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

Filing 190

ORDER RE: MOTION TO SEAL by Magistrate Judge Paul Singh Grewal denying 180 . (psglc1S, COURT STAFF) (Filed on 12/1/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GILEAD SCIENCES, INC.,
Plaintiff,

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ORDER RE: MOTION TO SEAL

v.

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(Re: Docket Nos. 180)

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

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United States District Court
Northern District of California

Case No. 5:13-cv-04057-BLF

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Before the court is one administrative motion to seal.1 “Historically, courts have

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recognized a ‘general right to inspect and copy public records and documents, including judicial

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records and documents.’”2 Accordingly, when considering a sealing request, “a ‘strong

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presumption in favor of access’ is the starting point.”3 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.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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See Docket No. 180.

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

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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

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moving to seal must meet the lower “good cause” standard of Rule 26(c).7 As with dispositive

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motions, the standard applicable to nondispositive motions requires a “particularized showing”8

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

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

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

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determination that good cause exists to keep the documents sealed,11 but a blanket protective order
that allows the parties to designate confidential documents does not provide sufficient judicial

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United States District Court
Northern District of California

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scrutiny to determine whether each particular document should remain sealed.12
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

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

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

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

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Docket
No.

Document to be Sealed

Result

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180-4

Defendants’ Reply ISO
Motion to Compel Plaintiff
and Dr. Seeger

UNSEALED.

Designating party
does not request
sealing.

180-6

Ex. 34 to Second Jean
Decl. ISO Defendants’
Motion to Compel

UNSEALED.

Designating party
does not request
sealing.

180-8

Ex. 35 to Second Jean
Decl. ISO Defendants’
Motion to Compel

UNSEALED.

Designating party
does not request
sealing.

180-10

Ex. 36 to Second Jean
Decl. ISO Defendants’
Motion to Compel

UNSEALED.

Designating party
does not request
sealing.

180-12

Ex. 37 to Second Jean
Decl. ISO Defendants’
Motion to Compel

UNSEALED.

Designating party
does not request
sealing.

180-14

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Ex. 44 to Second Jean
Decl. ISO Defendants’
Motion to Compel

UNSEALED.

Designating party
does not request
sealing.

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United States District Court
Northern District of California

Reason/Explanation

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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 indicates “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).
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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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SO ORDERED.

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Dated: December 1, 2015
_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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United States District Court
Northern District of California

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