Bernier v. Turbocam, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Lillian Bernier
v. Civil No. 23-cv-523-LM-AJ
Opinion No. 2025 DNH 140 P
Turbocam, Inc.
O R D E R
Plaintiff Lillian Bernier brings this action against her employer, Turbocam,
Inc. (“Turbocam”), alleging claims under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2(a)(1), and Title I of the Americans with Disabilities Act, 42 U.S.C.
§ 12112(a). Bernier, a transgender woman, claims that Turbocam discriminated
against her by refusing to provide her with health insurance coverage for gender-
affirming care. Presently before the court is Turbocam’s motion to seal (doc. no. 72)
certain documents offered in support of its motion to exclude testimony from
Bernier’s expert, Randi Ettner, pursuant to Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny. Bernier objects. Doc.
no. 78. For the following reasons, Turbocam’s motion to seal (doc. no. 72) is denied.
DISCUSSION
“[T]he public has a common-law right of access to judicial documents.” In re
Providence J. Co., Inc., 293 F.3d 1, 9 (1st Cir. 2002); accord Nixon v. Warner
Commc’ns, Inc., 435 U.S. 589, 597 (1978). This presumptive right of access extends
“to those materials ‘which properly come before the court in the course of an
adjudicatory proceeding and which are relevant to that adjudication.’” Lieber v.
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Marquis Mgmt., LLC, 691 F. Supp. 3d 334, 341 n.1 (D.N.H. 2023) (quoting
Providence J., 293 F.3d at 9). The public’s right of access to a particular judicial
document does not depend on whether the court actually relies upon the document
in issuing its ruling. United States v. Kravetz, 706 F.3d 47, 58 (1st Cir. 2013); see
also Roy v. FedEx Ground Package Sys., Inc., No. 3:17-cv-30116-KAR, 2024 WL
2025763, at *2 (D. Mass. May 7, 2024) (“[W]hen documents are filed in connection
with a substantive motion, a court cannot freely seal documents even if the court
did not actually rely on those documents to rule on the motion.”).
Because “‘public monitoring of the judicial system fosters the important
values of quality, honesty, and respect for our legal system,’ . . . the party seeking to
seal documents must ‘demonstrate significant countervailing interests.’” United
States v. Jacques, Crim. No. 24-cr-19-PB-TSM-1, 2024 WL 4802463, at *1 (D.N.H.
Nov. 15, 2024) (first quoting Kravetz, 706 F.3d at 52, and then quoting Bradford &
Bigelow, Inc. v. Richardson, 109 F. Supp. 3d 445, 448 (D. Mass. 2015)). When
considering a motion to seal a judicial document, “a court must carefully balance the
presumptive public right of access against the competing interests that are at stake
in a particular case, keeping in mind that ‘only the most compelling reasons can
justify non-disclosure.’” Kravetz, 706 F.3d at 59 (quoting Providence J., 293 F.3d at
10).
In this case, Turbocam seeks to seal several academic publications it has filed
in support of its motion to exclude certain of Ettner’s testimony under Daubert.
Turbocam asserts that Ettner’s opinions are unreliable and seeks for this court to
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review publications upon which Ettner bases her opinions. According to Turbocam,
these publications are subject to copyright and paywall protections, as well as their
respective journals’ terms and conditions, such that they may not be made publicly
available via CM/ECF or otherwise. In essence, Turbocam contends that this court
must seal these publications in order to protect Turbocam from copyright and
contractual liability.
Turbocam fails to show a “most compelling reason[ ]” sufficient to overcome
the presumption of public access to judicial documents. Id. (quoting Providence J.,
293 F.3d at 10). As an initial matter, Turbocam’s intended use of the publications at
issue would likely qualify as a “fair use” under copyright law. 17 U.S.C. § 107.
“Overwhelming legal authority indicates that use of a copyrighted work in judicial
proceedings generally cannot support a claim of copyright infringement.”
Mizioznikov v. Forte, Civ. No. 16-61616-Civ-Scola, 2017 WL 5642383, at *4 (S.D.
Fla. Mar. 27, 2017) (collecting cases); accord, e.g., 4 Melville B. Nimmer & David
Nimmer, Nimmer on Copyright § 13F.15[B][1] (Matthew Bender, rev. ed.) (“Works
are customarily reproduced in various types of judicial proceedings, . . . and it seems
inconceivable that any court would hold those reproductions to constitute
infringement either by the government or by the individual parties responsible for
offering the work in evidence.” (footnote omitted)).
To the extent Turbocam is concerned that its intended use would run afoul of
the Digital Millenium Copyright Act, 17 U.S.C. § 1201(a)(1), or the respective
journals’ terms and conditions, Turbocam has failed to show that sealing these
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publications is necessary to protect “[i]mportant countervailing interests.” Kravetz,
706 F.3d at 59 (quoting Siedle v. Putnam Invs., Inc., 147 F.3d 7, 10 (1st Cir. 1998)).
Litigants routinely attach to their public filings news reports and other documents
subject to similar paywalls and contractual protections. Turbocam fails to
demonstrate that it is likely to face liability if the publications it is asking this court
to consider are kept in the court’s public file.
Bernier alleges that Turbocam, her employer, violated her rights under Title
VII and the ADA and engaged in sex-based discrimination by excluding gender-
affirming care from Turbocam’s employer-sponsored health insurance plan.
Bernier’s claims implicate issues of public significance, and the public has a
substantial interest in accessing the materials upon which this court relies in
deciding such issues. In the absence of any showing that Turbocam is likely to face
liability if its filings remain public, the court concludes that Turbocam has failed to
overcome the strong presumption in favor of public access.
CONCLUSION
For these reasons, Turbocam’s motion to seal (doc. no. 72) is denied.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
December 9, 2025
cc: Counsel of Record
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