documents Judge Brasel likely considered in connection with Digi’s Motion to Amend, 
the Court orders the following documents to be unsealed: ECF Nos. 159, 161, 161-1, 161-2, 174 
and 179. The Court will permit the continued sealing of ECF Nos. 161-3, 161-4, 161-5, 161-6, 
161-7 and 177.                                                            
                          CONCLUSION                                     
    The Court grants the parties’ joint motion with respect to those documents for which they 
agree and resolves the parties’ disagreements as set forth herein.  Finally, the Court puts the parties 
on notice that the continued sealing of any document is subject to change depending on its 
importance in later rulings in this case.  Thus, the documents the Court continues to seal under this 
order may be subject to unsealing in the future if, for example, they become an important part of 
Judge Brasel’s decision on a dispositive motion.  See Flynt, 
885 F.3d at 511
.  

ORDER

    Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS 

HEREBY ORDERED THAT the Agreed Joint Motions (ECF Nos. 94, 95, 149 and 215) are 
GRANTED, and the 216 Motion (ECF No. 216) and 217 Motion (ECF No. 217) are GRANTED 
IN PART and DENIED IN PART as follows:                                    
   I.    The Clerk of the Court is directed to UNSEAL the following documents 28 days 
         after the date of this Order, unless a timely motion for further consideration is filed 
         pursuant to Local Rule 5.6(d)(3):                               
         •  ECF No. 98                                                   
         •  ECF No. 159                                                  
         •  ECF No. 161                                                  
         •  ECF No. 161-1                                                
         •  ECF No. 161-2                                                
         •  ECF No. 174                                                  
         •  ECF No. 179                                                  
         •  ECF No. 186-7                                                
         •  ECF No. 195-2                                                
         •  ECF No. 204-7;                                               

  II.    The Clerk of the Court is directed to keep the following documents UNDER 
         SEAL:                                                           
         •  ECF No. 65                                                   
         •  ECF No. 68-1                                                 
         •  ECF No. 72                                                   
         •  ECF No. 83                                                   
         •  ECF No. 90                                                   
         •  ECF No. 126                                                  
         •  ECF No. 129-1                                                
         •  ECF No. 129-2                                                
         •  ECF No. 129-3                                                
         •  ECF No. 129-4                                                
      •  ECF No. 161-3                                                
      •  ECF No. 161-4                                                
      •  ECF No. 161-5                                                
      •  ECF No. 161-6                                                
      •  ECF No. 161-7                                                
      •  ECF No. 177                                                  
      •  ECF No. 183                                                  
      •  ECF No. 186                                                  
      •  ECF No. 186-1                                                
      •  ECF No. 186-2                                                
      •  ECF No. 186-3                                                
      •  ECF No. 186-4                                                
      •  ECF No. 186-5                                                
      •  ECF No. 186-6                                                
      •  ECF No. 186-8                                                
      •  ECF No. 186-9                                                
      •  ECF No. 192                                                  
      •  ECF No. 195                                                  
      •  ECF No. 195-1                                                
      •  ECF No. 195-3                                                
      •  ECF No. 195-4                                                
      •  ECF No. 195-5                                                
      •  ECF No. 195-6                                                
      •  ECF No. 195-7                                                
      •  ECF No. 195-8                                                
      •  ECF No. 195-9                                                
      •  ECF No. 195-10                                               
      •  ECF No. 195-11                                               
      •  ECF No. 201                                                  
      •  ECF No. 204                                                  
      •  ECF No. 204-1                                                
      •  ECF No. 204-2                                                
      •  ECF No. 204-3                                                
      •  ECF No. 204-4                                                
      •  ECF No. 204-5                                                
      •  ECF No. 204-6; and                                           

III.   The parties must file versions of the following documents with the proposed 
      redactions identified in the relevant Joint Motion for Continued Sealing within 28 
      days, failing which the Court will order the Clerk of the Court to unseal these 
      documents:                                                      
       •  ECF No. 68                                                   
       •  ECF No. 68-2                                                 
       •  ECF No. 75                                                   
       •  ECF No. 86.                                                  

Dated: April 12, 2024           s/ Dulce J. Foster                      
                               Dulce J. Foster                         
                               United States Magistrate Judge          

Trial Court Opinion

                 UNITED STATES DISTRICT COURT                            
                     DISTRICT OF MINNESOTA                               


NimbeLink Corp.,                      Case No. 22-cv-2345 (NEB/DJF)      

      Plaintiff,                                                         

v.                                            ORDER                      

Digi International Inc.,                                                 

      Defendant.                                                         


