usually they got about ten i'm out here good morning it may please the court carlos on behalf of appellants the district court below committed to critical errors in its ceiling decision each of which requires a reversal the first of which is that the court committed legal error because it applied the wrong legal standard and number two the court found clearly erroneous facts that is facts that are directly contradicted by the undisputed record below and we go through each of these on legal car company these tell a car company how many warranty claims based on its confidential warranty data it can expect to get in the door at three years out at five years out at ten years out quintessential trade material to tell you how much it's the cost it tells you how much is budgeted by the company and how much money can be left over at each of those points in time we are we are give this to the district court below and the district court response in its order was to reject these arguments and to explain that this is because this info this information i quote is of significant relevance to prospective classic members given the implications for driver safety your honour's under this court's precedents that is not the question the question is whether there is a trade secret here and a trade secret in here is whether or not the public has an interest whether or not documents are relevant to a case and this record never addressed or answered that question but on the question of clearly erroneous facts or honors again clearly directly contradicted i'm sorry i want to ask are you are you thinking that notwithstanding the your argument about about trade secret that the court should not have considered the public interest at all things obviously warning or it claims are going to relate to some issue to the public you think that with him to even consider that in the analysis it was an error to consider the under this court standards dating all the way back to brown brown and williamson in one thousand nine hundred eighty three the trade secret is  recognised exception to the public's right of access and brown the court said the court should not seal records unless they are trade secrets and so on and shane group the court said that  that only trade secrets and a number of other exceptions are sufficient to overcome the public's right of access the dispositive inquiry is whether it is a trade secret but it is not the trades that's the first i mean the xan group has a three part test whether the party has shown a compelling interest in the records secrecy which is the trade secret determination the second consideration is whether that interest outweighs the public interest even if it is a trade secret and third of whether the party has narrowly tailored the request to seal the records and the so there's a three part of inquiry and i believe not just one  is there not i think there is judge griffin there there is generally speaking an inquiry as you describe that is to say a balancing test that is the in court that's the analysis as well there's a balancing test of the public's right to know versus whatever compelling interest at the second analysis and the third one is the narrowly to really to narrowly tailored that that is correct that is correct however the court's precedents are clear that in the case of trade of the excerpt from group that i quoted indicates that only trade secrets and a number of other exceptions i think privilege and minors names and so on typically overcome typically they pick leave that i'm not necessarily that difficult ok that qualifies it so it's not in every instance i think your argument was every time we had a trade secret therefore it has to be sealed and i don't think that's the law i believe that is the law in iran as well typically typically doesn't mean in every case you know the adverb typically in that particular sentence which lists a number of exceptions trade secrets privilege i think minors names being mentioned i think was the other one those are the typical exceptions there may be other exceptions that's what typically modifies but if your honor goes back to the brown and williamson case which is where shane group got th standard brown and williamson was very clear it said the courts should not sealed records and less and less they would reveal legitimate trade secrets the court didn't say and less legitimate trade secrets outweigh public interest it said and less they are legitimate trade secrets period and they must it doesn't say they must sealed records if there is treat secrets so that should seal them if they're trade secrets period and it didn't import a it's the number of ward if i could step back for a moment your honor key has an industry leading it may have heard of it one hundred thousand mile warranty it's the longest in the business the first company to introduce that and the reason that he is able to calculate that it can afford to offer such a warranty is because it has confidential data that it has calculated would result in x number of claims three years out five years out ten years down the road that nobody else knows if  competitor were to get hold of this information ok the competitor could say whoa i didn't know let's say for gets hold of this why didn't know kit was spending that much on a warrant on that warranty maybe we ought to adjust our practices in exclude this normally consider a trade secret let me let me address that point your honor if i could because i think one thing i want to make clear is that you know when we think of trade secrets i think in the late sense we think of things like the coke formula we think of things like the source code for your i phone ok we think of things like the design for a key a car usually to fix right right i know what you want to be right and and what i'm arguing for what is that that understanding of a trade secret this settlement or opt out of it and they need to know the basis of the claim and strength of it and all this stuff and if you