BBK Tobacco & Foods LLP v. Central Coast Agriculture Incorporated, No. 2:2019cv05216 - Document 417 (D. Ariz. 2022)

Court Description: ORDER granting 294 BBK's Motion to Seal. The Clerk of the Court is directed to file the unredacted version of BBK's motion for summary judgment and exhibits 2, 9, 12, and 13 (lodged at 296 ) under seal. FURTHER ORDERED granting/denying i n part moot 313 CCA/s Motion to Seal. Clerk of the Court is directed to file the unredacted versions of: CCA's motion to exclude Dr. On Amir and the exhibits thereto (lodged at 310 ); and CCA's motion to exclude Francis Burns and the ex hibits thereto (lodged 312 ), under seal. FURTHER ORDERED striking Doc. 309 and all attached exhibits from the record. FURTHER ORDERED directing CCA to file amended versions of its motion to exclude Dr. Amir and all attached exhibits, that reflec t the proper redactions in light of this Order and CCA's prior filings (Docs. 362 , 375 ). FURTHER ORDERED granting/denying in part 319 CCA's Motion to Seal (Doc. 319). The Clerk of the Court is directed to file the unredacted versio ns of: exhibits 3, 4, and 21 to BBK's motion for partial summary judgment (lodged at 297 ); BBK's motion to exclude Dr. David Blackburn and exhibits 16 thereto (lodged at 300 ); and BBK's motion to exclude Dr. Tülim Erdem and exhibits 3, 6, and 7 thereto (lodged at 303 ), under seal. FURTHER ORDERED striking exhibit 21 to BBK's motion for partial summary judgment (Doc. 293-30) from the record. FURTHER ORDERED directing BBK to file, by 7/18/22, an amended version o f Steven Bobzin's deposition transcript (exhibit 21 to its motion for partial summary judgment), that reflects the proper redactions in light of this Order. FURTHER ORDERED granting/denying in part as moot 339 CCA's Motion to Seal. Cle rk of the Court is directed to file the unredacted versions of: CCA's opposition to BBK's motion to exclude Khurshid Kohja (lodged at 342 ); CCA's opposition to BBK's motion to exclude Dr. David Blackburn and attached exhibits A, B, and C (lodged at 340 ); and CCA's opposition to BBK's motions to exclude Dr. Elisabeth Honka and Dr. Tülim Erdem and attached exhibits B and I (lodged at 341 ), under seal. FURTHER ORDERED striking from the record: CCA' ;s opposition to BBK's motions to exclude Dr. Elisabeth Honka and Dr. Erdem and all attached exhibits (Doc. 337 ); and CCA's opposition to BBK's motion to exclude Khurshid Kohja and all attached exhibits (Doc. 338 ). FURTHER ORDER ED directing CCA to publicly file, by 7/18/22, amended versions of these documents, along with all attached exhibits, that reflect the proper redactions in light of this Order and CCAs prior filings (Docs. 362 , 375 ). FURTHER ORDERED granting/den ying in part as moot 343 CCA's Motion to Seal. Clerk of the Court is directed to file the unredacted versions of: BBK's opposition to CCA's motion to exclude Dr. On Amir (lodged at 330 ); BBK's opposition to CCA's motion to exclude Dr. Jeffrey Stec and attached exhibit A (lodged at 327 ); and BBK's opposition to CCA's motion to exclude Francis Burns and attached exhibits A and C (lodged at 324 ), under seal. FURTHER ORDERED striking from the record: BBK 's opposition to CCA's motion to exclude Dr. Amir and all attached exhibits (Doc. 328 ); BBK's opposition to CCA's motion to exclude Dr. Burns and all attached exhibits (Doc. 322 ); and BBK's opposition to CCA's motio n to exclude Dr. Stec and all attached exhibits (Doc. 325 ). FURTHER ORDERED directing BBK to publicly file, by 7/18/22, amended versions of these documents, along with all attached exhibits, that reflect the proper redactions in light of this Order and CCA's voluntary withdrawals (Doc. 374 ). FURTHER ORDERED granting/denying in part as moot 357 CCA's Motion to Seal. The Clerk of the Court is directed to file the unredacted versions of: CCA's reply in support of its motion to exclude Dr. Jeffrey Stec (lodged at 360 ); CCA's reply in support of its motion to exclude Dr. On Amir (lodged at 359 ); and CCA's reply in support of its motion to exclude Francis Burns (lodged at 358 ), under seal. FURTHER ORDERED striking CCA's reply in support of its motion to exclude Dr. On Amir (Doc. 354 ) from the record. FURTHER ORDERED