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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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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.
)
)

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Now pending before the Court is Defendant's administrative

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motion to file under seal portions of its sur-reply in opposition

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to Plaintiff's motion for class certification, as well as Exhibits

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18 and 19 to the Declaration of Janakan Thiagarajah in support of

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the sur-reply.

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Plaintiff's administrative motion to file under seal portions of

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its opposition to Defendant's administrative motion for an

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evidentiary hearing on class certification and the accompanying

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declaration of Michael D. Braun.

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ECF No. 85.

Also pending before the Court is

ECF No. 87.

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On January 27, 2014, the Court issued an order for

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supplemental briefing, directing the parties to explain why the

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information at issue should be subject to sealing.

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The Court explained that it would not grant a motion to seal merely

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because information was marked confidential and subject to a

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stipulated protective Order.

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that it would deny the pending motions if the parties declined to

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file the requested supplemental briefing.

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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

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motion.

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subject information constitutes a trade secret.

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states that it would consent to the information being publicly

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filed because it relates to consumer perceptions of an advertising

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claim that Defendant no longer makes.

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not consent to the public disclosure of the underlying documents

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from which this information was drawn.

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does not object to the public filing of the sur-reply brief or the

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exhibits filed in connection with that brief, its administrative

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motion to seal is DENIED as moot.

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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

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respond to the Court's concerns.

Plaintiff wants the Court to seal

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the deposition testimony of Dr. Elizabeth Howlett, as well as

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references to that testimony in one of Plaintiff's briefs.

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Plaintiff claims that this information should be sealed because it

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is protected by the deliberative process privilege.

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invoke the deliberative process privilege, Plaintiff should have

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provided a declaration from an agency head that asserted, among

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other things, specific facts demonstrating why the information is

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In order to

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deliberative and predecisional, and specific facts concerning the

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degree and type of harm that would result from the public

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disclosure of the information.

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Entities Average Wholesale Price Litig., 264 F.R.D. 595, 602 (N.D.

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Cal. 2009).

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without further explanation.

In re McKesson Governmental

Instead, Plaintiff merely invokes the privilege

Plaintiff also cites to 21 C.F.R. § 20.62, which provides:

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"All communications within the Executive Branch of the Federal

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government which are in written form or which are subsequently

United States District Court

For the Northern District of California

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reduced to writing may be withheld from public disclosure except

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that factual information which is reasonably segregable . . . ."

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However, the subject information pertains to FDA communications

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with Congress and non-governmental entities, not internal

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communications.

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working with the FDA.

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other than to generally comment that the "FDA is involved in

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regulation," that the FDA regulates certain labels that it believes

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to be important to consumers, that the FDA conducts research before

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promulgating such regulations, and that she has designed and

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reviewed some of this research.

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the information discussed by Dr. Howlett is already publicly

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available online.

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privileged, it is unclear why that privilege was not waived when it

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was produced through discovery.

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does not address any of these issues.

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///

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///

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

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For the foregoing reasons, the parties pending motions to seal
are DENIED.

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IT IS SO ORDERED.

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Dated: February 5, 2014
UNITED STATES DISTRICT JUDGE

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United States District Court

For the Northern District of California

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