start hiding all these figures from the when a class is certified as we've argued in our papers every class member in this in this class will have full access to any of these documents even under seal even under seal under the terms of the protective order in this case directive orders for discovery purposes right that's right and the ceiling is sealing these documents i thought for ever no they were last class members will absolutely have access to these records as class members release several thousand there is always a risk of that happening and we may have a cause of action if that right why is it so important for the all the rest of the public not to know that because because you're on the take some of the investigation documents that issue re the the trade secret statute in ohio recognizes not just the design documents i mentioned but a process a procedure a method and technique those are straight out of the statute the cases that we cited school all sealed exactly these kinds of investigation type documents and and weigh that against the public's right to know particularly if you're out of product liability or a product defect case the allegation is you're put in an unsafe product in the stream of commerce out there and the public really needs to know that maybe some defects in these cars and you want to do a protective order sealing all this information from the public i mean i think it's a high standard when you're balancing your need for statistics that you don't want your competitors to know as to how you do warranties on this stuff with the public's right to know that there may be some real problems here when we say this your honor you know i tend to balance it more in the favor of the public could be persuaded to turn it over to a competitor that they could we may have a cause of action against that particular class member for trade secret theft or what have you but the point is that once you turn over these types of documents right it's not just going to the general the class members the public the fords of the world right what about you know it everyone heard of a the car company in china gili gili you've never heard of that car company because it doesn't manufacture cars in this country because they don't have the quality control processes and safety standards that we set in this country and you were turning this all over these are all processes and techniques and so on that kid has developed over the thirty years that it's been in this country mr minister and let me ask you the following since you think that this is not a permanent ceiling you've said that it would be for a limited time and you're going to have to turn this over to this if the class certified class members could get hold of the data individual class members could request and get hold of the data but that doesn't mean that the whole wide world including ford including gili including our competitors are going to get hold of of the confidential data that's precisely what we're trying to hard to get it's when you talk about ford getting hold of it well in this war in information what exactly would ford and another competitor it competitor be getting hold up how many collect how many want how many claims have been filed based on the what are they to be clear your honor these are not just the claims that have actually been filed they are confidential predictions of our in house statisticians of how many future claims there are going to be in three years in five years in ten years how much is that going to cost the company that's extremely confidential information that the fords of the world or the gili is of the world can get hold of and decide maybe we better adjust our warranty or oh it's not costing here's so much maybe we can offer one hundred thousand mile warranty after all that's the competitive harm that shane analysis if that's what the fear is couldn't there be  that part we have offered below the records clear below we offered redactions of so the warranty read warranty data people making warranty claims to their dealers that coming in we offered all of that out the door what cannot be redacted is on exhibit one hundred for example it's the future predictions of warranty claims it's the future predictions of the cost of those warranty claims its key is budgets for paying for those warranty claims that's what exhibit one hundred is and that and gamble cases that we've cited confidential pricing data there is a pricing a series of pricing documents an issue here certainly there's m s r p which we in our negotiations with the other side of said that can go out the door people know what sarpy is but everything else dealer invoice price is what's called a hold back which is a payment we make to dealers for selling a car you know quickly how much we car charge fleet owners rental car companies taxi companies etc the formula for this goal is the chatters that the parties are the parties agreed on those sorts of design documents those have been sealed judged a lot sealed sealed  but on the on these other documents including testing confidential testing documents the kind of tests that we run on them judged a lot said if they're from before you put the car on the market i'm going to seal  i'd like to reserve this thank you she judged a lot purported to apply it i'm not sure she did though i don't think she went through the three part of the alice's i think she stopped at the first analysis but i mean she she does cited in her decision but  think her explanation well i don't think she goes through this restaffed that i think it's cursory it's perfunctory she relies upon the stipulation agreements of the parties which is contrary to shade shade and says that the parties cannot agree on this the public has an interest in it and the public interest must be considered by the court whether or not it's raised by the party so i mean i well and i start with she's she says she's applying it but i'm not so sure so go and and make a showing judged a lot then