Phigenix, Inc. v. Genentech, Inc.
Filing
363
ORDER DENYING 354 MOTION TO SEAL. Signed by Beth Labson Freeman on 7/5/2017. (blflc4, COURT STAFF) (Filed on 7/5/2017)
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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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PHIGENIX, INC.,
Plaintiff,
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[Re: ECF 354]
GENENTECH INC,
Defendant.
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United States District Court
Northern District of California
ORDER DENYING MOTION TO SEAL
v.
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Case No. 15-cv-01238-BLF
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Before the Court is Defendant’s motion to file under seal its exhibits in support of its
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motion to exclude expert testimony. ECF 354. For the reasons discussed below, the Court
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DENIES the motion.
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I.
LEGAL STANDARD
“Historically, courts have recognized a ‘general right to inspect and copy public records
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and documents, including judicial records and documents.’” Kamakana v. City & Cty. of
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Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435
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U.S. 589, 597 & n. 7 (1978)). Accordingly, when considering a sealing request, “a ‘strong
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presumption in favor of access’ is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto.
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Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to
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motions that are “more than tangentially related to the underlying cause of action” bear the burden
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of overcoming the presumption with “compelling reasons” that outweigh the general history of
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access and the public policies favoring disclosure. Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d
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1092, 1099 (9th Cir. 2016); Kamakana, 447 F.3d at 1178–79.
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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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their competitive interest.” Apple Inc. v. Samsung Elecs. Co., Ltd., 727 F.3d 1214, 1228–29 (Fed.
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Cir. 2013). Records attached to motions that are “not related, or only tangentially related, to the
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merits of a case” therefore are not subject to the strong presumption of access. Ctr. for Auto
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Safety, 809 F.3d at 1099; see also Kamakana, 447 F.3d at 1179 (“[T]he public has less of a need
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for access to court records attached only to non-dispositive motions because those documents are
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often unrelated, or only tangentially related, to the underlying cause of action.”). Parties moving
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to seal the documents attached to such motions must meet the lower “good cause” standard of
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Rule 26(c). Kamakana, 447 F.3d at 1179 (internal quotations and citations omitted). This
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standard requires a “particularized showing,” id., that “specific prejudice or harm will result” if the
information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206,
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United States District Court
Northern District of California
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1210–11 (9th Cir. 2002); see Fed. R. Civ. P. 26(c). “Broad allegations of harm, unsubstantiated
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by specific examples of articulated reasoning” will not suffice. Beckman Indus., Inc. v. Int’l Ins.
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Co., 966 F.2d 470, 476 (9th Cir. 1992). A protective order sealing the documents during
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discovery may reflect the court’s previous determination that good cause exists to keep the
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documents sealed, see Kamakana, 447 F.3d at 1179–80, but a blanket protective order that allows
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the parties to designate confidential documents does not provide sufficient judicial scrutiny to
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determine whether each particular document should remain sealed. See Civ. L.R. 79-5(d)(1)(A)
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(“Reference to a stipulation or protective order that allows a party to designate certain documents
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as confidential is not sufficient to establish that a document, or portions thereof, are sealable.”).
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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 Civ. L.R.
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79-5(b), a sealing order is appropriate only upon a request that establishes the document is
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“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).” Civ. L.R. 79-5(b). In part, Civ. L.R. 79-5(d) requires the
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submitting party to attach a “proposed order that is narrowly tailored to seal only the sealable
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material” which “lists in table format each document or portion thereof that is sought to be
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sealed,” Civ. L.R. 79-5(d)(1)(b), and an “unredacted version of the document” that indicates “by
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highlighting or other clear method, the portions of the document that have been omitted from the
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redacted version.” Civ. L.R. 79-5(d)(1)(d). “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.” Civ. L.R. 79-5(e)(1).
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II.
DISCUSSION
The Court has reviewed Defendant’s sealing motion and its declaration in support thereof.
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ECF 354-1. Defendant seeks to seal in their entirety Exhibits 3 and 4 to the Kreeger Declaration
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in support of Defendant’s Motion to Exclude Expert testimony. ECF 355. According to
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Defendant, these exhibits contain “references to confidential terms of agreements between
Genentech and third parties, including quotations and financial terms.” Kreeger Decl. ¶¶ 3-4, ECF
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United States District Court
Northern District of California
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354-1. Although Defendant has articulated compelling reasons to seal portions of the submitted
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exhibits, its request is not narrowly tailored. Defendant seeks to seal each of the exhibits in their
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entirety, whereas Defendants’ statements regarding confidentiality apply only to select portions of
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each of the documents. For this reason, the Court DENIES Defendant’s sealing motion
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WITHOUT PREJUDICE.
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III.
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ORDER
Defendant’s sealing motion is DENIED WITHOUT PREJUDICE. No later than 10 days
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from the filing of this order, Defendant may renew its motion so as to more narrowly tailor its
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request to seal and/or provide sufficient reasons in the supporting declaration to seal the
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documents in their entirety. If Defendant does not renew its motion, it must, pursuant to Civil
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Local Rule 79-5(e)(2), file the unredacted documents into the public record no earlier than 4 days
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and no later than 10 days from the filing of this order.
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Dated: July 5, 2017
______________________________________
BETH LABSON FREEMAN
United States District Judge
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