United States District Court, D. Minnesota
In re BAIR HUGGER FORCED AIR WARMING DEVICES PRODUCTS LIABILITY LITIGATION This Document Relates To: all cases.
N. ERICKSEN UNITED STATES DISTRICT JUDGE
the Court is a dispute as to whether certain documents filed
pursuant to Local Rule 5.6 should be sealed or unsealed. On
March 23, 2018, the Magistrate Judge ordered, ECF No. 1182,
the unsealing of an exhibit about the Bair Paws, ECF No. 937.
The Bair Paws is a product that Defendants sell. The
Magistrate Judge also ordered, ECF No. 1182, the continued
sealing of an assortment of Defendants' internal
documents, see ECF No. 1229, Ex. C (listing docket
entries for these internal documents).
parties then moved for further consideration of the
Magistrate Judge's March 23 order. See D. Minn.
LR 5.6(d)(3). On May 2, 2018, the Magistrate Judge denied
Defendants' motion to further consider the unsealing of
the Bair Paws exhibit. ECF No. 1245. On May 8, 2018, the
Magistrate Judge denied Plaintiffs' motion to further
consider the continued sealing of Defendants' internal
documents. ECF No. 1247.
accordance with Local Rule 5.6(d)(4), Plaintiffs now object,
ECF No. 1259, to the continued sealing of Defendants'
internal documents and Defendants object, ECF No. 1258, to
the unsealing of the Bair Paws exhibit.
Rule 72.2 governs this Court's review of orders by
Magistrate Judges under Local Rule 5.6. In conducting the
review, the Court must reverse legal or clear error but
“may also reconsider on . . . [its] own any matter
decided.” D. Minn. LR 72.2(a)(3). As set forth below,
the Court affirms the order sealing Defendants' internal
documents and reverses the order unsealing the Bair Paws
common-law “right of access is not absolute” and
“requires a weighing of competing interests.”
Webster Groves Sch. Dist. v. Pulitzer Pub. Co., 898
F.2d 1371, 1376, 1378 (8th Cir. 1990) (affirming sealing).
No. presumption strongly favors access under the common law.
Compare id., with in re Neal, 461 F.3d
1048, 1054 (8th Cir. 2006) (reviewing heightened sealing
standard under bankruptcy statute). Further, in deciding
whether to seal documents, “[e]very court has
supervisory power over its own records and files, and access
has been denied where court files might have become a vehicle
for improper purposes.” Nixon v. Warner
Commc'ns, Inc., 435 U.S. 589, 598, 611-12 (1978)
(directing affirmance of “District Court's decision
not to release” documents). In particular,
“courts have refused to permit their files to serve as
. . . sources of business information that might harm a
litigant's competitive standing.” Id.
its own review of the record, the Court finds no clear or
legal error in the order continuing to seal Defendants'
internal documents. The “material in these docket
entries is related to the internal reporting, testing,
analysis, and consumer data and communications addressing the
Bair Hugger device's strategic market placement and
positioning.” ECF No. 1247 at 5. “[S]everal of
the contested docket entries contain Defendants' customer
manifests and lists, various market analysis, and expected
customer tendencies and reaction to this litigation and its
potential market impact.” Id. As the
Magistrate Judge found, the public interest in access is weak
relative to Defendants' interest in protecting their
competitively sensitive information. The order sealing
Defendants' internal documents, ECF No. 1247, is thus
AFFIRMED and Plaintiffs' objection, ECF No. 1259, is
Court concludes that the Bair Paws exhibit should also be
sealed. The Bair Paws exhibit is the technical background to
a proposal for a scientific study about the Bair Paws device.
The competing interests favor sealing.
public's interest in this exhibit is minimal, as the
exhibit came “within [the] court's purview solely
to [e]nsure [its] irrelevance.” IDT Corp. v.
eBay, 709 F.3d 1220, 1223 (8th Cir. 2013). Although
Plaintiffs allege that the Bair Paws is an alternative to the
Bair Hugger, the Court ruled the Bair Paws exhibit
irrelevant, at least as to the first bellwether trial.
See 16-cv-4187, ECF No. 304. The exhibit is about
the Bair Paws, not the Bair Hugger. See ECF No. 1245
at 2 (explaining that Bair Paws exhibit “is simply an
unpublished paper examining the . . . Bair Paws device”
and that it “falls well short of . . . findings
regarding the Bair Hugger”). Still, Plaintiffs argue
that the public has a scientific interest in unsealing the
Bair Paws exhibit, because restricting “public access .
. . may prevent scientific research and effective precautions
by the medical community.” ECF No. 1268 at 2. But the
Bair Paws exhibit only summarizes the results of other
published research. Those publications are available
elsewhere. Sealing therefore carries no risk of obstructing
interests in confidentiality outweigh this weak public
interest. Confidentiality attaches to scientific proposals
such as the Bair Paws exhibit, which “reflects internal
scientific and technical planning” and
“competitive strategy.” ECF No. 1258 at 1, 4.
Unsealing risks potential harm to Defendants'
“competitive standing, ” as the information could
be used for an “improper purpose.” See
Nixon, 535 U.S. at 598.
order unsealing the Bair Paws exhibit, ECF No. 1245, is
therefore REVERSED and Defendants' ...