Abaxis, Inc. v. Cepheid

Filing 203

ORDER by Judge Lucy H. Koh denying 127 Administrative Motion to File Under Seal; denying 163 Administrative Motion to File Under Seal; denying 168 Administrative Motion to File Under Seal; denying 169 Administrative Motion to File Under Seal; granting in part and denying in part 176 Administrative Motion to File Under Seal; denying 180 Administrative Motion to File Under Seal; denying 182 Administrative Motion to File Under Seal; denying 184 Administrative Motion to File Under Seal (lhklc4, COURT STAFF) (Filed on 8/8/2012)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION United States District Court For the Northern District of California 10 11 12 13 14 15 ABAXIS, INC., Plaintiff, v. CEPHEID, Defendant. ) ) ) ) ) ) ) ) ) Case No.: 10-CV-2840-LHK ORDER GRANTING AND DENYING ADMINISTRATIVE MOTIONS TO SEAL 16 Before the Court are administrative motions to seal related to Cepheid’s motion for 17 summary judgment, Abaxis’s Daubert motion, Abaxis’s motion for relief from Magistrate Judge 18 Lloyd’s non-dispositive pretrial order, and the parties’ July 27, 2012 joint case management 19 statement (“Sealing Motions”). See Dkt. Nos. 127, 163, 168, 169, 176, 180, 182, 184. 20 Historically, courts have recognized a “general right to inspect and copy public records and 21 documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 22 589, 597 & n. 7 (1978). Unless a particular court record is one “traditionally kept secret,” a “strong 23 presumption in favor of access” is the starting point. Foltz v. State Farm Mutual Auto. Insurance 24 Company, 331 F.3d 1122, 1135 (9th Cir. 2003). A party seeking to seal a judicial record then bears 25 the burden of overcoming this strong presumption by meeting the “compelling reasons” standard. 26 Id. at 1135. That is, the party must “articulate[ ] compelling reasons supported by specific factual 27 findings,” id. (citing San Jose Mercury News, Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1102-03 (9th 28 1 Case No.: 10-CV-2840-LHK ORDER GRANTING AND DENYING ADMINISTRATIVE MOTIONS TO SEAL 1 Cir. 1999)), that outweigh the general history of access and the public policies favoring disclosure, 2 such as the “ ‘public interest in understanding the judicial process.’ ” Hagestad, 49 F.3d at 1434 3 (quoting EEOC v. Erection Co., 900 F.2d 168, 170 (9th Cir. 1990)). 4 The Ninth Circuit has explained that the “strong presumption of access to judicial records 5 applies fully to dispositive pleadings, including motions for summary judgment and related 6 attachments” because “the resolution of a dispute on the merits, whether by trial or summary 7 judgment, is at the heart of the interest in ensuring the “public’s understanding of the judicial 8 process and of significant public events.” Kamakana v. City and County of Honolulu, 447 F.3d 9 1172, 1177 (9th Cir. 2006). The Ninth Circuit has carved out an exception to the strong United States District Court For the Northern District of California 10 presumption of openness for pre-trial, non-dispositive motions. The Ninth Circuit applies a “good 11 cause” showing to keep sealed records attached to non-dispositive motions. Id. at 1180. Thus the 12 Court applies a two tiered approach: “judicial records attached to dispositive motions [are treated] 13 differently from records attached to non-dispositive motions. Those who seek to maintain the 14 secrecy of documents attached to dispositive motions must meet the high threshold of showing that 15 ‘compelling reasons’ support secrecy” while a showing of good cause will suffice at earlier stages 16 of litigation. Id. 17 As Judge Alsup explained in Oracle America v. Google, Inc., 10-CV-03561-WHA, at ECF 18 No. 540, “The United States district court is a public institution, and the workings of litigation must 19 be open to public view. Pretrial submissions are a part of trial.” Accordingly, Judge Alsup advised 20 counsel that “unless they identify a limited amount of exceptionally sensitive information that truly 21 deserves protection, the motions will be denied outright.” Id. 22 I. Sealing Motions related to Cepheid’s motion for summary judgment 23 Abaxis seeks to seal a broad swath of material related to Cepheid's motion for summary 24 judgment. This material includes seventeen full exhibits submitted by Cepheid in support of its 25 motion for summary judgment (see Dkt. No. 174), ten full exhibits submitted by Abaxis in its 26 opposition to Cepheid's motion (see Dkt. No. 180), and one full exhibit submitted by Cepheid in 27 28 2 Case No.: 10-CV-2840-LHK ORDER GRANTING AND DENYING ADMINISTRATIVE MOTIONS TO SEAL 1 support of its reply to Abaxis's opposition (see Dkt. No. 187), as well as portions of the briefing 2 that quote from, refer to, or otherwise rely on these exhibits. See Dkt. Nos. 174, 180, and 187. 