Verinata Health, Inc. et al v. Sequenom, Inc. et al

Filing 350

ORDER GRANTING IN PART AND DENYING IN PART PARTIES' MOTIONS TO FILE UNDER SEAL #255 #274 #293 #296 (Illston, Susan) (Filed on 4/29/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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VERINATA HEALTH, INC., et al.,

Case No. 12-cv-00865-SI

Plaintiffs,
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v.
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SEQUENOM, INC., et al.,
Defendants.

GRANTING IN PART AND DENYING
IN PART PARTIES' MOTIONS TO
FILE UNDER SEAL
Re: Dkt. Nos. 255, 274, 296

United States District Court
Northern District of California

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Currently before the Court are the parties’ joint motions to file documents under seal in

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conjunction with their briefs relating to Plaintiff’s motion for summary judgment. The Court finds

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that the parties have sufficiently justified sealing with respect to some documents, and failed to

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justify sealing with respect to others, as discussed below.

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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.” Foltz v. State

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Farm Mut. Auto. Ins., 331 F.3d 1122, 1135 (9th Cir. 2003). “A stipulation, or a blanket protective

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order that allows a party to designate documents as sealable, will not suffice to allow the filing of

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documents under seal.” Civ. L.R. 79-5(a). When applying to file documents under seal in

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connection with a dispositive motion, the party seeking to seal must articulate “compelling reasons

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supported by specific factual findings that outweigh the general history of access and the public

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policies favoring disclosure, such as the public interest in understanding the judicial process.”

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Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (internal

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quotations and citations omitted). Where a party seeks to seal documents attached to a non-

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dispositive motion, a showing of “good cause” under Federal Rule of Civil Procedure 26(c) is

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sufficient. Id. at 1179-80; see also Fed. R. Civ. P. 26(c). In addition, all requests to file under seal

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must be “narrowly tailored,” such that only sealable information is sought to be redacted from

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public access. Civ. L.R. 79-5(b). Because a motion for summary judgment is a dispositive

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motion, the “compelling reasons” standard applies here. See, e.g., In re Dynamic Random Access

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Memory (DRAM) Antitrust Litig., No. M02-1486PJH, 2007 WL 707499, at *1 (N.D. Cal. Mar. 6,

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2007).

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DISCUSSION

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Here, the parties’ briefs and exhibits filed in conjunction with Verinata’s Motion for

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United States District Court
Northern District of California

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summary judgment are dispositive. Accordingly, for “compelling reasons supported by specific

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factual findings that outweigh the general history of access and the public policies favoring

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disclosure,” or lack thereof, the Court concludes as follows:

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Docket No.

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255-23

Exhibit 18

255-31

Exhibit 25

255-35

Exhibit 28

274-3

Exhibit B Part 1

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Court’s Ruling

Document Title

DENIED.
Sequenom states that it does not object to this
Exhibit being filed publicly. The Court ORDERS
the unredacted Exhibit 18 filed.
DENIED.
Sequenom states that it does not object to this
Exhibit being filed publicly. The Court ORDERS
the unredacted Exhibit 25 filed.
DENIED.
Sequenom states that it does not object to this
Exhibit being filed publicly. The Court ORDERS
the unredacted Exhibit 28 filed.
DENIED.
Sequenom states that this Exhibit is a copy of
“Report of George M. Weinstock Ph.D. Regarding
Infringement of U.S. Patent Nos. 7,888,017,
8,008,018, and 8,195,415,” and contains non-public
proprietary and competitively useful technical
information related to the development, function and
operation of Sequenom’s accused products,
including different product versions, algorithms,
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274-5

Exhibit B Part 3

274-7

Exhibit B Part 6

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United States District Court
Northern District of California

