Arthrex, Inc. v. Parcus Medical, LLC

Filing 303

ORDER granting 297 Motion to Strike Inadvertently Filed Unredacted Draft Motion in Limine. Doc. 286 is stricken, and THE CLERK IS DIRECTED TO REMOVE DOC. 286 FROM THE PUBLIC DOCKET; granting 296 Defendant's Unopposed Motion to Seal Motion in Limine Nos. 1, 2, 3, 4, 5, 7 and 8; granting 279 Parcus Medical, LLC's Unopposed Motion for Leave to File Under Seal Trial Brief Regarding Parcus Counterclaim V and the Arthrex C3 Program, Motion in Limine Regarding Partial Waiver of Attorney -Client Privilege, and Motion in Limine to Exclude Testimony of Kevin McAnaney; granting 285 Arthrex's Unopposed Motion to Seal Portions of Motions in Limine. The parties shall mail or hand-deliver the materials to be filed under seal to the Clerk of Court. Signed by Magistrate Judge Carol Mirando on 4/17/2014. (ALB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ARTHREX, INC.,
Plaintiff,
v.

Case No: 2:11-cv-694-FtM-29CM

PARCUS MEDICAL, LLC,
Defendant.
ORDER
Before the Court are Parcus Medical LLC’s Unopposed Motion for Leave to File
Under Seal Trial Brief Regarding Parcus Counterclaim V and the Arthrex C3
Program, Motion in Limine Regarding Partial Waiver of Attorney-Client Privilege,
and Motion in Limine to Exclude Testimony of Kevin McAnaney (Doc. 279), filed on
April 4, 2014; Arthrex’s Unopposed Motion to Seal Portions of Motions in Limine (Doc.
285), filed on April 4, 2014; and Defendant’s Unopposed Motion to Seal Motion in
Limine Nos. 1, 2, 3, 4, 5, 7, and 8 (Doc. 296), filed on April 5, 2014 (collectively,
“motions to seal”). By their motions, the parties seek leave to file certain documents
under seal pursuant to the Confidentiality Agreement and Joint Stipulated
Protective Order. Doc. 279 at 1; Doc. 285 at 1; Doc. 296 at 1. For the foregoing
reasons, the motions to seal are due to be granted.
Local Rule 1.09, which governs motions seeking leave to file documents under
seal, provides, in pertinent part:
Unless filing under seal is authorized by statute, rule, or
order, a party seeking to file under seal any paper or other

matter in any civil case shall file and serve a motion, the
title of which includes the words ‘Motion to Seal’ and which
includes (i) an identification and description of each item
proposed for sealing; (ii) the reason that filing each item is
necessary; (iii) the reason that sealing each item is
necessary, (iv) the reason that a means other than sealing
is unavailable or unsatisfactory to preserve the interest
advanced by the movant in support of the seal; (v) a
statement of the proposed duration of the seal; and (vi) a
memorandum of legal authority supporting the seal. The
movant shall not file or otherwise tender to the Clerk any
item proposed for sealing unless the Court has granted the
motion required by this section.
M.D.Fla. R. 1.09(a).

In this case, there is no statute, rule, or other order that

authorizes filing the subject documents under seal. Thus, in order for the Court to
properly evaluate whether filing under seal is warranted, each motion must provide
the information required by Local Rule 1.09(a).
I.

Parcus Medical LLC’s Unopposed Motion for Leave to File Under Seal Trial
Brief Regarding Parcus Counterclaim V and the Arthrex C3 Program,
Motion in Limine Regarding Partial Waiver of Attorney-Client Privilege,
and Motion in Limine to Exclude Testimony of Kevin McAnaney (Doc. 279)
Defendant Parcus Medical, LLC (“Parcus”) moves for an order permitting it to

file under seal unredacted versions of redacted documents filed in the public docket.1
By filing redacted versions, Parcus has sufficiently identified and described the
documents it seeks to file under seal. Parcus represents that filing the documents is
necessary to effectively support its opposition to Arthrex’s summary judgment

