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

Filing 231

ORDER DENYING IN PART AND GRANTING IN PART THE PARTIES' MOTIONS TO SEAL #208 #216 #225 (Illston, Susan) (Filed on 4/24/2015)

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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-05501-SI

Plaintiffs,
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v.

ORDER DENYING IN PART AND
GRANTING IN PART THE PARTIES'
MOTIONS TO SEAL

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ARIOSA DIAGNOSTICS, INC,

Re: Dkt. Nos. 208, 216, 225

Defendant.

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 Defendant’s motion to stay. The Court finds that the

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

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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 to stay is a non-dispositive motion, the “good

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cause” standard applies here. See, e.g., Apple, Inc. v. Samsung Electronics Co., No. 12-CV-

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00630-LHK, 2012 WL 2936432, at *1 (N.D. Cal. July 18, 2012).

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DISCUSSION

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Here, the parties’ briefs and exhibits filed in conjunction with Ariosa’s Motion to Stay are

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non-dispositive. Its adjudication will not affect the substantive claims or defenses of any parties to

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United States District Court
Northern District of California

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the litigation. Accordingly, for good cause shown under Federal Rule of Civil Procedure 26(c), or

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lack thereof, the Court concludes as follows:

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Docket No.
208-3

Document Title
Redacted Version of
Ariosa's Motion to
Stay Litigation

Court’s Ruling
GRANTED.
The Walter declaration states that the redacted
portions contain confidential business strategy and
methods for business analysis and modeling
approaches regarding Illumina’s development of
the prenatal diagnostics market and Verinata’s
prenatal test. The declaration states the public
disclosure of this information presents a
substantial risk of economic harm and may
negatively impact Illumina’s relationships with
potential partners or licensees.
After reviewing the unredacted version and the
attached declaration, the Court concludes that
Illumina has sufficiently articulated good cause
for redacting the portions of Ariosa’s Motion to
Stay Litigation as requested in the declarations.
However, in some cases the portions requested in
the declarations do not match the portions in the
redacted versions submitted to the Court.
Accordingly, the Court STRIKES Docket No.
208-3 from the public docket and ORDERS
Ariosa to file a new redacted version of Ariosa’s
Motion to Stay Litigation, consistent with the
redactions described in the declaration.
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208-5

Exhibit F

208-7

Exhibit Q

208-9

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Exhibit R

208-11

Exhibit S

208-13

Exhibit V

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United States District Court
Northern District of California

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GRANTED.
The Walter declaration states that this exhibit
contains confidential methods used for business
analysis and modeling approaches to revenues,
costs, and pricing in the NIPT market, and that the
public disclosure of this information may
negatively impact Illumina’s relationships with
potential partners or licensees.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Illumina has
sufficiently articulated good cause for sealing
Exhibit F.
GRANTED.
The Walter declaration states that this exhibit is a
PowerPoint presentation that contains confidential
business strategy regarding development of the
NIPT market. The declaration states that the
public disclosure of this information may
negatively impact Illumina’s relationships with
potential partners or licensees.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Illumina has
sufficiently articulated good cause for sealing
Exhibit Q.
GRANTED.
The Walter declaration states that this exhibit is a
PowerPoint presentation that contains confidential
business strategy regarding development of the
NIPT market, and that the public disclosure of this
information may negatively impact Illumina’s
relationships with potential partners or licensees.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Illumina has
sufficiently articulated good cause for sealing
Exhibit R.
GRANTED.
The Walter declaration states that this exhibit is
an email chain that contains confidential business
strategy regarding development of the NIPT
market, and that the public disclosure of this
information may negatively impact Illumina’s
relationships with potential partners or licensees.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Illumina has
sufficiently articulated good cause for sealing
Exhibit S.
GRANTED.
The Walter declaration states that this exhibit is a
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216-3

Redacted Version of
Plaintiffs' Opposition
To Ariosa
Diagnostics, Inc.'s
Third Motion To Stay

216-5

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Exhibit 7

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United States District Court
Northern District of California