directing CCA to publicly file, by 7/18/22, an amended version of its reply in support of its motion to exclude Dr. On Amir, that reflects the proper redactions in light of this Order and CCA's prior filings (Doc. 326 ). FURTHER ORDERED granting 361 CCA's Motion to Seal. Clerk of the Court is directed to file the unredacted version of BBK's reply in s upport of its motion to exclude Dr. Blackburn (lodged at 346 ) under seal. FURTHER ORDERED granting 362 CCA's Motion for Leave to File Amended Documents in Connection with a Partial Withdrawal of its Motions to Seal. Clerk of Court is direct ed NOT to file, however, the documents attached to CCA's motion (lodged at 363 ). CCA is instead directed to file amended documents as set forth in this Order. FURTHER ORDERED granting 365 CCA's Motion to Seal. Clerk of the Court is d irected to file the unredacted version of CCA's opposition to BBK's motion for partial summary judgment and the attached exhibits (lodged at 366 under seal. FURTHER ORDERED granting 370 BBK's Motion to Seal. FURTHER ORDERED gran ting/denying in part 381 CCA's Motion to Seal. Clerk of the Court is directed to file the unredacted version of BBK's reply in support of its motion for partial summary judgment (lodged at 378 ) under seal. FURTHER ORDERED striking BB K's reply in support of its motion for partial summary judgment (Doc. 377 ) from the record. FURTHER ORDERED directing BBK to publicly file, by 7/18/22, an amended version of its reply in support of its motion for partial summary judgment, t hat reflects the proper redactions in light of this Order. FINALLY ORDERED granting 402 CCA's Motion to Seal. Clerk of the Court is directed to file the unredacted version of exhibit 128 to CCA's motion for partial summary judgment (lodged at 403 ) under seal.. Signed by Judge Michael T Liburdi on 7/13/22. (MAP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 BBK Tobacco & Foods LLP, No. CV-19-05216-PHX-MTL Plaintiff, 10 ORDER 11 v. 12 Central Coast Agriculture Incorporated, et al., 13 14 Defendants. I. 15 16 Before the Court are numerous motions to seal various documents and exhibits 17 (Docs. 294, 313, 319, 339, 343, 357, 361, 365, 370, 381, 402). The motions are fully 18 briefed, and the Court rules as follows. 19 II. 20 The public has a right to inspect and copy public judicial records and documents. 21 Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 567 (1978). Although the right is not 22 absolute, there is a “strong presumption in favor of access to court records.” Ctr. for 23 Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting Foltz 24 v. State Farm Mut. Aut. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). The party 25 requesting to seal a judicial record bears the burden of overcoming that presumption 26 by either showing “compelling reasons” if the record is a dispositive pleading or “good 27 cause” if the record is a non-dispositive pleading. See Kamakana v. City & Cnty. of 28 Honolulu, 447 F.3d 1172, 1179–80 (9th Cir. 2006); see also Ctr. for Auto Safety, 809 F.3d 1 at 1096–97. Motions to seal a summary judgement motion or its exhibits must meet the 2 compelling reasons standard. See Kamakana, 447 F.3d at 1179, 1181. 3 In Doc. 294, BBK seeks to seal certain sensitive financial information and 4 settlement strategies, including sales numbers and ratios for certain RAW products, 5 taxes and duties paid by BBK, and settlement terms exchanged between BBK and 6 CCA. The motion is unopposed by CCA. (Doc. 334.) Compelling reasons justify sealing 7 this information. Sources of business information that might harm a litigant’s competitive 8 standing may be filed under seal despite the public’s general right to inspect and copy 9 judicial records. Warner Commc’ns, Inc., 435 U.S. at 598–99; see also MD Helicopters 10 Inc. v. Boeing Co., No. CV-17-02598-PHX-JAT, 2019 WL 2184762, at *2 (D. Ariz. 11 May 21, 2019). 12 With respect to three of its pending motions to seal (Docs. 313, 339, 357), CCA 13 filed a Motion for Leave to File Amended Documents in Connection with a Partial 14 Withdrawal of Motions to Seal (Doc. 362). In that motion, CCA informs the Court that, 15 following conferral with BBK’s counsel, it has elected to withdraw certain portions of its 16 motions to seal. CCA also requests leave to file new versions of the redacted documents 17 previously filed on the public docket, in order to un-redact the portions CCA no longer 18 requests be filed under seal. CCA’s motion is unopposed (Doc. 371) and will be granted. 