The documents that are the subject of the instant motion to seal were filed
in the public docket as follows: Parcus’ Trial Brief Regarding Parcus Counterclaim
V and the Arthrex C3 Program (Doc. 278); Parcus’ Motion in Limine Regarding
Partial Waiver of Attorney-Client Privilege (Doc. 276); and Parcus’ Motion in Limine
to Exclude Testimony of Kevin McAnaney (Doc. 275), all filed on April 4, 2014.
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motion, and that sealing the documents is necessary “in order to protect the
designated confidential information contained therein,” and further states that it “is
not aware of any other means other than sealing that would satisfactorily preserve
or protect the interests asserted by both parties with respect to the confidential
information.”

Doc. 279 at 2.

Parcus also submitted a memorandum of legal authority, which does not
include any authority, and Parcus failed to include “a statement of the proposed
duration of the seal” as required by Local Rule 1.09(a). The Court will not treat these
omissions as fatal to the motion, however, given the posture of this case and the
length of time since its inception, but cautions counsel that future filings must comply
with the Local Rules.
II.

Arthrex’s Unopposed Motion to Seal Portions of Motions in Limine (Doc.
285)
Plaintiff Arthrex, Inc. (“Arthrex”) seeks leave to file under seal portions of

certain motions in limine in which it will “reference and/or discuss information that
at least one party has identified as confidential in this action pursuant to the
Confidentiality Agreement.”

Doc. 285 at 1.

In support of the instant motion,

Arthrex has identified and described the following documents as those it seeks to file
under seal:

portions of its Motion In Limine to Exclude Hearsay Statements of

Parcus’s Customers and Potential Customers (Doc. 280) in which it will refer to and
discuss confidential information, such as information contained in the depositions of
Barton Bracy, Philip Mundy, Daniel Hauert, and Mark Harris; portions of its Motion

In Limine to Exclude Evidence Regarding Smith & Nephew Employees’ Opinions

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Regarding Arthrex’s C3 Agreements (Doc. 281), specifically those that refer to such
information as the depositions of Barton Bracey, Philip Mundy, and Philip Parker,
and portions that refer to other documents designated Highly Confidential; portions
of its Motion In Limine to Exclude Evidence Regarding Certain Agreements (Doc.
282), such as those that refer to and discuss confidential information, including the
deposition of Philip Parker; and portions of its Motion In Limine Regarding Patent
Issues (Doc. 284), including information contained in the depositions of Mark
Brunsvold and Ronald Glousman, and information from the expert reports of Ronald
Glousman, Walter Bratic, and John Bojanowski. Doc. 285 at 2-3.2 Thus, Arthrex
has sufficiently described and identified the portions of the documents sought to be
filed under seal.
Arthrex states that filing the confidential information in each of the foregoing
motions “is necessary in order for Arthrex to effectively support its motions” and that
“[t]he portions of the motions proposed for sealing must be sealed in order to protect
the confidential information contained therein.” Doc. 285 at 3. Arthrex further
states that it “is not aware of any means other than sealing that would satisfactorily
preserve or protect the interests asserted by both parties with respect to the
confidential information” and “proposes that the duration of the seal be for as long as
necessary for the Court to consider and rule on the subject motions.” Id. at 4. The

A redacted version of each motion referenced in the foregoing paragraph has
been filed at the docket entry indicated following the title of the motion.
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motion for leave to file documents under seal also includes a memorandum of legal
authority, as required by Local Rule 1.09(a).
III.

