Hemlock Semiconductor Corporation v. SolarWorld Industries Sachsen GmbH

MOTION to Seal 91 MOTION for Summary Judgment Exhibits 1-4 & Exhibit 10

E.D. Mich.March 16, 2016

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION HEMLOCK SEMICONDUCTOR CORPORATION, Plaintiff, v. DEUTSCHE SOLAR GmbH, f/k/a DEUTSCHE SOLAR AG, Defendant. Case No. 1:13-cv-11037-TLL-PTM HON. THOMAS L. LUDINGTON PLAINTIFF’S MOTION TO FILE EXHIBITS UNDER SEAL Plaintiff Hemlock Semiconductor Corporation (“Hemlock”) hereby moves that this court permit it to file certain exhibits in support of its Motion for Summary Judgment under seal. 1. On March 16, 2016, Hemlock filed its Motion for Summary Judgment. Within its Memorandum in Support of that motion, Hemlock referenced five exhibits that contain the parties’ confidential information, protected by confidentiality agreements between Hemlock and Deutsche Solar. These exhibits include: Exhibit 1: Long Term Supply Agreement I, with all amendments; Exhibit 2: Long Term Supply Agreement II, with all amendments; 1:13-cv-11037-TLL-PTM Doc # 92 Filed 03/16/16 Pg 1 of 8 Pg ID 2454 2 Exhibit 3: Long Term Supply Agreement III, with all amendments; Exhibit 4: Long Term Supply Agreement IV, with all amendments; Exhibit 10: Expert Report of John D. Finnerty, Ph. D., dated September 8, 2014. 2. Supply Agreement I, II, III, and IV each contain a confidentiality provision covering the terms and conditions of the agreements. Each of these exhibits refer to or include confidential information in accordance with these provisions. See also Dkt. No. 7 (granting Hemlock’s Motion to Seal the Supply Agreement in connection with its Complaint); Dkt. No 42 (granting Hemlock’s motion to seal the Supply Agreements in connection with other motion practice). 3. In addition, Exhibit 10 of Hemlock’s Motion for Summary Judgment (the Expert Report of John D. Finnerty, Ph.D.) contains information taken from the financial statements of Hemlock and Hemlock-related entities, which contain nonpublic and highly sensitive information. See also Dkt. No 42 (granting Hemlock’s prior motion to seal excerpts of Dr. Finnerty’s Report). 4. The disclosure of the information in the foregoing exhibits would harm Hemlock and Deutsche Solar to the extent that such information is not publicly known or readily accessible. These documents contain highly sensitive pricing and financial information and other terms which, were they to be made public, could damage the parties’ competitive advantages in the marketplace. 5. Because of the confidential nature of the information in these exhibits, 1:13-cv-11037-TLL-PTM Doc # 92 Filed 03/16/16 Pg 2 of 8 Pg ID 2455 3 a means other than sealing is not available to protect Hemlock’s interests in keeping this information private. 6. Hemlock requests this Court to order that Hemlock may file these exhibits under seal with the Court, pursuant to Eastern District of Michigan Local Rule 5.3(b). WHEREFORE, Hemlock requests that it be allowed to file under seal Exhibits 1-4 and Exhibit 10 supporting its Motion for Summary Judgment and that these documents remain under seal until further order of the Court. Dated: New York, New York March 16, 2016 By: s/ Alvin Lee ORRICK, HERRINGTON & SUTCLIFFE LLP J. Peter Coll, Jr. John Ansbro Alvin Lee Daniel W. Robertson 51 West 52nd Street New York, New York 10019 Telephone: (212) 506-5000 Facsimile: (212) 506-5151 pcoll@orrick.com jansbro@orrick.com drobertson@orrick.com alee@orrick.com 1:13-cv-11037-TLL-PTM Doc # 92 Filed 03/16/16 Pg 3 of 8 Pg ID 2456 4 BRAUN KENDRICK FINKBEINER