TC HEARTLAND LLC v. SCHIFFMAN

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TC HEARTLAND LLC, )
)
Plaintiff and counter- )
claim defendant, )
)
v. ) 1:23CV665
)
SUSAN S. SCHIFFMAN, )
)
Defendant and counter- )
claim plaintiff. )
ORDER AND MEMORANDUM OPINION
OF UNITED STATES MAGISTRATE JUDGE
The plaintiff TC Heartland LLC
(“Heartland”), the producer of
Splenda sweetener, has sued the
defendant, Susan Schiffman
(“Schiffman”), alleging that
Schiffman, a scientist at North
Carolina State University (“NCSU”),
made false and defamatory
statements about Splenda’s health
effects. See Docket Entry 126 ¶¶ 1–4
27, 36.
The matter is now before the Court on
Heartland’s motion to compel, Docket
Entry 75, Schiffman’s motion for a
protective order, Docket Entry 95,
and two motions to seal on behalf of
Avazyme, a third-party whose
representatives gave depositions in
this case, Docket Entries 134, 139.
For the reasons set forth below, the
Court denies Heartland’s motion to
compel as moot and grants
Schiffman’s motion for a protective
order. The Court grants in part and
denies in part the motions to seal.
I. MOTION TO COMPEL
In an attempt to resolve Heartland’s
motion to compel, Docket Entry 75,
Schiffman agreed to supplement her
response to Interrogatory No. 9, and
the Court ordered such
supplementation no later than
December 8, 2025. See Docket Entry
125 at 1–2. The Court then ordered
Heartland to inform the Court as to
any remaining deficiencies within
three days, i.e., by December 11, 2025.
Id. at 2. Heartland did not do so. The
Court therefore denies Heartland’s
motion as moot.
II. MOTION FOR A PROTECTIVE
ORDER
Schiffman has moved for a protective
order under Rule 26(c) preventing
Heartland from disclosing the
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contents of a certain letter to
nonparties. See Docket Entry 95.
Here, background context is helpful.
This litigation is not the only avenue
Heartland has taken to defend its
products from Schiffman’s assertions.
Heartland also reached out to the
publisher of one of Schiffman’s
articles—Taylor & Francis (“T&F”)—
with concerns about the integrity of
Schiffman’s work. See Docket Entry
127-2 ¶ 4. T&F then launched an
internal investigation, during which it
asked Schiffman for her comments on
Heartland’s concerns. See id. ¶¶ 4–5;
Docket Entry 95-1 at 6. Schiffman
responded with a letter to T&F. See
generally Docket Entry 95-2. Then,
during discovery, Schiffman provided
that same letter to Heartland. Docket
Entry 127-2 ¶ 6. However, Schiffman
marked the letter confidential,
preventing Heartland from disclosing
it to non-parties. Id.
Heartland challenges the letter’s
confidentiality because Heartland
wants to send T&F—a nonparty—
counterarguments to the points raised
in Schiffman’s letter. See id. at 3–4.
Heartland argues that Schiffman has
not made the showing necessary to
justify a protective order, and that the
parties did not meet and confer
regarding this matter. See Docket
Entry 127 at 7–14, 8 n.5; see also
Docket Entry 127-2 ¶ 20. Both
arguments fail.
A. Schiffman is Entitled to a
Protective Order.
Federal Rule of Civil Procedure 26(c)
allows the Court to, “for good cause,
issue an order to protect a party or
person from annoyance,
embarrassment, oppression, or undue
burden or expense.” That order may
“specif[y] terms . . . for the disclosure”
or “requir[e] that . . . confidential
research, development, or
commercial information not be
revealed or be revealed only in a
specified way.” See Fed. R. Civ. P.
26(c)(1)(B), (G). “Rule 26(c) confers
broad discretion on the trial court to
decide when a protective order is
appropriate and what degree of
protection is required.” Seattle Times
Co. v. Rhinehart, 467 U.S. 20, 36
(1984).
The party seeking a protective order
must demonstrate that (1) “the
information sought is covered by the
rule,” and (2) the movant “will be
harmed by disclosure.” In re Wilson,
149 F.3d 249, 252 (4th Cir. 1998);
accord Anderson v. Amazon.com
Servs., LLC, No. 4:23-CV-115-D, 2025
WL 1287984, at *3 (E.D.N.C. May 2,
2025).
