D'Agnese et al v. Novartis Pharmaceuticals Corporation

Filing 95

ORDER that Novartis Pharmaceuticals Corporation's 86 Motion for Reconsideration of Order Denying Motion to Seal Certain Documents is denied. That Novartis Pharmaceuticals Corporation's 93 Motion to Strike Plaintiffs' Opposition to Motion for Reconsideration of Order Denying Motion toSeal Certain Documents is granted. The Clerk of the Court shall strike Plaintiffs' Response in Opposition to the Motion for Reconsideration (Doc. 92). Signed by Judge James A Teilborg on 8/27/12.(DMT)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 John D’Agnese; Barbara D’Agnese, Plaintiffs, 10 11 vs. 12 Novartis Pharmaceuticals Corporation, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-0749-PHX-JAT ORDER 15 16 Pending before the Court is Novartis Pharmaceuticals Corporation’s (“Defendant” or 17 “Novartis”) Motion for Reconsideration of Order Denying Motion to Seal Certain 18 Documents (Doc. 86) and Novartis Pharmaceuticals Corporation’s Motion to Strike 19 Plaintiffs’ Opposition to Motion for Reconsideration of Order Denying Motion to Seal 20 Certain Documents (Doc. 93). The Court now rules on the Motions. 21 The Court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42 22 F.3d 1185, 1198 (9th Cir. 1994). Defendant does not cite to any standard for the Court to 23 reconsider its Order. However, when Federal Rules of Civil Procedure 59(e) or 60(b) are 24 inapplicable,1 the Court applies the following standard. The Court will grant reconsideration 25 26 27 28 1 Because this Court’s order of August 16, 2012 did not “end[] the litigation on the merits and leave[] nothing for the court to do but execute the judgment,” the challenged order is not a final judgment or appealable interlocutory order. Catlin v. United States, 324 U.S. 229, 233 (1945). Thus, Defendant cannot avail itself of Federal Rules of Civil Procedure 1 2 3 if the party seeking reconsideration makes a showing that: (1) There are material differences in fact or law from that presented to the Court and, at the time of the Court’s decision, the party moving for reconsideration could not have known of the factual or legal differences through reasonable diligence; 4 5 (2) There are new material facts that happened after the Court’s decision; 6 (3) There has been a change in the law that was decided or enacted after the Court’s decision; or 7 8 (4) The movant makes a convincing showing that the Court failed to consider material facts that were presented to the Court before the Court’s decision. 9 Motorola, Inc. v. J.B. Rodgers Mech. Contractors, 215 F.R.D. 581, 586 (D. Ariz. 2003) 10 (emphasis added). 11 Defendant asks the Court to reconsider its decision (see Doc. 82) not to seal three 12 expert reports that Defendant seeks to attach to Daubert motions to exclude certain of 13 Plaintiff’s experts. In the Court’s August 16, 2012 Order, the Court found that Defendant 14 failed to cite the proper standard for sealing documents attached to a Daubert motion, failed 15 to provide good cause or compelling reasons to seal the expert reports, and failed to limit its 16 request to seal information to only that information that was indeed secret. (See Doc. 82). 17 Defendant now states that the Court should reconsider its Order because Defendant 18 was “under the (mistaken) impression that this matter had been previously litigated and that 19 the MDL’s Protective Order and subsequent rulings regarding it would continue to be 20 controlling in this litigation.” (Doc. 86 at 2). This argument is unavailing and fails to meet 21 the standard for reconsideration as set forth above. 22 First. this argument ignores clear Ninth Circuit law and this Court’s local rules that 23 set forth both (1) that a protective order entered in a case does not control the sealing of 24 documents and (2) that, each time a party seeks to seal documents, it must meet the 25 26 27 28 59(e) or 60(b), which only apply to reconsideration of “final judgments and appealable interlocutory orders.” Balla v. Idaho State Bd. of Corrections, 869 F.2d 461, 466-67 (9th Cir. 1989). -2- 1 2 3 4 appropriate standard for sealing. Specifically, LRCiv 5.6 provides that: The Court generally will not enter an order that gives advance authorization to file documents under seal that are designated for such treatment by parties under a protective order or confidentiality agreement. Any motion or stipulation to file a document under seal must set forth a clear statement of the facts and legal authority justifying the filing of the document under seal . . . 