3 In light of the Ninth Circuit’s admonition in Kamakana regarding the presumption of openness and the high burden placed on sealing documents at this late, merits stage of the 5 litigation, it appears that Abaxis has overdesignated confidential documents and is seeking to seal 6 information that is not truly sealable under the “compelling reasons” standard. Particularly glaring 7 sealing excesses include deposition testimony that an event “was in the public,” and deposition 8 testimony as to the formula for calculating the volume of a sphere. See Dkt. 174, Ex. A at 4; id., 9 Ex. A at 20 n.10. Furthermore, Abaxis has provided only general assertions that the entirety of the 10 United States District Court For the Northern District of California 4 designated material contains confidential business information of Abaxis or third parties. See Dkt. 11 Nos. 174, 180, and 187. Accordingly, the sealing motions related to Cepheid’s motion for 12 summary judgment, Dkt. Nos. 169, 180, and 184, are DENIED without prejudice. 13 II. Sealing Motions related to Abaxis’s Daubert motion 14 Both parties seek to seal material related to Abaxis’s Daubert motion to exclude testimony 15 of Cepheid’s expert Dr. Williams. See Dkt. Nos. 169, 180, 184. These Daubert Sealing Motions 16 have a more limited scope than the Sealing Motions related to Cepheid’s motion for summary 17 judgment, and the Court addresses the Daubert Sealing Motions in greater detail in an attempt to 18 provide the parties with further guidance. 19 A. Motion to seal Abaxis’s Daubert motion 20 Abaxis filed an administrative motion to seal exhibits Exs. 3-6 of the Rodriguez Declaration 21 in support of Abaxis’s Daubert motion, and to seal portions of Abaxis’s brief that quote from, cite 22 to, or otherwise rely on these exhibits. See Dkt. No. 168. These exhibits were designated 23 confidential by Cepheid. See id. However, Cepheid states that Ex. 3 and Ex. 6, Dr. Williams’ 24 expert reports, are confidential only to the extent that these reports refer to Abaxis’s own 25 confidential information. See Dkt. No. 175. Consequently, if Abaxis seeks to seal any portion of 26 these expert reports, Abaxis must submit a narrowly tailored motion including proposed redactions. 27 Ex. 4 contains deposition testimony, portions of which may relate to Cepheid’s trade secret 28 3 Case No.: 10-CV-2840-LHK ORDER GRANTING AND DENYING ADMINISTRATIVE MOTIONS TO SEAL 1 technology. However, the Court notes that the most relevant portion of the testimony simply states 2 that IVEK pumps are thirty year old technology that “[e]verybody in the industry uses,” which is 3 not sealable trade secret information. Further, the Court finds that the resume of third party Mr. 4 Chang, a current Cepheid employee, Ex. 5, is not sealable under the “compelling reasons” 5 standard. Accordingly, the Court DENIES without prejudice the motion to seal portions of 6 Abaxis’s Daubert motion and related exhibits because this sealing motion has not identified “a 7 limited amount of exceptionally sensitive information,” See Oracle America, 10-CV-03561-WHA, 8 at ECF No. 540; Dkt. No. 168. 9 B. Motion to seal Cepheid’s Daubert opposition United States District Court For the Northern District of California 10 Cepheid filed an administrative motion to seal Exs. A and K of the Carlson Declaration in 11 support of Cepheid’s Daubert opposition, and to seal portions of Cepheid’s brief that quote from, 12 cite to, or otherwise rely on these exhibits. See Dkt. No. 176. Abaxis had previously designated 13 these exhibits confidential. See id. However, Abaxis’s declaration in support of this sealing 14 motion de-designates Ex. A, and seeks to redact only a narrowly tailored portion of the second 15 exhibit, Ex. K, which discusses Abaxis’s technical trade secret information. See Dkt. No. 181. 16 Furthermore, Abaxis does not seek to redact any portion of Cepheid’s opposition brief. See id. 17 Accordingly, the Court GRANTS Cepheid’s administrative motion to seal Cepheid’s Opposition, 18 as limited in Abaxis’s supporting declaration and proposed order. See Dkt. No. 181. 