19 Thus, the Court will consider CCA’s motions to seal (Docs. 313, 339, 357) only as 20 amended.1 21 In Doc. 313, CCA moves to seal portions of its motion to exclude Dr. On Amir 22 and exhibits 3–5 thereto, along with portions of its motion to exclude Francis Burns and 23 exhibits 1–5 thereto. (Docs. 313, 362, 375.) In Doc. 339, CCA moves to seal portions of 24 its opposition to BBK’s motion to exclude Khurshid Kohja; portions of its opposition 25 to BBK’s motion to exclude Dr. David Blackburn and exhibits A–C thereto; and portions 26 of its opposition to BBK’s motions to exclude Dr. Elisabeth Honka and Dr. Tülim 27 Erdem and exhibits B and I thereto. (Docs. 339, 375) In Doc. 357, CCA moves to seal 28 1 In its reply (Doc. 375), CCA agreed to withdraw additional portions of its motions to seal. -2- 1 portions of its reply in support of its motion to exclude Dr. Jeffrey Stec; portions of its 2 reply in support of its motion to exclude Dr. On Amir; and portions of its reply in support 3 of its motion to exclude Francis Burns. (Docs. 357, 375.) These motions to seal are 4 unopposed (except as described above). Because the motions and exhibits are non- 5 dispositive, CCA need only show “good cause” for limiting the public’s access. See 6 Kamakana, 447 F.3d at 1180. CCA has done so. The information CCA seeks to file 7 under seal involves the company’s past sales and financial data, strategic plans, and market 8 research. For the same reasons the Court has previously ordered that such information may 9 be filed under seal (see Doc. 259), the motions will be granted. 10 In Doc. 319, CCA moves to seal portions of BBK’s motion for partial summary 11 judgment; exhibits 3, 4, and 21 to BBK’s motion for partial summary judgment; portions 12 of BBK’s motion to exclude Dr. David Blackburn and exhibits 1–6 thereto; and portions 13 of BBK’s motion to exclude Dr. Tülim Erdem and exhibits 3, 6, and 7 thereto. BBK 14 opposes CCA’s motion to seal with respect to portions of Craig Bobzin’s deposition, 15 which appears as exhibit 21 to BBK’s motion for partial summary judgment. (Doc. 320.) 16 Upon review, the Court holds that the following two excerpts of Bobzin’s deposition are 17 not confidential and that, accordingly, “compelling reasons” do not justify filing them 18 under seal: 72:0–73:5 and 80:12–83:18. Accordingly, CCA’s motion to seal those 19 excerpts will be denied. CCA’s motion will otherwise be granted. 20 In Doc. 343, CCA moves to seal portions of BBK’s opposition to CCA’s motion 21 to exclude Dr. On Amir; portions of BBK’s opposition to CCA’s motion to exclude Dr. 22 Jeffrey Stec, including exhibit A; and portions of BBK’s opposition to CCA’s motion to 23 exclude Francis Burns, including exhibits A and C. BBK opposes CCA’s motion to seal 24 with respect to its opposition to the Dr. Amir motion, its opposition to the Stec motion, 25 and exhibit C to its opposition to the Burns motion. (Doc. 369.) CCA has withdrawn its 26 requests to seal portions the Amir opposition, exhibit C to the Burns opposition, and 27 portions of the Stec opposition. (Doc. 374.) Thus, it requests only that the Court seal 28 portions of the Stec opposition and exhibit A to the Burns opposition. That narrower -3- 1 request is unopposed, and the Court finds good cause justifying limiting public access. 2 Accordingly, CCA’s motion to seal will be granted in part and denied in part as moot. 3 In Doc. 361, CCA moves to seal portions of BBK’s reply in support of its motion 4 to exclude Dr. David Blackburn. The portions of the reply CCA moves to seal contain 5 CCA’s past sales and other financial data. The motion is unopposed, and good cause 6 justifies limiting public access to such sensitive information. (Doc. 259 at 7.) The motion 7 will be granted. 