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Grayson v. General Electric Co.

United States District Court, D. Connecticut

March 7, 2017

GLEN GRAYSON and DOREEN MAZZANTI, individually and on behalf of themselves and all others similarly situated, Plaintiffs,


          Warren W. Eginton Senior United States District Judge

         This action is a putative class action on behalf of consumers who purchased defendant General Electric Company's (“GE”) microwave ovens with an alleged design defect that caused the glass doors to shatter.

         Defendant moves to have this Court seal certain information in exhibits, memoranda, expert reports and depositions. Defendant also moves to preclude expert testimony and reports of Thomas Read, Abraham Wyner and Colin Weir pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

         Upon review, the Court will grant the motions to seal in part, and it will deny the motions to seal in part. The motion to preclude Read's expert testimony and report will be denied; the motion to preclude Wyner's expert testimony and report will be denied in part, denied in part without prejudice, and granted in part; and the motion to preclude Weir's expert testimony and report will be denied without prejudice.


         Upon a showing of compelling circumstances, the court may order certain records to be sealed. See Joy v. North, 692 F.2d 880, 893 (2d Cir.1982). Judicial records enjoy a “presumption of openness” that is rebuttable upon a demonstration that sealing the record will preserve high values and is narrowly tailored to serve that interest. Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 96 (2d Cir. 2004). Where the public interest in the case is higher, restraints on access are less acceptable and a greater showing is necessary to overcome the presumption of access. In re Agent Orange Product Liability Litigation, 104 F.R.D. 559, 573 (E.D.N.Y. 1985). Class actions are by definition of public interest because some members of the public are members of the case, and “the standards for denying public access to the record” should therefore be strictly construed. Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 305 (6th Cir. 2016).

         The district court enjoys considerable discretion in determining whether good cause exists to overcome the presumption of open access to documents filed in federal courts. Geller v. Branic Int'l. Realty Corp., 212 F.3d 734, 738 (2d Cir. 2000). A judge should carefully and skeptically review sealing requests to insure that there is an extraordinary circumstance or compelling need. In re Orion Pictures Corp., 21 F.3d 24, 27 (2d Cir. 1994).

         “Documents falling into categories commonly sealed are those containing trade secrets, confidential research and development information, marketing plans, revenue information, pricing information, and the like.” Cumberland Packing Corp. v. Montsanto Co., 184 F.R.D. 504, 506 (E.D.N.Y. 1999). However, courts have not afforded significant weight to non-trade secret but confidential business information, which is not entitled to the same level of protection from disclosure as trade secret information. Littlejohn v. BIC Corp., 851 F.2d 673, 685 (3d Cir. 1988). Business documents that are secret or that might cause adverse publicity if disclosed do not automatically warrant a protective order, and broad allegations of harm unsubstantiated by specific examples or articulated reasoning fail to satisfy the standard for nondisclosure. In re Parmaat Securities Litig., 258 F.R.D. 236, 244 (S.D.N.Y. 2009).

         Generally, courts consider the following six factors to assess whether information is “sufficiently valuable and secret” to merit protection: (1) The extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the business to guard the secrecy of the information; (4) the value of the information to the business and its competitors; (5) the amount of effort or money expended by the business in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Id.

         Motion to Seal Certain Confidential Information

         Defendant seeks to seal documents filed in connection with plaintiffs' motion for class certification. Defendant argues that sealing documents reflecting its analysis of consumer injuries and complaints of defective microwaves is necessary to protect confidential and proprietary information. In particular, defendant asserts that the records contain confidential business information, the disclosure of which might harm its reputation and competitive standing.

         Specifically, defendant seeks sealing of documents from its Microwave Oven Product Line Safety Council; excerpts from its Safety Database pertaining to alleged incidents of glass door breakage in its microwave ovens; excerpts from its Factory Service Database; deposition testimony related to pricing, repair cost and other confidential information; and redacted portions of the parties' expert reports that pertain to confidential information.

         Information from Safety Council, Safety Database and Service Database

         Defendant asserts that the GE Microwave Safety Council includes only senior technical, legal and business leaders within GE's Appliance & Lighting business; it reviews data and information to determine whether further action should be undertaken. Defendant requests that Safety Council documents be sealed as sensitive, proprietary business information, which reveals how GE reviews safety issues of its microwave ovens; approval and implementation of corrective actions; and procedures of corrective measures by GE and its suppliers.

         Defendant states that its Safety Database contains confidential and proprietary information including the identity of GE's suppliers, discussions of issues associated with certain GE product lines, not limited to microwave ovens; corrective action determinations; and confidential personal information.

         Defendant explains that information from its Service Database concerns product parts that required repair or replacement that is not limited to glass breakage.