    This matter is before the Court on the parties’ Joint Motions for Continued Sealing (ECF 
Nos. 94, 95, 149, 215, 216, 217).  The parties agree on the continued sealing or unsealing of each 
document addressed by the motions filed at ECF Nos. 94, 95, 149 and 215 (“Agreed Joint 
Motions”).   The Court grants the Agreed Joint Motions.                   
    The parties have set forth certain disagreements in the Joint Motion for Continued Sealing 
at ECF No. 216 (the “216 Motion”), which addresses documents filed under temporary seal in 
connection with Digi International Inc.’s (“Digi”) Motion to Compel (ECF No. 190).  The Court 
grants the 216 Motion as to those documents for which the parties agree on continued sealing or 
unsealing.  The remaining, disputed documents in the 216 Motion are ECF Nos. 192, 195, 195-1, 
195-2, 195-3, 195-4, 195-5, 195-10 and 195-11.                            
    The parties completely disagree in their Joint Motion for Continued Sealing at ECF No. 
217 (the “217 Motion”), which addresses documents filed under temporary seal in connection with 
Digi’s Motion for Leave to File an Amended Answer and Counterclaims (ECF No. 157).  The 
documents in dispute in the 217 Motion are ECF Nos. 159, 161, 161-1, 161-2, 161-3, 161-4, 161-
5, 161-6, 161-7, 174, 177 and 179.                                        
     “There is a common-law right of access to judicial records.”  IDT Corp. v. eBay, 
709 F.3d 1220, 1222
 (8th Cir. 2013).  “[A]ll documents properly filed by a litigant seeking a judicial 
decision are judicial records and entitled to a presumption of public access.”  Marden’s Ark, Inc. 
v. UnitedHealth Group, Inc., 
534 F. Supp. 3d 1038
, 1045 (D. Minn. 2021); see also Local Rule 

5.6, 2017 Advisory Committee Note (“[T]he public does have a qualified right of access to 
information that is filed with the court.  Even if such information is covered by a protective order, 
that information should not be kept under seal unless a judge determines that a party or nonparty’s 
need for confidentiality outweighs the public’s right of access.”).  “This right of access bolsters 
public confidence in the judicial system by allowing citizens to evaluate the reasonableness and 
fairness of judicial proceedings[.]”  IDT Corp., 
709 F.3d at 1222
 (quotation and citation omitted). 
It also provides a measure of accountability to the public at large, which pays for the courts.  
Id.
 
(citation omitted).                                                       
    However, this presumption of the “right to inspect and copy judicial records is not 
absolute.”  
Id.
 at 1222 (quoting Nixon v. Warner, 
435 U.S. 589
, 597–98 (1978)).  “[T]he weight to 

be given to the presumption of [public] access must be governed by the role of the material at issue 
in the exercise of Article III judicial power and resultant value of such information to those 
monitoring the federal courts.”  Id. at 1224.  When the documents at issue played a material role 
in the exercise of Article III power or are of value to those monitoring the federal courts, “the 
presumption of public access to judicial records may be overcome if the party seeking to keep the 
records under seal provides compelling reasons for doing so.”  Flynt v. Lombardi, 
885 F.3d 508, 511
 (8th Cir. 2018).  On the other hand, when the documents at issue did not play a material role 
in the exercise of Article III power or are of little value to those monitoring the courts, the 
presumption of public access instead “amounts to … a prediction of public access absent a 
countervailing reason.”  IDT Corp., 
709 F.3d at 1224
 (quoting United States v. Amodeo, 
71 F.3d 1044, 1049
 (2d Cir. 1995)).                                               
    I.   The 216 Motion                                                  
    Since the undersigned heard and resolved the Motion to Compel—a non-dispositive 

discovery motion that did not involve the exercise of Article III judicial power—there is merely a 
prediction of public access to the documents at issue in the 216 Motion absent a countervailing 
reason.  See 
id.
 (quoting Amodeo, 
71 F.3d at 1049
).  For each of the documents in question, 
NimbeLink Corp. (“NimbeLink”) argues for continued sealing and Digi argues for unsealing.  (See 
ECF No. 216.)  NimbeLink argues that, even though it has waived privilege with respect to certain 
documents, its privilege waiver does not necessarily destroy any document’s confidentiality.  
NimbeLink cites Peterson v. Washington Cnty., 18-cv-2640 (DWF/ECW), 
2021 WL 2292275
, at 
*1 (D. Minn. June 4, 2021), to support its position.  In that case, the plaintiff waived any applicable 
privilege over his health information, but the court held Fed. R. Civ. P. 26(c) nevertheless 
permitted  the  sealing  of  certain  documents  to  protect  the  plaintiff  “from  annoyance, 

