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Phigenix, Inc. v. Genentech Inc., 15-cv-01238-BLF. (2017)

Court: District Court, N.D. California Number: infdco20170816c05 Visitors: 9
Filed: Aug. 15, 2017
Latest Update: Aug. 15, 2017
Summary: ORDER GRANTING SEALING MOTIONS BETH LABSON FREEMAN , District Judge . Before the Court are parties' motions to file under seal portions of their briefing and exhibits in connection with a motion for summary judgment and Plaintiff's Daubert motion. ECF 374, 377, 386. For the reasons discussed below, the Court GRANTS the motions. I. LEGAL STANDARD "Historically, courts have recognized a `general right to inspect and copy public records and documents, including judicial records and documen
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ORDER GRANTING SEALING MOTIONS

Before the Court are parties' motions to file under seal portions of their briefing and exhibits in connection with a motion for summary judgment and Plaintiff's Daubert motion. ECF 374, 377, 386. For the reasons discussed below, the Court GRANTS the motions.

I. LEGAL STANDARD

"Historically, courts have recognized a `general right to inspect and copy public records and documents, including judicial records and documents.'" Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 & n. 7 (1978)). Accordingly, when considering a sealing request, "a `strong presumption in favor of access' is the starting point." Id. (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to motions that are "more than tangentially related to the underlying cause of action" bear the burden of overcoming the presumption with "compelling reasons" that outweigh the general history of access and the public policies favoring disclosure. Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 1092, 1099 (9th Cir. 2016); Kamakana, 447 F.3d at 1178-79.

However, "while protecting the public's interest in access to the courts, we must remain mindful of the parties' right to access those same courts upon terms which will not unduly harm their competitive interest." Apple Inc. v. Samsung Elecs. Co., Ltd., 727 F.3d 1214, 1228-29 (Fed. Cir. 2013). Records attached to motions that are "not related, or only tangentially related, to the merits of a case" therefore are not subject to the strong presumption of access. Ctr. for Auto Safety, 809 F.3d at 1099; see also Kamakana, 447 F.3d at 1179 ("[T]he public has less of a need for access to court records attached only to non-dispositive motions because those documents are often unrelated, or only tangentially related, to the underlying cause of action."). Parties moving to seal the documents attached to such motions must meet the lower "good cause" standard of Rule 26(c). Kamakana, 447 F.3d at 1179 (internal quotations and citations omitted). This standard requires a "particularized showing," id., that "specific prejudice or harm will result" if the information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); see Fed. R. Civ. P. 26(c). "Broad allegations of harm, unsubstantiated by specific examples of articulated reasoning" will not suffice. Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). A protective order sealing the documents during discovery may reflect the court's previous determination that good cause exists to keep the documents sealed, see Kamakana, 447 F.3d at 1179-80, but a blanket protective order that allows the parties to designate confidential documents does not provide sufficient judicial scrutiny to determine whether each particular document should remain sealed. See Civ. L.R. 79-5(d)(1)(A) ("Reference to a stipulation or protective order that allows a party to designate certain documents as confidential is not sufficient to establish that a document, or portions thereof, are sealable.").

In addition to making particularized showings of good cause, parties moving to seal documents must comply with the procedures established by Civ. L.R. 79-5. Pursuant to Civ. L.R. 79-5(b), a sealing order is appropriate only upon a request that establishes the document is "sealable," or "privileged or protectable as a trade secret or otherwise entitled to protection under the law." "The request must be narrowly tailored to seek sealing only of sealable material, and must conform with Civil L.R. 79-5(d)." Civ. L.R. 79-5(b). In part, Civ. L.R. 79-5(d) requires the submitting party to attach a "proposed order that is narrowly tailored to seal only the sealable material" which "lists in table format each document or portion thereof that is sought to be sealed," Civ. L.R. 79-5(d)(1)(b), and an "unredacted version of the document" that indicates "by highlighting or other clear method, the portions of the document that have been omitted from the redacted version." Civ. L.R. 79-5(d)(1)(d). "Within 4 days of the filing of the Administrative Motion to File Under Seal, the Designating Party must file a declaration as required by subsection 79-5(d)(1)(A) establishing that all of the designated material is sealable." Civ. L.R. 79-5(e)(1).

