I have a soft spot for Bubble Pony vs. Facepunch, pending in the U.S. District Court (D. Minn.) (Doty, J.) because of the case’s funny name. The case sounds like a level of Super Mario Smash Brothers that I never reached and the case does, in fact, concern computer gaming. I also have blogged about about the case repeatedly because it is a strange case even aside from its funny name.
That is, Plaintiffs have submitted a motion to amend and they have blacked out or “redacted” the basis for their motion.
What is the basis for filing the memorandum under seal? According to the filer, it was filed under seal “pursuant to a court order.” What court order requires that Plaintiff’s unredacted memorandum be filed under seal? The case’s protective order, the filer claims. And does the protective order, in fact, require that the unredacted memorandum be filed under seal? Of course not. That would be impossible because the protective order pre-existed the memorandum. In fact, the referenced order specifically sets out limitations on what may be filed under seal (Section 9, pp. 3-4).
Presumably Plaintiffs or perhaps Defendants have decided that the referenced completely redacted “chat transcript” quoted in the memorandum of law constitutes “confidential commercial information,” and as such qualifies for filing under a protective order. This seems odd, however. The lawsuit is a public dispute, brought by Plaintiffs to resolve what percentage of profits Plaintiffs are entitled to. Evidence bearing on this key issue, which is publicly discussed at great length in the Plaintiff’s public complaint (see, for example, page 2), is treated as “confidential commercial information” ???