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In re Mccormick & Company, Inc.

United States District Court, District of Columbia

June 11, 2018

IN RE MCCORMICK & COMPANY, INC., PEPPER PRODUCTS MARKETING AND SALES PRACTICES LITIGATION This Document Relates to ALL CONSUMER CASES

          MEMORANDUM OPINION

          ELLEN SEGAL HUVELLE UNITED STATES DISTRICT JUDGE

         Before the Court are several motions relating to the sealing and redaction of documents. Plaintiffs filed a Motion to Unseal Opening Class Certification Papers (ECF No. 174 (“Mot. to Unseal”)), arguing that defendants' confidentiality designations as to materials produced during discovery are overly broad, and since defendants have failed to justify these designations, all documents should be unsealed and unredacted in full.[1] Also at issue are defendants' several motions to seal documents (ECF Nos. 160, 163, 177, and 179), which plaintiffs oppose, as well as plaintiffs' two motions to seal documents (ECF Nos. 157 and 172), which plaintiffs filed in compliance with the parties' Stipulated Protective Order (ECF No. 48), but they argue against the sealing of these documents.

         The question is whether defendants' confidentiality designations justify allowing significant redactions to pleadings and related declarations, in addition to the complete sealing of hundreds of pages of exhibits. Last year, this Court addressed potential redactions in a judicial opinion related to plaintiffs' amended complaint. See In re McCormick & Co., Inc., Pepper Prods. Mktg. & Sales Practices Litig., 275 F.Supp.3d 218 (D.D.C. 2017). The Court, concluding that the public interest in access to judicial records outweighed McCormick's interest in avoiding reputational harm, overruled McCormick's objections and published its opinion without redactions. In re McCormick & Co., Inc., No. 15-mc-1825, 2017 WL 2560911, at *1 (D.D.C. June 13, 2017). Now, pleadings and declarations associated with the plaintiffs' motion for class certification, the motion to unseal, and the joint motion to exclude plaintiffs' expert, Armando Levy, are at issue. In addition to the extensive redaction of multiple pleadings and declarations, defendants ask that hundreds of pages of exhibits attached to these declarations remain under seal.

         BACKGROUND

         Plaintiffs, who are purchasers of defendant McCormick's black pepper, allege in their complaint that defendants “had a statutory duty to refrain from unfair or deceptive acts or practices in the promotion and sale of McCormick black pepper or store-branded black pepper, ” (Second Am. Compl. Consol. Class Action Compl. ¶ 115, ECF No. 128), and that they “violated this duty by selling black pepper in non-transparent containers containing nonfunctional slack-fill.” (Id. ¶ 116.)

         I. CLASS CERTIFICATION

         On July 21, 2017, plaintiffs moved to certify three multistate classes under the consumer protection and unjust enrichment laws of more than thirty states and the District of Columbia, claiming that McCormick and Wal-Mart violated these laws when they knowingly sold black pepper in non-transparent containers containing non-functional slack fill, intending to minimize or eliminate consumers' ability to notice the reduced quantity of pepper by maintaining the same price and container size. (See Mot. for Class Cert. at 1-15, ECF No. 157-2.)

         A. Redacted Pleadings

         When plaintiffs filed their memo in support of class certification, they moved to file it under seal (ECF No. 157) pursuant to the parties' Protective Order, and they filed a redacted version on the public docket as well. (ECF No. 159.) Redactions appear in the Table of Contents and on the following pages: 1-2, 4-5, 7-15, 18, 21, 23-24, 35, and 37-39. McCormick also filed a redacted version of its opposition to class certification (ECF No. 161) and moved to file an unredacted version under seal.[2] (ECF No. 160.) These redactions appear on the following pages: 1 n.2, 4-6, 10, 19, 23-25, and 25 n.29. Finally, plaintiffs filed a redacted reply to McCormick's opposition to class certification (ECF No. 168) and moved to file an unredacted version under seal. (ECF No. 172.) Plaintiffs' reply includes redactions on the following pages: 8-9 & n. 10, and 10.

         Apart from the class certification pleadings, Wal-Mart filed its opposition to plaintiffs' motion to unseal with redactions and attached two redacted exhibits (ECF No. 180) and moved to file an unredacted version under seal. (ECF No. 179.) Exhibit A is the letter Wal-Mart's attorney Andrew Klevorn wrote in response to plaintiffs' initial challenge to defendants' confidentiality designations. (“Klevorn Letter, ” ECF No. 179-1.) Exhibit B is the Declaration of Wal-Mart employee Kassie Keeter, which identifies and explains commercially sensitive information that appears in Wal-Mart's exhibits. (“Keeter Decl., ” ECF No. 179-1.)

         In sum, three redacted class certification pleadings are at issue-plaintiffs' motion, McCormick's opposition, and plaintiffs' reply to McCormick-as well as Wal-Mart's opposition to plaintiffs' motion to unseal and the two exhibits attached to the opposition. Plaintiffs challenge all redactions.[3]

         B. Declarations and Reports

         Both plaintiffs and McCormick attach declarations, reports, and exhibits to their class certification pleadings. Several of these documents are heavily redacted or filed entirely under seal.

         i. Fegan Declaration

         Plaintiffs' Fegan Declaration-describing plaintiffs' underlying merits case-was filed as an affidavit in support of the class certification motion. (ECF No. 157-3.) Large swathes of the Fegan Declaration are redacted (ECF No. 158), including portions of pages 2, 5-17, 20-26, and 30-32. Most of the redacted information comes from defendants' documents, produced in discovery, which were filed as Exhibits 101-143 to the Fegan Declaration. (See ECF No. 157.) Defendants say very little about the Fegan Declaration.