Defendant’s Unopposed Motion to Seal Motion in Limine Nos. 1, 2, 3, 4, 5,
7, and 8 (Doc. 296)

Parcus also seeks leave to file under seal portions of motions in limine that
have already been filed as redacted versions in the public docket.3 Parcus provided
the Court unredacted copies of the motions in limine at issue in the instant motion.
Regardless of whether such copies may aid resolution of pending motions, counsel for
Parcus is again reminded that documents filed in this Court must comply with the
Local Rules. Specifically, because the motions to seal are not “authorized by statute,
rule, or order,” the filing of the motions to seal is governed by Local Rule 1.09(a),
which states “[t]he movant shall not file or otherwise tender to the Clerk any item
proposed for sealing unless the Court has granted the motion required by this
section.” M.D.Fla. R. 1.09(a).
Parcus identifies the portions of the documents to be filed under seal as:
portions of Parcus’ motion in limine number 1 that reference and discuss sensitive
information that would not be publicly disclosed4 in the ordinary course of business;

The motions in limine at issue were filed at Docs. 286, 289, 294, 291, 295,
290, and 292, respectively.
3

The Court notes that there remains pending a Motion to Strike (Doc. 297)
Motion in Limine No. 1 filed at Doc. 286 as superseded by Motion in Limine No. 1
filed at Doc. 293. Upon review, it appears that Doc. 286 is merely an unredacted
version of Doc. 293, which Parcus identifies was inadvertently filed as unredacted,
and as part of the unopposed motion to strike requests that it be removed from the
public record. Doc. 297. Finding good cause to permit the filing of Motion in Limine
No. 1 under seal as part of this Order, the Court will grant Defendant’s Motion to
Strike Inadvertently Filed Unredacted Draft Motion In Limine [DE 286] (Doc. 297)
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portions of Parcus’ motion in limine number 2 that reference and discuss excerpts
from expert reports which Arthrex has designated confidential; portions of Parcus’
motion in limine number 3 which reference and discuss deposition excerpts that have
been designated or asserted to be confidential; portions of Parcus’ motion in limine
number 4 which reference and discuss deposition excerpts that have been designated
or asserted to be confidential; portions of Parcus’ motion in limine number 5 which
reference and discuss excerpts from deposition testimony and expert reports which
the parties have designated confidential, and exhibits to the motion that include
documents which the parties have designated confidential; portions of Parcus’ motion
in limine number 7 which reference and discuss excerpts from Arthrex’s expert’s
reports which Arthrex has designated confidential; and portions of Parcus’ motion in
limine number 8 which reference and discuss excerpts from documents and Arthrex’s
expert’s report which Arthrex has designated confidential, as well as the exhibits to
the motion which also contain confidential information. Doc. 296 at 1-2.
Parcus states that the documents are necessary to effectively support its
motions, and “[t]he documents proposed for sealing must be sealed in order to protect
the designated confidential information contained therein.” Id. at 3. Parcus also
represents that it “is not aware of any other means other than sealing that would
satisfactorily preserve or protect the interests asserted by both parties with respect
to the designated confidential information,” and “proposes that the duration of the

and will direct the Clerk to remove Doc. 286 from the public docket.

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seal be for as long as necessary for the Court to consider and rule on the subject
opposition, at which point the documents be returned to Defendant’s counsel.” Id.
IV.

Analysis
Although this Court has previously permitted the parties to file documents

under seal in this case, 5 the Court must nevertheless evaluate the merits of the
individual motions to determine whether filing under seal is warranted. “Though a
stipulated protective order may provide that documents designated as confidential
are presumptively protected, a party’s calling a document confidential pursuant to a
protective order does not make it so when it comes to filing the document with the
court.” Joao Bock Transaction Sys., LLC v. Fidelity Nat. Info. Servs., Inc., No. 3:13cv-223-J-32JRK, 2014 WL 279656, *1 (M.D.Fla. Jan. 24, 2014) (quotation marks
omitted). “Even without a challenge, the judge remains ‘the primary representative
of the public interest in the judicial process and is duty-bound therefore to review any
request to seal the record (or part of it). He may not rubber stamp a stipulation to
seal the record.’” Id. (quoting Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 184
F.Supp.2d 1353, 1363 (N.D.Ga. 2002)).
“Material filed in connection with any substantive pretrial motion, unrelated
to discovery, is subject to the common law right of access.” Romero v. Drummond

Co., 480 F.3d 1234, 1245 (11th Cir. 2007). “The common law right of access may be
overcome by a showing of good cause, which requires ‘balanc[ing] the asserted right
of access against the other party’s interest in keeping the information confidential.’”

