United States District Court, D. Delaware
LIQWD, INC. and OLAPLEX LLC, Plaintiffs,
L'ORÉAL USA, INC., L'ORÉAL USA PRODUCTS, INC., L'ORÉAL USA S/D, INC., and REDKENS 5TH AVENUE, NYC, L.L.C., Defendant.
MEMORANDUM AND ORDER
F. Bataillon, Senior United States District Judge.
matter is before the Court on the objections, D.I. 575, by
defendants to the report and recommendation of the magistrate
judge, D.I. 524. Defendants contend that the magistrate judge
erred in not granting their motion to protect confidential
information contained in a nondisclosure
standard of review for a report and recommendation is
governed by 28 U.S.C. § 636(b)(1)(C) and Federal Rule of
Civil Procedure 72(b). The district court “shall make a
de novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made” and “may also receive further
evidence or recommit the matter to the magistrate judge with
instructions.” 28 U.S.C. § 636(b)(1)(C).
Similarly, Rule 72(b)(3) requires de novo review of any
recommendation that is dispositive of a claim or defense of a
Supreme Court has construed the statutory grant of authority
conferred on magistrate judges under 28 U.S.C. § 636 to
mean that nondispositive pretrial matters are governed by
§ 636(b)(1)(A) and dispositive matters are covered by
§ 636(b)(1)(B). Gomez v. United States, 490
U.S. 858, 873-74 (1989); see alsoFed. R. Civ. P.
72(a). Under subparagraph (B), a district court may refer a
dispositive motion to a magistrate judge “to conduct
hearings, including evidentiary hearings, and to submit to a
judge of the court proposed findings of fact and
recommendations for the disposition.” 28 U.S.C. §
636(b)(1)(B); see EEOC v. City of Long
Branch, 866 F.3d 93, 99-100 (3d Cir. 2017). The product
of a magistrate judge, following a referral of a dispositive
matter, is often called a “report and
recommendation.” Id.“Parties ‘may
serve and file specific written objections to the proposed
findings and recommendations' within 14 days of being
served with a copy of the magistrate judge's report and
recommendation.” Id. (quoting Fed.R.Civ.P.
a party objects timely to a magistrate judge's report and
recommendation, the district court must ‘make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.'” EEOC, 866 F.3d at 99 (quoting 28 U.S.C.
filed a motion and two letters requesting redaction which
were denied by the magistrate judge. A party seeking closure
must demonstrate that the information “is the kind . .
. that courts will protect and that disclosure will work a
clearly defined and serious injury to the party seeking
closure.” SoftView LLC v. Apple Inc., No.
10-389-LPS, 2012 WL 3061027, at *9 (D. Del. July 26, 2012).
defendants contend that the magistrate judge erred in finding
that the NonDisclosure Agreement (hereinafter
“NDA”) between the parties imposed no
confidentiality obligations after termination. In addition,
the defendants contend that the magistrate judge erred in
finding that the confidential information belongs to the
contend they showed good cause and a clear and serious injury
and are thus entitled to redactions. Pansy v. Borough of
Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994); see
also Glenmede Tr. Co. v. Thompson, 56 F.3d 476, 483 (3d
Cir. 1995) (citing Pansy, 23 F.3d at 787-91). Defendants rely
on paragraph 2 “Discussion Information” of the
NDA which provides:
Each party agrees that, without the prior written consent of
the other party, it will not disclose to any person (other
than its Representatives) the fact that the Confidential
Information has been made available to us, that discussions
or negotiations are taking place or have taken place
concerning a possible Transaction involving us and the
Company or any of the terms, conditions or other facts with
respect to any such possible Transaction, including the
status thereof and the identities of the parties thereto
(collectively, the “Discussion Information”). You
shall be responsible for any breach of this paragraph by your
Representatives to the same extent as if they were parties
(D.I. 262, Ex. C ¶ 2, page I.D. 14770). Paragraph 5
requires that the information shall be given confidential
treatment. Id. at ¶ 5. Both plaintiffs and the
magistrate judge agree that generally the redactions fall
within the parameters of paragraph 2 of the NDA, absent a
reason to the contrary. D.I. 524 ¶ 11.
the issue of the expiration of the NDA, defendants argue the
confidential agreement extends beyond the three-year term,
relying on the broad wording of ¶ 4. See D.I.
262, Ex. C ¶ 4 (“Notwithstanding the return or
destruction of Confidential Information pursuant to this
Section 4, we will continue to be bound by the
confidentiality and other obligations in this
also argue that the confidential information, in addition to
being covered by the NDA, is likewise covered under the
Stipulated Protective Order which prohibits the parties from
disclosing “protected information” denoted as
“confidential” or “highly
confidential.” D.I. 54 ¶ 15.a. at page I.D. 1813.
Defendants likewise disagree that this information is already
public, and if it is public, it is likely due to the fact
that plaintiff filed the complaint with confidential
information. Defendants contend that the plaintiffs cannot
benefit from this behavior. SeeSun
Microsystems, Inc. v. Versata Enterprises,
Inc., 630 F.Supp.2d 395, 410 (D. Del. 2009) (a party
may not benefit from its own inequitable conduct). Even if
some of the information is ...