embarrassment, oppression, or undue burden.” Fed. R. Civ. P. 26(c)(1).  Nimbelink contends that, 
in addition to attorney-client communications, each of the disputed filings contains information 
that is “highly confidential” and includes “competitively sensitive business planning information.” 
(ECF No. 216.)                                                            
    Digi responds that Peterson is inapposite because it dealt with medical information as 
opposed to confidential business information.  (See id.)  Unlike the documents at issue in Peterson, 
the documents at issue here raise no specter of annoyance, embarrassment, oppression, or undue 
burden for NimbeLink.  Digi further contends none of the documents at issue contain “confidential 
or competitively sensitive information (such as contractual terms, pricing information, business 
planning,  or  other  competitively  sensitive  information).”    Digi  argues  continued  sealing  is 
unwarranted for these reasons.  (See id.)                                 
    Since NimbeLink disclosed the communications at issue to Digi in connection with its 
privilege waiver, NimbeLink has forfeited the confidentiality of those communications to the 

extent  such  confidentiality  is  predicated  solely  on  the  formerly  privileged  nature  of  the 
communications.  But the Court agrees that a waiver of privilege does not necessarily waive a 
party’s claim to confidentiality over its attorney-client communications if the waiving party 
continues to protect their confidentiality.                               
    Based on the record before the Court, it appears NimbeLink has continued to regard and 
treat these documents as confidential.  So, the question before the Court is whether NimbeLink 
has offered a countervailing reason to keep the documents sealed that is sufficient to outweigh the 
weak “prediction of public access” applicable to the 216 Motion.  IDT Corp., 
709 F.3d at 1224
.  
The Court finds that, with respect to most of these documents, it has.    
    Though NimbeLink is not faced with the same threat of personal embarrassment as the 

Plaintiff in Peterson was, it claims the documents at issue contain confidential or sensitive business 
information  or  communications.    Such  communications  or  information  “include  formulae, 
proprietary technical data, customer lists, or financial information,” Willis Elec. Co. v. Polygroup 
Ltd. (Macao Com. Offshore), No. 15-cv-3443 (WMW/KMM), 
2019 WL 2574979
, at *2 (D. Minn. 
June 24, 2019), “private financial and strategic information,” see Hoffmann Bros. Heating & Air 
Conditioning, Inc. v. Hoffmann Air Conditioning & Heating, LLC, No. 4:19-cv-200 (SEP), 
2022 WL 1718882
, at *5 (E.D. Mo. May 27, 2022), and documents containing trade secrets or other 
proprietary information.  Am. Achievement Corp. v. Jostens, Inc., No. 21-cv-2613 (NEB/DJF), 
2023 WL 3815697
, at *2 (D. Minn. June 5, 2023).  But, “[t]he fact that a communication may be 
unflattering does not warrant [its] sealing.” Willis Elec. Co., 
2019 WL 2574979
, at *2.   
    The Court has reviewed the documents (or subparts of documents) that NimbeLink seeks 
to keep sealed.  Based on its review, the Court is persuaded that unsealing most of them would 

raise  at  least  moderate  concerns  about  the  disclosure  of  confidential  business  strategy 
communications that are sufficient to outweigh the weak presumption of public access applicable 
to documents supporting the 216 Motion, as to which the District Judge, the Honorable Nancy E. 
Brasel, has not issued a decision.  The Court thus permits the continued sealing of ECF Nos. 192, 
195, 195-1, 195-3, 195-4, 195-5, 195-10 and 195-11.  In contrast, ECF No. 195-2 is a scheduling 
email that appears to contain little, if any, business strategy information.  The Court therefore 
orders ECF No. 195-2 to be unsealed.                                      
    II.  The 217 Motion                                                  
    With respect to each of the documents disputed in the 217 Motion, NimbeLink seeks 
continued sealing and Digi seeks unsealing (see ECF No. 217).  The Court assigns greater weight 

to the public’s potential interest in the documents at issue in the 217 Motion because Judge Brasel 
issued a decision granting the underlying motion, Digi’s Motion to Amend (see ECF No. 209).  
C.f. Lusk v. Akradi, 15-cv-1911 (JRT/BRT), 
2018 WL 1634408
, at *2 n.2 (D. Minn. Apr. 5, 2018) 
(finding the public interest in sealed documents related to a motion to amend would be greater “if 
the Proposed Amended Complaint had been allowed”).  So while the parties’ arguments in 
connection with the 217 Motion are similar to the arguments they advanced in connection with the 
216 Motion (compare ECF No. 216, with ECF No. 217), the Court’s analysis differs in view of 
the public’s potentially weightier right to access to these documents.  See Lusk, 
2018 WL 1634408
, 
at *2 n.2.  In evaluating how much weight to give to the public’s entitlement to access these 
documents, the Court considers not only the nature of the underlying motion, but also the role each 
document (or part of a document) appears to have played in Judge Brasel’s analysis.  See Flynt, 
885 F.3d at 511
.                                                          
    In this instance, Judge Brasel ruled from the bench on Digi’s Motion to Amend, having 