         Defendant maintains that it has restricted dissemination of these documents and stored them on a secure drive. Defendant asserts that disclosure would cause harm because competitors could improve their own business and or develop a branded-product business. Defendant states: “If GE's competitors were to gain access to documentation regarding potential future designs, recommended modifications of existing designs, and performance issues relating to GE-branded microwave ovens, GE's competitors would unfairly gain a competitive advantage.” Defendant goes on to express concern that competitors could use or distort information regarding consumer issues and concerns associated with its microwaves because the documents contain information based on unsubstantiated consumer complaints. Finally, defendant argues that the personally identifiable information of GE consumers justifies sealing the documents.

         Consumer complaints and information relevant thereto involving the allegedly defective microwave are highly relevant to the class certification of this case and to members of the public, putative class members who may own the defective microwaves. Generally, the Court finds that the risk of competitive harm to defendant is lower than the high level of public interest in a class action involving a defective product that could potentially cause harm.

         Thus, the Court will deny the motion to seal with regard to the Microwave Safety Council documents G1, G2, G3, G4, which reflect consumer complaints and reveal little information about designs or marketing that could enable a competitor to gain an unfair economic or competitive advantage. Although defendant expresses concern that it will suffer reputational injury if competitors have access to unsubstantiated consumer complaints, plaintiffs point out that consumer complaints are accessible to the public through the Consumer Product Safety Commission. The Court is not persuaded that defendant's concern for competitive harm or reputational injury outweigh the presumption of public access and the public interest in product safety. The Court will deny the motion to seal as to consumer reports of microwave oven glass door breakage. However, the Court will grant the motion to seal as to consumer personal identifying information regarding defendant's consumers should be redacted.[1]

         The Court will grant the motion to seal as documents G5 through G12, which reveal defendant's internal investigations, communications, and policies and procedures of the Microwave Safety Council relevant to problems with the defendant's microwaves. Defendant has expended resources to develop these analyses of microwave safety issues; it has taken measures to ensure that this information is confidential and that the information is not known outside of the Microwave Safety Council. The Court finds that sealing this information is appropriate as disclosure could cause defendant significant competitive harm.

         Additionally, the Court finds that the names of defendant's suppliers should be redacted. Defendant has limited disclosure of its supplier information by allowing for access only upon entering a code found on the microwave product; broad disclosure of such information could likely cause defendant a competitive harm that outweighs consumers' interest in broadened access.

         The Court will grant the motion to seal redactions to F1 and F2 from the Microwave Safety Database and Factory Service Database, respectively, regarding the product manufacturers and consumer identifying information.

         The Court will deny the motion to seal as to references to consumer incident reports regarding microwave oven glass door breakage as reflected in these exhibits.

         Pricing, Sales and Profit Information

         Plaintiffs represent that they do not oppose sealing documents concerning pricing and profit, with the exception of sales information detailing the number of microwaves sold. Defendant maintains that this information should be sealed because it is drawn from confidential sales figures. Information concerning the amount of microwaves sold relates directly to confidential information about pricing and profit, and disclosure thereof could cause defendant competitive harm. See Apple Inc. v. Samsung Elecs. Co., 727 F.3d 1214, 1225 (Fed. Cir. 2013) (holding that detailed product-specific financial information, including costs, sales and profits merited sealing as confidential information). Accordingly, the Court will grant the motion to seal as to the documents or information relevant to pricing, sales and profit.

         Design Documents

         GE seeks to seal exhibits H1 and H3-H6 containing documents related to the design and design changes of the allegedly defective GE microwave oven. This is the type of information that is generally kept confidential and outweighs the presumption of public access due to its importance to competition in the relevant field. See Culinary Foods v. Raychem Corp., 151 F.R.D. 297, 305 (N.D.Ill. 1993) (noting that disclosure of Raychem's product design modification and changes would decrease Raychem's incentive to invest in safety devices).

         However, the Court will not grant the motion to seal as to Exhibit H1, which is entitled Branded Product Change Request (“BPCR”). The BPCR document indicates an origination date of November 26, 2001, with approvals on November 27, 2001, and January 14, 2002. It details a proposed change to the manufacture of the spring hinge of the 1090/1095 microwave oven door. Defendant has a weaker interest in retaining confidentiality in a document describing changes to products that have been in the market for years. See Gustafson v. Goodman Mfr. Co. LP, 2016 WL 393640 (D. Ariz. Feb. 2, 2016).

         Defendant maintains that its competitors could use the information in Exhibit H1 to better understand how defendant develops products, considers design elements, and assesses risks. However, such concern for confidentiality is diminished due to the age of the document, the fact that the 1090/1095 models are no longer being produced, and the limited amount of information contained therein. Further, the document presents important information to the putative class members regarding the fact that a change to spring hinge occurred relevant to the 1090/1095 ...

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