Amgen Inc. et al v. Sandoz Inc. et al

Filing 232

ORDER by Judge Maria-Elena James granting 227 Administrative Motion to File Under Seal. (mejlc2S, COURT STAFF) (Filed on 4/18/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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AMGEN INC., ET AL.,

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Case No. 14-cv-04741-RS (MEJ)

Plaintiffs,
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ORDER RE: MOTION TO FILE UNDER
SEAL

v.
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Re: Dkt. No. 227

SANDOZ INC., et al.,

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Defendants.

United States District Court
Northern District of California

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INTRODUCTION

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On April 13, 2017, Plaintiffs Amgen Inc. and Amgen Manufacturing, Ltd. (collectively,

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“Amgen”) move to file under seal Exhibit A to the Maniscalco Declaration in Support of Amgen’s

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Motion for Leave to Amend Infringement Contentions. Sealing Mot., Dkt. No. 227; Maniscalco

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Decl., Ex. A, Dkt. No. 226-1. In support of Amgen’s Motion, Maniscalco declares Defendant

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Sandoz1 designated Exhibit A as “Highly Confidential – BLA Material” pursuant to the parties’

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protective order. Maniscalco Sealing Decl. ¶ 2, Dkt. No. 227-1; Protective Order, Dkt. No. 60.

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Having considered the parties’ arguments and the relevant legal authority, the Court GRANTS

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Amgen’s Motion for the following reasons.
LEGAL STANDARD

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There is a “strong presumption in favor of access” by the public to judicial records and

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documents accompanying dispositive motions. Kamakana v. City & Cty. of Honolulu, 447 F.3d

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1172, 1178-79 (9th Cir. 2006) (citing Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135

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(9th Cir. 2003)). To overcome this presumption, a “party must articulate compelling reasons

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Amgen does not specify whether “Sandoz” refers to Sandoz Inc., Sandoz International GmbH, or
Sandoz GmbH.

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supported by specific fact[s].” Id. at 1178 (internal quotation and citation omitted); see also

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Apple, Inc. v. Samsung Elecs. Co., 727 F.3d 1214, 1223 (Fed. Cir. 2013) (finding sealing

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appropriate where companies “filed declarations from employees” that “explained the measures

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the two companies take to keep their product-specific financial information confidential” and “the

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harm they would suffer if their product-specific financial information were made public”).

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Indeed, such showing is required even where “the dispositive motion, or its attachments, were

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previously filed under seal or protective order.” Kamakana, 447 F.3d at 1179.

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But the presumption does not apply in the same way to non-dispositive motions, “such that
the usual presumption of the public’s right of access is rebutted.” Id. (citing Phillips v. General

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Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002). “Good cause” is the proper standard when

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United States District Court
Northern District of California

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parties wish to keep records attached to a non-dispositive motion under seal. Pintos v. Pac.

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Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010).
DISCUSSION

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Where a party seeks to file under seal any material designated as confidential by another

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party, the submitting party must request a sealing order. See Civil L.R. 79-5(d)-(e). “Within 4

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days of the filing of the Administrative Motion to File Under Seal, the Designating Party must file

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a declaration . . . establishing that all of the designated information is sealable.” Id. at 79-5(e)(1).

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“If the Designating Party does not file a responsive declaration as required by subsection 79-

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5(e)(1) and the Administrative Motion to File Under Seal is denied, the Submitting Party may file
the document in the public record no earlier than 4 days, and no later than 10 days, after the
motion is denied.” Id. at 79-5(e)(2).
Pursuant to Rule 79-5(e)(1), Josephine Liu, Head of U.S. Intellectual Property at Sandoz
Inc., submitted a declaration supporting Sandoz’s confidentiality designations. Liu Decl., Dkt.
No. 229. Liu explains Exhibit A “contains confidential information concerning Sandoz’s
manufacturing and purification processes for Zarxio, Sandoz’s biosimilar filgrastim product.” Id.
¶ 2. She contends Sandoz’s competitors could use this information to Sandoz’s disadvantage;
Sandoz accordingly takes “careful measures” to ensure that it is not disclosed to the public so as to
avoid substantial harm. Id. Sandoz demonstrates good cause for sealing Exhibit A to Amgen’s
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nondispositive motion, and the Court finds Exhibit A is sealable. “[C]ourts have refused to permit

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their files to serve . . . as sources of business information that might harm a litigants competitive

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standing[.]” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978) (internal citations

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omitted). Accordingly, the Court GRANTS Amgen’s Motion.

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IT IS SO ORDERED.

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Dated: April 18, 2017
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

United States District Court
Northern District of California

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