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source code, and versions of source code. The
declaration states that the public disclosure of this
information presents a substantial risk of economic
harm to Sequenom.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Sequenom has
not narrowly tailored its request. Portions of Part 1
are information about the expert, general background
statements about patent law and fetal genome
science, quotes from published articles, and patent
claims, none of which are sealable.
GRANTED.
Sequenom states that this Exhibit is a copy of
excerpts from exhibits 4 and 5 to the Weinstock
report. Exhibit 4 is a Sequenom Clinical Laboratory
Policy document that describes procedures used in
performing the accused MaterniT21 test. The
declaration states the document sets out steps and
procedures that competitors of Sequenom could use.
Exhibit 5 is a PowerPoint containing slides about
Sequenom’s “Assay concept,” including specific
techniques, ranges, and volumes used in Sequenom’s
accused process. The declaration states that the
public disclosure of this information presents a
substantial risk of economic harm to Sequenom.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Sequenom has
sufficiently articulated compelling reasons for
sealing Exhibit B Part 3 that outweigh the public
policies in favor of disclosure.
DENIED.
Sequenom states that this Exhibit is a copy of
excerpts from the deposition transcript of
Sequenom’s Paul Oeth, and contains highly
confidential, non-public, competitively sensitive
information about alternative approaches, lab
operations and procedures, commercial versions of
the MaterniT21 test and important technical
differences, thresholds used in the different versions
and internal procedures for reviewing results, data
analysis and specific technical issues relating to
Sequenom’s test. The declaration states that the
public disclosure of this information presents a
substantial risk of economic harm to Sequenom.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Sequenom has
not narrowly tailored its request. The request
includes questions posed by counsel for Verinata,
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274-9

Exhibit B Part 8

274-11

Exhibit B Part 10

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United States District Court
Northern District of California

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objections posed by counsel for Sequenom, and
several pages of deposition testimony that do not
appear to contain sealable information.
DENIED.
Sequenom states that this Exhibit is a copy of
excerpts from the deposition transcript of Cosmin
Deciu, and contains highly confidential, non-public,
competitively sensitive information about the source
code for the MaterniT21 test, changes and versions
of the test, information on performance of the test,
techniques considered or used to improve the test,
quality control metrics, and other highly sensitive
technical discussion about the test. The declaration
states that the public disclosure of this information
presents a substantial risk of economic harm to
Sequenom.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Sequenom has
not narrowly tailored its request. The request
includes questions posed by counsel for Verinata,
objections posed by counsel for Sequenom, and
sections of deposition testimony that do not appear
to contain sealable information.
DENIED.
Sequenom states that this Exhibit is a copy of
excerpts from the deposition transcripts of John
Tynan and Mathias Ehrich, and part of “Sequenom’s
First Supplemental Response and Objections to
Verinata Health, Inc.’s and the Board of Trustees of
the Leland Stanford Junior University’s
Interrogatory No. 2.” The declaration states these
excerpts contain highly confidential, non-public,
competitively sensitive information about
Sequenom’s MaterniT21 test and alternative
methods considered, different versions of the test,
technical operation of the MaterniT21 test including
read lengths and bioinformatics methods, and
research and development of the test. The
declaration states that the public disclosure of this
information presents a substantial risk of economic
harm to Sequenom.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Sequenom has
not narrowly tailored its request. The request
includes questions posed by counsel for Verinata,
objections posed by counsel for Sequenom,
interjections by the deposition officer, and sections
of deposition testimony that do not appear to contain
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274-13

Exhibit B Part 12

274-15

Exhibit B Part 14

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United States District Court
Northern District of California

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sealable information.
DENIED.
Sequenom states that this Exhibit is a copy of
excerpts from multiple exhibits to the Weinstock
report: “Sequenom’s First Supplemental Response
and Objections to Verinata Health, Inc.’s
Interrogatory No. 10”; excerpts from two Sequenom
Clinical Laboratory Procedure documents, excerpts
of a PowerPoint presentation on the concept of
Sequenom’s test; and the deposition transcript of Dr.
Dirk van den Doom. The declaration states these
excerpts contain detail on the technical operation of
Sequenom’s MaterniT21 test, references to source
code, details of the extraction of cell-free DNA in
Sequenom’s test, various confidential technical
details of Sequenom’s approach, an overview of an
early version of the Sequenom test, differences
between versions of the MaterniT21 test and specific
technical issues and alternative approaches,
particular procedures and software used, read
lengths, and information about sequencing output.
The declaration states that the public disclosure of
this information presents a substantial risk of
economic harm to Sequenom.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Sequenom has
not narrowly tailored its request. The excerpt from
the First Supplemental response includes nonsealable statements, Sequenom’s objections, and the
interrogatory question itself. The excerpts from Dr.
Dirk van den Boom’s deposition includes questions
posed by counsel for Verinata, objections posed by
counsel for Sequenom, and sections of deposition
testimony that do not appear to contain sealable
information.
DENIED.
Sequenom states that this Exhibit is a copy of
excerpts from multiple exhibits to the Weinstock
report: a Sequenom document regarding
bioinformatics analysis of the MaterniT21PLUS test
that contains confidential, competitively sensitive
technical information; a deposition transcript of
Sequenom’s Dr. Sung Kim containing technical
information about operations of the MaterniT21 test,
different versions of the test, and algorithms and
software used in the test; and “Sequenom’s Second
Supplemental Response and Objections to Verinata
Health, Inc.’s and the Board of Trustees of the
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274-17

