Opinion
Case No. 15-cv-01238-BLF
08-15-2017
PHIGENIX, INC., Plaintiff, v. GENENTECH INC, Defendant.
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:
| ECFNo. | Document to beSealed | Result | Reasoning |
|---|---|---|---|
| 374-4 | DefendantGenentech Inc.'s("Genentech") ReplyISO its motion forsummary judgment | GRANTED asto highlightedportions. | The highlighted portions contain confidentialinformation relating to Genentech's clinicaltesting and sales data, the disclosure of whichcould harm Genentech's competitiveness. SeeKreeger Decl. ¶ 3, ECF 374-1. |
| 377-2 | Plaintiff PhigenixInc.'s ("Phigenix")Motion to ExcludeGenentech's ExpertWitness Testimony("Phigenix' DaubertMotion") | GRANTED asto highlightedportions. | The highlighted portions contain confidentialfinancial and sales data relating to Kadcyla,the disclosure of which could harmGenentech's competitiveness. See WildmanDecl. ¶ 2, ECF 370. |
| 377-4 | Exhibit 2 toAckerman Decl. ISOPhigenix DaubertMotion (Excerpts ofexpert report ofMark Robbins) | GRANTED. | The entire exhibit contains confidentialinformation relating to licensing termsbetween Genentech and third parties, thedisclosure of which could harm Genentech'scompetitiveness. See Wildman Decl. ¶ 3, ECF379. |
| 377-5 | Exhibit 3 toAckerman Decl. ISOPhigenix DaubertMotion (Excerpts ofDep. Tr. of MarkRobbins) | GRANTED. | The entire exhibit contains confidentialinformation relating to licensing termsbetween Genentech and third parties, thedisclosure of which could harm Genentech'scompetitiveness. See Wildman Decl. ¶ 4, ECF379. |
| 377-6 | Exhibit 4 toAckerman Decl. ISOPhigenix DaubertMotion (Excerpts ofexpert report ofGregory Bell) | GRANTED. | The entire exhibit contains confidentialinformation relating to licensing termsbetween Genentech and third parties, thedisclosure of which could harm Genentech'scompetitiveness. See Wildman Decl. ¶ 5, ECF379. |
| 377-7 | Exhibit 5 toAckerman Decl. ISOPhigenix DaubertMotion (licenseagreement) | GRANTED. | The entire exhibit contains confidentiallicensing terms between Genentech and a thirdparty, the disclosure of which could harmGenentech's competitiveness. See WildmanDecl. ¶ 6, ECF 379. |
|---|---|---|---|
| 377-8 | Exhibit 6 toAckerman Decl. ISOPhigenix DaubertMotion (Excerpts ofDep. Tr. of GregoryBell) | GRANTED. | The entire exhibit contains confidentialinformation relating to licensing termsbetween Genentech and third parties, thedisclosure of which could harm Genentech'scompetitiveness. See Wildman Decl. ¶ 7, ECF379. |
| 386-5 | Genentech'sopposition toPhigenix' DaubertMotion | GRANTED asto highlightedportions. | The highlighted portions contain confidentialinformation relating to licensing terms androyalty rates between Genentech and thirdparties, the disclosure of which could harmGenentech's competitiveness. See WildmanDecl. ¶ 5, ECF 386-2. |
| 386-7 | Exhibit 1 to KreegerDecl. ("ExpertReport of MarkRobbins") | GRANTED asto highlightedportions. | The highlighted portions contain confidentialinformation relating to licensing terms androyalty rates between Genentech and thirdparties, the disclosure of which could harmGenentech's competitiveness. See WildmanDecl. ¶ 5, ECF 386-2. |
| 386-9 | Exhibit 4 to KreegerDecl. ("ExpertReport of GregoryBell") | GRANTED asto highlightedportions. | The highlighted portions contain confidentialinformation relating to licensing rates andKadcyla sales, the disclosure of which couldharm Genentech's competitiveness. SeeWildman Decl. ¶ 3, ECF 386-2. |
| 386-11 | Exhibit 5 to KreegerDecl. ("Excerpts ofDep. Tr. of GregoryBell") | GRANTED asto highlightedportions. | The highlighted portions contain confidentialinformation relating to licensing terms androyalty rates between Genentech and thirdparties, the disclosure of which could harmGenentech's competitiveness. See WildmanDecl. ¶ 4, ECF 386-2. |
For the foregoing reasons, the sealing motions at ECF 374, 377, 386 are GRANTED.
IT IS SO ORDERED. Dated: August 15, 2017
/s/_________
BETH LABSON FREEMAN
United States District Judge