8 In Doc. 365, CCA requests that the Court seal portions of CCA’s opposition to 9 BBK’s motion for partial summary judgment and portions of exhibits 5, 8, and 18–24 to 10 CCA’s opposition. BBK opposes CCA’s requests to seal exhibits B–C and F to exhibit 5 11 and exhibits 19, 20, and 30. (Doc. 376.) BBK’s arguments are unpersuasive, and 12 compelling reasons support sealing the challenged exhibits, as they contain emails between 13 CCA 14 potential partnerships. CCA’s motion will therefore be granted. employees and third parties regarding CCA’s business plans and 15 In Doc. 370, BBK moves to seal footnote 26 to CCA’s opposition to BBK’s motion 16 for partial summary judgment. The motion is unopposed and compelling reasons justify 17 granting the motion. Footnote 26 contains sensitive financial information—sales ratios 18 based on non-public sales figures—that must remain confidential to protect 19 BBK’s competitive interests. The motion will be granted. 20 In Doc. 381, CCA moves to seal a number of lines of BBK’s reply in support of its 21 motion for partial summary judgment. BBK opposes CCA’s motion in part. It argues 22 that compelling reasons do not justify sealing lines 2, 6, and 7 of page 16 of its reply. BBK 23 is right. The redacted statements are too vague to provide the public with any meaningful 24 information regarding CCA’s strategic plans. CCA’s motion will be denied with regard 25 to lines 2, 6, and 7 of page 16 and granted with regard to lines 10, 12, 13, 14, 15, and 16. 26 Finally, in Doc. 402, CCA moves to seal an exhibit to its supplemental filing in 27 support of its motion for summary judgment (Doc. 401). The exhibit includes confidential 28 information about CCA’s strategy and timeline for releasing new products. Compelling -4- 1 reasons justify limiting the public’s access to such information. The motion will therefore 2 be granted. 3 III. 4 Accordingly, 5 IT IS ORDERED granting BBK’s Motion to Seal (Doc. 294). The Clerk of the 6 Court is directed to file the unredacted version of BBK’s motion for summary judgment 7 and exhibits 2, 9, 12, and 13 (lodged at Doc. 296) under seal. 8 IT IS FURTHER ORDERED granting in part and denying in part as moot 9 CCA’s Motion to Seal (Doc. 313). The Clerk of the Court is directed to file the 10 unredacted versions of: CCA’s motion to exclude Dr. On Amir and the exhibits thereto 11 (lodged at Doc. 310); and CCA’s motion to exclude Francis Burns and the exhibits 12 thereto (lodged at Doc. 312), under seal. IT IS FURTHER ORDERED striking Doc. 13 309 and all attached exhibits from the record. IT IS FURTHER ORDERED directing 14 CCA to file amended versions of its motion to exclude Dr. Amir and all attached 15 exhibits, that reflect the proper redactions in light of this Order and CCA’s prior 16 filings (Docs. 362, 375). 17 IT IS FURTHER ORDERED granting in part and denying in part CCA’s 18 Motion to Seal (Doc. 319). The Clerk of the Court is directed to file the unredacted 19 versions of: exhibits 3, 4, and 21 to BBK’s motion for partial summary judgment (lodged 20 at Doc. 297); BBK’s motion to exclude Dr. David Blackburn and exhibits 1–6 thereto 21 (lodged at Doc. 300); and BBK’s motion to exclude Dr. Tülim Erdem and exhibits 3, 6, 22 and 7 thereto (lodged at Doc. 303), under seal. IT IS FURTHER ORDERED striking 23 exhibit 21 to BBK’s motion for partial summary judgment (Doc. 293-30) from the record. 24 IT IS FURTHER ORDERED directing BBK to file, by Monday, July 18, 2022, an 25 amended version of Steven Bobzin’s deposition transcript (exhibit 21 to its motion for 26 partial summary judgment), that reflects the proper redactions in light of this Order. 27 IT IS FURTHER ORDERED granting in part and denying in part as moot 28 CCA’s Motion to Seal (Doc. 339). The Clerk of the Court is directed to file the unredacted -5- 1 versions of: CCA’s opposition to BBK’s motion to exclude Khurshid Kohja (lodged at 2 Doc. 342); CCA’s opposition to BBK’s motion to exclude Dr. David Blackburn and 3 attached exhibits A, B, and C (lodged at Doc. 340); and CCA’s opposition to BBK’s 4 motions to exclude Dr. Elisabeth Honka and Dr. Tülim Erdem and attached exhibits B 5 and I (lodged at Doc. 341), under seal. IT IS FURTHER ORDERED striking from the 6 record: CCA’s opposition to BBK’s motions to exclude Dr. Elisabeth Honka and Dr. 7 Erdem and all attached exhibits (Doc. 337); and CCA’s opposition to BBK’s motion to 8 exclude Khurshid Kohja and all attached exhibits (Doc. 338). IT IS FURTHER 9 ORDERED directing CCA to publicly file, by Monday, July 18, 2022, amended versions 10 of these documents, along with all attached exhibits, that reflect the proper redactions in 11 light of this Order and CCA’s prior filings (Docs. 362, 375). 