19 C. Motion to seal Cepheid’s Daubert reply 20 Abaxis filed an administrative motion to seal portions of its Daubert reply that relate to Ex. 21 3 of the Rodriguez Declaration filed in support of Abaxis’s Daubert motion. See Dkt. No. 182. 22 Abaxis seeks to seal the reply passages related to Ex. 3 on the grounds that Cepheid designated Ex. 23 3 confidential. Id. These passages include potentially confidential information relating to Abaxis’s 24 commercial agreements with third parties, and likely non-confidential information such as Dr. 25 William’s opinions as to the scope of prior art patents. Id. Cepheid has not filed a supporting 26 declaration as required by Civil Local Rule 79-5(d). However, Cepheid has previously declared 27 that Ex. 3, Dr. Williams’ opening expert report, is confidential only to the extent that the report 28 4 Case No.: 10-CV-2840-LHK ORDER GRANTING AND DENYING ADMINISTRATIVE MOTIONS TO SEAL 1 refers to confidential Abaxis information. See Dkt. No. 175 (Cepheid’s 79-5(d) declaration in 2 support of Abaxis’s motion to seal Abaxis’s Daubert motion). As the Court explained in ruling on 3 Abaxis’s motion to seal Abaxis’s Daubert motion, if Abaxis seeks to seal trade secrets contained in 4 any portion of Dr. William’s expert report or the related Daubert briefing, Abaxis must submit a 5 narrowly tailored motion. Accordingly, the Court DENIES without prejudice Abaxis’s 6 administrative motion to seal portions of its Daubert reply brief. 7 III. Motion to file under seal portions of Abaxis’ motion for relief from Magistrate Judge 8 Lloyd’s non-dispositive pretrial Order 9 Abaxis filed an administrative motion to seal portions of its motion for relief that discuss United States District Court For the Northern District of California 10 evidence that Cepheid had designated confidential. See Dkt. No. 163. Cepheid’s supporting 11 declaration limited the requested sealing to only a single sentence. See Dkt. No. 164. The Court 12 DENIES this motion to seal with prejudice because it appears the purportedly confidential material 13 has since been discussed in open court. See Dkt. No. 201 at 84:14-22. 14 IV. Motion to file under seal portions of the parties’ February 27, 2012 joint case 15 management statement 16 Cepheid seeks to seal a single sentence in the parties’ February 27, 2012 joint case 17 management statement. See Dkt. Nos. 127 and 132. This sentence does not appear to contain any 18 information that is not readily apparent in the surrounding paragraph. Accordingly, the Court 19 DENIES with prejudice the administrative motion to seal the joint case management statement. 20 V. Conclusion 21 The Court DENIES without prejudice the Sealing Motions related to Cepheid’s motion for 22 summary judgment. See Dkt. Nos. 169, 180, and 184. The Court DENIES without prejudice the 23 Sealing Motions related to Abaxis’s Daubert motion and Daubert reply. See Dkt. No. 168 and 24 182. The Court GRANTS Cepheid’s motion to seal portions of its Daubert opposition, as limited 25 in Abaxis’s supporting declaration. See Dkt. Nos. 176 and 181. The Court DENIES with prejudice 26 Abaxis’s motion to file under seal portions of its motion for relief. See Dkt. No. 163. The Court 27 28 5 Case No.: 10-CV-2840-LHK ORDER GRANTING AND DENYING ADMINISTRATIVE MOTIONS TO SEAL 1 DENIES with prejudice the administrative motion to seal portions of the February 27, 2012 joint 2 case management statement. See Dkt. No. 127. 3 The parties may file renewed motions to seal within one week of the date of this Order. 4 However, the parties are ORDERED to carefully scrutinize the documents they seek to seal. At this 5 stage of the proceedings, the presumption of openness will apply to all documents and only 6 documents of exceptionally sensitive information that truly deserve protection will be allowed to 7 be redacted or kept from the public. Nearly all of the documents which met the lower, “good 8 cause” standard do not meet the higher, “compelling reasons” standard for trial. 9 IT IS SO ORDERED. United States District Court For the Northern District of California 10 11 12 Dated: August 8, 2012 _________________________________ LUCY H. KOH United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Case No.: 10-CV-2840-LHK ORDER GRANTING AND DENYING ADMINISTRATIVE MOTIONS TO SEAL

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