Verinata Health, Inc. et al v. Ariosa Diagnostics, Inc et al

Filing 162

ORDER DENYING WITHOUT PREJUDICE DEFENDANT'S MOTION TO SEAL #160 in case 3:12-cv-05501-SI; #61 in case 3:14-cv-01921-SI (Illston, Susan) (Filed on 9/18/2014)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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No. C 12-05501 SI
No. C 14-01921 SI

VERINATA HEALTH, INC., et al.,
Plaintiffs,

ORDER DENYING WITHOUT
PREJUDICE DEFENDANT’S MOTION
TO SEAL

v.
ARIOSA DIAGNOSTICS, INC., et al.,
Defendants.

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On August 22, 2014, Verinata submitted two motions to seal the deposition transcripts of Drs.

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Jacob Zahn and Craig Struble in their entirety. Docket Nos. 149, 151. The transcripts were exhibits

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attached to two discovery letters filed by the parties on that same day. Docket. Nos. 148, 150. On

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September 16, 2014, the Court denied both motions because Ariosa, as the designating party, failed to

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file a declaration establishing that the designated material is sealable as required by Civil Local Rule

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79-5(d)(1)(A). Docket No. 159. Now before the Court is Ariosa’s motion to seal selected portions of

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the deposition transcripts of Drs. Zahn and Struble filed on September 16, 2014. Docket No. 160.

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LEGAL STANDARD

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

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begin their sealing analysis with “a strong presumption in favor of access.” Foltz v. State Farm Mut.

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Auto. Ins., 331 F.3d 1122, 1135 (9th Cir. 2003). When applying to file documents under seal in

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connection with a dispositive motion, the submitting party bears the burden of “articulating compelling

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reasons 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.”
Kamakana v. City and County

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of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (internal quotations and citations omitted).

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However, when a party seeks to seal documents attached to a non-dispositive motion, a showing of

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“good cause” under Federal Rule of Civil Procedure 26(c) is sufficient. Id. at 1179-80; see also Fed.

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R. Civ. P. 26(c). In addition, all requests to file under seal must be “narrowly tailored,” such that only

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sealable information is sought to be redacted from public access. Civil Local Rule 79-5(b). Because

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the parties’ joint discovery statements are non-dispositive, the “good cause” standard applies.

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DISCUSSION
In its motion, Ariosa states that while it “understands the Court’s reasoning” for denying the

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United States District Court
For the Northern District of California

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motions to seal filed on August 22, 2014, its failure to file a declaration “was inadvertent, and should

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not affect the ultimate treatment of Ariosa’s confidential information.” Docket No. 160. Civil Local

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Rule 79-5(e)(1) requires that the designating party file a declaration within four days of the motion to

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seal being filed. Ariosa allowed twenty-five days to elapse without catching its “inadvertent” error.

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Moreover, even if Ariosa had filed a timely declaration, the motions would still have been denied as

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they requested that the entire deposition transcripts of Drs. Zahn and Struble be sealed, which would

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have failed the “narrowly tailored” requirement on its face. This is especially troubling given that Ariosa

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has had a previous motion to seal denied for this precise reason (“[I]t does not appear that Ariosa’s

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request to seal the exhibit is narrowly tailored. Even assuming that the exhibit contains some sealable

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confidential information, that would only be good cause to seal certain portions of the exhibit, not the

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entire document.”). Docket No. 109.

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It is worth noting that this is at least the fifth administrative motion to seal filed in this case; by

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now both parties should be well acquainted with the relatively simple requisites of filing such a motion.

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Nonetheless the Court agrees that Ariosa should not suffer the harm of having sealable material filed

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publicly solely because of counsel’s mistake. The Court will therefore consider this motion, despite

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having already ruled on the matter. Docket No. 159.

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To make the lower showing of good cause, the moving party must make a “particularized

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showing” that “‘specific prejudice or harm’” will result if the information is disclosed. Kamakana, 447

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F.3d at 1180, 1186; accord Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206,
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1210-11 (9th Cir. 2002). “Broad allegations of harm, unsubstantiated by specific examples of

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articulated reasoning” are insufficient to establish good cause. Beckman Indus., Inc. v. Int’l Ins. Co.,

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966 F.2d 470, 476 (9th Cir. 1992). Ariosa argues that certain portions of Drs. Zahn and Struble’s

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deposition transcripts should be sealed because they contain confidential, commercially sensitive

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information regarding research and development of prenatal diagnostic tests, as well as non-public

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technical details of products currently being marketed. Docket No. 160, Haberny Decl. ¶¶ 4-6. Ariosa

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further alleges that disclosure of this information could result in “substantial competitive harm.” Id.

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Ariosa’s broad allegations of harm are insufficient to establish good cause. See Beckman, 966 F.2d at

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476.

United States District Court
For the Northern District of California

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Ariosa also states that this information is designated as highly confidential pursuant to the terms

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of the protective order in this case. Docket No. 160, Haberny Decl. ¶¶ 4-6. But good cause “cannot be

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established simply by showing that the document is subject to a protective order or by stating in general

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terms that the material is considered to be confidential.” Bain v. AstraZeneca LP, 2011 U.S. Dist.

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LEXIS 15965, at *2 (N.D. Cal. Feb. 7, 2011); see Civil L.R. 79-5(d)(1)(A). Accordingly, Ariosa has

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failed to provide good cause for filing the exhibit under seal.

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In addition, Ariosa’s request to seal the exhibit is not narrowly tailored. Ariosa seeks to seal

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questions posed by counsel for Verinata, objections interposed by counsel for Ariosa, and miscellaneous

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testimony that does not appear to be sealable.

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Accordingly, the Court DENIES Ariosa’s motion to seal. This denial is without prejudice to

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Ariosa refiling its declaration, no later than September 22, 2014, in a format which is narrowly tailored

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and demonstrates “good cause” for sealing the exhibit.

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IT IS SO ORDERED.

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Dated: September 18, 2014
SUSAN ILLSTON
United States District Judge

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