12 IT IS FURTHER ORDERED granting in part and denying in part as moot 13 CCA’s Motion to Seal (Doc. 343.) The Clerk of the Court is directed to file the 14 unredacted versions of: BBK’s opposition to CCA’s motion to exclude Dr. On Amir 15 (lodged at Doc. 330); BBK’s opposition to CCA’s motion to exclude Dr. Jeffrey Stec and 16 attached exhibit A (lodged at Doc. 327); and BBK’s opposition to CCA’s motion to 17 exclude Francis Burns and attached exhibits A and C (lodged at Doc. 324), under seal. 18 IT IS FURTHER ORDERED striking from the record: BBK’s opposition to CCA’s 19 motion to exclude Dr. Amir and all attached exhibits (Doc. 328); BBK’s opposition to 20 CCA’s motion to exclude Dr. Burns and all attached exhibits (Doc. 322); and BBK’s 21 opposition to CCA’s motion to exclude Dr. Stec and all attached exhibits (Doc. 325). IT 22 IS FURTHER ORDERED directing BBK to publicly file, by Monday, July 18, 2022, 23 amended versions of these documents, along with all attached exhibits, that reflect the 24 proper redactions in light of this Order and CCA’s voluntary withdrawals (Doc. 374). 25 IT IS FURTHER ORDERED granting in part and denying in part as moot 26 CCA’s Motion to Seal (Doc. 357). The Clerk of the Court is directed to file the 27 unredacted versions of: CCA’s reply in support of its motion to exclude Dr. Jeffrey Stec 28 (lodged at Doc. 360); CCA’s reply in support of its motion to exclude Dr. On Amir -6- 1 (lodged at Doc. 359); and CCA’s reply in support of its motion to exclude Francis Burns 2 (lodged at Doc. 358), under seal. IT IS FURTHER ORDERED striking CCA’s reply in 3 support of its motion to exclude Dr. On Amir (Doc. 354) from the record. IT IS 4 FURTHER ORDERED directing CCA to publicly file, by Monday, July 18, 2022, an 5 amended version of its reply in support of its motion to exclude Dr. On Amir, that 6 reflects the proper redactions in light of this Order and CCA’s prior filings (Doc. 362). 7 IT IS FURTHER ORDERED granting CCA’s Motion to Seal (Doc. 361). The 8 Clerk of the Court is directed to file the unredacted version of BBK’s reply in support of 9 its motion to exclude Dr. Blackburn (lodged at Doc. 346) under seal. 10 IT IS FURTHER ORDERED granting CCA’s Motion for Leave to File Amended 11 Documents in Connection with a Partial Withdrawal of its Motions to Seal (Doc. 362). 12 The Clerk of Court is directed not to file, however, the documents attached to CCA’s 13 motion (lodged at Doc. 363). CCA is instead directed to file amended documents as set 14 forth in this Order. 15 IT IS FURTHER ORDERED granting CCA’s Motion to Seal (Doc. 365). The 16 Clerk of the Court is directed to file the unredacted version of CCA’s opposition to 17 BBK’s motion for partial summary judgment and the attached exhibits (lodged at Doc. 18 366) under seal. 19 IT IS FURTHER ORDERED granting BBK’s Motion to Seal (Doc. 370). 20 IT IS FURTHER ORDERED granting in part and denying in part CCA’s 21 Motion to Seal (Doc. 381). The Clerk of the Court is directed to file the unredacted 22 version of BBK’s reply in support of its motion for partial summary judgment (lodged at 23 Doc. 378) under seal. IT IS FURTHER ORDERED striking BBK’s reply in support 24 of its motion for partial summary judgment (Doc. 377) from the record. IT IS 25 FURTHER ORDERED directing BBK to publicly file, by Monday, July 18, 2022, an 26 amended version of its reply in support of its motion for partial summary judgment, that 27 reflects the proper redactions in light of this Order. 28 IT IS FINALLY ORDERED granting CCA’s Motion to Seal (Doc. 402). The -7- 1 Clerk of the Court is directed to file the unredacted version of exhibit 128 to CCA’s 2 motion for partial summary judgment (lodged at Doc. 403) under seal. 3 Dated this 13th day of July, 2022. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-

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