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

Filing 379

ORDER RE: MOTION TO SEAL (Illston, Susan) (Filed on 5/24/2017)

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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.,
Plaintiffs,

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United States District Court
Northern District of California

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Case No. 12-cv-05501-SI
ORDER RE: MOTIONS TO SEAL

v.

Re: Dkt. Nos. 361, 363
ARIOSA DIAGNOSTICS, INC, et al.,
Defendants.

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The Court is in receipt of two administrative motions to seal: (i) Ariosa’s motion to file

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under seal two excerpts of Illumina privilege logs, Dkt. No. 361; and (ii) Illumina’s administrative

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motion to file under seal some 1,100 pages of Ariosa privilege logs, Dkt. No. 363.

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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). When applying to file documents

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under seal in connection with a dispositive motion, or a motion “more than tangentially related to

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the merits of a case,” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th Cir.

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2016), the submitting party bears the burden of “articulating compelling reasons supported by

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

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

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

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quotation marks omitted). Generally, however, when a party seeks to seal documents attached to a

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non-dispositive motion only tangentially related to the merits of a case, a showing of “good cause”

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under Federal Rule of Civil Procedure 26(c) is sufficient. Id. at 1179-80; Ctr. for Auto Safety, 809

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F.3d at 1099 (9th Cir. 2016); Fed. R. Civ. P. 26(c).

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These motions to seal are governed by the lower “good cause” standard. To make the

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

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“‘specific prejudice or harm’” will result if the information is disclosed. Kamakana, 447 F.3d at

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1180, 1186; accord Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210-11

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(9th Cir. 2002). “Broad allegations of harm, unsubstantiated by specific examples of articulated

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reasoning,” are insufficient to establish good cause. Beckman Indus., Inc. v. Int’l Ins. Co., 966

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F.2d 470, 476 (9th Cir. 1992).
With respect to both motions to seal, the moving party seeks to seal information solely

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because the opposing party has designated that information highly confidential under the parties’

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protective order. Pursuant to Civil Local Rule 79-5(e), if a submitting party seeks “to file under

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seal a document designated as confidential by the opposing party . . . or a document containing

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United States District Court
Northern District of California

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information so designated by an opposing party,” “[w]ithin 4 days of the filing of the

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Administrative Motion to File Under Seal, the Designating Party must file a declaration as

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required by subsection 79-5(d)(1)(A) establishing that all of the designated material is sealable.”

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N.D. Cal. Civil L.R. 79-5(e). Illumina has not done so with respect to docket number 361; Ariosa

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has not done so with respect to docket number 363.1 If either designating party wishes to have

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the privilege log excerpts sealed, it must submit a declaration under Civil L.R. 79-5(d)(1)(A)

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within 7 days of the date of this order.

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IT IS SO ORDERED.
Dated: May 25, 2017
______________________________________
SUSAN ILLSTON
United States District Judge

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On the Court’s review, the privilege logs do not appear to reveal any confidential or
sensitive information. Indeed, the purpose of a privilege log is to identify the documents withheld,
and the reason(s) for withholding them, without divulging any privileged information.
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