Nevro Corp v. Boston Scientific Corporation et al

Filing 101

ORDER by Judge Maria-Elena James granting 89 Administrative Motion to File Under Seal. (mejlc2S, COURT STAFF) (Filed on 5/17/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NEVRO CORP,

Case No. 16-cv-06830-VC (MEJ)

Plaintiff,
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ORDER RE: ADMINISTRATIVE
MOTION TO FILE UNDER SEAL

v.
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United States District Court
Northern District of California

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BOSTON SCIENTIFIC CORPORATION, et
al.,

Re: Dkt. No. 89

Defendants.

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On May 4, 2017, Plaintiff Nevro Corp. (“Nevro”) filed an administrative motion to file

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under seal portions of its and Defendants Boston Scientific Corporation and Boston Scientific

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Neuromodulation Corporation‟s (together, “BSC”) Joint Letter Brief and Proposed Order Granting

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Nevro‟s Motion (“Proposed Order”). Mot., Dkt. No. 89; Joint Letter, Dkt. No. 91. Having

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considered the parties‟ arguments, the record in this case, and the relevant legal authority, the

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Court GRANTS the 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) (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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This 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). Simply put, records attached to dispositive

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motions require the court to apply the compelling reasons standard, whereas records attached to

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non-dispositive motions require the court to apply the “good cause” standard. See id. at 678–79.
DISCUSSION

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United States District Court
Northern District of California

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The good cause standard applies to Nevro‟s Motion, as the Joint Letter and Proposed Order

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are non-dispositive motions. See Prolifiq Software Inc. v. Veeva Sys. Inc., 2014 WL 2527148, at

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*3 (N.D. Cal. June 4, 2014).

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Pursuant to Civil Local Rule 79-5(e), BSC submits the Declarations of Krista M. Carter

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and Rafael Carbunaru. Carter Decl., Dkt. No. 94; Carbunaru Decl., Dkt. No. 94-3. Carter declares

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the proposed redactions “comprise[] BSC‟s trade secrets and confidential information related to

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the development of new spinal cord stimulation („SCS‟) products and services.” Carter Decl. ¶ 2.

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Carbunaru, Vice President of Research and Development for Boston Scientific Neuromodulation

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Corporation, further explains the material to be redacted concerns trade secrets that “include
extremely sensitive information that is central to BSC‟s business” such as “prospective regulatory
plans[;] commercial plans and activities of potential future products”; and “research and
development plans and activities that may or may not result in a commercial product, or may or
may not result in a product commercially manufactured and sold in the U.S.” Carbunaru Decl. ¶
3. He declares that public disclosure of this information would place BSC “at a significant

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competitive disadvantage with respect to Nevro and other competitors because it would divulge
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the timing of certain planned regulatory and commercial activities that could unfairly allow the
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competitor[s] to alter their own regulatory and commercial plans in advance in order to unfairly
compete with BSC in the marketplace.” Id. ¶ 4.

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The Court finds the material BSC proposes to redact contains trade secrets entitled to

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protection, and BSC has shown particularized harm will result if the information is made public.

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See Phillips, 307 F.3d at 1210; Civ. L.R. 79-5(b). In addition, the proposed redactions are

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narrowly tailored and seal only sealable material. Civ. L.R. 79-5(b). Accordingly, the Court

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GRANTS the Motion.

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IT IS SO ORDERED.

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Dated: May 17, 2017
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

United States District Court
Northern District of California

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