took the initiative to hold an evidentiary hearing with a witness who testified from about the nature of these documents she had two rounds of briefing with i think a to make clear that the documents that we don't contest that kid has some legitimate trade secrets in the company of course so the doc have to decide that ourselves don't we because you can't stipulate to them that's correct but you know interests it is the public at large that has this interest and it's the absent class members that have the centrist that's who you're representing the public at large and i think that's the nature of this court in the supreme court's precedents they recognize that the public at large the american tradition is to have an open court system  and the public's interest and access to the court documents and that's part of that the presumption the presumption is everything that's filed in court is public information and the burden the party that wants to seal it and keep it hidden from the public is upon the party that wants to keep keep the documents under seal and the presumption all favors the public right that's exactly right there's a strong presumption against sealing and a heavy burden that exists in all about stricter standard as you've come across in civil cases and in the face of that despite giving multiple opportunities the evidence that actually came forward here is is very underwhelming is judged a lot put it it's trade secrets here but you also seem to suggest that there are some that there are not trade secrets so what do you think is is protectable by trade secret design specifications of how do you actually build one of these vehicles or how do you build one of the components within the vehicles it's not hard to see how a competitor if they were given step by step instructions how to build wikia has figured out how to build could recreate that ok well i don't you go through all of that but what about this budget information that he has says is should be protected by trade secret because it could disadvantage protected back why isn't that a trade secret so we're talking there about the what the so called wible projections which produced out how many warranty claims you will have in the future if you work at the declaration that key is submitted there's absolutely no reference to costs what kid is talking about is this concept that general motors or ford or some like that is going to use the failure rates here as a benchmark and try and mimic them in  vehicles which i think is rather implausible given how many problems there have been with these senators they've led to a geisha in federal investigations international investigations media scrutiny and so i think it's just an impossible position to take and on top of that voluntarily shared some of these projections already publicly with the national highway traffic safety administration and in doing so compared their libel projections with general motors wible projections absolutely part of it and that's one of the factors that judged a lot focused on in her opinion and how to be clear kid hasn't exposed every single libel projection for every one of its vehicles but i think it's indicative of a lack of trade secret when it voluntarily makes it public it didn't ask for confidential treatment it compared it to a competitor's projection and so that was public as well and the weibo analysis is used throughout the industry i mean there  competing pages on this it's all over it's a general engineering principle it's a it's just a formula to take existing warranty numbers which are public is not seeking to seal the existing warranty claims and then you just project out how many going forward are going to fail and you know and just to be clear of all the documents at issue that's that's just a single document that's exhibit one hundred where the projections are contained  to get back to the standard that the court applied to the court progressed throughout its opinion and it started by setting forth of a rather thorough discussion of the legal standard and then as the opinion goes on it naturally becomes more concise with each new category of documents the court discusses but i would say that the court begins by citing and quoting from chain group  extensively and it does that separately from the trade secret analysis so it starts by saying under the u s tradition of up in courts there's a strong presumption against seeing there's a heavy burden it got into the balancing test that you want to reference that the greater the public interest the higher the level of evidentiary showing that's that's required from the defendant and then only after setting forth that standard to the court then address the substantive requirements of ohio law for trade secret analysis such as it must be a secret it must be something that derives economic value from not being known generally and then when the court proceeded to discuss the different categories of documents at issue it continued with that analysis it would discuss the public interest which raises the burden and then it would discuss its analysis of the documents and whether they worked like trade secrets and what the district court said is in her experience and having looked at these documents carefully they were quite routine investigation documents they look like r in reports they don't work like trade secrets and as when you say that she she not only recited the standard shane group but then she applied them i mean i see you're think that perhaps the most robust example is on pages seven and eight where the court discusses the category of investigation documents and if you look at page eight there is a discussion one paragraph what log short the the middle paragraph the second sentence refers to the lack of narrowly tailored redactions and then in the final paragraph of that page there is a citation to shane group and noting that the documents contents are great public interest particular to drivers concerned about their safety and class