Ferring Pharmaceuticals Inc. v. Braintree Laboratories, Inc.

Filing 578

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDERFor the foregoing reasons,1. Ferrings motion to strike (Docket No. 428) is DENIED,2. Ferrings motion to strike (Docket No. 404) is DENIED,3. Ferrings motion to strike (Docket No. 478) is, with respect to paragraph five in Ms. Pickerings supplemental declaration and Exhibit B to that declaration, ALLOWED but otherwise DENIED,4. Ferrings motion to strike (Docket No. 475) is DENIED,5. Braintrees motion to strike (Docket No. 500) is DENIED and6. Braintrees renewed motion to unseal (Docket No. 516) is ALLOWED.So ordered.(Caruso, Stephanie)

United States District Court
District of Massachusetts
)
)
)
Plaintiff-Counterclaim )
)
Defendant,
)
)
v.
)
)
BRAINTREE LABORATORIES, INC.,
)
Defendant-Counterclaim )
)
Plaintiff.
)
FERRING PHARMACEUTICALS, INC.,

Civil Action No.
13-12553-NMG

MEMORANDUM & ORDER
GORTON, J.
This case involves two pharmaceutical companies that have
developed and marketed competing products used for bowel
preparation before colonoscopies.

Plaintiff/counterclaim-

defendant Ferring Pharmaceuticals, Inc. (“Ferring”) claims that
Defendant/counterclaim-plaintiff Braintree Laboratories, Inc.
(“Braintree”) engaged in false advertising in violation of the
Lanham Act and unfair trade practices in violation of the
Massachusetts Consumer Protection Act, M.G.L. ch. 93A (“Chapter
93A”).

Ferring also claims that Braintree diluted Ferring’s

trademark in its product, Prepopik, by suggesting that it
presents the same risks as Pico-Salax, a chemically identical
product sold in Canada.

Braintree counterclaims that Ferring

has, itself, engaged in false advertising in violation of the

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Lanham Act and unfair trade practices in violation of Chapter
93A.

In August, 2014, this Court dismissed Braintree’s

additional counterclaim that Ferring misappropriated trade
secrets.
Ferring’s motions to strike, Braintree’s motion to strike
and Braintree’s renewed motion to unseal are currently pending
before the Court.
I. Factual and Procedural Background
Ferring, a Delaware corporation with a principal place of
business in Switzerland, advertises and sells Prepopik which is
used as a prep for colonoscopies.

Braintree, a Massachusetts

corporation with its principal place of business in Braintree,
Massachusetts, advertises and sells Suprep which is similarly
used prior to colonoscopies.
In October, 2013, Ferring filed a complaint against
Braintree which answered and counterclaimed.

In August, 2014,

this Court allowed Ferring’s motion to dismiss Braintree’s
counterclaims that Ferring had misappropriated trade secrets and
falsely advertised with respect to “flexible dosing” and “helps
achieve success.”

The Court denied Ferring’s motions to dismiss

1) Braintree’s false advertising counterclaims relating to
“superior cleansing efficacy” and “lowest volume” and 2)
Braintree’s counterclaims relating to unfair and deceptive trade
practices under Chapter 93A.

The Court also denied Braintree’s
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motion for summary judgment without prejudice and allowed
Braintree to amend paragraphs 40 through 42 of its counterclaim.
On April 22, 2016, Ferring filed motions for summary
judgment on Braintree’s counterclaim, its own claims and
Braintree’s affirmative defenses.
own motion for summary judgment.

Braintree, in turn, filed its
The following motions to

strike relating to the summary judgment motions are currently
before the Court:
1) Ferring’s motion to strike the declaration of Phillip
Rakhunov, Braintree’s counsel,
2) Ferring’s motion to strike the declarations of Dr.
Douglas Rex, John McGowan and Patrice Pickering,
3) Ferring’s motion to strike the declarations of Dr.
Douglas Rex, John McGowan, Dr. Jack DiPalma, Patrice
Pickering and Shannon Callahan Meeks,
4) Ferring’s motion to strike certain opinion testimony of
Robert Klein and
5) Braintree’s motion to strike Ferring’s replies to
Braintree’s counterstatements of material facts.
Braintree’s renewed motion to unseal certain documents and
testimony is also pending before the Court.
II.

Ferring’s Motions to Strike

Ferring has filed numerous motions to strike declarations
and testimony that Braintree offers in support of its motions
for summary judgment and/or its oppositions to Ferring’s motions
for summary judgment.

Based upon evidentiary grounds, Ferring

moves to strike the declarations of Phillip Rakhunov,
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Braintree’s counsel, Patrice Pickering and Shannon Callahan
Meeks, two Braintree employees, and Robert Klein’s third survey
and related testimony.

Ferring also moves to strike the

declarations of Dr. Douglas Rex, John McGowan and Dr. Jack
DiPalma on the grounds that Braintree failed to disclose those
individuals as experts or provide expert reports in accordance
with this Court’s deadline and Fed. R. Civ. P. 26(a)(2)(B).
A. Evidentiary Objections to the Declarations of Phillip
Rakhunov, Patrice Pickering and Shannon Meeks and
Robert Klein’s Third Survey
1. Legal Standard
At the summary judgment stage, the Court may consider only
evidence that would be admissible at trial. Fed. R. Civ. P.
56(c)(3).

