Galinis et al v. Bayer Corporation et al

Filing 100

ORDER DENYING PLAINTIFFS' MOTION TO SEAL 99 (Illston, Susan) (Filed on 3/4/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SUSAN GALINIS, et al.,
Plaintiffs,

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United States District Court
Northern District of California

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Case No. 09-cv-04980-SI
ORDER DENYING PLAINTIFFS’
MOTION TO SEAL

v.
BAYER CORPORATION, et al.,

Re: Dkt. No. 99

Defendants.

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Currently before the Court is plaintiffs’ administrative motion to file records under seal.

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Dkt. No. 99. Plaintiffs’ motion does not comply with Civil Local Rule 79-5 and is therefore

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DENIED without prejudice.

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BACKGROUND

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This case was originally filed in the Northern District of California on October 19, 2009.

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Dkt. No. 1. On November 20, 2009, the United States Judicial Panel on Multidistrict Litigation

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(“the MDL panel”) transferred this action to the Southern District of Illinois for consolidated

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proceedings pursuant to 28 U.S.C. § 1407 and assigned the case to the Honorable David R. Herndon.

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Dkt. No. 5. On October 15, 2018, the panel remanded this action back to the Northern District Court

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of California. See Dkt. Nos. 77, 79.

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At the time of remand, there were three pending motions in this case: defendant Bayer’s

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Motion to Exclude Expert Testimony That Bayer Withheld Information About Adverse Events

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Regarding Yasmin (Dkt. No. 57); Motion to Exclude Irrelevant Expert Testimony on VTE Studies

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and Unreliable Expert Testimony that Yasmin Has a Higher Stroke Risk Than Other Oral

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Contraceptives (Dkt. No. 58); and Motion for Summary Judgment for Failure to Establish Causation

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or Any Failure to Warn (Dkt. No. 59). Defendants filed these motions, and plaintiffs filed their

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oppositions, while this case was pending in the Southern District of Illinois. The motions are now

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set for hearing before this Court on June 14, 2019. Dkt. No. 96.

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During the briefing on these motions, plaintiffs filed all of their opposition documents (briefs

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and supporting declarations and exhibits) under seal. See Dkt. Nos. 63, 64, 65, 66, 67, 68. At a case

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management conference before this Court on February 8, 2019, the Court informed plaintiffs that

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“[a]ll documents previously filed under seal shall either be unsealed and/or counsel must re-file

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them along with motions to seal those documents pursuant to Local Rule 79-5.” Dkt. No. 96.
On February 22, 2019, plaintiffs filed the present administrative motion to seal, seeking to

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United States District Court
Northern District of California

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keep exhibits 9-16, 23, and 37-39 under seal. Dkt. No. 99. As the basis for their motion, plaintiffs

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state that the parties entered into a stipulated protective order, that they are subject to Case

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Management Order No. 71 in the MDL, and that the Bayer defendants designated the exhibits in

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question as “CONFIDENTIAL” and “HIGHLY CONFIDENTIAL.” Dkt. No. 99 at 2.

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LEGAL STANDARD

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With the exception of a narrow range of documents that are “traditionally [] kept secret,”

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courts begin their sealing analysis with a “strong presumption in favor of access to court records.”

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Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1134-35 (9th Cir. 2003). “Reference to a

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stipulation or protective order that allows a party to designate certain documents as confidential is

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not sufficient to establish that a document, or portions thereof, are sealable.” Civ. L.R. 79-

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5(d)(1)(A). Information is considered sealable when “the document, or portions thereof, are

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privileged, protectable as a trade secret or otherwise entitled to protection under the law.” Civ. L.R.

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79-5(b).

