Phigenix, Inc. v. Genentech, Inc.

Filing 390

ORDER GRANTING 374 , 377 , 386 SEALING MOTIONS. Signed by Judge Beth Labson Freeman on 8/15/2017. (blflc4, COURT STAFF) (Filed on 8/15/2017)

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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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Case No. 15-cv-01238-BLF
ORDER GRANTING SEALING
MOTIONS

v.
GENENTECH INC,
Defendant.

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United States District Court
Northern District of California

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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 and Plaintiff’s Daubert motion. ECF

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374, 377, 386. For the reasons 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

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

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information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206,

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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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United States District Court
Northern District of California

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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
Because the sealing motions relate to a motion for summary judgment, and motion to

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exclude expert trial testimony, which are more than tangentially related to the merits of the case,

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the instant motions are resolved under the compelling reasons standard. See Ctr. for Auto Safety,

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809 F.3d at 1101-2 (holding that “public access will turn on whether the motion is more than

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tangentially related to the merits of a case”).
With this standard in mind, the Court rules on the instant motions as follows:

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United States District Court
Northern District of California

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ECF
No.
374-4

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377-2

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377-4

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377-5

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377-6

Document to be
Sealed
Defendant
Genentech Inc.’s
(“Genentech”) Reply
ISO its motion for
summary judgment
Plaintiff Phigenix
Inc.’s (“Phigenix”)
Motion to Exclude
Genentech’s Expert
Witness Testimony
(“Phigenix’ Daubert
Motion”)
Exhibit 2 to
Ackerman Decl. ISO
Phigenix Daubert
Motion (Excerpts of
expert report of
Mark Robbins)
Exhibit 3 to
Ackerman Decl. ISO
Phigenix Daubert
Motion (Excerpts of
Dep. Tr. of Mark
Robbins)
Exhibit 4 to
Ackerman Decl. ISO
Phigenix Daubert
Motion (Excerpts of
expert report of
Gregory Bell)

Result

Reasoning

GRANTED as
to highlighted
portions.

The highlighted portions contain confidential
information relating to Genentech’s clinical
testing and sales data, the disclosure of which
could harm Genentech’s competitiveness. See
Kreeger Decl. ¶ 3, ECF 374-1.
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 as
to highlighted
portions.

GRANTED.

The entire exhibit contains confidential
information relating to licensing terms
between Genentech and third parties, the
disclosure of which could harm Genentech’s
competitiveness. See Wildman Decl. ¶ 3, ECF
379.
The entire exhibit contains confidential
information relating to licensing terms
between Genentech and third parties, the
disclosure of which could harm Genentech’s
competitiveness. See Wildman Decl. ¶ 4, ECF
379.
The entire exhibit contains confidential
information relating to licensing terms
between Genentech and third parties, the
disclosure of which could harm Genentech’s
competitiveness. See Wildman Decl. ¶ 5, ECF
379.

GRANTED.

GRANTED.

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Exhibit 5 to
Ackerman Decl. ISO
Phigenix Daubert
Motion (license
agreement)
Exhibit 6 to
Ackerman Decl. ISO
Phigenix Daubert
Motion (Excerpts of
Dep. Tr. of Gregory
Bell)
Genentech’s
opposition to
Phigenix’ Daubert
Motion

GRANTED.

386-7

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377-7

Exhibit 1 to Kreeger
Decl. (“Expert
Report of Mark
Robbins”)

GRANTED as
to highlighted
portions.

386-9

Exhibit 4 to Kreeger
Decl. (“Expert
Report of Gregory
Bell”)

GRANTED as
to highlighted
portions.

386-11

Exhibit 5 to Kreeger
Decl. (“Excerpts of
Dep. Tr. of Gregory
Bell”)

GRANTED as
to highlighted
portions.

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377-8
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386-5

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GRANTED.

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
licensing terms between Genentech and a third
party, the disclosure of which could harm
Genentech’s competitiveness. See Wildman
Decl. ¶ 6, ECF 379.
The entire exhibit contains confidential
information relating to licensing terms
between Genentech and third parties, the
disclosure of which could harm Genentech’s
competitiveness. See Wildman Decl. ¶ 7, ECF
379.
The highlighted portions contain confidential
information relating to licensing terms and
royalty rates between Genentech and third
parties, the disclosure of which could harm
Genentech’s competitiveness. See Wildman
Decl. ¶ 5, ECF 386-2.
The highlighted portions contain confidential
information relating to licensing terms and
royalty rates between Genentech and third
parties, the disclosure of which could harm
Genentech’s competitiveness. See Wildman
Decl. ¶ 5, ECF 386-2.
The highlighted portions contain confidential
information relating to licensing rates and
Kadcyla sales, the disclosure of which could
harm Genentech’s competitiveness. See
Wildman Decl. ¶ 3, ECF 386-2.
The highlighted portions contain confidential
information relating to licensing terms and
royalty rates between Genentech and third
parties, the disclosure of which could harm
Genentech’s competitiveness. See Wildman
Decl. ¶ 4, ECF 386-2.

For the foregoing reasons, the sealing motions at ECF 374, 377, 386 are GRANTED.

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IT IS SO ORDERED.

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Dated: August 15, 2017
______________________________________
BETH LABSON FREEMAN
United States District Judge

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