         ii. Levy Report

         Plaintiffs also filed a sealed copy of the report written by their damages expert, Armando Levy, as Exhibit 100 to the Fegan Declaration. (“Levy Report, ” ECF No. 157-4). McCormick does not object to unsealing the Levy Report so long as “any references . . . to confidential materials [are] appropriately redacted.” (McCormick Opp. to Unseal at 3 n.2, ECF No. 176.) Wal-Mart appears to adopt a similar position, but expresses concern that the report shows how many “units of select McCormick-supplied black pepper products” Wal-Mart sold in each state for each month over the course of more than two years, as well as “Wal-Mart's net sales of those products in each state for the same period.” (Wal-Mart Opp. to Unseal at 3, ECF No. 179-1; see also Id. at 7 (requesting that the Court maintain under seal “Wal-Mart documents attached to Plaintiffs' Motion for Class Certification and referenced in Dr. Levy's report”).)

         iii. Schmitt Declaration Exhibits

         McCormick filed the Schmitt Declaration as an affidavit in support of its opposition to class certification. (ECF No. 162.) Though the Schmitt Declaration itself contains no redacted material, McCormick moved to file three attachments to it under seal. (ECF No. 160.) These include the Hester Declaration as Exhibit 16 (ECF No. 160-3 (hereinafter “Hester Decl.”)); the Johnson Expert Report as Exhibit 19 (ECF No. 160-4 (hereinafter “Johnson Report”)); and selected Levy Deposition Excerpts as Exhibit 20. (ECF No. 160-5 (hereinafter “Levy Deposition Excerpts”).)

         a. Hester Declaration

         To support its argument that the Hester Declaration contains confidential business information, McCormick relies on the Declaration of Richard M. Morse, McCormick's Vice President of Global Customers. (ECF No. 176-6.) McCormick cites Morse to show that the Hester Declaration contains “information regarding the sourcing and density of McCormick pepper, packaging processes and strategy, and historical filling practices” (McCormick's Reply to Seal Opp. to Class Cert. at 4), and argues that its disclosure “could harm McCormick” (McCormick Opp. to Unseal at 10), and that “none of this information is already available to the public.” (Id. at 6.) Plaintiffs respond that the Hester Declaration “is devoid of any information that could harm Defendants, ” characterizing it as containing “general, historical discussions.” (Opp. to Sealing McCormick Opp. at 7.)

         b. Johnson Report

         The Johnson Report receives limited attention from the parties. Plaintiffs oppose the motion to file it under seal and lump together their analysis of the Levy Report, the Johnson Report, and the Hester Declaration. (See, e.g., Opp. to Sealing McCormick Opp. at 5 (referring to all three documents and explaining that they “were filed with the Court and introduced into evidence as part of the class certification briefing”).) Plaintiffs describe “Dr. Johnson's report [as] focused on refuting the conclusions in Dr. Levy's report.” (Id. at 7.) McCormick states that the Johnson Report refers to “market research on changes to the pepper containers and reaction to those changes, third-party sales data, McCormick documents discussing the qualities and sourcing of pepper, and filling practices, and fill weights of McCormick pepper containers.” (McCormick's Reply in Supp. of Mot. to Seal Opp. to Class Certification at 5, ECF No. 175 (“McCormick's Reply to Seal Opp. to Class Cert.”).)

         Plaintiffs argue that no redactions to these documents (the Fegan Declaration, the Hester Declaration, the Levy Report, and the Johnson Report) are justified.[4]

         C. Fegan Declaration Exhibits 101-143

         Attached to the Fegan Declaration, plaintiffs filed 45 sealed exhibits consisting of more than 200 pages. Forty-three of these are company documents that defendants produced in discovery and designated as “confidential” or “highly confidential.” (McCormick Opp. to Unseal at 4-5; Wal-Mart Opp. to Unseal at 2.) McCormick produced forty of these documents, and Wal-Mart produced three.[5] (McCormick Opp. to Unseal at 2.) As above, plaintiffs argue that defendants have failed to demonstrate that these documents are properly designated as confidential and therefore challenge all designations and oppose sealing all Fegan Declaration Exhibits. (Mot. to Unseal ¶¶ 1, 9.)

         II. MOTION TO EXCLUDE EXPERT REPORT & OPINIONS

         On August 28, 2017, defendants jointly moved to exclude the report and opinions of plaintiffs' expert, Dr. Armando Levy. (ECF No. 164 (“Mot. to Exclude”).) Plaintiffs retained Levy to calculate class-wide damages. He relied on facts and data in defendants' documents to draw conclusions about pepper sales and fill levels in the pepper containers and to explain his damage calculations. (See, e.g., id. ¶ 20 n.16 & Ex. B-2.)

         A. Redacted Pleadings

         Defendants filed a redacted version of their memo in support of the motion to exclude the Levy Report (ECF No. 164-1) and moved to file the unredacted version under seal. (ECF No. 163.) Redactions appear on the following pages: 2 & n.4, 3-7. Plaintiffs filed a redacted version of their opposition (ECF No. 170) and moved to file an unredacted version under seal. (ECF No. 172.) These redactions appear on the following pages: 2-3, 5, 7 & n.2, 9, 14. Finally, defendants filed a redacted reply (ECF No. 178) and moved to file an unredacted version under seal. (ECF No. 177.) Defendants' reply includes redactions on the following pages: 3-4, 7 n.6. As a result, three redacted pleadings relating to the motion to exclude are at issue. Plaintiffs oppose all redactions. (Pls.' Opp. to Defs.' Mot. to File Mot. to Exclude Under Seal, ECF No. 173.)

         B. Levy ...


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