Costco Wholesale Corporation v. Johnson & Johnson Vision Care Inc

Filing 73

ORDER by Judge Haywood S. Gilliam, Jr. Granting 68 Administrative Motion to File Under Seal. (ndr, COURT STAFF) (Filed on 5/18/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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COSTCO WHOLESALE CORPORATION,
et al.,
Plaintiffs,

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v.

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Case No. 15-cv-00941-HSG
ORDER GRANTING MOTION TO
SEAL
Re: Dkt. No. 68

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JOHNSON & JOHNSON VISION CARE
INC,

United States District Court
Northern District of California

Defendant.
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On May 4, 2015, Defendant Johnson & Johnson Vision Care, Inc. filed an administrative

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motion to file under seal portions of exhibit 1 to the declaration of William F. Cavanaugh, Jr.

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(“Exhibit”), on which Defendant’s pending motion to dismiss is based. See Dkt. 68. The time to

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file an opposition to the motion has passed.

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I.

LEGAL STANDARD

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“[A] ‘compelling reasons’ standard applies to most judicial records. This standard derives

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from the common law right ‘to inspect and copy public records and documents, including judicial

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records and documents.’” Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010)

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(quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 & n.7). “[A] ‘strong presumption in

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favor of access’ is the starting point.” Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172,

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

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Cir. 2003)). To overcome this strong presumption, the party seeking to seal a judicial record

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related to a dispositive motion must “articulate compelling reasons supported by specific factual

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findings that outweigh the general history of access and the public policies favoring disclosure,

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such as the public interest in understanding the judicial process” and “significant public events.”

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Id. at 1178-79 (internal citations, quotation marks, and alterations omitted). “In general,

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‘compelling reasons’ sufficient to outweigh the public’s interest in disclosure and justify sealing

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court records exist when such ‘court files might have become a vehicle for improper purposes,’

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such as the use of records to gratify private spite, promote public scandal, circulate libelous

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statements, or release trade secrets.” Id. at 1179 (citing Nixon, 435 U.S. at 598). “The mere fact

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that the production of records may lead to a litigant’s embarrassment, incrimination, or exposure

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to further litigation will not, without more, compel the court to seal its records.” Id.
The court must “balance the competing interests of the public and the party who seeks to

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keep certain judicial records secret. After considering these interests, if the court decides to seal

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certain judicial records, it must base it decision on a compelling reason and articulate the factual

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basis for its ruling, without relying on hypothesis or conjecture.” Id. at 1179. Civil Local Rule

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United States District Court
Northern District of California

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79-5 supplements the compelling reasons standard set forth in Kamakana: the party seeking to file

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a document or portions of it under seal must “establish[] that the document, or portions thereof,

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are privileged, protectable as a trade secret or otherwise entitled to protection under the law. . . .

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The request must be narrowly tailored to seek sealing only of sealable material.” Civil L.R. 79-

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5(b).

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Records attached to nondispositive motions are not subject to the strong presumption of

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access. See Kamakana, 447 F.3d at 1179. Because the documents attached to nondispositive

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motions “are often unrelated, or only tangentially related, to the underlying cause of action,”

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parties moving to seal must meet the lower “good cause” standard of Rule 26(c) of the Federal

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Rules of Civil Procedure. Id. at 1179–80 (internal quotation marks omitted). The “good cause”

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standard requires a “particularized showing” that “specific prejudice or harm will result” if the

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information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206,

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1210–11 (9th Cir. 2002) (internal quotation marks omitted); see Fed. R. Civ. P. 26(c). “Broad

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allegations of harm, unsubstantiated by specific examples of articulated reasoning” will not

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suffice. Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992).

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Motions to dismiss are typically treated as dispositive. In re PPA Prods. Liability Litig.,

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460 F.3d 1217, 1231 (9th Cir. 2006). Therefore, the Court applies the “compelling reasons”

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standard to Defendant’s request file the Exhibit partially under seal.
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II.

DISCUSSION
In its motion to seal, Defendant argues that the “compelling reasons” standard is met here

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because the portions of the Exhibit sought to be sealed contain information related to specific

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pricing terms in a Qualified Retail Account Agreement, and that disclosure of such terms could

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“damage [Defendant’s] business” and “seriously injure” Defendant’s ability to negotiate

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agreements with other parties. See Dkt. Nos. 68 at 3, 68-2 ¶ 3.

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The Court agrees that the redacted portions of the Exhibit contain sensitive pricing

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information, disclosure of which could cause Defendant competitive harm. See In re Elec. Arts,

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Inc., 298 F. App’x 568, 569 (9th Cir. 2008) (holding that district court erred as a matter of law
when it denied motion to file under seal a licensing agreement containing “pricing terms, royalty

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United States District Court
Northern District of California

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rates, and guaranteed minimum payment terms”). The Court further finds that Defendant’s

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proposed redaction is “narrowly tailored” to seal only sealable material, as required by Civil Local

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Rule 79-5. The Court therefore GRANTS the motion.

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IT IS SO ORDERED.
Dated: 5/18/2015
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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