members interested in there we go claims in this case which as we've discussed is the court recognized earlier in its opinion that elevates the requisite evidentiary showing by the proponent of sealing and as the court had just explained in the preceding paragraph the evidentiary showing was lacking here it doesn't it doesn't show a procedure a process that derives independent economic value from not being known these are routine documents they're there the type of reports that court see all the time secret i don't you know for the reasons that i pointed out earlier it's it's a type of projection that's done throughout the industry the fact that kid does this type of projection is known already some of  the actual calculations are already public so what do you think my next was what do you think of something like that it's retained it is highly confidential they protect that information and everything but it doesn't meet the definition of a trade secret that's certainly natural that corporate against are going to have information they don't want to share with their competitors and with their customers that's a natural instinct but it's not enough to overcome the strong presumption in favor of public interest that's it's just not our court system operates and so if i could just briefly talk about this idea of sealing the documents but allowing class members to have access to them and i think i noted that the public at large has a right of access to open courts this is recognized in shame group the public may have an interest in just understanding the judicial process the conduct that gave rise to the litigation the fact that this is a class action in other words is not the only reason that the document should be unsealed it elevates the standard but it's not a standalone reason for sealing or unsealing and i think it's a rather dangerous proposal  allow class members to have access to legitimate trade secrets and other sensitive information there are cases where there are social security numbers that are sealed personal medical histories are sealed and legitimate trade secrets i mean it's not hard to imagine a case where the formula for coca cola would be in evidence and would be sealed and the notion that thousands or millions of cost members could have free access to those documents i think it's kind of a startling proposal is proposed in its brief as a i guess it's sort of a compromise proposal from which is allow the documents to be sealed but that means any class member who wants them can come look at them all right so you're say there is no precedent for doing that and it's it doesn't seem like it makes any sense to me either i would agree and so are you saying that that that that that very proposal would argue against treating those documents as trade secrets if they were trade secret you would not i mean logically they would not be available to class members because to all the trade secret rules if it's truly sensitive information that needs to be held closely secret why would we allow thousands or millions of people to access it what's either either should be sealed or should not be  mr starr and talked at length about the public's interest and i just want to point this out that there is no better proof there is no better evidence that that mr stein and the plaintiff's counsel don't really believe that the public has the right to access a burning need to access these documents than the fact that these same law firms are representing another plaintiff in a class action in california on the exactly the same allegations about sunroofs and they have filed exactly the same types of documents your honour's of pointed out that are issue here and not once have they objected opposed moved to seal any of those documents and those have been sealed now for over a year so the idea of the public the public interest is at stake as the samsung decision suggests that the whole ceiling process could be used for strategic purposes and that's part of the danger here of allowing this type of thing out in the open i want to talk about one category of documents we haven't really covered or you move on your hybrid proposal as any court ever except that  the hybrid proposal is simply the default under the protective order that's governing this case that period here relied on we're not talking about protective orders we're talking about sealing documents which is a whole different standard than a protective order protective order for discovery purposes and i think the standards good cause sealing documents is a whole different right but as any court ever adopted your proposal that you would seal the documents however you would give them to the class members and if this is totally new why why is it the first time it's ever been i can't i can't name a specific example for you because i think it's fairly routine that's the default under judge the lats protective order we did not waive kid did not waive its confidentiality rights by by turning over this information to the plaintiff write their client their name plaintiff client has this information he has access to it and by the same token we wouldn't be waiving our rights if we were to turn it over to class members were there to be a class and were they to be parties if i could i have just half a minute remaining if i could just talk about the remaining documents that we have uncovered which are the investigation documents these are documents that lay out specifically what details are relevant what kind of testing ought to be conducted what kind of hypotheses the company  is is considering who was involved in the testing with the testing results are and so on those are exactly the types of documents that have been recognized as worthy of sealing sealing by the courts in the cases we cited gr n mcdonnell the lasco which involve public safety issues which involve hard effects and so on and we submit those are additionally documents that come under the trade secret heading and should be see any further