Nelson v. Matrixx Initiatives, Inc. et al

Filing 152

ORDER ON MOTIONS TO SEAL (DKT. NOS. 72 AND 83) by Judge July 23, 2012 denying 72 Administrative Motion to File Under Seal; granting in part and denying in part 83 Administrative Motion to File Under Seal (whalc2, COURT STAFF) (Filed on 7/23/2012)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9
MICHAEL D. NELSON,

11
For the Northern District of California

United States District Court

10

12
13
14

No. C 09-02904 WHA

Plaintiff,
v.

ORDER ON MOTIONS TO SEAL
(Dkt. Nos. 72 and 83)

MATRIXX INITIATIVES, a Delaware
corporation, and ZICAM, LLC, and
Arizona limited liability company,

15

Defendants.
/

16
17

1.

18

Plaintiff Michael D. Nelson moves to file under seal documents appended to his motion

PLAINTIFF’S MOTION TO SEAL AT DOCKET NUMBER 72.

19

for summary judgment and motion for exclusion of evidence and expert testimony. These

20

documents have been designated as confidential by defendants (Dkt. No. 72). Plaintiff states

21

both that “[it] is plaintiff’s position that none of the documents covered in this order are

22

appropriate for sealing” and that “plaintiff does not believe any of these documents should be

23

sealed with the exception of Exhibit 35” (Dkt. No. 72 at 2) (Because Exhibit 35 is in the Spanish

24

language, the Court cannot read the document). Pursuant to Civil Local Rule 79-5, the

25

designating party:

26
27
28

must file with the Court and serve a declaration establishing that
the designated information is sealable, and must lodge and serve a
narrowly tailored proposed sealing order, or must withdraw the
designation of confidentiality. If the designating party does not
file its responsive declaration as required by this subsection, the
document or proposed filing will be made part of the public record.

1

No such declaration has been filed by the designating party. Thus, the motion to seal filed at

2

docket number 72 is DENIED.
DEFENDANTS’ MOTION TO SEAL AT DOCKET NUMBER 83.

3

2.

4

Defendants Zicam, LLC, and Matrixx Initiatives, Inc., move to seal documents appended

5

to their motions for summary judgment and motions to exclude plaintiff’s experts. Our court of

6

appeals has held that more than good cause, indeed, “compelling reasons” are required to seal

7

documents used in dispositive motions, just as compelling reasons would be needed to justify a

8

closure of a courtroom during trial. Motions in limine are also part of the trial and must likewise

9

be laid bare absent compelling reasons. Defendants seek to seal documents denoted as Exhibits

11
For the Northern District of California

United States District Court

10

31, 63, 70, and 71.
Exhibit 31 is an unpublished study of Dr. Jesús Herranz, titled Study to Determine the

12

Distribution Pattern of a Nasal Gel Using a Radial Design Nasal Acutator (2010). Exhibit 31 is

13

approximately 200 pages, which includes consent forms that are in the Spanish language.

14

Defendant Matrixx seeks to safeguard the proprietary information contained in the Herranz

15

study, which includes proprietary information related to product research. Defendant Matrixx

16

also claims it would be seriously prejudiced by premature disclosure of the Herranz study, which

17

it seeks to publish, because “[m]any journals specifically prohibit the public disclosure of study

18

materials it is considering for publication” (Clarot Decl. ¶¶ 2–4). Plaintiff opposes sealing

19

Exhibit 31 in its entirety. Defendant Matrixx’s interest in safeguarding the proprietary

20

information contained in the Herranz study is a compelling reason to seal the Herranz study (bate

21

stamped ZM844985–ZM845002).

22

Exhibit 31 also contains charts and a drawing (not included in the pages bate stamped

23

ZM844985–ZM845002), which are untitled and unidentified. Defendants point to no basis for

24

sealing these untitled charts and drawing. Finally, the Court is unable to read the remainder of

25

pages in Exhibit 31 because all other pages are in the Spanish language. Certain of the pages

26

that are in the Spanish language contain signatures and names. To the extent that these names

27

and signatures are of patients (as plaintiff suggests), the names and signatures shall be redacted.

28

The motion to seal Exhibit 31, to the extent stated herein, is GRANTED.
2

1

Defendants have indicated that they seek to seal Exhibits 63, 70, and 71 because plaintiff

2

requested certain of his medical records be kept confidential, but that otherwise, defendants

3

“make no comment regarding the propriety of this request” (Dkt. No. 83). Plaintiff responds that

4

“he does not believe that Exhibits 63, 70, and 71, should sealed [sic]” (Dkt. No. 122). However,

5

plaintiff seeks redaction of the last paragraph of page 6 and first paragraph of page 7 of Exhibit

6

63 to “remove reference to a medical condition and medication used to treat that condition that

7

are not relevant to this action” (ibid.). For compelling reason shown, the last paragraph of page

8

6 and first paragraph of page 7 of Exhibit 63, shall be redacted. Otherwise, the motion to seal

9

Exhibits 63, 70, and 71 is DENIED.

11
For the Northern District of California

United States District Court

10
IT IS SO ORDERED.

12
13

Dated: July 23, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3