Verragio, LTD. v. Walmart Stores, Inc.

AMSTER. Partners Founding Partners Associates Of Counsel Daniel Ebenstein Morton Amster (1927 - 2019) Benjamin Charkow Philip H. Gotttiried ROTHSTEIN Neil M. Zipkin Jesse Rothstein (1934 - 2003) Suzue Fujimori Anthony F. Lo Cicero Hajime Sakai, Ph.D. & EBENSTEIN LLP Kenneth P. George Senior Counsel David P. Goldberg Intellectual Property Law com, (| Mamata | So Douglas A. Miro wee Maller, PRD. Dexter Chang Park Avenue Re, Comack dam Keith J. Barkaus ax Vern . Michael R. Jones New York NY 10016 Holly Pekowsky Matthieu Hausig Cintontes. Lisiewski Main 212 336 8000 Reniansn M. Fialpem’ Brian Amos, Ph.D. Albert J Boardman Not admitted in New ¥.

Fax 212 336 8001 Charles P, LaPolla Chandler Sturm Web www.arelaw.com Anthony F. LoCicero Direct 212 336 8110 MEMORANDUM ENDORSED E-mail [email protected] USDC SDNY DOCUMENT ELECTRONICALLY FILED September 1, 2020 DOC #: DATE FILED:_9/29/2021 Via ECF The Honorable Gregory H. Woods United States District Judge Southern District of New York Pearl Street New York, NY 10007 Re: Verragio, Ltd. v. Walmart Inc., et. al., Case No. 1:18-cv-10620-GHW Letter Application Seeking Leave to File Under Seal Dear Judge Woods: We write on behalf of Defendants Walmart Inc. (“Walmart”) and K&M Associates, L.P. (“K&M”) (collectively, “Defendants”) in the above-referenced action. Defendants respectfully request permission to file under seal certain confidential information included in Defendants’ Pretrial Memorandum of Law (“Memorandum”). This same information was previously filed under seal during the summary judgment phase with the Court’s permission. During the March 23, 2020 telephonic conference conducted before Your Honor, you granted Defendants permission to file four categories of confidential financial information under seal, namely, (1) information regarding sales volume and forecasts; (2) information regarding profits from sales of the ring; (3) information regarding the Pay From Scan program, including a contract between Walmart and K&M; and (4) quantitative importance of Walmart as a customer for K&M. ECF No. 75. Defendants seek to file this same confidential information again under seal.

Although there is a presumption in favor of public access to judicial documents, a court may seal judicial documents if “sealing is necessary to preserve higher values” and “only if the sealing is narrowly tailored.” Brown v. Maxwell, 929 F.3d 41, 47 (2d Cir. 2019). Such “higher 4821-5250-6569v. 1 Hon. Gregory H. Woods 2 September 1, 2020 values” include the “interest in protecting confidential business information.” Standard Inv.

Chartered, Inc. v. Fin. Indus. Regulatory Auth., Ind., 347 F. App’x 615, 617 (2d Cir. 2009) (affirming district court’s sealig of confidential business information where disclosure would result in “financial harm”). This Court regularly seals judicial documents where such confidential business information would be disclosed. See, e.g., GoSMILE, Inc. v. Dr. Jonathan Levine, D.M.D. P.C., 769 F. Supp. 2d 630, 649-50 (S.D.N.Y. 2011) (finding the “the privacy interests of the defendants outweigh the presumption of public access” for documents containing “highly proprietary material concerning the defendants’ marketing strategies, product development, costs and budgeting”).

Defendants would suffer harm if the information contained in the Memorandum were publicly disclosed because it contains sensitive commercial information of Defendants. This information would not otherwise be publicly available, and it would be prejudicial to the Defendants if their competitors were made privy to this type of confidential information. Courts routinely find that confidential business information is the type of sensitive information that may warrant sealing. See, e.g., Encyclopedia Brown Prods., Ltd. v. Home Box Office, Inc., 26 F. Supp. 2d 606, 614 (S.D.N.Y. 1998) (sealing confidential business information that would provide valuable insights into a company’s current business practices that a competitor would seek to exploit, including their volume of business.)

For the above reasons, Defendants respectfully request that this request for permission to seal the Memorandum be granted only to the extent that the Memorandum includes information which falls in one of four categories for which the requests for permission to seal was granted by the Court on March 24, 2020. ECF No. 75.

Application granted in part and denied in part. In Mirlis v. Greer, the Second Circuit summarized the three steps that the Court must follow determine whether the presumption of public access attaches to a particular document and bars sealing. See 952 F.3d 51, 59 (2d Cir. 2020) First, the Court determines whether the document is a “judicial document,” namely, “one that has been placed before the court by the partie and that is relevant to the performance of the judicial function and useful in the judicial process.” Id. (quotation omitted). Second, if the materials are “judicial documents,” the Court “proceeds to ‘determine the weight of the presumption of access to that document.’”” Id. (quo United States v. Erie Cty., 763 F.3d 235, 239, 241 (2d Cir. 2014)). “The weight to be accorded is ‘governed by the role of the material at is in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts.” Id. □□□□□□□□ Amodeo, 71 F.3d at 1049). “Finally, the court must identify all of the factors that legitimately counsel against disclosure of the judicial document, and balance those factors against the weight properly accorded the presumption of access.” Id. Having evaluated these factors, the motion to seal is granted in part and denied in part. The documents may remain sealed until trial. The Court expects to order them unsealed at trial. The documents are judicial documents. The weight of the presumption prior to trial is low. trial, however, when the evidence is expected to be introduced on the public record, the weight will be very high. While the factors that cou against disclosure counsel against disclosure for the reasons previously identified by the Court, see Dkt. No. 75, outweigh the public’s inter in disclosure of the sealed record prior to their use at trial, they will no longer do so when the evidence is presented in open court. As a rest the documents may remain under seal until the commencement of trial. At trial, the Court expects to order the unsealing of any documents evidence that will be placed on the public record at trial.

The Clerk of Court is directed to terminate the motion pending at Dkt. No. 97.

SO ORDERED.

Dated: September 25, 2021 seal!

New York, New York GRE H. WOODS United States District Judge 4821-5250-6569v. 1