City of Providence, Rhode Island v. Bats Global Markets, Inc.

Background

The opinion addressed access to documents filed in connection with the parties’ pending motions for summary judgment and class certification. The Court had previously granted in part the plaintiffs’ request to unseal 372 documents, but reserved decision on the defendants’ requests concerning a smaller group of filings.

The defendants sought to keep 14 filings—the “First Set”—under seal in their entirety and to partially redact approximately 75 other filings—the “Second Set.” The opinion states that all of these filings were judicial documents because they had been submitted for consideration in connection with summary-judgment motions.

Legal Standard

The Court applied the common-law presumption of public access to judicial documents. It considered the documents’ role in the Court’s decision-making, the strength of the public-access presumption, and competing interests such as privacy and the risk of harm to a company’s competitive position. The party seeking to restrict access had to provide a specific factual showing that disclosure would cause sufficiently serious harm. The Court also emphasized that sealing must be narrowly tailored rather than broader than necessary.

First Set of Documents

The Court concluded that 10 of the 14 filings should remain sealed in their entirety unless and until the Court later ordered otherwise. These included:

- Five filings containing New York Stock Exchange entities’ customer-specific revenue information from proprietary data feeds and co-location services. The Court found that customer privacy interests and possible harm to the entities’ competitive positions outweighed public access. - One internal BATS presentation concerning market-data strategy, industry trends, revenue streams, products, peer comparisons, and future revenue potential. The Court found the public-access presumption relatively weak because the presentation postdated the proposed class period and was unlikely to play a significant role in resolving the pending motions, while the potential competitive harm was significant. - Two internal Nasdaq presentations concerning specific nonparty customers and their use of Nasdaq products and services, including confidential business strategies. - Two internal Nasdaq filings concerning the economics and technical operations of a data center, co-location arrangements, expansion strategies, and financial projections. The Court found that the information remained potentially useful to competitors despite the documents’ age.

The Court concluded that the other four documents in the First Set should be partially redacted rather than sealed entirely:

- For a 2013 Nasdaq revenue chart and pricing analysis, the Court denied the request to maintain the filing under seal in its entirety. It found that internal sales and revenue figures could be redacted, but that defendants had not justified sealing information about product ranges and then-current prices, which was stale by the time of the opinion. - For an email chain involving a nonparty Nasdaq customer, the Court found that nearly all of the customer-specific technical information and personal contact information could be redacted. It found no justification for sealing the final page’s old promotional email, which lacked customer-specific information. - For a 2010 Nasdaq draft white paper, the Court found that information about Nasdaq’s systems, operational risks, legal risks, and certain markets could be protected, but that defendants had not justified sealing the document in its entirety. The Court directed redaction of information that remained applicable at the time of the opinion and information relating to the specified markets.

The Court stated that it could revisit the sealing and redaction decisions after ruling on the underlying motions, when it would be better able to assess the filings’ relevance to its decision-making.

Second Set of Documents

The Court granted the defendants’ request to redact identifying information for nonparty market participants in specified filings. It found that protecting those entities’ business investment or trading strategies outweighed the relatively weak public-access interest in information that was unlikely to play a significant role in resolving the pending motions.

The Court temporarily granted the defendants’ request concerning deposition transcripts of witnesses previously employed or retained by defendants, allowing only the pages cited in the plaintiffs’ papers to be filed publicly until the Court ruled on the underlying motions. The Court noted that it might later determine that additional transcript pages were relevant.

For two Nasdaq documents containing information the defendants characterized as privileged, the Court did not approve the proposed redactions at that stage. Instead, it directed defendants to file the documents with proposed redactions for the Court’s review, explaining that the parties’ agreement alone was not enough to restrict public access.

The Court granted the request to redact what was believed to be the personal email address of a relative of a former BATS employee.

Other Rulings and Disposition

The Court denied the plaintiffs’ motions to file their briefing concerning the unsealing request under seal, without prejudice to renewal consistent with the opinion. It allowed the parties to propose limited redactions by March 7, 2022. The Court also denied as moot the petition by Francine McKenna, described in the opinion as an independent journalist, concerning removal of temporary confidential treatment for certain documents.

Judge Jesse M. Furman directed the Clerk of Court to terminate ECF No. 791. He also ordered defendants to publicly file, by March 7, 2022, copies of specified filings with proposed redactions consistent with the opinion, including the partially redacted First Set documents, filings concerning nonparty market participants, specified deposition transcripts, the two documents containing proposed privilege redactions, and the filing containing the personal email address.