Phigenix, Inc. v. Genentech, Inc.

Filing 373

ORDER GRANTING 367 , 371 SEALING MOTIONS. Signed by Judge Beth Labson Freeman on 7/19/2017. (blflc4S, COURT STAFF) (Filed on 7/19/2017)

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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.,

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Plaintiff,

GENENTECH INC,

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United States District Court
Northern District of California

ORDER GRANTING SEALING
MOTIONS

v.

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Case No. 15-cv-01238-BLF

Defendant.

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Before the Court are parties’ motions to file under seal portions of their briefing and

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exhibits in connection with a motion for summary judgment. ECF 367, 371. For the reasons

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discussed below, the Court GRANTS the motions.

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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

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Because the sealing motions relate to a motion for summary judgment, which is more than

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tangentially related to the merits of the case, the instant motions are resolved under the compelling

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reasons standard. Ctr. for Auto Safety, 809 F.3d at 1101-2 (holding that “public access will turn

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on whether the motion is more than tangentially related to the merits of a case” and finding that a

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“motion for preliminary injunction is more than tangentially related to the merits”).

United States District Court
Northern District of California

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With this standard in mind, the Court rules on the instant motions as follows:
ECF
No.
367-3

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367-4

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367-5

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367-6

Document to be
Sealed
Plaintiff Phigenix
Inc.’s (“Phigenix”)
Opposition to
Genentech Inc.’s
(“Genentech”)
Motion for Summary
Judgment (“Opp’n”)
Exhibit 4 to
Ackerman Decl. ISO
Opp’n (Excerpts of
Dep. Tr. of Timothy
Schwartz)
Exhibit 7 to
Ackerman Decl. ISO
Opp’n (Excerpts of
expert report of
Gregory Bell)
Exhibit 8 to
Ackerman Decl. ISO
Opp’n (Tables in
report of expert
Joseph Wyse)

Result

Reasoning

GRANTED as
to highlighted
portions.

The highlighted portions contain confidential
financial and sales data relating to Kadcyla,
the disclosure of which could harm
Genentech’s competitiveness. See Wildman
Decl. ¶ 2, ECF 370.

GRANTED.

The entire exhibit contains confidential
licensing discussion between Phigenix and
Genentech and Genentech’s business
strategies, the disclosure of which could harm
Genentech’s competitiveness. See Wildman
Decl. ¶ 3, ECF 370.
The entire exhibit contains confidential sales
data of Kadcyla, the disclosure of which could
harm Genentech’s competitiveness. See
Wildman Decl. ¶ 4, ECF 370.

GRANTED.

GRANTED.

The entire exhibit contains confidential sales
data of Kadcyla and Genentech’s marketing
strategies, the disclosure of which could harm
Genentech’s competitiveness. See Wildman
Decl. ¶ 5, ECF 370.

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367-7

Exhibit 9 to
Ackerman Decl. ISO
Opp’n (excerpt of
FDA submission)

GRANTED.

367-10

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Exhibit 10 to
Ackerman Decl. ISO
Opp’n (excerpts of
patient records)

GRANTED.

371-5

Exhibit 3 to Kreeger
Decl. (expert report
of John Wyse)

GRANTED as
to highlighted
portions.

371-7

Exhibit 4 to Kreeger
Decl. (expert rebuttal
report of John Wyse)

GRANTED as
to highlighted
portions.

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United States District Court
Northern District of California

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The entire exhibit contains confidential
information relating to Genentech’s clinical
testing, the disclosure of which could harm
Genentech’s competitiveness. See Wildman
Decl. ¶ 6, ECF 370.
The entire exhibit contains confidential
information relating to patient records and
Genentech’s clinical testing, the disclosure of
which could harm Genentech’s
competitiveness. See Wildman Decl. ¶ 7, ECF
370.
The highlighted portions contain confidential
financial and sales data relating to Kadcyla,
the disclosure of which could harm
Genentech’s competitiveness. See Wildman
Decl. ¶ 2, ECF 371-2.
The highlighted portions contain confidential
sales data and licensing strategies relating to
Kadcyla, the disclosure of which could harm
Genentech’s competitiveness. See Wildman
Decl. ¶ 3, ECF 371-2.

For the foregoing reasons, the sealing motions at ECF 367, 371 are GRANTED.

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IT IS SO ORDERED.

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Dated: July 19, 2017
______________________________________
BETH LABSON FREEMAN
United States District Judge

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