II. DISCUSSION

Because the sealing motions relate to a motion for summary judgment, and motion to exclude expert trial testimony, which are more than tangentially related to the merits of the case, the instant motions are resolved under the compelling reasons standard. See Ctr. for Auto Safety, 809 F.3d at 1101-2 (holding that "public access will turn on whether the motion is more than tangentially related to the merits of a case").

With this standard in mind, the Court rules on the instant motions as follows:

ECF Document to be Result Reasoning No. Sealed 374-4 Defendant GRANTED as The highlighted portions contain confidential Genentech Inc.'s to highlighted information relating to Genentech's clinical ("Genentech") Reply portions. testing and sales data, the disclosure of which ISO its motion for could harm Genentech's competitiveness. See summary judgment Kreeger Decl. ¶ 3, ECF 374-1. 377-2 Plaintiff Phigenix GRANTED as The highlighted portions contain confidential Inc.'s ("Phigenix") to highlighted financial and sales data relating to Kadcyla, Motion to Exclude portions. the disclosure of which could harm Genentech's Expert Genentech's competitiveness. See Wildman Witness Testimony Decl. ¶ 2, ECF 370. ("Phigenix' Daubert Motion") 377-4 Exhibit 2 to GRANTED. The entire exhibit contains confidential Ackerman Decl. ISO information relating to licensing terms Phigenix Daubert between Genentech and third parties, the Motion (Excerpts of disclosure of which could harm Genentech's expert report of competitiveness. See Wildman Decl. ¶ 3, ECF Mark Robbins) 379. 377-5 Exhibit 3 to GRANTED. The entire exhibit contains confidential Ackerman Decl. ISO information relating to licensing terms Phigenix Daubert between Genentech and third parties, the Motion (Excerpts of disclosure of which could harm Genentech's Dep. Tr. of Mark competitiveness. See Wildman Decl. ¶ 4, ECF Robbins) 379. 377-6 Exhibit 4 to GRANTED. The entire exhibit contains confidential Ackerman Decl. ISO information relating to licensing terms Phigenix Daubert between Genentech and third parties, the Motion (Excerpts of disclosure of which could harm Genentech's expert report of competitiveness. See Wildman Decl. ¶ 5, ECF Gregory Bell) 379. 377-7 Exhibit 5 to GRANTED. The entire exhibit contains confidential Ackerman Decl. ISO licensing terms between Genentech and a third Phigenix Daubert party, the disclosure of which could harm Motion (license Genentech's competitiveness. See Wildman agreement) Decl. ¶ 6, ECF 379. 377-8 Exhibit 6 to GRANTED. The entire exhibit contains confidential Ackerman Decl. ISO information relating to licensing terms Phigenix Daubert between Genentech and third parties, the Motion (Excerpts of disclosure of which could harm Genentech's Dep. Tr. of Gregory competitiveness. See Wildman Decl. ¶ 7, ECF Bell) 379. 386-5 Genentech's GRANTED as The highlighted portions contain confidential opposition to to highlighted information relating to licensing terms and Phigenix' Daubert portions. royalty rates between Genentech and third Motion parties, the disclosure of which could harm Genentech's competitiveness. See Wildman Decl. ¶ 5, ECF 386-2. 386-7 Exhibit 1 to Kreeger GRANTED as The highlighted portions contain confidential Decl. ("Expert to highlighted information relating to licensing terms and Report of Mark portions. royalty rates between Genentech and third Robbins") parties, the disclosure of which could harm Genentech's competitiveness. See Wildman Decl. ¶ 5, ECF 386-2. 386-9 Exhibit 4 to Kreeger GRANTED as The highlighted portions contain confidential Decl. ("Expert to highlighted information relating to licensing rates and Report of Gregory portions. Kadcyla sales, the disclosure of which could Bell") harm Genentech's competitiveness. See Wildman Decl. ¶ 3, ECF 386-2. 386-11 Exhibit 5 to Kreeger GRANTED as The highlighted portions contain confidential Decl. ("Excerpts of to highlighted information relating to licensing terms and Dep. Tr. of Gregory portions. royalty rates between Genentech and third Bell") parties, the disclosure of which could harm Genentech's competitiveness. See Wildman Decl. ¶ 4, ECF 386-2.

For the foregoing reasons, the sealing motions at ECF 374, 377, 386 are GRANTED.

IT IS SO ORDERED.

Source:  Leagle

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