5

See docs. 94, 113, 175, 215-18, 242-44, 265-67.

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Id. at 1246 (quoting Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d
1304, 1309 (11th Cir. 2001)) (alteration in original).

Factors for the Court’s

consideration include
whether allowing access would impair court functions or
harm legitimate privacy interests, the degree of and
likelihood of injury if made public, the reliability of the
information, whether there will be an opportunity to
respond to the information, whether the information
concerns public officials or public concerns, and the
availability of a less onerous alternative to sealing the
documents.

Id. at 1246; see also F.T.C. v. Alcoholism Cure Corp., No. 3:10-cv-266-J-34TEM, 2010
WL 4840046 (M.D.Fla. Nov. 23, 2010).
“‘Good cause is established by the moving party when disclosure will cause the
party to suffer a clearly defined and serious injury.’”

NXP B.V. v. Research In

Motion, Ltd., No. 6:12-cv-498-Orl-22TBS, 2013 WL 4402833, *2 (M.D.Fla. Aug. 15,
2013) (quoting Vista India, Inc. v. Raaga, LLC, No. 07-1262, 2008 WL 834399, *2
(D.N.J. Mar. 27, 2009)).

“A party’s privacy or proprietary interest in information

sometimes overcomes the interest of the public in accessing the information.”

Romero, 480 F.3d at 1246. Courts in this district have granted motions to seal in
patent infringement cases where the information sought to be protected was
designated “confidential” by agreement of the parties and where public access to the
documents could violate the parties’ privacy or proprietary interests. See, e.g., NXP

B.V., 2013 WL 4404833.
In this case, the parties represent that “[a]llowing public access to the alleged
confidential information could significantly harm the legitimate privacy interests

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that Arthrex and Parcus have in protecting their confidential and proprietary
information. The likelihood of injury in the event of disclosure is certain, and the
degree of that injury could be severe.” Doc. 296 at 4. Upon due consideration, the
Court finds that allowing public access to the information the parties seek to file
under seal could harm their legitimate privacy and proprietary interests, and there
is no less restrictive method available to protect the information. Therefore, because
they are unopposed and there exists good cause, the motions to seal will be granted
and the parties permitted to file the documents under seal.
ACCORDINGLY, it is hereby
ORDERED:
1.

Parcus Medical LLC’s Unopposed Motion for Leave to File Under Seal

Trial Brief Regarding Parcus Counterclaim V and the Arthrex C3 Program, Motion
in Limine Regarding Partial Waiver of Attorney-Client Privilege, and Motion in
Limine to Exclude Testimony of Kevin McAnaney (Doc. 279) is GRANTED.
2.

Arthrex’s Unopposed Motion to Seal Portions of Motions in Limine (Doc.

285) is GRANTED.
3.

Defendant’s Unopposed Motion to Seal Motion in Limine Nos. 1, 2, 3, 4,

5, 7, and 8 (Doc. 296) is GRANTED.
4.

The parties shall mail or hand-deliver the materials to be filed under

seal to the Clerk of Court. The documents will remain under seal for the duration of
this litigation, or until further order of the Court.

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5.

Defendant’s Motion to Strike Inadvertently Filed Unredacted Draft

Motion in Limine [DE 286] (Doc. 297) is GRANTED to the extent that Doc. 286 was
superseded by Doc. 293.

The Clerk is directed to remove Defendant’s Motion in

Limine No. 1 to Prevent Plaintiff from Offering Testimony, Arguments, Opinions, or
Evidence Regarding Allegations Against Defendant’s Expert (Doc. 286) from the
public docket.
DONE and ORDERED in Fort Myers, Florida on this 17th day of April, 2014.

Copies:
Counsel of record

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