Colucci et al v. ZonePerfect Nutrition Company

Filing 98

ORDER by Judge Samuel Conti denying 85 Administrative Motion to File Under Seal; denying 87 Administrative Motion to File Under Seal (sclc1, COURT STAFF) (Filed on 2/5/2014)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 For the Northern District of California United States District Court 9 11 12 13 14 15 16 17 KIMBERLY S. SETHAVANISH, on behalf ) Case No. 12-2907-SC of themselves and all others ) similarly situated, ) ORDER DENYING MOTIONS TO ) SEAL ) Plaintiff, ) ) v. ) ZONEPERFECT NUTRITION COMPANY, ) ) Defendant. ) ) 18 19 Now pending before the Court is Defendant's administrative 20 motion to file under seal portions of its sur-reply in opposition 21 to Plaintiff's motion for class certification, as well as Exhibits 22 18 and 19 to the Declaration of Janakan Thiagarajah in support of 23 the sur-reply. 24 Plaintiff's administrative motion to file under seal portions of 25 its opposition to Defendant's administrative motion for an 26 evidentiary hearing on class certification and the accompanying 27 declaration of Michael D. Braun. 28 ECF No. 85. Also pending before the Court is ECF No. 87. 1 On January 27, 2014, the Court issued an order for 2 supplemental briefing, directing the parties to explain why the 3 information at issue should be subject to sealing. 4 The Court explained that it would not grant a motion to seal merely 5 because information was marked confidential and subject to a 6 stipulated protective Order. 7 that it would deny the pending motions if the parties declined to 8 file the requested supplemental briefing. 9 Id. at 2. ECF No. 92. The Court further stated Id. Defendant has filed a supplemental brief regarding its pending United States District Court For the Northern District of California 10 motion. 11 subject information constitutes a trade secret. 12 states that it would consent to the information being publicly 13 filed because it relates to consumer perceptions of an advertising 14 claim that Defendant no longer makes. 15 not consent to the public disclosure of the underlying documents 16 from which this information was drawn. 17 does not object to the public filing of the sur-reply brief or the 18 exhibits filed in connection with that brief, its administrative 19 motion to seal is DENIED as moot. 20 ECF No. 93. In that brief, Defendant argues that the Id. at 2. However, Defendant Defendant does Id. at 3. As Defendant Plaintiff has also filed a supplemental brief attempting to 21 respond to the Court's concerns. Plaintiff wants the Court to seal 22 the deposition testimony of Dr. Elizabeth Howlett, as well as 23 references to that testimony in one of Plaintiff's briefs. 24 Plaintiff claims that this information should be sealed because it 25 is protected by the deliberative process privilege. 26 invoke the deliberative process privilege, Plaintiff should have 27 provided a declaration from an agency head that asserted, among 28 other things, specific facts demonstrating why the information is 2 In order to 1 deliberative and predecisional, and specific facts concerning the 2 degree and type of harm that would result from the public 3 disclosure of the information. 4 Entities Average Wholesale Price Litig., 264 F.R.D. 595, 602 (N.D. 5 Cal. 2009). 6 without further explanation. In re McKesson Governmental Instead, Plaintiff merely invokes the privilege Plaintiff also cites to 21 C.F.R. ยง 20.62, which provides: 7 8 "All communications within the Executive Branch of the Federal 9 government which are in written form or which are subsequently United States District Court For the Northern District of California 10 reduced to writing may be withheld from public disclosure except 11 that factual information which is reasonably segregable . . . ." 12 However, the subject information pertains to FDA communications 13 with Congress and non-governmental entities, not internal 14 communications. 15 working with the FDA. 16 other than to generally comment that the "FDA is involved in 17 regulation," that the FDA regulates certain labels that it believes 18 to be important to consumers, that the FDA conducts research before 19 promulgating such regulations, and that she has designed and 20 reviewed some of this research. 21 the information discussed by Dr. Howlett is already publicly 22 available online. 23 privileged, it is unclear why that privilege was not waived when it 24 was produced through discovery. 25 does not address any of these issues. 26 /// 27 /// 28 /// Dr. Howlett also states that she has experience However, she does not go into any detail, Moreover, it appears that some of To the extent that this information is Plaintiff's supplemental briefing 3 1 2 For the foregoing reasons, the parties pending motions to seal are DENIED. 3 4 IT IS SO ORDERED. 5 6 7 Dated: February 5, 2014 UNITED STATES DISTRICT JUDGE 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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