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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 VERINATA HEALTH, INC., et al., Plaintiffs, 8 9 10 United States District Court Northern District of California 11 Case No. 12-cv-05501-SI ORDER RE: MOTIONS TO SEAL v. Re: Dkt. Nos. 361, 363 ARIOSA DIAGNOSTICS, INC, et al., Defendants. 12 The Court is in receipt of two administrative motions to seal: (i) Ariosa’s motion to file 13 under seal two excerpts of Illumina privilege logs, Dkt. No. 361; and (ii) Illumina’s administrative 14 motion to file under seal some 1,100 pages of Ariosa privilege logs, Dkt. No. 363. 15 With the exception of a narrow range of documents that are “traditionally kept secret,” 16 courts begin their sealing analysis with “a strong presumption in favor of access.” Foltz v. State 17 Farm Mut. Auto. Ins., 331 F.3d 1122, 1135 (9th Cir. 2003). When applying to file documents 18 under seal in connection with a dispositive motion, or a motion “more than tangentially related to 19 the merits of a case,” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th Cir. 20 2016), the submitting party bears the burden of “articulating compelling reasons supported by 21 specific factual findings that outweigh the general history of access and the public policies 22 favoring disclosure, such as the public interest in understanding the judicial process.” Kamakana 23 v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (internal citations and 24 quotation marks omitted). Generally, however, when a party seeks to seal documents attached to a 25 non-dispositive motion only tangentially related to the merits of a case, a showing of “good cause” 26 under Federal Rule of Civil Procedure 26(c) is sufficient. Id. at 1179-80; Ctr. for Auto Safety, 809 27 F.3d at 1099 (9th Cir. 2016); Fed. R. Civ. P. 26(c). 28 These motions to seal are governed by the lower “good cause” standard. To make the 1 lower showing of good cause, the moving party must make a “particularized showing” that 2 “‘specific prejudice or harm’” will result if the information is disclosed. Kamakana, 447 F.3d at 3 1180, 1186; accord Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 4 (9th Cir. 2002). “Broad allegations of harm, unsubstantiated by specific examples of articulated 5 reasoning,” are insufficient to establish good cause. Beckman Indus., Inc. v. Int’l Ins. Co., 966 6 F.2d 470, 476 (9th Cir. 1992). With respect to both motions to seal, the moving party seeks to seal information solely 8 because the opposing party has designated that information highly confidential under the parties’ 9 protective order. Pursuant to Civil Local Rule 79-5(e), if a submitting party seeks “to file under 10 seal a document designated as confidential by the opposing party . . . or a document containing 11 United States District Court Northern District of California 7 information so designated by an opposing party,” “[w]ithin 4 days of the filing of the 12 Administrative Motion to File Under Seal, the Designating Party must file a declaration as 13 required by subsection 79-5(d)(1)(A) establishing that all of the designated material is sealable.” 14 N.D. Cal. Civil L.R. 79-5(e). Illumina has not done so with respect to docket number 361; Ariosa 15 has not done so with respect to docket number 363.1 If either designating party wishes to have 16 the privilege log excerpts sealed, it must submit a declaration under Civil L.R. 79-5(d)(1)(A) 17 within 7 days of the date of this order. 18 19 20 IT IS SO ORDERED. Dated: May 25, 2017 ______________________________________ SUSAN ILLSTON United States District Judge 21 22 23 24 25 26 27 28 1 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. 2

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