PLC Craig W. Horn 4301 Fashion Square Blvd. Saginaw, Michigan 48603 Telephone: (989) 498-2100 Facsimile: (989) 799-4666 crahor@braunkendrick.com Attorneys for Plaintiff Hemlock Semiconductor Corporation 1:13-cv-11037-TLL-PTM Doc # 92 Filed 03/16/16 Pg 4 of 8 Pg ID 2457 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION HEMLOCK SEMICONDUCTOR CORPORATION, Plaintiff, v. DEUTSCHE SOLAR GmbH, f/k/a DEUTSCHE SOLAR AG, Defendant. Case No. 1:13-cv-11037-TLL-CEB HON. THOMAS L. LUDINGTON BRIEF SUPPORTING PLAINTIFF’S MOTION TO FILE EXHIBITS UNDER SEAL On October 24, 2014, Hemlock filed its Motion for Summary Judgment. Within its briefing, Hemlock referenced a number of highly sensitive and confidential exhibits, specifically: Exhibit 1: Long Term Supply Agreement I, with all amendments; Exhibit 2: Long Term Supply Agreement II, with all amendments; Exhibit 3: Long Term Supply Agreement III, with all amendments; Exhibit 4: Long Term Supply Agreement IV, with all amendments; and Exhibit 10: Excerpts of the Expert Report of John D. Finnerty, Ph. D., dated September 8, 2014 1:13-cv-11037-TLL-PTM Doc # 92 Filed 03/16/16 Pg 5 of 8 Pg ID 2458 Hemlock wishes to submit these documents to the Court in support of its Motion. Supply Agreement I, II, III, and IV each contain a confidentiality provision covering the terms and conditions of the agreements. In addition, Exhibit 10 supporting Hemlock’s Motion for Summary Judgment contains financial statements and/or information from financial statements of Hemlock and Hemlock-related entities, which contain nonpublic and highly sensitive information. The disclosure of the information in the foregoing exhibits would harm Hemlock and Deutsche Solar to the extent that such information is not publicly known or readily accessible. These documents contain highly sensitive pricing and financial information and other terms which, were they to be made public, could damage the parties’ competitive advantages in the marketplace. Because of the confidential nature of the information in these exhibits, a means other than sealing is not available to protect Hemlock’s interests in keeping this information private. Due to the fact that these documents contain confidential information protected by confidentiality provisions in the Supply Agreements, or other sensitive nonpublic commercial information, Hemlock respectfully asks the Court to allow these documents to be filed under seal. Eastern District of Michigan Local Rule 5.2(b) expressly allows a court to seal items in a civil case by court order upon a motion to authorize the sealing. See 1:13-cv-11037-TLL-PTM Doc # 92 Filed 03/16/16 Pg 6 of 8 Pg ID 2459 LR 5.2(b)(2). WHEREFORE, Hemlock requests that it be allowed to file under seal Exhibits 1-4 and Exhibit 10 supporting Motion for Summary Judgment and that these documents remain under seal until further order of the Court. Dated: New York, New York March 16, 2016 By: s/ Alvin Lee ORRICK, HERRINGTON & SUTCLIFFE LLP J. Peter Coll, Jr. John Ansbro Alvin Lee Daniel W. Robertson 51 West 52nd Street New York, New York 10019 Telephone: (212) 506-5000 Facsimile: (212) 506-5151 pcoll@orrick.com jansbro@orrick.com drobertson@orrick.com alee@orrick.com BRAUN KENDRICK FINKBEINER PLC Craig W. Horn 4301 Fashion Square Blvd. Saginaw, Michigan 48603 Telephone: (989) 498-2100 Facsimile: (989) 799-4666 crahor@braunkendrick.com Attorneys for Plaintiff Hemlock Semiconductor Corporation 1:13-cv-11037-TLL-PTM Doc # 92 Filed 03/16/16 Pg 7 of 8 Pg ID 2460 1:13-cv-11037-TLL-PTM Doc # 92 Filed 03/16/16 Pg 8 of 8 Pg ID 2461