Hologic, Inc. et al v. SenoRx, Inc

Filing 536

Order by Hon. Ronald M. Whyte granting in part and denying in part 530 Administrative Motion to File Under Seal (rmwlc1S, COURT STAFF) (Filed on 2/7/2013)

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1 2 3 4 E-FILED on 2/7/13 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 10 United States District Court For the Northern District of California 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 SAN JOSE DIVISION 12 13 HOLOGIC, INC. CYTYC CORPORATION and HOLOGIC L.P., No. C-08-0133 RMW 14 Plaintiffs, 18 ORDER DENYING-IN-PART AND GRANTING-IN-PART PLAINTIFFS' ADMINISTRATIVE MOTION TO FILE UNDER SEAL PORTIONS OF PLAINTIFFS' OPPOSITION AND EXHIBITS IN SUPPORT OF OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 19 [Re: Dkt. No. 530] 15 v. 16 SENORX, INC., 17 Defendant. 20 21 22 Plaintiffs moved to file under seal portions of plaintiffs' opposition and exhibits to the 23 Declaration of Maulik Shah in support of plaintiffs' opposition to defendant's motion for summary 24 judgment. 25 Exhibits 5, 6, 7, and 12: Having reviewed the entirety of Exhibits 5, 6, 7, and 12 the court 26 finds nothing contained therein that is in fact "privileged or protectable as a trade secret or otherwise 27 entitled to protection under the law." Civ. L.R. 79-5(a). Pursuant to the local rule, "[a] stipulation, 28 ORDER DENYING-IN-PART AND GRANTING-IN-PART PLAINTIFFS' ADMINISTRATIVE MOTION TO FILE UNDER SEAL PORTIONS OF PLAINTIFFS' OPPOSITION AND EXHIBITS IN SUPPORT OF OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT—No. C-08-0133 RMW ALG 1 or a blanket protective order that allows a party to designate documents as sealable, will not suffice 2 to allow the filing of documents under seal" for that reason alone. The court does not agree with 3 SenoRx, see Dkt. No. 534, that Dr. Arthur's deposition testimony, expert report, or supplemental 4 expert report contain any confidential business information. Further, the court disagrees with 5 SenoRx, see Dkt. No. 534, that the excerpt from the deposition of Padraic O'Brien, which pertains 6 primarily to secondary considerations of non-obviousness, particularly long felt need in the industry, 7 contains any confidential or proprietary information. Accordingly, the court DENIES plaintiffs' 8 sealing motion with respect to Exhibits 5-7 and 12 to the Declaration of Maulik Shah in support 9 of plaintiffs' opposition, with leave to re-file if any particular lines of these exhibits contain trade United States District Court For the Northern District of California 10 11 secrets or otherwise privileged or legally protectable information. Exhibit 9: Having reviewed the designated portions of Exhibit 9 the court finds nothing 12 contained therein that is in fact "privileged or protectable as a trade secret or otherwise entitled to 13 protection under the law." Civ. L.R. 79-5(a). Pursuant to the local rule, "[a] stipulation, or a blanket 14 protective order that allows a party to designate documents as sealable, will not suffice to allow the 15 filing of documents under seal" for that reason alone. The court does not agree with SenoRx, see 16 Dkt. No. 534, that the designated portions of Dr. Beron's expert report contain any confidential 17 business information. 18 Plaintiffs additionally designated paragraphs 56 and 57 of Exhibit 9 as "internal competitive 19 information of Hologic." Again, the court disagrees that these paragraphs contain privileged or 20 otherwise legally protectable information. These statements go toward demonstrating a "long-felt, 21 but unmet need for the claimed invention," and the content thereof appears to be public information. 22 See, e.g., U.S. Patent 6,482,142 col.2 ll.44-53. Accordingly, the court DENIES plaintiffs' sealing 23 motion with respect to all designated portions of Exhibit 9, with leave to re-file if the parties can 24 identify why any of this information is, in fact, legally protectable. 25 Exhibit 21: Exhibit 21 is a written opinion from SenoRx's attorney to SenoRx, which is 26 privileged attorney work product and thus sealable. Civ. L.R. 79-5(a). Accordingly, the court 27 GRANTS plaintiffs' motion to seal Exhibit 21. 28 ORDER DENYING-IN-PART AND GRANTING-IN-PART PLAINTIFFS' ADMINISTRATIVE MOTION TO FILE UNDER SEAL PORTIONS OF PLAINTIFFS' OPPOSITION AND EXHIBITS IN SUPPORT OF OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT—No. C-08-0133 RMW ALG 2 1 2 DATED: February 7, 2013 3 RONALD M. WHYTE United States District Judge 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER DENYING-IN-PART AND GRANTING-IN-PART PLAINTIFFS' ADMINISTRATIVE MOTION TO FILE UNDER SEAL PORTIONS OF PLAINTIFFS' OPPOSITION AND EXHIBITS IN SUPPORT OF OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT—No. C-08-0133 RMW ALG 3

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