Exhibit B Part 15

274-19

Exhibit C Part 1

274-21

Exhibit C Part 6

274-23

Exhibit D Part 1

United States District Court
Northern District of California

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Leland Stanford Junior University’s Interrogatory
No. 2,” describing specific details about the versions
of Sequenom’s accused test. The declaration states
that the public disclosure of this information presents
a substantial risk of economic harm to Sequenom.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Sequenom has
not narrowly tailored its request. The excerpts from
Dr. Sung Kim’s deposition include questions posed
by counsel for Verinata, objections posed by counsel
for Sequenom, and sections of deposition testimony
that do not appear to contain sealable information.
The supplemental interrogatory excerpt contains
Sequenom’s responses regarding non-infringement
under the doctrine of equivalents that do not appear
to be sealable.
GRANTED.
Sequenom states that this Exhibit is a copy of
excerpts from exhibits 40, 41, and 42 to the
Weinstock report. Exhibit 40 is a Sequenom Center
for Molecular Medicine Laboratory Policy document
that describes consumables, equipment, operational
procedures, analysis procedures and quality control
procedures for the MaterniT21 test. Exhibit 41 is a
Sequenom technical document describing technical
changes to the MaterniT21 test. Exhibit 42 is a
Sequenom document setting out certain technical
information relating to Sequenom’s work on an
assay for detecting trisomy 21. The declaration
states that all the information is highly confidential
and competitively sensitive, and that the public
disclosure of this information presents a substantial
risk of economic harm to Sequenom.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Sequenom has
sufficiently articulated compelling reasons for
sealing Exhibit B Part 15 that outweigh the public
policies in favor of disclosure.
DENIED.
Sequenom states that it does not object to this
Exhibit being filed publicly. The Court ORDERS
the unredacted Exhibit C Part 6 filed.
DENIED.
Sequenom states that it does not object to this
Exhibit being filed publicly. The Court ORDERS
the unredacted Exhibit C Part 6 filed.
DENIED.
Sequenom states that it does not object to this
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Exhibit being filed publicly. The Court ORDERS
the unredacted Exhibit D Part 1 filed.
DENIED.
Sequenom states that it does not object to this
Exhibit being filed publicly. The Court ORDERS
the unredacted Exhibit D Part 4 filed.
DENIED.
Sequenom states that it does not object to this
Exhibit being filed publicly. The Court ORDERS
the unredacted Exhibit D Part 6 filed.
DENIED.
Sequenom states that it does not object to this
Exhibit being filed publicly. The Court ORDERS
the unredacted reply brief filed.

274-25

Exhibit D Part 4

274-27

Exhibit D Part 6

296-3

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The Board of
Trustees of the
Leland Stanford
Junior University's
Reply In Support of
Its Motion for
Summary Judgment
of No Invalidity
Exhibit 46
DENIED.
Sequenom states that it does not object to this
Exhibit being filed publicly. The Court ORDERS
the unredacted Exhibit 46 filed.

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United States District Court
Northern District of California

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296-5

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Pursuant to Civil Local Rule 79-5(f), the Court shall not file any documents for which the

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parties’ applications to file under seal have been denied. The submitting party may retain the

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document and not make it part of the record in the case, or within 7 days re-submit the document

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for filing in the public record with any necessary amendments that are consistent with this order.

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This order resolves all motions to seal under Docket Nos. 255, 274, and 296.

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IT IS SO ORDERED.
Dated: April 29, 2015

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________________________
SUSAN ILLSTON
United States District Judge

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