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PowerPoint presentation that contains confidential
business strategy regarding development of the
NIPT market, and that the public disclosure of this
information may negatively impact Illumina’s
relationships with potential partners or licensees.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Illumina has
sufficiently articulated good cause for sealing
Exhibit V.
GRANTED.
The Drake declaration states that the redacted
portions of Plaintiffs’ opposition brief contain
confidential
and
commercially
sensitive
information about Ariosa’s financials, pricing,
sales, forecast, market analysis, and marketing
strategy. The declaration states that the public
disclosure of this information may result in
substantial competitive harm by providing
competitors insight into internal finances and
marketing strategy.
After reviewing the unredacted version and the
attached declaration, the Court concludes that
Ariosa has sufficiently articulated good cause for
redacting page 7:17-9:22, page 10:3-11:4, page
13:1-7, and page 13:10-27.1
GRANTED.
The Drake declaration states that this exhibit
contains confidential and commercially sensitive
information about Ariosa’s financials, pricing,
market analysis, reimbursement policy, and
marketing strategy, including information on
negotiations with insurance providers, potential
partners, and Ariosa’s strategic approach to the
NIPT market. The declaration states that the
public disclosure of this information may result in
substantial competitive harm by providing
competitors insight into internal finances and
marketing strategy.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Ariosa has
sufficiently articulated good cause for redacting
portions of Exhibit 7. The Court notes that the
redacted version contains different redactions
from those sought in its supporting declaration.

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The Court notes that counsel for plaintiffs’ unredacted version failed to indicate, “by highlighting
or other clear method, the portions of the document that have been omitted from the redacted
version” as required by this Court’s local rules. Civ. L.R. 79-5(d)(1)(D).
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216-7

Exhibit 8

216-9

Exhibit 9

216-11

Exhibit 10

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United States District Court
Northern District of California

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Dkt. No. 216-5. The Court STRIKES Docket No.
216-5 from the public docket and ORDERS
Ariosa to file a new redacted version of Exhibit 7.
GRANTED.
The Drake declaration states that this exhibit is a
PowerPoint presentation that contains confidential
and commercially sensitive information about
Ariosa’s financials, pricing, and marketing
strategy, including information on Ariosa’s
capacity to perform the Harmony Prenatal Test,
commercial plan, and detailed financial
information. The declaration states that the public
disclosure of this information may result in
substantial competitive harm by providing
competitors insight into internal finances, pricing,
and marketing strategy.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Ariosa has
sufficiently articulated good cause for sealing
Exhibit 8.
GRANTED.
The Drake declaration states that this exhibit is an
email conversation that contains confidential and
commercially sensitive information about
Ariosa’s pricing and marketing strategy, including
information on Ariosa’s reimbursement strategy.
The declaration states that the public disclosure of
this information may result in substantial
competitive harm by providing competitors
insight into internal pricing, reimbursement, and
marketing strategy that could be used in future
sensitive negotiations.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Ariosa has
sufficiently articulated good cause for sealing
Exhibit 9.
DENIED.
The Drake declaration states that this exhibit is a
set of questions and answers prepared in advance
of its planned-but-withdrawn IPO that contains
confidential
and
commercially
sensitive
information about Ariosa’s business, financials,
pricing, and marketing strategy, including
information on Ariosa’s reimbursement strategy,
business model, thoughts on competitors, and
pipeline. The declaration states that the public
disclosure of this information may result in
substantial competitive harm by providing
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216-13

Exhibit 11

216-15

Exhibit 12

216-17

Exhibit 13

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United States District Court
Northern District of California

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competitors insight into internal finances,
business plan, and marketing strategy.
After reviewing the Exhibit and the attached
declaration, the Court finds that because part of
the exhibit titled “Legal” is redacted, the Court
cannot ascertain whether the exhibit as a whole is
sealable. See Civ. L.R. 79-5(d)(1)(D).
GRANTED.
The Drake declaration states that this exhibit is a
PowerPoint presentation that contains confidential
and commercially sensitive information about
Ariosa’s
marketing
strategy,
including
information on Ariosa’s messaging to potential
providers. The declaration states that the public
disclosure of this information may result in
substantial competitive harm by providing
competitors insight into internal marketing
strategy.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Ariosa has
sufficiently articulated good cause for sealing
Exhibit 11.
GRANTED.
The Drake declaration states that this exhibit is a
PowerPoint presentation that contains confidential
and commercially sensitive information about
Ariosa’s financials, pricing, and marketing
strategy, including Ariosa’s financial forecasts.
The declaration states that the public disclosure of
this information may result in substantial
competitive harm by providing competitors
insight into internal finances.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Ariosa has
sufficiently articulated good cause for sealing
Exhibit 12.
GRANTED.
The Drake declaration states that this exhibit is
excerpts of the deposition transcript of Ariosa
CFO Daniel Puckett that contain confidential and
commercially sensitive information about
Ariosa’s financials, including the manner in which
Ariosa tracks costs. The declaration states that the
public disclosure of this information may result in
substantial competitive harm by providing
competitors insight into internal finances.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Ariosa has
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216-19

