RainDance Technologies Inc. et al v. 10X Genomics Inc.

Filing 549

MEMORANDUM ORDER: The Motion to Seal (D.I. 474 ) is DENIED. Instead, the exhibits are STRUCK FROM THE RECORD IN PART. The parties should submit substitute exhibits containing the remaining portions of PTX-333 and PTX-341, as described, by COB February 15, 2019. Signed by Judge Richard G. Andrews on 2/11/2019. (nms) (Main Document 549 replaced on 2/11/2019) (nms).

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELA WARE
BIO-RAD LABORATORIES, INC. and
THE UNIVERSITY OF CHICAGO,
Plaintiffs,
No. 15-cv-152-RGA

V.

1OX GENOMICS, INC.,
Defendant.

MEMORANDUM ORDER
Presently before the Court is Defendant l0X' s motion to seal trial exhibits. (D.I. 474). I
have considered the parties ' briefing. (D.I. 474, 507, 508).
1OX moves to seal all or part of four exhibits admitted at trial, or in the alternative, to
redact or supply substitute exhibits limited to the portions actually displayed or discussed during
trial. (D.I. 474 at 1). The exhibits are a l0X presentation titled "Gel Bead and Barcode Library"
(PTX-333), a l0X presentation titled "Chemical Synthesis- Surfactants" (PTX-341), and two
spreadsheets of l0X total revenue and US revenue (DTX-1482 and PTX-1255). (Id. at 2--4).
I consider this motion in light of the Third Circuit' s statement of relevant legal principles:

It is well established that the release of information in open court is a
publication of that information and, if no effort is made to limit its disclosure,
operates as a waiver of any rights a party had to restrict its future use. The
references to the confidential documents made in open court may have
constituted a sufficient publication. But, in any event, we hold that [the
moving party' s] failure to object to the admission into evidence of the
documents, absent a sealing of the record, constituted a waiver of whatever
confidentiality interests might have been preserved under the [protective
order].

Littlejohn v. Bic Corp., 851 F.2d 673, 680 (3d Cir. 1988) (internal quotation marks and citations

omitted).
All four exhibits were admitted in whole, without objection, during trial. 1 (Trial Tr. at
557:14-558:3 , 1176:11-17). None or very little of each exhibit, however, was actually discussed
or published to the jury. Therefore, I will consider lOX' s motion as a request to strike the
exhibits, in whole or in part, from the record. (See D.I. 474, Ex. E (EMC Corp. v. Pure Storage
Inc., No. 13-cv-1985-RGA (D. Del. May 13, 2016)).

The two 1OX presentations (PTX-333 and PTX-341) appear to include detailed technical
information relating to current 1OX products. (D.I. 242, Exs. A, B). Disclosure at trial was
limited to PTX-333-150 and -163 , and PTX-341-1 through -3. I accept that the remaining
portions of the presentations contain proprietary and confidential information that 1OX' s
competitors could exploit to obtain a competitive advantage over 1OX. Therefore, PTX-333 and
PTX-341 are STRUCK FROM THE RECORD IN PART. The portions of the exhibits
disclosed at trial-PTX-333-1 (cover page), -150, and -163, and PTX-341-1 through -3-should
remain in the record, unsealed.
The lOX revenue spreadsheets (DTX-1482 and PTX-1255) appear to include detailed
financial information relating to current 1OX products for the years 2015-2018. (D.I. 242, Exs.
C, D). Neither exhibit was disclosed at trial. Rather, each was introduced as a basis for Mr.
Malackowski ' s damages opinion. DTX-1482 was never explicitly addressed. Mr. Malackowski
cited to PTX-1255 on a slide published to the jury. He described the exhibit as "go[ing] to the

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I strongly encourage counsel to reexamine this practice. It is almost never necessary to admit
these exhibits in whole, as the underlying facts and data for expert opinions need not be
admissible, let alone admitted into evidence. Fed. R. Evid. 703. It is not the Court's role to
clean up counsel' s mistakes.
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I,

accounting ledgers," and "a spreadsheet that was produced by 1OX that shows for [the damages
period] on a line item basis the relevant reagents and instruments that have been accused of
infringing." (Trial Tr. at 612:23-613:8). Mr. Malackowski did not discuss any specific values
from PTX-1255 . In fact, Mr. Malackowski was asked to give his damages opinion without
"stating what lOX's sales are. " (Trial Tr. at 612:23- 25). I accept that the spreadsheets contain
confidential financial information that could be used to gain a competitive advantage over 1OX.
Therefore, seeing as the jury did not see or hear testimony on the content of either spreadsheet,
both DTX-1482 and PTX-1255 are STRUCK FROM THE RECORD.
For the foregoing reasons, l0X's motion to seal (D.I. 474) is DENIED. Instead, the
exhibits are STRUCK FROM THE RECORD IN PART. The parties should submit substitute
exhibits containing the remaining portions of PTX-333 and PTX-341 , as described above, by
COB February 15, 2019.

IT IS SO ORDERED this

J.l day of February 2019.

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