never reached the merits of the proposed amendment because NimbeLink did not oppose the 
motion on futility grounds.  (See Transcript, ECF No. 232 at 44.)  During the hearing on that 
motion, the parties discussed some of the potentially confidential information included in the 
communications at issue in open court.  (See ECF No. 232 at 17-18.)  Though the Transcript is 
presently restricted, it will become accessible to the public on May 21, 2024 (see ECF No. 232). 
And though both parties had an opportunity to seek redactions to the transcript before it becomes 
public, neither party exercised its right to do so (see ECF Nos. 232, 237, 238).  The Court can 
discern no rational basis to continue sealing information that NimbeLink has itself allowed to 
become public in this fashion.                                            
    Taking these factors into consideration, along with the public’s greater right of access to 

the core documents Judge Brasel likely considered in connection with Digi’s Motion to Amend, 
the Court orders the following documents to be unsealed: ECF Nos. 159, 161, 161-1, 161-2, 174 
and 179. The Court will permit the continued sealing of ECF Nos. 161-3, 161-4, 161-5, 161-6, 
161-7 and 177.                                                            
                          CONCLUSION                                     
    The Court grants the parties’ joint motion with respect to those documents for which they 
agree and resolves the parties’ disagreements as set forth herein.  Finally, the Court puts the parties 
on notice that the continued sealing of any document is subject to change depending on its 
importance in later rulings in this case.  Thus, the documents the Court continues to seal under this 
order may be subject to unsealing in the future if, for example, they become an important part of 
Judge Brasel’s decision on a dispositive motion.  See Flynt, 
885 F.3d at 511
.  

ORDER

    Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS 

HEREBY ORDERED THAT the Agreed Joint Motions (ECF Nos. 94, 95, 149 and 215) are 
GRANTED, and the 216 Motion (ECF No. 216) and 217 Motion (ECF No. 217) are GRANTED 
IN PART and DENIED IN PART as follows:                                    
   I.    The Clerk of the Court is directed to UNSEAL the following documents 28 days 
         after the date of this Order, unless a timely motion for further consideration is filed 
         pursuant to Local Rule 5.6(d)(3):                               
         •  ECF No. 98                                                   
         •  ECF No. 159                                                  
         •  ECF No. 161                                                  
         •  ECF No. 161-1                                                
         •  ECF No. 161-2                                                
         •  ECF No. 174                                                  
         •  ECF No. 179                                                  
         •  ECF No. 186-7                                                
         •  ECF No. 195-2                                                
         •  ECF No. 204-7;                                               

  II.    The Clerk of the Court is directed to keep the following documents UNDER 
         SEAL:                                                           
         •  ECF No. 65                                                   
         •  ECF No. 68-1                                                 
         •  ECF No. 72                                                   
         •  ECF No. 83                                                   
         •  ECF No. 90                                                   
         •  ECF No. 126                                                  
         •  ECF No. 129-1                                                
         •  ECF No. 129-2                                                
         •  ECF No. 129-3                                                
         •  ECF No. 129-4                                                
      •  ECF No. 161-3                                                
      •  ECF No. 161-4                                                
      •  ECF No. 161-5                                                
      •  ECF No. 161-6                                                
      •  ECF No. 161-7                                                
      •  ECF No. 177                                                  
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      •  ECF No. 186                                                  
      •  ECF No. 186-1                                                
      •  ECF No. 186-2                                                
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      •  ECF No. 186-5                                                
      •  ECF No. 186-6                                                
      •  ECF No. 186-8                                                
      •  ECF No. 186-9                                                
      •  ECF No. 192                                                  
      •  ECF No. 195                                                  
      •  ECF No. 195-1                                                
      •  ECF No. 195-3                                                
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      •  ECF No. 195-5                                                
      •  ECF No. 195-6                                                
      •  ECF No. 195-7                                                
      •  ECF No. 195-8                                                
      •  ECF No. 195-9                                                
      •  ECF No. 195-10                                               
      •  ECF No. 195-11                                               
      •  ECF No. 201                                                  
      •  ECF No. 204                                                  
      •  ECF No. 204-1                                                
      •  ECF No. 204-2                                                
      •  ECF No. 204-3                                                
      •  ECF No. 204-4                                                
      •  ECF No. 204-5                                                
      •  ECF No. 204-6; and                                           

III.   The parties must file versions of the following documents with the proposed 
      redactions identified in the relevant Joint Motion for Continued Sealing within 28 
      days, failing which the Court will order the Clerk of the Court to unseal these 
      documents:                                                      
       •  ECF No. 68                                                   
       •  ECF No. 68-2                                                 
       •  ECF No. 75                                                   
       •  ECF No. 86.                                                  

Dated: April 12, 2024           s/ Dulce J. Foster                      
                               Dulce J. Foster                         
                               United States Magistrate Judge          

Reference

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