Exhibit 15

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United States District Court
Northern District of California

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Ariosa’s Reply in
Support of Motion to
Stay Litigation

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225-3

Exhibit 2

sufficiently articulated good cause for redacting
portions of Exhibit 13. The Court notes that the
redacted version contains different redactions
from those sought in its supporting declaration.
Dkt. No. 216-17. The Court STRIKES Docket
No. 216-17 from the public docket and ORDERS
Ariosa to file a new redacted version of Exhibit
13.
GRANTED.
The Drake declaration states that this exhibit is an
excerpt of a draft analyst’s model that contains
confidential
and
commercially
sensitive
information about Ariosa’s financials, including
Ariosa’s financial forecasts. The declaration
states that the public disclosure of this information
may result in substantial competitive harm by
providing competitors insight into internal
finances and forecasts.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Ariosa has
sufficiently articulated good cause for sealing
Exhibit 15.
DENIED.
The Walter declaration states that the redacted
portions of Ariosa’s reply brief contain
confidential
business
strategy,
internal
projections, and modeling of the noninvasive
prenatal diagnostics market.
The declaration
states that the public disclosure of this information
may negatively impact Illumina’s relationship
with current and potential partners or licensees.
However, Ariosa did not submit required redacted
and unredacted versions of Ariosa’s reply brief
with its motion to seal. Because no redacted or
highlighted unredacted versions have been
submitted, the Court cannot ascertain if the
portions the parties wish to file under seal are
sealable.
GRANTED.
The Walter declaration states that this exhibit is a
spreadsheet that contains confidential methods
used for business analysis and modeling
approaches to revenues, costs, tests performed,
pricing, and profits in the noninvasive prenatal
diagnostics market. The declaration states that the
public disclosure of this information may
negatively impact Illumina’s relationships with
current and potential partners or licensees.
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225-5

Exhibit 3

225-7

Exhibit 4

225-9

Exhibit 5

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United States District Court
Northern District of California

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After reviewing the Exhibit and the attached
declaration, the Court concludes that Illumina has
sufficiently articulated good cause for sealing
Exhibit 2.
GRANTED.
The
Walter
declaration
cites
Ariosa’s
Administrative Motion to File Under Seal, which
states that this exhibit is excerpts of a deposition
of Ariosa witness David Mullarkey that contains
confidential
and
commercially
sensitive
information about Ariosa’s internal finances,
pricing, marketing, strategy, and IP strategy. The
declaration states that the public disclosure of this
information may negatively impact Illumina’s
relationships with current and potential partners or
licensees.
After reviewing the Exhibit and the attached
declarations, the Court concludes that Ariosa has
sufficiently articulated good cause for redacting
portions of Exhibit 3.
GRANTED.
The Walter declaration states that this exhibit is
an email between Illumina personnel that contains
confidential business strategy and confidential
methods for business analysis and modeling
approaches about Illumina’s development of the
prenatal diagnostics market. The declaration
states that the public disclosure of this information
may negatively impact Illumina’s relationships
with current and potential partners or licensees.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Ariosa has
sufficiently articulated good cause for redacting
portions of Exhibit 4. The Court notes that the
redacted version contains different redactions
from those sought in its supporting declaration.
Dkt. No. 225-7. The Court STRIKES Docket No.
225-7 from the public docket and ORDERS
Ariosa to file a new redacted version of Exhibit 4.
GRANTED.
The Walter declaration states that this exhibit is a
chart and notes that contain confidential methods
used for business analysis and modeling
approaches to revenues, costs, fees, and tests
performed in the noninvasive prenatal diagnostics
market. The declaration states that the public
disclosure of this information may negatively
impact Illumina’s relationships with current and
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225-11

Exhibit 6

225-13

Exhibit 9

225-15

Exhibit 10

225-17

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Exhibit 11

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United States District Court
Northern District of California

