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

Filing 172

ORDER RE: MOTION TO SEAL by Magistrate Judge Paul Singh Grewal granting-in-part and denying-in-part 159 . (psglc1S, COURT STAFF) (Filed on 11/3/2015)

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United States District Court
For the Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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GILEAD SCIENCES, INC.,

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Plaintiff,

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

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Defendants.

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Case No. 5:13-cv-04057-BLF
ORDER RE: MOTION TO SEAL
(Re: Docket No. 159)

Before the court is one motion to file seven documents under seal.1 “Historically, courts
have recognized a ‘general right to inspect and copy public records and documents, including
judicial records and documents.’”2 Accordingly, when considering a sealing request, “a ‘strong
presumption in favor of access’ is the starting point.”3 Parties seeking to seal judicial records

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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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See Docket No. 159.

Id. (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)).

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Case No. 5:13-cv-04057-BLF
ORDER RE: MOTION TO SEAL

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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.4
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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their competitive interest.”5 Records attached to nondispositive motions therefore are not subject

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to the strong presumption of access.6 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).7 As with dispositive motions, the

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standard applicable to nondispositive motions requires a “particularized showing”8 that “specific

United States District Court
For the Northern District of California

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prejudice or harm will result” if the information is disclosed.9 “Broad allegations of harm,

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unsubstantiated by specific examples of articulated reasoning” will not suffice.10 A protective

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order sealing the documents during discovery may reflect the court’s previous determination that

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good cause exists to keep the documents sealed,11 but a blanket protective order that allows the

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parties to designate confidential documents does not provide sufficient judicial scrutiny to

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determine whether each particular document should remain sealed.12

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

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Id. at 1178-79.

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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 No. 5:13-cv-04057-BLF
ORDER RE: MOTION TO SEAL

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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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must conform with Civil L.R. 79-5(d).”13 “Within 4 days of the filing of the Administrative

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Motion to File Under Seal, the Designating Party must file a declaration as required by subsection

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79-5(d)(1)(A) establishing that all of the designated material is sealable.”14

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With these standards in mind, the courts rules on the instant motions as follows:

United States District Court
For the Northern District of California

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Motion
Docket
No. 15911

Document to be Sealed
Ex. 8 to Jean Decl. ISO
Defendants’ Motion to
Compel, Seeger
Deposition Transcript

Result
UNSEALED.

Docket
No. 15913

Ex. 9 to Jean Decl. ISO
Defendants’ Motion to
Compel, Seeger Expert
Report

UNSEALED.

Docket
No. 15915

Ex. 10 to Jean Decl. ISO
Defendants’ Motion to
Compel, Secrist Expert
Report

UNSEALED.

Docket
No. 159-

Ex. 11A to Jean Decl. ISO UNSEALED.
Defendants’ Motion to

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Reason/Explanation
Neither the moving
nor the designating
party identified
narrowly tailored
material to be sealed
as required by Civ.
L.R. 79-5(d)(1)(D)
and 79-5(e)(1).
Designating party
declares document
contains no
confidential
information.
Designating party
declares document
contains no
confidential
information.
Designating party
does not request

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Civ. L.R. 79-5(b). In part, Civ. L.R. 79-5(d) requires the submitting party to attach a “proposed
order that is narrowly tailored to seal only the sealable material” which “lists in table format each
document or portion thereof that is sought to be sealed,” Civ. L.R. 79-5(d)(1)(b), and an
“unredacted version of the document” that “must indicate by highlighting or other clear method,
the portions of the document that have been omitted from the redacted version.”
Civ. L.R. 79-5(d)(1)(d) (emphasis added).
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Civ. L.R. 79-5(e)(1).
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Case No. 5:13-cv-04057-BLF
ORDER RE: MOTION TO SEAL

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Motion
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Docket
No. 15935
Docket
No. 15940

Document to be Sealed
Compel, Sept. 28, 2015
Jean Letter
Ex. 25 to Jean Decl. ISO
Defendants’ Motion to
Compel, Oct. 20, 2015
Jean Letter
Ex. 29 to Jean Decl. ISO
Defendants’ Motion to
Compel,
GILEAD00188954-55

Result

UNSEALED.

Designating party
does not request
sealing.

SEALED.

Narrowly tailored to
confidential business
information and
supported by a
declaration.
Neither the moving
nor the designating
party identified
narrowly tailored
material to be sealed
as required by Civ.
L.R. 79-5(d)(1)(D)
and 79-5(e)(1).

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Docket
No. 15942

Ex. 30 to Jean Decl. ISO
Defendants’ Motion to
Compel, Otto Deposition
Transcript

UNSEALED.

United States District Court
For the Northern District of California

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Reason/Explanation
sealing.

SO ORDERED.
Dated: November 3, 2015
_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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Case No. 5:13-cv-04057-BLF
ORDER RE: MOTION TO SEAL