Nevro Corp v. Boston Scientific Corporation et al

Filing 294

ORDER TO SHOW CAUSE; ORDER RE MOTION FOR STAY, MOTION FOR LEAVE TO FILE MOTION FOR PARTIAL RECONSIDERATION, MOTION FOR PARTIAL RECONSIDERATION OF DECEMBER 20, 2017 SEALING ORDER, AND ADMINISTRATIVE MOTION TO SEAL by Judge Chhabria denying 255 Motion to Stay; denying 262 Administrative Motion to File Under Seal. (vclc2S, COURT STAFF) (Filed on 2/15/2018)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

NEVRO CORP,
Plaintiff,
v.
BOSTON SCIENTIFIC CORPORATION,
et al.,
Defendants.

Case No. 16-cv-06830-VC
ORDER TO SHOW CAUSE; ORDER RE
MOTION FOR STAY, MOTION FOR
LEAVE TO FILE MOTION FOR
PARTIAL RECONSIDERATION,
MOTION FOR PARTIAL
RECONSIDERATION OF DECEMBER
20, 2017 SEALING ORDER, AND
ADMINISTRATIVE MOTION TO SEAL
Re: Dkt. Nos. 255, 262

On November 2, 2017, the Boston Scientific defendants moved to amend their answer to
add state-law counterclaims against Nevro Corp. In connection with this motion, Boston
Scientific attempted to seal portions of its proposed counterclaims, portions of Nevro's
opposition, and a number of exhibits supporting Nevro's opposition. Dkt. Nos. 192, 209. On
December 20, 2017, this Court denied the motion for leave to amend. Dkt. No. 247. The related
motions to file documents under seal were also denied in full because Boston Scientific had not
shown compelling reasons to seal any of the information it proposed to seal and its requests were
frivolously overbroad.
Boston Scientific has moved for leave to file a motion for partial reconsideration of the
decision denying the motions to file documents under seal. That request is granted, and the
Court now considers the motion for partial reconsideration. That motion is denied, because
Boston Scientific has again requested to seal information without a legitimate basis. Most
egregiously, Boston Scientific has requested that the Court seal parts of an email that could
constitute evidence that Boston Scientific intended to copy Nevro's technologies (as well as the

technologies of other companies). Rafael Carbunaru, a Vice President of Research and
Development at Boston Scientific, wrote that another employee thought Boston Scientific's
"clinical research is short term focused (marketing and sales claims), or essentially me-too
approaches (DBS), but not innovative in nature." "That is why," Carbunaru continued, "we will
need to copy or acquire approaches developed by others (Nevro, Spinal Modulation,
Neurosigma, etc)." Dkt. 202-8 at 2; see also Dkt. No. 255-5 at 3. Now Carbunaru has submitted
a declaration in which he asserts that Boston Scientific "considers this information to be its trade
secrets." Dkt. No. 255-3 at ¶ 4. He characterizes the statement Boston Scientific wants to seal as
a discussion of "BSC’s strategies for developing new technologies to add to BSC’s stable of
products in order to remain competitive in the market, as well as [a discussion of] BSC’s
business development efforts for producing innovative products." Id. But it is obvious that
Boston Scientific actually wants to seal this information because the company is concerned that
the statement creates the impression that Boston Scientific was acting improperly. Without
opining on whether this email actually constitutes evidence that Boston Scientific did anything
improper, what's clear is that the document cannot be filed under seal simply because it might
suggest that possibility. It's this sort of misuse of the sealing process that allowed the church
abuse scandal to remain hidden for so long. See Gregg Costa, Federal Appellate Judge: Too
Many Sealed Documents, National Law Journal, Feb. 15, 2016.
There are a number of other proposed redactions that lack justification. For example,
Boston Scientific also requests that the Court keep under seal a discussion of technical
information in another internal Boston Scientific email because the "redactions cover detailed
discussions regarding the exact technical specifications and design of BSC’s non-public products
in development." Dkt. No. 255-3 at ¶ 5. But the proposed redactions actually cover a number of
discussions regarding Nevro's products, and Nevro does not want that material to be redacted.
Dkt. No. 202-10 at 2-4; see also Dkt. No. 255-6 at 3-5. Boston Scientific does not explain how
the technical details of Nevro's products could possibly be Boston Scientific's confidential
information, or how the disclosure of this information could unfairly prejudice Boston Scientific.

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For the same reasons, the motion to seal portions of Nevro's opposition to this set of motions is
also denied.
The Clerk of the Court is ordered to unseal the following docket entries: 192-4, 192-6,
202-4, 202-6, 202-8, 202-10, 202-12, 202-14, 202-16, 202-18, 202-20, 202-22, 202-24, 202-26,
and 262-4.
All lawyers for the Boston Scientific defendants involved in the sealing requests and the
motion for reconsideration are ordered to show cause why they should not each be sanctioned
$500 for their frivolous and vexatious conduct. Each lawyer involved must file a separate brief
responding to this order to show cause by no later than February 20, 2018, at 10:00 a.m.
IT IS SO ORDERED.
Dated: February 15, 2018
______________________________________
VINCE CHHABRIA
United States District Judge

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