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potential partners or licensees.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Illumina has
sufficiently articulated good cause for sealing
Exhibit 5.
GRANTED.
The Walter declaration states that this is a
PowerPoint presentation that contains confidential
business strategy regarding the development of
the prenatal diagnostics market. The declaration
states that the public disclosure of this information
may negatively impact Illumina’s relationships
with current and potential partners or licensees.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Illumina has
sufficiently articulated good cause for sealing
Exhibit 6.
GRANTED.
The Walter declaration states that this is a
spreadsheet that contains confidential methods
used for business analysis and modeling
approaches as to test volume, fees, costs, sales,
expenses, revenues, and profits in the noninvasive
prenatal diagnostics market. The declaration
states that the public disclosure of this information
may negatively impact Illumina’s relationships
with current and potential partners or licensees.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Illumina has
sufficiently articulated good cause for sealing
Exhibit 9.
GRANTED.
The Walter declaration states that this is a
PowerPoint presentation that contains confidential
business strategy regarding the development of
the prenatal diagnostics market. The declaration
states that the public disclosure of this information
may negatively impact Illumina’s relationships
with current and potential partners or licensees.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Illumina has
sufficiently articulated good cause for sealing
Exhibit 10.
GRANTED.
The Walter declaration states that this is an
excerpt of the Sale and Supply Agreement
between Illumina and Ariosa that contains details
of the structure of the Sale and Supply
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225-19

Exhibit 12

225-22

Exhibit 13

225-25

Exhibit 14

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United States District Court
Northern District of California

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Agreement, intellectual property and parties’
obligation with regard to the intellectual property,
and purchases under the agreement.
The
declaration states that the public disclosure of this
information may negatively impact Illumina’s
relationships with current and potential partners or
licensees.
Ariosa’s motion states that the
agreement contains a confidentiality provision,
and was previous found sealable by this Court.
Case No. 14-cv-01921, Dkt. No. 39.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Illumina has
sufficiently articulated good cause for sealing
Exhibit 11.
GRANTED.
The Walter declaration states that this is the
Master Supply Agreement between Illumina and
LabCorp, and contains the details of the structure
of the Master Supply Agreement, intellectual
property and parties’ obligations under the
agreement. The declaration states that the public
disclosure of this information may negatively
impact Illumina’s relationships with current and
potential partners or licensees.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Illumina has
sufficiently articulated good cause for sealing
Exhibit 12.
GRANTED.
The Walter declaration states that this is the
Supply Agreement between Illumina and Quest,
and contains the details of the structure of the
Supply Agreement, intellectual property and
parties’ obligations under the agreement. The
declaration states that the public disclosure of this
information may negatively impact Illumina’s
relationships with current and potential partners or
licensees.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Illumina has
sufficiently articulated good cause for sealing
Exhibit 13.
GRANTED.
The Walter declaration states that this is the
Settlement
Agreement
between
Illumina,
Verinata, and Sequenom, and contains the details
of the structure of the Settlement Agreement,
intellectual property and parties’ obligations under
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225-27

Exhibit 15

225-29

Exhibit 16

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United States District Court
Northern District of California

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the agreement. The declaration states that the
public disclosure of this information may
negatively impact Illumina’s relationships with
current and potential partners or licensees.
After reviewing the Exhibit and the attached
declaration, the Court concludes that Illumina has
sufficiently articulated good cause for sealing
Exhibit 14.
DENIED.
The Walter declaration states that this exhibit is
the deposition transcript of witness Nicholas
Naclerio in the related case Verinata Health, Inc.
et al. v. Sequenom, Inc. et al. Case No. 3:12-cv00865. The declaration states that it contains
confidential business strategy and methods for
business analysis and modeling approaches
regarding development of the prenatal diagnostics
market, its IP strategy, and its relationships with
partners, licensees, and customers.
The
declaration also states that the public disclosure of
this information may negatively impact Illumina’s
relationships with current and potential partners or
licensees.
After reviewing the Exhibit and the attached
declarations, the Court concludes that although
Ariosa has sufficiently articulated good cause for
redacting portions of Exhibit 15, it has failed to
narrowly tailor its redactions. Illumina proposes
to seal whole pages of the transcript, including
questions posed by counsel for Sequenom,
objections interjected by counsel for Verinata, and
miscellaneous testimony that does not appear to
be sealable.2
GRANTED.
The
Walter
declaration
cites
Ariosa’s
Administrative Motion to File Under Seal that this
exhibit was created by Ariosa and contains
confidential
and
commercially
sensitive
information about Ariosa’s internal finances,
pricing, marketing, strategy, and IP strategy.
After reviewing the Exhibit and the attached
declarations, the Court concludes that Ariosa has
sufficiently articulated good cause for redacting
portions of Exhibit 16.

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The Court has previously issued the same ruling on a similar motion to seal similar deposition
transcripts. Dkt. No. 162.
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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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The parties’ briefs may also be redacted and resubmitted as consistent with the Court’s ruling on

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the documents above. This order resolves all motions to seal under Docket Nos. 208, 216, and

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225.

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IT IS SO ORDERED.

United States District Court
Northern District of California

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Dated: April 24, 2015

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________________________
SUSAN ILLSTON
United States District Judge

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