As to the first requirement, in
assessing confidentiality, courts
“must look at the nature of the
information, the measures taken to
protect its secrecy, and the extent of
knowledge of the information by both
outsiders and insiders.” Brittain v.
Stroh Brewery Co., 136 F.R.D. 408,
415 (M.D.N.C. 1991)
To that end, the movant must “‘make
… a specific demonstration of facts in
support of the request as opposed to
conclusory or speculative statements
about the need for a protective order
and the harm which would be suffered
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without one.’” See Drexel Heritage
Furnishings, Inc. v. Furniture USA,
Inc., 200 F.R.D 255, 261 (M.D.N.C.
2001) (quoting Brittain v. Stroh
Brewery Co., 136 F.R.D. 408, 412
(M.D.N.C. 1991)).
If the movant makes the requisite
showing, the burden shifts to the
party seeking disclosure to show that
the need for disclosure outweighs its
harm. See Drexel Heritage
Furnishings, Inc., 200 F.R.D at 261.
Here, as a threshold matter, the letter
at issue constitutes “confidential
research” under Rule 26(c)(1)(G)
because it contains scientific findings
and arguments not published in a
journal but instead gathered as part of
a private internal investigation. See
Docket Entry 95-1 at 6; Docket Entry
127-2 ¶¶ 4–5. Specifically, the letter
incorporates information submitted
to T&F under the publisher’s
confidentiality requirements. See
Docket Entry 96, at 3 fn.4.
This showing is sufficient to meet the
confidentiality requirement. See
Brittain v. Stroh Brewery Co., 136
F.R.D. 408, 411—12 (M.D.N.C. 1991)
(documents were confidential
because they contained “information
on [the defendant]’s distribution
strategy [that] is closely guarded by
the company”); see also Drexel
Heritage Furnishings, Inc., 200
F.R.D at 260—61 (despite counsel’s
“conclusory” statements and
“minimal” showing, confidentiality
designation appropriate where the
“information is not confidential vis-à-
vis the whole world, but only as to
plaintiffs”).
Second, Schiffman has established
that disclosure would be harmful.
Specifically, she cites to both specific
reputational harm, as well as general
harm to the scientific process of
inquiry that publications like T&F
undergo.
As to reputational harm, the litigants
both rely on the Third Circuit Court of
Appeals’ decision in Cipollone v.
Litgett Group, Inc., 785 F.2d 1108 (3d
Cir. 1986), wherein the Court
recognized that embarrassment can
constitute harm justifying a protective
order, but noted that “an applicant for
a protective order whose chief
concern is embarrassment must
demonstrate that the embarrassment
will be particularly serious.” See id. at
1121; see also U.S. ex rel. Davis v.
Prince, 753 F. Supp. 2d 561, 568 (E.D.
Va. 2010) (“And, importantly, the fact
that public disclosure of discovery
materials will cause some annoyance
or embarrassment is not sufficient to
warrant a protective order; the
annoyance or embarrassment must be
particularly serious.”) (citing
Cipollone, 785 F.2d at 1121).
To that end, courts have historically
rejected conclusory assertions of
reputational harm as justifying relief.
See generally Aguilar v. New Mexico,
No. CV 14-572 JAP/GBW, 2015 WL
13662790, at *2 (D.N.M. June 26,
2015) (“[B]ecause nearly every case
involves dramatic disputes of fact,
conclusory claims of reputational
damage, without more, are
insufficient to establish good cause.”)
(citing Raiser v. Brigham Young
Univ., 127 F. App’x 409 (10th Cir.
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2005), Brown & Williamson Tobacco
Corp., 710 F.2d 1165, 1179 (6th Cir.
1983), Daines v. Harrison, 838 F.
Supp. 1406, 1408 (D. Colo. 1993)).
Here, Schiffman asserts that the
release of the letter “outside the
context of the confidential editorial
investigation for which [it was]
created invites misuse,
mischaracterization, and strategic
distortion, precisely the types of
harms Rule 26(c) is designed to
prevent.” See Docket Entry 96 at 8.
This is a valid concern. See, e.g., In re
Zyprexa Injunction, 474 F. Supp. 2d
385, 425 (E.D.N.Y. 2007) (“The harm
faced by Lilly is amplified by the fact
that the protected documents which
respondents seek to disseminate are
segments of a large body of
information, whose selective and out-
of-context disclosure may lead to
confusion in the patient community
and undeserved reputational
harm[.]”) (citation omitted).
