ICC EVALUATION SERVICE, LLC v. INTERNATIONAL ASSOCIATION OF PLUMBING AND MECHANICAL OFFICIALS, INC.
1:16-cv-00054
| D.D.C. | Jul 15, 2022Background
- ICC-ES (plaintiff) and ICC (intervenor) sued IAPMO and IAPMO-ES (defendants) for copyright infringement arising from defendants’ alleged copying, storage, and use of ICC-ES materials.
- Parties agreed to a protective order permitting "confidential" and "highly confidential" designations for discovery materials; the designations place the burden on the designating party to show confidentiality.
- In 2018–2019, ICC-ES moved to nullify many of IAPMO’s confidentiality designations for deposition testimony about acquisition, copying, and storage practices; Magistrate Judge Robinson granted the nullification motion, finding the information was not proprietary and that asserted harms were speculative.
- After cross-motions for summary judgment, the magistrate judge issued a Report & Recommendation (R&R) on April 27, 2022; defendants then moved to seal and proposed thirteen redactions to the R&R.
- The court analyzed whether the protective order covered the proposed redactions and applied the D.C. Circuit six-factor sealing test, concluding the contested material was not proprietary or highly confidential, had substantial previous public availability, and that defendants failed to show clearly defined substantial harm.
- The court ordered the R&R unsealed and published without redaction, but permitted the exhibit showing proposed redactions to remain sealed to avoid gratuitous embarrassment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the contested R&R passages qualify as “confidential” under the Protective Order | Information is not proprietary; much of it reflects plaintiff’s own materials and prior public findings | Passages reveal IAPMO’s internal processes, business practices, and trade secrets and thus are confidential | Not confidential: defendants failed to show novel/proprietary process or any protected interest |
| Whether the passages qualify as “highly confidential” under the Protective Order | Information has been made public (Judge Robinson’s nullification order) and defendants show no defined substantial harm | Material is sensitive business/financial information whose disclosure would cause substantial harm | Not highly confidential: no specific showing of substantial harm; information largely public |
| Whether sealing/redactions are appropriate under the D.C. Circuit six-factor public-access test | Strong presumption for public access; prior public availability and centrality to claims favor disclosure | No need for public access; redactions claimed necessary to protect business interests | Factors favor disclosure (need for access, prior access, lack of third-party objection, weak privacy interest, little prejudice, centrality of information); reject redactions |
| Whether material central to the court’s decision (summary-judgment record) should be sealed | Documents and testimony underpinning summary-judgment analysis must remain public absent compelling reasons | Shielding internal practices (to avoid reputational/competitive harm) justifies redaction | Centrality of the material to the R&R increases disclosure interest; reputational/management concerns insufficient to seal |
Key Cases Cited
- EEOC v. Nat’l Children’s Ctr. Inc., 98 F.3d 1406 (D.C. Cir. 1996) (articulates multi-factor test for sealing judicial records)
- MetLife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661 (D.C. Cir. 2017) (judicial records may be sealed only if justice so requires)
- Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268 (D.C. Cir. 1991) (burden on party seeking to restrict disclosure)
- John Does I–VI v. Yogi, 110 F.R.D. 629 (D.D.C. 1986) (proprietary protection not warranted for non-novel or generally known information)
- Joy v. North, 692 F.2d 880 (2d Cir. 1982) (disclosure of past poor management is not a trade secret and does not justify sealing)
- Doe v. Exxon Mobil Corp., 570 F. Supp. 2d 49 (D.D.C. 2008) (protective order does not automatically permit redaction of judicial opinions)
- Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165 (6th Cir. 1983) (reputational harm alone is insufficient to overcome presumption of public access)