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According to Civil Local Rule 79-5, a motion to file under seal must be accompanied by “[a]

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The declaration of Claire Y. Choo states that a “true and correct copy of Case Management
Order #7 is attached hereto as Exhibit A[,]” but no such document was attached. See Dkt. No. 991 ¶ 3. It appears, however, that a copy of Case Management Order No. 7 is available through the
Court’s Electronic Case Filing system. See Dkt. No. 9.
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declaration establishing that the document sought to be filed under seal, or portions thereof, are

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sealable.” Civ. L.R. 79-5(d)(1)(A). The motion shall be accompanied by “[a] proposed order that

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is narrowly tailored to seal only the sealable material, and which lists in table format each document

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or portion thereof that is sought to be sealed,” “[a] redacted version of the document that is sought

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to be filed under seal . . . [that] prominently display[s] the notation ‘REDACTED VERSION OF

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DOCUMENT(S) SOUGHT TO BE SEALED,’” and “[a]n unredacted version of the document

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sought to be filed under seal . . . [that] prominently display[s] the notation ‘UNREDACTED

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VERSION OF DOCUMENT(S) SOUGHT TO BE SEALED.’” Civ. L.R. 79-5(d)(1)(B)-(D).
Civil Local Rule 79-5(e) triggers additional requirements when “the Submitting Party is

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seeking to file under seal a document designated as confidential by the opposing party[.]” Civ. L.R.

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United States District Court
Northern District of California

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79-5(e).

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Administrative Motion to File Under Seal the same day that the Submitting Party files its

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declaration. “Within 4 days of the filing of the Administrative Motion to File Under Seal, the

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Designating Party must file a declaration as required by subsection 79-5(d)(1)(A) establishing that

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all of the designated material is sealable.” Civ. L.R. 79-5(e)(1).

In such instance, the Submitting Party must serve the Designating Party with its

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DISCUSSION

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Plaintiffs’ motion to file records under seal does not comply with Civil Local Rule 79-5.

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First, plaintiffs have failed to file redacted and unredacted versions of the documents as required by

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Civil Local Rule 79-5(d)(1)(C)-(D). As the rule states, “[o]nly the unredacted version of a document

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sought to be sealed, may be filed under seal before a sealing order is obtained . . . .” Civ. L.R. 79-

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5(c). Presently, plaintiffs’ entire opposition briefs continue to be sealed from public viewing,

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without even redacted versions available.

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Additionally, based on plaintiffs’ filings, it is unclear what information plaintiffs are

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attempting to keep under seal. By their selective filing (i.e., by now seeking only to seal Exhibits

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9-16, 23, and 37-39), it is unclear whether plaintiffs intend that the remainder of the briefs and

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exhibits in their oppositions should be unsealed. See Dkt. Nos. 63, 64, 65, 66, 67, 68. If that is the

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case, plaintiffs should either re-file their documents on the docket publicly or should file a
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stipulation indicating which of the previously filed documents may be unsealed.

Nor is it clear

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from the filings whether plaintiffs seek to seal the attached exhibits in whole or in part. The parties

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are reminded that any request to seal “must be narrowly tailored to seek sealing only of sealable

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material . . . .” Civ. L.R. 79-5(b).
Nor does the Court find it compelling that the parties were subject to Case Management

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Order No. 7 in the MDL. That Order provides, in part: “Where a party seeks to file a pleading or

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motion that contains Confidential Information, that party shall file under seal any Confidential or

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Highly Confidential Information consistent with applicable law and local practice.” Dkt. No. 9 at

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and two motions to exclude expert witness testimony. The parties must comply with this District’s

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United States District Court
Northern District of California

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Civil Local Rules.

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For the above reasons, the Court DENIES the motion to seal without prejudice. Plaintiffs

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may file a new motion that complies with Civil Local Rule 79-5, keeping in mind that the Court will

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not order sealing of a given document simply because defendants have marked it as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.”

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CONCLUSION

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For the foregoing reasons, plaintiffs’ administrative motion to seal is DENIED without
prejudice.

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IT IS SO ORDERED.
Dated: March 4, 2019
______________________________________
SUSAN ILLSTON
United States District Judge

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