Rosen v. Exact Sciences Corporation et al

Filing 99

ORDER granting 92 Motion for leave to file under seal. Unredacted exhibits due 2/6/23 at 5:00 P.M. Signed by Magistrate Judge Amanda Arnold Sansone on 1/30/2023. (SFC)

Case 8:19-cv-01526-MSS-AAS Document 99 Filed 01/30/23 Page 1 of 4 PageID 1589

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
ex rel. NILES ROSEN, M.D.,
v.

Plaintiff,

Case No. 8:19-cv-1526-MSS-AAS

EXACT SCIENCES CORPORATION
and EXACT SCIENCES
LABORATORIES, LLC,
Defendant.
______________________________________/
ORDER
Defendants

Exact

Sciences

Corporation

and

Exact

Sciences

Laboratories, LLC (collectively, Exact Sciences) move for leave to file under
seal several exhibits to its pending motion to compel (Doc. 89) and partially
redact portions of other exhibits to that motion. (Doc. 92). Plaintiff United
States of America ex rel. Niles Rosen, M.D. opposes Exact Sciences’ request.
(Doc. 94).
Because filing the documents under seal is not authorized by statute,
rule, or order, Exact Sciences moves to seal the documents under Local Rule
1.11(c). 1 In relevant part, Local Rule 1.11(c) states:

The revisions to the Middle District of Florida’s Local Rules took effect on February
2, 2021. The revised Local Rules are available on the Middle District of Florida’s
website. See Local Rules, https://www.flmd.uscourts.gov/local-rules.

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If no statute, rule, or order authorizes a filing under seal, a motion
for leave to file under seal:
(1) must include in the title “Motion for Leave to File Under
Seal”;
(2) must describe the item proposed for sealing;
(3) must state the reason:
(A) filing the item is necessary,
(B) sealing the item is necessary, and
(C) partial sealing, redaction, or means other than
sealing are unavailable or unsatisfactory;
(4) must propose a duration of the seal;
(5) must state the name, mailing address, email address, and
telephone number of the person authorized to retrieve a
sealed, tangible item;
(6) must include a legal memorandum supporting the seal;
but
(7) must not include the item proposed for sealing.
An order permitting leave under this section must state the reason
that a seal is required.
This court thus possesses both authority and discretion to seal records.
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978). The decision on
whether to seal records lies with this court, not the parties, and the decision
must balance the public’s common law right of access with a party’s interest in
keeping the information confidential. Id. at 597−99.
For a pretrial motion related to discovery, the court may overrule the
common law right of access upon a showing of “good cause.” Chicago Tribune
Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1310–1312 (11th Cir. 2001).
“The ‘good cause’ standard requires the trial court to ‘balance the respective
interests of the parties.’” Sarasota County Public Hospital District v.
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MultiPlan, Inc., 2019 WL 1244963 at *1 (M.D. Fla. March 18, 2019) (citing
Chicago Tribune, 263 F.3d at 1313). The analysis must consider:
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.
Romero v. Drummond Co., 480 F.3d 1234, 1246 (11th Cir. 2007).
Exact Sciences lists two justifications for sealing and partially redacting
exhibits to its motion to compel: (1) some of the information in the exhibits
constitutes “confidential business information, including financial data and
analysis and business strategies”; and (2) some of the information in the
exhibits is “related to its engagement with government regulators.” (Doc. 92,
pp. 3–6).
This court previously concluded in a January 18, 2023 order these
justifications did not “necessitate sealing or redacting the exhibits” referenced
in a nearly-identical motion to seal. (Doc. 93, p. 3). These justifications still do
not necessitate sealing or redacting the exhibits and statements listed in Exact
Sciences’ present motion. Exact Sciences’ interest in keeping confidential
certain financial data and business strategies regarding a gift card incentive
program is mitigated by the fact that (as Exact Sciences notes in their response
to the plaintiffs’ interrogatories) Exact Sciences discontinued the program “in

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the fourth quarter of 2018.” (Doc. 87, Ex. 2, p. 3). Further, Exact Sciences fails
to show any federal agency has standing to request the court seal or redact any
exhibits in this matter and thus fails to establish why the court should
provisionally seal certain exhibits “until the government has a chance to
express its opinion about whether this information should be publicly
available.” (Doc. 92, p. 6).
Exact Sciences has not established good cause for sealing or redacting
the listed exhibits to their motion to compel (Doc. 89). Exact Sciences’ motion
to file confidential exhibits under seal or for redaction (Doc. 92) is therefore
DENIED. Exact Sciences has until February 6, 2023 at 5:00 P.M. to submit
the unredacted exhibits.
ORDERED in Tampa, Florida on January 30, 2023.

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