IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

 

FEDERAL TRADE COMMISSION, 

 Plaintiff,

 v.

KEVIN TRUDEAU, 

 Defendant, 

THE LAW OFFICES OF MARC J. LANE, 

PC, 

Respondent.

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Case No. 03-C-3904

Hon. Robert W. Gettleman 

MOTION FOR LEAVE TO FILE DOCUMENTS UNDER TEMPORARY SEAL
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MOTION FOR LEAVE TO FILE DOCUMENTS UNDER TEMPORARY SEAL 

Trudeau, the Law Offices of Marc Lane (“Lane”), Winston & Strawn (“Winston”), GIN 

USA, Website Solutions USA (“WSU”), and KT Radio Network (“KTRN”) (collectively, the 

“Designating Parties”) have failed to comply with the Protective Order (DE106) (Feb. 14, 2008) 

by designating relevant, non-confidential information as “confidential.” The Protective Order 

only permits parties to designate as “confidential” documents containing Personal Identifying 

Information (“PII”), financial account numbers, and other specified genuinely confidential 

information. See DE106 at ¶ 3.1 By designating numerous documents as “confidential” that 

plainly do not meet this standard, the Designating Parties have violated the Protective Order.

Nonetheless, out of an abundance of caution, the FTC seeks leave to file certain 

documents under a temporary seal that will expire within five (5) days unless the Designating 

Parties demonstrate that any specific information in those documents must remain confidential 

under the Protective Order’s terms. Specifically, the FTC moves to file unredacted versions of 

the following documents under temporary seal: (1) Memorandum in Support of Motion To 

Compel Certain Documents and Testimony from Lane; and (2) FTC Exhibit A (and attachments 

thereto, including various payment records and Lane’s privilege log, all of which Winston 

designated as purportedly “confidential”). 

This motion for a temporary seal is consistent with the FTC’s position regarding 

confidential filings and with the Seventh Circuit’s April 10, 2013 order imposing an emergency 

stay of this Court’s April 9 Order (DE608) requiring the FTC to file publicly certain documents 

 

1 In full, this paragraph states: “An attorney of record may designate Discovery Material 

as ‘CONFIDENTIAL’ if such attorney in good faith believes it to contain: (a) information that 

contains an individual’s social security number or an individual’s social security number or 

address or phone number in combination with one or more of the following: (i) date of birth, (ii) 

social security number; (iii) driver’s license number or other state identification number or 

foreign equivalent, (iv) passport number, (v) financial account number or [(vi)] credit or debit 

card number; (b) trade secrets or other proprietary or competitively sensitive research and 

development or business processes information; (c) financial information, which if released, is 

likely to cause competitive injury to the party providing the information; or (d) consumer 

complaint or contact information.” DE106. 
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(with genuine PII redacted).2 As it has done previously, the FTC proposes to file documents 

under seal only because the Protective Order requires the FTC to do so whenever the 

Designating Parties designate documents as “confidential,” regardless of whether their 

designations comply with the Protective Order (and they almost never do). 

In fact, as the FTC made clear in its Motion to Seal, it “does not agree with Respondents’ 

‘across-the-board’ [confidentiality] designation.” Motion (DE595) at 1. The Court agreed with 

the FTC, explaining that the Designating Parties had improperly insisted upon “redactions that 

go beyond the Court’s [April 4] directive and sought to redact information that is not protectable 

and is clearly material to issues related to these contempt proceedings.” Order (Apr. 9, 2013) 

(DE608) at 1-2. 

Consistent with the Seventh Circuit’s emergency stay, the FTC does not want to preclude 

the Designating Parties from having a reasonable – but strictly time-limited – opportunity to 

identify material that should remain confidential pursuant to the Protective Order. Accordingly, 

the FTC asks the Court to seal the unredacted versions of the above-referenced filings, but order 

that the seal will lift (except as to any Personal Identifying Information (“PII”) or financial 

account numbers) in five (5) days unless the Designating Parties show that any other information 

must be kept confidential. 

 2 The Designating Parties’ motion for an emergency stay substantially misrepresented the 

FTC’s position and, indeed, they emphasized (in bold and italics) this misrepresentation on the 

first page of their Seventh Circuit filings. Specifically, the Designating Parties informed the 

Seventh Circuit that the information the Court ordered disclosed was “information that the FTC, 

Trudeau, and the law firms believe should remain under seal.” PXB:1, Emergency Motion, 

FTC v. Trudeau, No. 13-1746 (7th Cir. Apr. 9, 2013) (DE1) at 1 (emphasis in original); see also

PXB:2, Emergency Motion, FTC v. Trudeau, No. 13-1747 (7th Cir. Apr. 9, 2013) at 1 (emphasis 

in original). As discussed in text above, the FTC does not share this belief. Moreover, at the 

April 4 presentment of the Motion to Seal, the FTC clearly expressed its view “that the third 

parties in this case . . . have substantially over-designated what is confidential.”2

 PXB:3 at 4:8-

11. And at the April 9 hearing addressing the Designating Parties’ continued failure to limit their 

proposed redactions to genuine PII, the FTC reiterated its position: “We certainly believe that 

there is a strong public interest in this case. There is a strong Seventh Circuit policy in favor of 

openness.” PXB:4 at 28:6-8. And the FTC again requested (as the Court had instructed on April 

4) that the Designating Parties limit redactions “to sensitive personally identifiable information 

and account numbers.” Id. at 30:4-5.
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Dated: April 15, 2013

David O’Toole (dotoole@ftc.gov)

Federal Trade Commission

55 West Monroe Street, Suite 1825

Chicago, Illinois 60603-5001 

Phone: (312) 960-5601

Fax: (312) 960-5600

Respectfully Submitted,

/s/ Jonathan Cohen

Michael Mora (mmora@ftc.gov) 

Jonathan Cohen (jcohen2@ftc.gov)

Federal Trade Commission

600 Pennsylvania Ave., N.W. M-8102B

Washington, DC 20580

Phone: 202-326-3373; -2551

Fax: 202-326-2558
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CERTIFICATE OF SERVICE

I, Jonathan Cohen, hereby certify that on April 15, 2013, I caused to be

served true copies of the foregoing by electronic means, by filing such documents through the 

Court’s Electronic Case Filing System, which will send notification of such filing to:

Kimball Richard Anderson

kanderson@winston.com

Thomas Lee Kirsch, II

tkirsch@winston.com

Katherine E. Croswell

kcroswell@winston.com

Daniel J. Donnellon

ddonnellon@ficlaw.com

Kenjiro D. LeCroix

klecroix@ficlaw.com

/s/ Jonathan Cohen Jonathan Cohen (jcohen2@ftc.gov) 

Attorney for Plaintiff 

Federal Trade Commission