However, Heartland has represented
it only wishes to release the letter to
T&F (who already has a copy), not any
wider audience. This would obviate
the threat of reputational harm.
Schiffman cites another type of harm,
though: interference with “the
publisher’s ability to conduct an
unbiased review[.]” See Docket Entry
130 at 11. While this is in part an
argument made on behalf of T&F, a
non-party, the rule does not require
the Court to consider harm only to a
litigant. Further, the fact that T&F
declined to share the letter with
Heartland suggests that this type of
harm is real. Compare with Drexel
Heritage Furnishings, Inc., 200
F.R.D at 261 (finding harm even
where it was rooted in “informed
speculation, not actual past actions”).
While these showings establish only
minimal confidentiality and harm,
that is all that is required here. See
Drexel, 200 F.R.D. at 259–63.
Additionally, Heartland has not
shown that the need for disclosure
outweighs the harm. Schiffman does
not seek a protective order preventing
Heartland from using the letter in
litigation, which is the only purpose
for which Heartland was able to
discover the letter in the first place.
See Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 353 (1978)
(“[W]hen the purpose of a discovery
request is to gather information for
use in proceedings other than the
pending suit, discovery properly is
denied.”). Heartland seeks disclosure
so it can discuss the letter with a non-
party who has already declined to
produce the same. Thus, the need
does not outweigh the harm.
B. The Parties Met and Conferred.
Both Rule 26(c)(1) and this case’s
Consent Protective Order require that
the parties meet and confer before
moving for a protective order. See
Docket Entry 49 ¶ 11. Here, Schiffman
has certified that the parties discussed
the letter’s confidentiality via video
conference, see Docket Entry 96 at 13,
and both parties provided emails they
exchanged before and after the
conference, see Docket Entries 95-3,
127-3. Those emails show that
Heartland invoked the Consent
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Protective Order to state that
confidentiality would be waived if
Schiffman did not file a motion, a step
that could only take place after the
parties met and conferred. See Docket
Entry 127-3 at 2–4; Docket Entry 49
¶ 11. Thus, Heartland effectively
represented that it believed the meet
and confer requirement was satisfied
and that Schiffman would waive
confidentiality unless she filed a
motion for a protective order.
Heartland cannot now change its
tune.1
For the above reasons, the Court
grants Schiffman’s motion and orders
Heartland not to disclose the contents
of the disputed letter to any
nonparties at this point in the
litigation.2
III. MOTIONS TO SEAL
Heartland moved to seal the briefing
and attachments supporting its
motion to compel previously resolved
by the Court, see Docket Entries 135,
136, 160, because they contain
1 To the extent that Heartland is arguing
that the parties only met and conferred
regarding confidentiality from the
general public, not T&F specifically, this
argument is inapposite. If true, it still
allows Schiffman to move for a protective
order preventing disclosure to the public,
of which T&F is a member. Also, the
record reflects that Heartland’s emails
stated only that it was contesting the
confidentiality of the letter in general.
See Docket Entry 127-3 at 5.
2 This order considers the disputed letter
only as pretrial evidence, not as evidence
supporting a dispositive motion.
information from the depositions of
Avazyme employees that Avazyme
designated as confidential. See Docket
Entries 134, 139. However, Heartland
requested that Avazyme retract its
confidentiality designation. See id.
Avazyme responded, requesting that
the Court maintain the seal on some
of Heartland’s filings. Docket Entry
142. The Court grants Avazyme’s
request in part and denies it in part, as
explained below.
This Court typically finds that the
public does not have a right to access
documents filed in connection with
discovery disputes. See, e.g., United
States v. Johnson, No. 12-CV-1349,
2014 WL 12787211, at *3 (M.D.N.C.
Feb. 10, 2014). However, Rule 26(c)
still requires “good cause” before
filings can be sealed. Hatch v.
Demayo, No. 1:16CV925, 2020 WL
6161533, at *6 (M.D.N.C. Oct. 21,
2020). Similarly, this Court’s local
rules disfavor sealing documents, and
require “a sufficient showing by the
party claiming confidentiality as to
“Protective orders that limit the
disclosure of pretrial discovery materials
can be appropriate because such
discovery is ordinarily conducted in
private,” but “once the documents are
made part of a dispositive motion, such
as a summary judgment motion, they
lose their status of being raw fruits of
discovery.” See Under Armour, Inc. v.
