Genentech, Inc. v. Trustees of the University of Pennsylvania

Filing 553

CORRECTION OF DOCKET # 552 ORDER by Judge Lucy H. Koh granting in part and denying in part 537 Motion to Shorten Time; granting in part and denying in part 540 Administrative Motion to File Under Seal; Denying as moot 549 Motion for Leave to File a Reply. Signed by Judge Lucy H. Koh on 4/11/12. (lhklc3, COURT STAFF) (Filed on 4/11/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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GENENTECH, INC.,
Plaintiff,

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v.
THE TRUSTEES OF THE UNIVERSITY OF
PENNSYLVANIA, a Pennsylvania non-profit
corporation,

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Defendant.

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Case No.: 10-CV-02037-LHK
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
SHORTEN TIME ON GENENTECH’S
MOTION TO STRIKE; AND
GRANTING IN PART MOTION TO
SEAL
(re: dkt. #s 537, 540, 549)

On April 2, 2012, Genentech filed a Motion to Strike Certain Testimony and Exhibits in

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the University of Pennsylvania’s (“U Penn”) Opposition to Genentech’s Motion for Summary

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Judgment (“MSJ”), Pursuant to Fed. R. Evid. 104, 402, 403, 602, and 702, and Fed. R. Civ. P. 26,

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37, and 56. ECF No. 536 (“Motion to Strike”). 1 The following day, Genentech filed a Motion to

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Shorten Time, seeking to expedite the briefing and hearing schedule on the Motion to Strike so that

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the Motion to Strike may be heard at the same time as the hearings on Genentech’s MSJ and the

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University’s Motion for Summary Adjudication (“MSA”), both set for April 19, 2012. See ECF

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No. 537 (“Motion to Shorten Time”). U Penn filed an Opposition to the Motion to Shorten Time

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on April 6, 2012, urging the Court not to consider Genentech’s Motion to Strike, which violates the

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requirement under Civil Local Rule 7-3(c) that all evidentiary and procedural objections be

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Genentech filed a Corrected Motion to Strike on April 4, 2012. ECF No. 541.

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Case No.: 10-cv-02037-LHK
ORDER GRANTING IN PART MOTION TO SHORTEN TIME ON MOTION TO STRIKE; AND GRANTING IN
PART MOTION TO SEAL

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contained within the reply brief, not to exceed 15 pages. See ECF No. 546; see also Civil L.R. 7-

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3(c).

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The parties’ adherence to the Federal and Local Rules is critical not only to the Court’s

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docket management but also to ensuring fairness to one another. As U Penn correctly notes, the

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Court does not take lightly violations of Civil L.R. 7-3(c) and ordinarily will not entertain untimely

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filed evidentiary or procedural objections. Nonetheless, Genentech’s Motion to Strike challenges

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portions of U Penn’s expert declarations, cited heavily in U Penn’s Opposition to Genentech’s

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MSJ, as lacking adequate scientific support. Because Genentech’s MSJ purports to be case

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dispositive, the Court agrees with Genentech that it is important to consider these allegations

United States District Court
For the Northern District of California

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concurrently with Genentech’s MSJ. Thus, the Court will allow limited briefing solely on

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Genentech’s Daubert motion, but not on its FRCP 26 motion. In light of the upcoming hearing

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date and the voluminous amount of briefing and exhibits that have already been submitted in

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connection with the MSJ and MSA, the Court sets the following briefing schedule and page limits

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on Genentech’s Motion to Strike: (1) U Penn’s Opposition to the Motion to Strike, not to exceed 10

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pages in length, is due Friday, April 13, 2012, at 5:00 p.m.; and (2) Genentech’s Reply, not to

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exceed 3 pages in length, is due Monday, April 16, 2012, at noon. The Parties’ briefs shall address

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only whether the challenged portions of U Penn’s expert declarations are sufficiently supported by

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scientific evidence in the record. The Parties may rely only on evidence already in the record and

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may not introduce any new exhibits. The Parties shall be prepared to address any questions

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regarding the Motion to Strike at the April 19, 2012 hearing on the MSJ and MSA, should oral

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argument on the Motion to Strike be necessary. 2

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Genentech also filed a Motion to File Under Seal Portions of Its Motion to Strike. ECF No.

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540 (“Motion to Seal”). Specifically, Genentech moves to file under seal: (1) excerpts from the

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deposition transcript of Jeffrey A. Drebin, M.D., Ph.D. (“Drebin Deposition”), attached as Exhibit

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A to the Declaration of Tashica T. Williams in Support of Genentech’s Motion to Strike

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(“Williams Decl.”), see Williams Decl. ISO Mot. to Strike, ECF No. 536-1, Ex. A; and (2) the

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In light of this Order, Genentech’s Motion for Leave to File a Reply in Support of Its Motion to
Shorten Time, ECF No. 549, filed April 10, 2012, is DENIED as moot.

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Case No.: 10-cv-02037-LHK
ORDER GRANTING IN PART MOTION TO SHORTEN TIME ON MOTION TO STRIKE; AND GRANTING IN
PART MOTION TO SEAL

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portions of the Motion to Strike that reference information from the Drebin Deposition, see Mot. to

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Strike at 15 & n.15. These materials were designated by U Penn as “Highly Confidential –

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Attorneys’ Eyes Only,” pursuant to the Protective Order in this action. Because Genentech does

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not seek to seal any of its own documents, it has filed neither a supporting declaration nor a

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narrowly tailored proposed sealing order.

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Pursuant to Civil Local Rule 79-5(d), when a party moves to seal documents designated as

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sealable by another party, the designating party must file a supporting declaration within 7 days, or

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the sealing motion will be denied. Although U Penn failed to file a supporting declaration within 7

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days, as required by the Local Rules, it filed the requisite declaration on April 10, 2012,

United States District Court
For the Northern District of California

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accompanied by a narrowly tailored proposed order. See ECF No. 547. Again, future

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noncompliance with the Local Rules may result in the Court’s striking of untimely filed documents

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sua sponte. Nonetheless, U Penn’s declaration requests only the sealing of portions of Genentech’s

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Motion to Strike that reference confidential statements made by Dr. Jeffrey Drebin regarding

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private compensation agreements between the inventors and U Penn, and does not request the

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sealing of the rest of Exhibit A to the Williams Declaration. Id. Because U Penn seeks to seal

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material in a non-dispositive motion, it need only show “good cause” rather than “compelling

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reasons” for nondisclosure of the information. See Kamakana v. City and Cnty. of Honolulu, 447

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F.3d 1172, 1180 (9th Cir. 2006). Here, U Penn has narrowly tailored its proposed redactions and

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has shown good cause to seal the material requested. Accordingly, Genentech’s Motion to Seal is

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GRANTED only as to the designated portions of Genentech’s Motion to Strike and pages 241:24-

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242:3 of Exhibit A to the Williams Declaration, but DENIED as to the remainder of Exhibit A to

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the Williams Declaration.

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IT IS SO ORDERED.

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Dated: April 11, 2012

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 10-cv-02037-LHK
ORDER GRANTING IN PART MOTION TO SHORTEN TIME ON MOTION TO STRIKE; AND GRANTING IN
PART MOTION TO SEAL