Womick v. The Kroger Co.

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTHONY WOMICK, Individually and on
behalf of all others similarly situated,
Plaintiff,
v.
THE KROGER CO.,
Defendant.
Case No. 3:21-CV-00574-NJR
ORDER
ROSENSTENGEL, District Judge:
On January 26, 2026, the Court granted Plaintiff Anthony Womick’s motion to file
three of fifteen exhibits (Exhibits 2, 7, and 11) in support of his motion for class
certification under seal. (Docs. 87 (Plaintiff’s Motion), 92 (Court Order)). Although the
Court granted Plaintiff’s motion to file the exhibits in question under seal, it ordered
Defendant the Kroger Company (“Kroger”) to show cause as to why Exhibits 2 and 11
should remain sealed. 1 (Doc. 92). Kroger responded to the show cause order on
February 6, 2026, requesting that Exhibits 2 and 11 remain sealed. (Doc. 94).
Exhibits 2 and 11 reveal information related to Kroger’s creation of certain product
labels. Exhibit 2 shows the labels themselves along with detailed dimensions and
commentary from a third party who ostensibly created the labels for Kroger. Exhibit 11
reveals an email chain between Kroger employees discussing a certain label.
“Documents that affect the disposition of federal litigation are presumptively open
1 Plaintiff did not contest the need to seal Exhibit 7.
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to public view.” Goesel v. Boley Int’l (H.K.) Ltd., 738 F.3d 831, 833 (7th Cir. 2013). This
presumption allows “interested members of the public, including lawyers, journalists,
and government officials, to know who’s using the courts, to understand judicial
decisions, and to monitor the judiciary’s performance of its duties.” Id. The Seventh
Circuit has held that “[s]ecrecy is fine at the discovery stage, before the material enters
the judicial record.” Baxter Int’l, Inc. v. Abbott Lab’ys, 297 F.3d 544, 545 (7th Cir. 2002)
(citing Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)). “But those documents, usually a
small subset of all discovery, that influence or underpin the judicial decision are open to
public inspection unless they meet the definition of trade secrets or other categories of
bona fide long-term confidentiality.” Id.; see also City of Greenville v. Syngenta Crop Prot.,
LLC, 764 F.3d 695, 697 (7th Cir. 2014) (presumption that court documents are public can
be rebutted if the records contain trade secrets or “if a statute, rule, or privilege justifies
confidentiality”). While genuine trade secrets may be sealed long-term, “most portions
of discovery that are filed and form the basis of judicial action must eventually be
released.” Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000).
Courts “may, for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense, including . . .
requiring that a trade secret or other confidential research, development, or commercial
information not be revealed or be revealed only in a specified way.” F ED R. C IV. P.
26(c)(1)(G). The burden is on the party seeking confidentiality to show good cause for
keeping the documents from public view. Heraeus Kulzer, GmbH v. Biomet, Inc., 881 F.3d
550, 566 (7th Cir. 2018). “The determination of good cause cannot be elided by allowing
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the parties to seal whatever they want . . . The judge is the primary representative of the
public interest in the judicial process and is duty-bound therefore to review any request
to seal the record (or part of it).” Citizens First Nat. Bank of Princeton v. Cincinnati Ins. Co.,
178 F.3d 943, 945 (7th Cir. 1999).
The Court has reviewed Exhibits 2 and 11 and finds that they are entitled to
confidential treatment. The Court’s protective order in this case allows the parties to
designate as “Confidential Information,” “information that reveals trade secrets” and
“research, technical, commercial or financial information that the party has maintained
as confidential.” (Doc. 34 ¶ 3). “Confidential Information,” more broadly, is defined as
material that “contains non-public financial or commercially sensitive information that
could cause [a party] competitive harm in the marketplace.” (Id.). The Illinois Trade
Secrets Act (“ITSA”) similarly defines a “trade secret” as:
[I]nformation, including but not limited to, technical or non-technical data,
a formula, pattern, compilation, program, device, method, technique,
drawing, process, financial data, or list of actual or potential customers or
suppliers, that:
(1) is sufficiently secret to derive economic value, actual or
potential, from not being generally known to other persons
who can obtain economic value from its disclosure or use; and
(2) is 	the 	subject 	of 	efforts 	that 	are 	reasonable 	under 	the
circumstances to maintain its secrecy or confidentiality.
765 ILCS 1065/2(d).
Exhibits 2 and 11 appear to fit the bill under ITSA and the Court’s protective order.
They reflect nonpublic information related to Kroger’s product labeling and the creation
of such labels. Kroger has taken steps to ensure their protection from public disclosure
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because 	it 	derives 	economic 	value 	from 	their 	confidential 	treatment 	and 	would
conversely suffer economic harm if they were publicly disclosed. See Chicago Mercantile
Exch., Inc. v. Tech. Research Grp., LLC, 276 F.R.D. 237, 241 (N.D. Ill. 2011) (“A party seeking
to maintain documents as confidential establishes good cause by showing that disclosure
will work a clearly defined and serious injury to the party seeking closure.”) (quotation
marks omitted); PepsiCo., Inc. v. Redmond, No. 94 C 6838, 1996 WL 3965, at *16 (N.D. Ill.
Jan 2, 1996) (“PepsiCo’s confidential business information constitutes protectible trade
secrets within the ITSA’s definition, because they are data, processes, methods, plans and
strategies (including pricing, marketing, strategic and related business information) that
derive economic value from not being generally known within the beverage industry.”).
The Court therefore finds it appropriate to keep Exhibits 2 and 11 sealed.
Thus, for good cause shown, and out of an abundance of caution, the Court
MAINTAINS Exhibits 2 and 11 under seal. The Court will revisit the propriety of
maintaining the seal over these documents at the conclusion of the case.
IT IS SO ORDERED.
DATED: February 9, 2026
____________________________
NANCY J. ROSENSTENGEL
United States District Judge
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