D'Agnese et al v. Novartis Pharmaceuticals Corporation

Filing 82

ORDER denying 78 Motion to Seal Certain Documents. Signed by Judge James A Teilborg on 8/16/12.(SJF)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John D’Agnese; Barbara D’Agnese,
Plaintiffs,

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vs.

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Novartis Pharmaceuticals Corporation,
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Defendant.
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No. CV 12-0749-PHX-JAT
ORDER

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Pending before the Court is Novartis Pharmaceuticals Corporation’s (“Defendant” or

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“Novartis”) Motion to Seal Certain Documents (Doc. 78). The Court now rules on the

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Motion.

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Defendant requests leave of the Court to file three expert reports under seal.

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Defendant plans to attach these expert reports as exhibits to motions to exclude certain of

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Plaintiff’s experts under Daubert. These documents were produced subsequent to the entry

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of a Protective Order in the multi-district litigation before the case was remanded to this

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Court.

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Defendant claims that it is necessary to keep these documents confidential to protect

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its’ competitive position. Defendant further asserts that it has maintained a practice of

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keeping certain types of documents confidential. Defendant asserts that these expert reports

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“either are or quote, discuss, and reflect internal corporation documents.” (Doc. 78 at 3).

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The Motion to Seal is deficient for a number of reasons. First, the Motion makes no

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attempt to set forth the proper standard for sealing documents. The Ninth Circuit Court of

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Appeals has recently held that, in certain circumstances, “a Daubert motion connected to a

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pending summary judgment motion may be effectively ‘dispositive of a motion for summary

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judgment,’” thus requiring the Court to apply the “compelling reasons” standard to any

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motion to seal documents attached to the Daubert motion. In re Midland Nat’l Life Ins. Co.

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Annuity Sales Practices Litig. v. Allianz Life Ins. Co of N. Am., __F.3d__, 2012 WL 3024192,

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at *3 (9th Cir. July 25, 2012) (internal quotation omitted); see Kamakana v. City and County

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of Honolulu, 447 F.3d 1172 (9th Cir. 2006) (“Those who seek to maintain the secrecy of

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documents attached to dispositive motions must meet the high threshold of showing that

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‘compelling reasons’ support secrecy.”) (internal citation omitted).

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Based on the information provided by Defendant, the Court cannot ascertain whether

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it should apply the “good cause” standard or the “compelling reasons” standard to

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Defendant’s Motion to Seal. This alone constitutes a reason for denial of the Motion to Seal.

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However, the Court finds that, even if the lower good cause standard could be applied to

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Defendant’s motion to seal, Defendant has failed to meet that standard.

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Defendant has not made any attempt to explain to the court why these documents

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should be sealed, aside from making the conclusory assertion that there is “good cause” to

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seal confidential documents to protect its competitive position. Such conclusory assertions

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are not sufficient to overcome the strong presumption of public access because they do not

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provide the Court with a sufficient factual basis on which it can articulate a decision to seal

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court records. See Kamakana, 447 F.3d at 1179, 1182-83.

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Further, even if Defendant had articulated good cause to seal some of the information

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in the expert report, which it did not, Defendant cannot contend that every portion of the

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expert reports need to be sealed. The policy of promoting access to public documents

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dictates that only that information which there is good cause or a compelling reason to seal

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should actually be sealed. Accordingly, to the extent that a party wishes to seal an entire

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document, rather than redacting certain secret information from that document, the party

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must provide either good cause or compelling reasons to seal all of the information in that
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document. See id. at 1183. Otherwise, the party must only seek to redact that information

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that there is good cause or compelling reasons to seal. Here, Defendant has not provided

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good cause or compelling reasons to seal any portion of the expert reports and has certainly

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not provided good cause or compelling reasons to seal those documents as a whole.1

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Based on the foregoing

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IT IS ORDERED that Novartis Pharmaceuticals Corporation’s (“Defendant” or

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“Novartis”) Motion to Seal Certain Documents (Doc. 78) is denied.
DATED this 16th day of August, 2012.

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Further, the Parties should be aware that it is not the practice of this Court to “seal”
public hearings and trials or the exhibits introduced therein. See TriQuint Semiconductor,
Inc. v. Avago Technologies Limited, No. CV-09-1531-PHX-JAT, 2012 WL 1432519, at *10
(D. Ariz. April 25, 2012).
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