Maintaining the secrecy of documents produced in the context of discovery between parties is generally more permissible than in the context of court filings because there is a strong presumption in favor of the openness of court records. See, e.g., In re National Prescription Opiate Litigation, 927 F.3d 919, 938-939 (6th Cir. 2019); Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016); D.C.COLO.LCivR 7.2(a) (“Unless restricted by statute, rule of civil procedure, or court order, the public shall have access to all documents filed with the court and all court proceedings”).

Parties that wish to seal records typically must show (1) a compelling interest in sealing the records; (2) that the interest in sealing outweighs the public's interest in accessing the records; and (3) that the request is narrowly tailored. See, e.g., D.C.COLO.LCivR 7.2(c)(4) (“explain why no alternative to restriction is practicable or why only restriction will adequately protect the interest in question”). In the District of Colorado, public notice of a motion to restrict is posted on the court's website. Any person may file an objection to the motion to restrict within three court business days after such posting.

Professor Crouch has noted that oftentimes “business confidential information does not necessarily rise to the level of importance required for a court to agree to filings under seal.” But court filings often are sealed or restricted in order to protect trade secrets.

Emails about Patents

In the case of Woodstream Corp. v. Nature's Way Bird Products, LLC, No. 1:23-cv-294, 2023 WL 6146706 (N.D. Ohio Sept. 20, 2023), the Northern District of Ohio held that an email between Woodstream's Product Design Engineering Senior Director Marko Lubic, and other Woodstream product and engineering employees, discussing Lubic's opinions about Woodstream patents did not warrant being filed under seal in connection with the parties' claim construction briefs. Lubic's email gave his opinions on those patents' claim interpretations and his opinions on whether Woodstream could make valid patent infringement claims on those patents.  The Court found that Lubic's opinions about those patents were not trade secrets.

Woodstream had argued that Lubic's email contains a “roadmap to potentially avoid [patent] infringement on narrow technical margins.” But the Court found this did not render the email economically valuable so as to be a trade secret. Nor did Woodstream show how Lubic's opinions on patent scope is a “procedure” or “process” that derives independent economic value from not being known. And Woodstream did not explain how Lubic's opinions relate to Woodstream's business strategy, development, or sales.

Because the public's interest in ascertaining what evidence and records the Court relies on in its decisions outweighs Plaintiff Woodstream's interests in secrecy, the Court denied Woodstream's motion to file Lubic's email under seal.

Of course, opinions about patents could be work product if made in anticipation of litigation. But such work product immunity could be waived if produced in litigation.

The attorneys at Thomas P. Howard, LLC litigate trade secret cases nationwide including in Colorado.