Gilead Sciences, Inc. v. Merck & Co, Inc. et al

Filing 132

ORDER RE: MOTION TO SEAL by Magistrate Judge Paul Singh Grewal granting-in-part 124 (psglc2S, COURT STAFF) (Filed on 4/17/2015)

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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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GILEAD SCIENCES, INC.,
Plaintiff,

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v.

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MERCK & CO., INC., et al.,
Defendants.

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Case No. 5:13-cv-04057-BLF
ORDER RE: MOTION TO SEAL
(Re: Docket No. 124)

Before the court is an administrative motion to seal two documents. “Historically, courts
have recognized a ‘general right to inspect and copy public records and documents, including
judicial records and documents.’” 1 Accordingly, when considering a sealing request, “a ‘strong

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presumption in favor of access’ is the starting point.” 2 Parties seeking to seal judicial records

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relating to dispositive motions bear the burden of overcoming the presumption with “compelling

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reasons” that outweigh the general history of access and the public policies favoring disclosure. 3

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However, “while protecting the public's interest in access to the courts, we must remain

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mindful of the parties' right to access those same courts upon terms which will not unduly harm

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Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v.
Warner Commc’ns, Inc., 435 U.S. 589, 597 & n. 7 (1978)).
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Id. (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)).

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Id. at 1178-79.

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Case Nos. 5:13-cv-04057-BLF
ORDER RE: MOTION TO SEAL

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their competitive interest.” 4 Records attached to nondispositive motions therefore are not subject

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to the strong presumption of access. 5 Because the documents attached to nondispositive motions

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“are often unrelated, or only tangentially related, to the underlying cause of action,” parties moving

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to seal must meet the lower “good cause” standard of Rule 26(c). 6 As with dispositive motions, the

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standard applicable to nondispositive motions requires a “particularized showing” 7 that “specific

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prejudice or harm will result” if the information is disclosed. 8 “Broad allegations of harm,
unsubstantiated by specific examples of articulated reasoning” will not suffice. 9 A protective order
sealing the documents during discovery may reflect the court’s previous determination that good

United States District Court
For the Northern District of California

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cause exists to keep the documents sealed, 10 but a blanket protective order that allows the parties to

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designate confidential documents does not provide sufficient judicial scrutiny to determine whether

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each particular document should remain sealed. 11

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In addition to making particularized showings of good cause, parties moving to seal

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documents must comply with the procedures established by Civ. L.R. 79-5. Pursuant to
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Civ. L.R. 79-5(b), a sealing order is appropriate only upon a request that establishes the document

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is “sealable,” or “privileged or protectable as a trade secret or otherwise entitled to protection under

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the law.” “The request must be narrowly tailored to seek sealing only of sealable material, and

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Apple Inc. v. Samsung Electronics Co., Ltd., 727 F.3d 1214, 1228-29 (Fed. Cir. 2013).

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See id. at 1180.

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Id. at 1179 (internal quotations and citations omitted).

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Id.

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Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002);
see Fed. R. Civ. P. 26(c).
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Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992).

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See Kamakana, 447 F.3d at 1179-80.

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See Civ. L.R. 79-5(d)(1)(A) (“Reference to a stipulation or protective order that allows a party to
designate certain documents as confidential is not sufficient to establish that a document, or
portions thereof, are sealable.”).
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Case Nos. 5:13-cv-04057-BLF
ORDER RE: MOTION TO SEAL