Body Armor Nutrition, LLC, No. CIV.
JKB-12-1283, 2013 WL 5375444, at *9
(D. Md. Aug. 23, 2013) (citing Rushford
v. New Yorker Mag., Inc., 846 F.2d 249,
252 (4th Cir. 1988)).
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why sealing is necessary and why less
drastic alternatives will not afford
adequate protection.” See L.R. 5(a),
(c)(3); see also Docket Entry 41
(adopting L.R. 5.4(c)’s default sealing
procedures for this case).
Here, Avazyme requests that the
Court seal “pages 114–115 and 130 of
the Bornemann deposition, and pages
16 and 192–193 of the Werness
deposition” and “redact the parties’
briefs solely to the extent they quote
or paraphrase those sealed excerpts.”
Docket Entry 142 at 3. Avazyme
argues that this material reveals
“specific provisions in Avazyme’s
contracts with researchers” and that
making these public “would give
competitors and prospective
contracting partners insight into
Avazyme’s negotiating positions and
internal business practices.” See
Docket Entry 142 at 3.
This is partially correct: some of the
pages Avazyme seeks to seal describe
“standard” provisions in Avazyme’s
contracts. See Docket Entry 135-4 at
8–9; Docket Entry 135-6 at 6–7. But
other pages mention no contract
3 The page numbers in this sentence refer
to the numbers provided in the upper
right corner of the deposition transcripts,
not the ECF-provided page numbers that
this court uses in its various citations to
the record. The standard citations to the
record for these pages are Docket Entry
125-6 at 8 and Docket Entry 135-4 at 7.
4 The Court’s reliance on this information
may also implicate the common law right
of access. See In re U.S. for an Ord.
Pursuant to 18 U.S.C. Section 2703(D),
provisions at all. See Docket Entry
125-6 at 8; Entry 135-4 at 7. The Court
denies Avazyme’s request regarding
the latter, which are page 130 of the
Bornemann deposition and page 16 of
the Werness deposition.3
Moreover, of the two contract
provisions revealed by the
depositions, the Court relied upon the
indemnity agreement between
Avazyme and Schiffman to find that
they shared a common legal interest,
thereby revealing it to the public and
mooting the issue.4 See Docket Entry
160 at 4–5. The Court therefore also
denies Avazyme’s request regarding
the pages that mention that provision,
which are pages 114 and 115 of the
Bornemann deposition. Docket Entry
135-6 at 6–7.
The Court did not rely, however, on
the final contract provision. The Court
therefore grants Avazyme’s request
regarding the pages containing this
information, pages 192 and 193 of the
Werness deposition. Docket Entry
135-4 at 8–9. The only place this
information is mentioned in the
parties’ briefing—and therefore the
707 F.3d 283, 290 (4th Cir. 2013)
(“[D]ocuments filed with the court are
‘judicial records’ if they play a role in the
adjudicative process, or adjudicate
substantive rights.”). But see Garey v.
James S. Farrin, P.C., No. 1:16CV542,
2020 WL 5211851, at *6 (M.D.N.C. Sept.
1, 2020) (“Because discovery motions
often involve procedural, rather than
substantive rights of the litigants . . .
courts have found that no right of public
access attaches to materials filed with
discovery motions.”).
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only part of the briefing the Court
orders remain redacted—is page 8 of
Heartland’s initial brief. Docket Entry
135-1 at 12.
IV. CONCLUSION
IT IS HEREBY ORDERED that
Heartland’s motion to compel, Docket
Entry 75, is DENIED as moot.
Schiffman’s motion for a protective
order, Docket Entry 95, is
GRANTED and Heartland is
ORDERED not to disclose the
contents of the disputed letter to any
nonparty. Finally, the motions to seal,
Docket Entries 134, 139, are
GRANTED IN PART AND
DENIED IN PART. Docket Entries
135 and 140 and their attachments
shall be unsealed and unredacted,
with the following exceptions: the
current redaction shall remain on
ECF page 12 of Docket Entry 135-1,
and ECF pages 8 and 9 of Docket
Entry 135-4 shall remain sealed.
JoAnna Gibson McFadden
United States Magistrate Judge
March 20, 2026
Durham, NC
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