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

Filing 239

ORDER by Judge Maria-Elena James granting 235 Administrative Motion to File Under Seal. (mejlc2S, COURT STAFF) (Filed on 5/4/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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AMGEN INC., ET AL.,

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

Plaintiffs,
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ORDER RE: ADMINISTRATIVE
MOTION TO FILE UNDER SEAL

v.
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SANDOZ INC., et al.,

Re: Dkt. No. 235

Defendants.

United States District Court
Northern District of California

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On April 28, 2017, Sandoz GmbH, Sandoz Inc., Sandoz International GmbH (collectively,

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“Sandoz”) filed an administrative motion to file under seal portions of a joint discovery letter and

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the exhibits attached thereto. Mot., Dkt. No. 235; Jt. Ltr., Dkt. No. 236. Sandoz seeks to file

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portions of the Joint Letter that contain information that Sandoz and Plaintiffs Amgen Inc. and

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Amgen Manufacturing, Ltd. (collectively, “Amgen”) designated as confidential. Having

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considered the parties’ positions and the relevant legal authority, the Court GRANTS Sandoz’s

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Motion.

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LEGAL STANDARD
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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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) (sealing appropriate

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

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

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

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showing is required even where “the dispositive motion, or its attachments, were previously filed

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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

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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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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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The good cause standard applies to the parties’ non-dispositive Joint Letter. See Welle v.

United States District Court
Northern District of California

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Provident Life & Accident Ins. Co., 2013 WL 6055369, at *2 (N.D. Cal. Nov. 14, 2013). To

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demonstrate good cause exists to seal portions of the Joint Letter, Sandoz submits the Declaration

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of Josephine Liu, and Amgen submits the Declaration of Kimberlin L. Morley. Liu Decl., Dkt.

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No. 235-1; Morley Decl., Dkt. No. 238).

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Liu, Head of U.S. Intellectual Property Litigation at Sandoz Inc., explains that the portions

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of the Joint Letter sought to be sealed contain confidential information regarding Sandoz’s

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manufacturing and purification processes for Zarxio. Liu Decl. ¶ 2. Morley, Senior Counsel in

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Amgen Inc.’s Intellectual Property & Litigation group, avers the Joint Letter contains information

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about Amgen’s manufacturing and purification processes for Neupogen, its filgrastim product.

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Morley Decl. ¶ 2. The information regarding Zarxio and Neupogen has been designated “Highly

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Confidential – BLA Material” pursuant to the parties’ protective order. Liu Decl. ¶ 2; Morley

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Decl. ¶ 2; see Protective Order, Dkt. No. 60. If this information were to be made public, Sandoz’s

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and Amgen’s competitors could use it to each party’s disadvantage, causing them to suffer

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substantial harm. Id. (both).

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Sandoz and Amgen demonstrate good cause for sealing portions of the Joint Letter. See
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978) (“[C]ourts have refused to permit their
files to serve . . . as sources of business information that might harm a litigant’s competitive
standing[.]”); In re Google Inc. Gmail Litig., 2014 WL 10537440, at *4 (N.D. Cal. Aug. 6, 2014)
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(material that, if disclosed, would cause litigant competitive harm is sealable under either good

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cause or compelling reasons standards). Moreover, the proposed redactions are narrowly tailored

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and seek to seal only confidential information. See Civ. L.R. 79-5(b).

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For the foregoing reasons, the Court GRANTS Sandoz’s Motion to File under Seal.

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IT IS SO ORDERED.

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Dated: May 4, 2017
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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United States District Court
Northern District of California

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