Medicinova, Inc. v. Genzyme Corporation

Filing 74

ORDER Denying Without Prejudice 68 Motion to File Documents Under Seal. The Court denies without prejudice Defendant's Motion and grants Defendant leave to amend its motion to file documents under seal. Signed by Judge Janis L. Sammartino on 12/5/2017. (mpl)

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1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 SOUTHERN DISTRICT OF CALIFORNIA 13 14 15 MEDICINOVA, INC., a Delaware Corporation, 18 19 ORDER DENYING WITHOUT PREJUDICE MOTION TO FILE DOCUMENTS UNDER SEAL Plaintiff, 16 17 Case No.: 14-CV 2513-JLS (KSC) v. (ECF No. 68) GENZYME CORPORATION, a Massachusetts Corporation, Defendant. 20 21 Presently before the Court is Defendant Genzyme Corporation’s Motion to File 22 Documents Under Seal, (“MTN,” ECF No. 68). Defendant requests an order authorizing 23 the filing under seal of various documents in support of Defendant’s Motion for Summary 24 Judgment of No Liability. (Id. at 2.) Defendant alleges the documents contain highly 25 confidential and proprietary business information regarding the research, development, and 26 clinical trial of Defendant’s AAV2-sFLT01 gene therapy product, and the confidential 27 Avigen-Genzyme Assignment Agreement. (Id. at 3.) 28 Plaintiff opposes Defendant’s request to seal these documents for various reasons. 1 14-CV 2513-JLS (KSC) 1 (“Opp’n,” ECF No. 73.) First, Plaintiff argues Defendant did not provide Plaintiff with 2 appropriate notice for an application to seal documents, as per the Parties’ protective order, 3 (ECF No. 42). (Opp’n 4.) Plaintiff also argues its expert Dr. Burger will need to review 4 Defendant’s confidential material in order to prepare his report. (Id. at 5.) 5 LEGAL STANDARD 6 “[T]he courts of this country recognize a general right to inspect and copy public 7 records and documents, including judicial records and documents.” Nixon v. Warner 8 Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one 9 ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” 10 Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz 11 v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption 12 of access is ‘based on the need for federal courts, although independent—indeed, 13 particularly because they are independent—to have a measure of accountability and for the 14 public to have confidence in the administration of justice.’” Ctr. for Auto Safety v. Chrysler 15 Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 16 1044, 1048 (2d Cir. 1995)). 17 A party seeking to seal a judicial record bears the burden of overcoming the strong 18 presumption of access. Foltz, 331 F.3d at 1135. The showing required to meet this burden 19 depends upon whether the documents to be sealed relate to a motion that is “more than 20 tangentially related to the merits of the case.” Ctr. for Auto Safety, 809 F.3d at 1102. When 21 the underlying motion is more than tangentially related to the merits, the “compelling 22 reasons” standard applies. Id. at 1096–98. When the underlying motion does not surpass 23 the tangential relevance threshold, the “good cause” standard applies. Id. 24 “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in 25 disclosure and justify sealing court records exists when such ‘court files might have 26 become a vehicle for improper purposes,’ such as the use of records to gratify private spite, 27 promote public scandal, circulate libelous statements, or release trade secrets.” Kamakana, 28 447 F.3d at 1179 (quoting Nixon, 435 U.S. at 598). However, “[t]he mere fact that the 2 14-CV 2513-JLS (KSC) 1 production of records may lead to a litigant's embarrassment, incrimination, or exposure to 2 further litigation will not, without more, compel the court to seal its records.” Id. (citing 3 Foltz, 331 F.3d at 1136). The decision to seal documents is “one best left to the sound 4 discretion of the trial court” upon consideration of “the relevant facts and circumstances of 5 the particular case.” Nixon, 435 U.S. at 599. 6 7 ANALYSIS I. Notice Under the Protective Order 8 Under the Parties’ protective order: “Nothing shall be filed under seal, and the Court 9 shall not be required to take any action, without separate prior order by the Judge before 10 whom the hearing or proceeding will take place, after application by the affected party with 11 appropriate notice to opposing counsel.” (“Protective Order,” ECF No. 42, at 10.) Plaintiff 12 argues Defendant told Plaintiff of its intention to file a motion for summary judgment, part 13 of which would be under seal, on the day it filed the Motion. (Opp’n 7.). Plaintiff argues 14 this is a violation of the protective order’s requirement of “appropriate notice.” (Id.) 15 The issue before the Court is whether it is proper to seal the documents requested by 16 Defendant. The issue is not whether Defendant violated the protective order. And even 17 so, under the protective order, Defendant has applied to file documents under seal, 18 requesting an order from the Judge before whom the hearing on the Motion for Summary 19 Judgment will take place. Although Plaintiff argues it did not receive “appropriate” notice 20 and the “day of” notice did not provide it time to “evaluate, confer, and respond” to 21 Defendant’s request, (id.), Plaintiff was able to file an opposition to the Motion and express 22 its position to the Court. Even if Defendant had provided Plaintiff with more notice of its 23 intention to file a Motion to Seal, the Court does not see how this would have changed 24 anything. 