5 LRCiv. 5.6. Likewise, the Ninth Circuit Court of Appeals has been clear that, even if a 6 document has previously been allowed to be filed under seal or protective order, the 7 compelling reasons standard must be satisfied each time the party seeks to seal a document. 8 See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006) (“The 9 ‘compelling reasons’ standard is invoked even if the dispositive motion, or its attachments, 10 were previously filed under seal or protective order.’”) (citing Foltz v. State Farm Mutual 11 Auto Insurance Co., 331 F.3d 1122, 1136 (9th Cir. 2003)). 12 Defendant has pointed to no law or previous proceedings in this case that would 13 justify reconsideration based on Defendant’s “mistaken impression” that it did not need to 14 meet the proper standard for sealing documents in the first instance. 15 Further, even if Defendant had met the proper standard for reconsideration, which it 16 did not, the Court would again deny the Motion to Seal on the merits. In denying the Motion 17 to Seal in the first instance, the Court explicitly instructed that “when seeking to seal an 18 entire document, rather than redacting certain secret information from the document, the 19 party [seeking to seal the information] must provide either good cause or compelling reasons 20 to seal all of the information in that document.” (Doc. 82 at 2-3 (emphasis in original) (citing 21 Kamakana, 447 F.3d at 1183)). Nonetheless, Defendant still contends that the entirety of the 22 expert reports should be sealed, but fails to provide any reason to seal all of the information 23 in the expert reports. 24 For instance, Defendant contends that “[t]he entire Parisian Report should be sealed 25 because it contains innumerable quotations to internal company communications . . . and is 26 interwoven with quotations or allusions to internal company documents—often without 27 citation.” This conclusory assertion again fails to identify specifically why the “entire” 28 -3- 1 Parisian Report needs to be sealed. The Motion to Seal and the Motions for Reconsideration 2 were not filed under seal and they contain information that Defendant now seeks to have 3 sealed, such as the name of the expert whose report should be sealed. Accordingly, it is clear 4 that Defendant has not attempted to identify and redact only information that it claims is 5 confidential. For this reason alone, the Motion to Seal fails. See Kamakana, 447 F.3d at 6 1184 (finding that a review of the “proposed redactions supports the decision to unseal the 7 records [because], [f]or example, many names or references for which the United States 8 sought redaction were either already publicly available or were available in other documents 9 being produced . . .”). 10 Further, the first seven pages of Dr. Parisian’s report simply describe her background 11 and make no reference to Defendant. Defendant has failed to provide any reasons why Dr. 12 Parisian’s background constitutes a confidential secret that should be sealed. Although the 13 Court only provides this one example, the relevant expert reports are replete with information 14 for which Defendant has failed to provide any reason to seal. Thus, even if the Court granted 15 the Motion for Reconsideration, Defendant has still failed to meet the appropriate standard 16 for sealing the expert reports. 17 Based on the foregoing, 18 IT IS ORDERED that Novartis Pharmaceuticals Corporation’s (“Defendant” or 19 “Novartis”) Motion for Reconsideration of Order Denying Motion to Seal Certain 20 Documents (Doc. 86) is denied. 21 IT IS FURTHER ORDERED that Novartis Pharmaceuticals Corporation’s Motion 22 to Strike Plaintiffs’ Opposition to Motion for Reconsideration of Order Denying Motion to 23 Seal Certain Documents (Doc. 93) is granted. The Clerk of the Court shall strike Plaintiffs’ 24 Response in Opposition to the Motion for Reconsideration (Doc. 92). 25 DATED this 27th day of August, 2012. 26 27 28 -4-

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