25 II. Plaintiff’s Expert 26 As factual background, Plaintiff provides that its first expert witness, Dr. Davies, 27 was inadvertently provided confidential materials so Plaintiff required Dr. Davies to 28 destroy all the materials he received, and Plaintiff hired a second expert, Dr. Burger. 3 14-CV 2513-JLS (KSC) 1 (Opp’n 8). Plaintiff explains Defendant has refused to agree to Plaintiff retaining Dr. 2 Burger as an expert in this matter. (Id.) Plaintiff argues if Defendant’s documents are 3 sealed, Dr. Burger will not be able to review them. (Id.; see Protective Order Section II.6.e 4 (noting the Receiving Party may disclose confidential or highly confidential information 5 to approved experts).) 6 It appears the crux of this issue is the approval of Dr. Berger as an expert witness. 7 The Parties currently have a “Joint” Motion pending before Magistrate Judge Crawford, 8 (ECF No. 61). In this Motion (wherein each party expresses its respective, contrasting 9 positions), Plaintiff notes Defendant has refused to agree to the substitution of Dr. Burger, 10 so Plaintiff cannot disclose any “Confidential” or “Highly Confidential” materials to him. 11 (Id. at 5.) Defendant objects to Dr. Burger receiving Defendant’s confidential information 12 because Dr. Burger “is in a position to consult companies that directly compete with 13 Genzyme in the gene therapy technology space.” (Id. at 11.) 14 While the Court understands the Parties’ positions and understands they are waiting 15 for Judge Crawford to rule on the expert witness issue, this does not have a place in the 16 Court’s analysis here. In determining whether to seal documents, the Court evaluates 17 according to the test outlined above. 18 III. Discussion 19 First, the Court finds the Motion for Summary Judgment (the underlying motion for 20 the present Motion to Seal), is more than tangentially related to the merits of the case. 21 Therefore, the “compelling reasons” standard applies. Ctr. for Auto Safety, 809 F.3d at 22 1096–98; see also Dakota Med., Inc. v. Rehabcare Grp., Inc., No. 14-cv-02081-DAD- 23 BAM, 2016 WL 6493896, at *2 (E.D. Cal. Nov. 2, 2016) (holding the “compelling 24 reasons” standard applies for a dispositive motion for summary judgment). Defendant 25 requests to file under seal: 1. Memorandum of Points and Authorities in Support of Motion 26 for Summary Judgment; 2. The Declaration of Abraham Scaria; 3. Exhibits A, B, and C to 27 the Declaration of Abraham Scaria; 4. The Declaration of Dr. Barry J. Bryne; and 5. 28 Exhibits A and B to the Declaration of Dr. Barry J. Byrne. (MTN 2.) 4 14-CV 2513-JLS (KSC) 1 The scope of Defendant’s request is very broad. “[G]eneralized information is not 2 likely to meet the compelling reasons standard of sealing, and [a party] must avoid this 3 general information when applying its redactions to propriety information.” Obesity 4 Research Inst., LLC v. Fiber Research Int’l, LLC, No. 15-cv-595-BAS (MDD), 2017 WL 5 5001287, at *5 (S.D. Cal. Nov. 2, 2017) (collecting cases). The Court finds it is plausible 6 there may be information in one or more of the above documents that warrants sealing, but 7 Defendant has failed to present compelling reasons that the entirety of each of the 8 documents warrant sealing. 9 Defendant’s Motion and GRANTS Defendant leave to amend its motion to file documents 10 under seal.1 See Obesity Research Inst., LLC v. Fiber Research Int’l, No. 15-cv-595-BAS 11 (MDD), 2017 WL 3269211, at *2 (S.D. Cal. July 31, 2017) (holding the same). 12 Defendant’s revised Motion must specify portions of the documents that present 13 compelling reasons for sealing. Upon Defendant’s filing of its revised Motion to Seal, 14 Plaintiff SHALL file a Response within seven days. If Defendant does not file a revised 15 Motion to Seal by December 19, 2017, the Court will direct the Clerk of Court to return to 16 Defendant the documents for which sealing has been denied. 17 18 Thus, the Court DENIES WITHOUT PREJUDICE IT IS SO ORDERED. Dated: December 5, 2017 19 20 21 22 23 24 25 26 27 28 1 The Court is conscious of the briefing schedule that has been set in this matter, wherein Plaintiff must file its opposition to the Motion for Summary Judgment on or before January 25, 2018. (See ECF No. 71.) Should it become necessary to reschedule the hearing on the pending Motion for Summary Judgment and reset the briefing schedule, the Court will do so. 5 14-CV 2513-JLS (KSC)

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