Moreover, the party offering the evidence must

demonstrate that the declarant has personal knowledge about the
evidence and is competent to testify about it. Id.; see also,
e.g., Hoffman v. Applicators Sales and Serv., Inc., 439 F.3d 9,
14 (1st Cir. 2006).
2. Analysis
a. The Declaration of Phillip Rakhunov
In support of its motion for summary judgment, Braintree
submitted the declaration of Phillip Rakhunov, one of
Braintree’s attorneys.

That declaration summarizes evidence

that Ferring produced in discovery, including emails,
presentations, internal updates and records of conversations
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with physicians.

Ferring asserts that Attorney Rakhunov’s

declaration fails to meet the Fed. R. Civ. P. 56(c) requirements
that such declarations be
[1] made on personal knowledge, [2] set out facts that
would be admissible in evidence, and [3] show that the
affiant or declarant is competent to testify on the matters
stated.
Id.

According to Ferring, Attorney Rakhunov’s declaration

contains impermissible opinion evidence, inadmissible hearsay
and lacks foundation.

Braintree responds that the declaration

contains descriptions rather than opinions and that the evidence
described is excluded from the hearsay rule.
As an initial matter, the many declarations Ferring’s
counsel submitted to support or oppose various motions seriously
weaken its assertion that Attorney Rakhunov lacks personal
knowledge and is not competent to testify.

To the extent that

the declaration contains impermissible opinions or conclusions
without necessary foundation, the Court will disregard those
portions of the declaration in its consideration of the motions.
Ferring’s evidentiary objections require a more detailed
analysis.

Ferring is correct in its assertion that it is

“black-letter law” that impermissible hearsay cannot be
considered for summary judgment. Fed. R. Evid. 801(d)(2); Davila
v. Corporacion De Puerto Rico Para La Difusion Publica, 498 F.3d
9, 17 (1st Cir. 2007).

If an out of court statement is used for

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a non-hearsay purpose or falls within an exclusion to the
hearsay rule, however, it may be considered for summary
judgment. Davila, 498 F.3d at 17.
Here, the statements to which Attorney Rakhunov refers in
his declaration include emails from various Ferring employees,
such as sales representatives, the national sales director, the
director of business intelligence and medical science liaisons.
The declaration also refers to Ferring’s internal updates,
presentations and reports.

These are statements by Ferring’s

employees made in the course of their employment and are thus
excluded from the hearsay rule under Fed. R. Evid. 801(d)(2)(D).
Woodman v. Haemonetics Corp., 51 F.3d 1087, 1093–94 (1st Cir.
1995).
To the extent that the statements by Ferring employees
contain a second level of hearsay, specifically, statements from
physicians and other healthcare personnel about Prepopik’s
efficacy, such statements are admissible as adoptive admissions.
Under Fed. R. Evid. 801(d)(2)(B), a statement qualifies as an
adoptive admission if the “party manifested that it adopted [it]
or believed [it] to be true.” Id.

To determine whether a party

adopted a statement, a court must examine “the extent that the
adoptive party accepted and acted upon the evidence.” Pilgrim v.
Trustees of Tufts Coll., 118 F.3d 864, 870 (1st Cir. 1997),

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abrogated on other grounds by Crowley v. L.L. Bean, Inc., 303
F.3d 387, 405 (1st Cir. 2002).
In this case, Ferring’s employees adopted physician and
healthcare personnel statements regarding Prepopik’s efficacy.
For instance, the Ferring National Sales Director wrote in an
April 9, 2013 email “We are having problems with the efficacy at
times . . .”, a Ferring national sales director’s drop off list
included efficacy as a complaint, an internal February, 2014
review described efficacy as an issue in the Roanoke territory
and, in an August 13, 2014 email, a Ferring director wrote that
it was “no surprise that the efficacy challenges prevail.”
Instead of contesting physician complaints regarding efficacy
issues, the Ferring employees attempted to solve those issues by
advising the use of additional hydration.

Consequently, the

physician and healthcare personnel statements within the Ferring
documents constitute adoptive admissions, the emails and
documents themselves are admissions by the party opponent and
the Court will deny the motion to strike Attorney Rakhunov’s
declaration.
b. The Declaration of Patrice Pickering
Ms. Pickering is the vice president of marketing at
Braintree.

She submitted both an original and supplemental

declaration.

Her original declaration concerns the dates on

which Braintree authorized employees to use the Canadian Adverse
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Reaction Newsletter (“Canadian Newsletter”) and the “What’s Not
New About Prepopik” flyer (“comparison detailer”).

She also

estimates how often unauthorized uses of those pieces occurred
based on documents found in discovery.

Ferring asserts that Ms.

Pickering’s original declaration has foundational issues and is
inadmissible hearsay.

Braintree responds that Ferring has in

its possession the records to which Ms. Pickering refers and
contends that Ms. Pickering’s statements do not involve hearsay
because instructions are not hearsay and the other statements
are being used to show notice and effect on the listener.
Ms. Pickering’s original declaration states that “Braintree
authorized Suprep sales representatives” to use the Canadian
Newsletter and the comparison detailer.

It includes the date on

which Braintree authorized use of such materials and the date on
which Braintree told employees to stop using them.

Those

instructions from Braintree are not hearsay at all because they
are being offered to show that the instructions were given, not
for the truth of the matter asserted. United States v. Murphy,
193 F.3d 1, 5 (1st Cir. 1999).

Furthermore, the feedback from

doctors to which Ms. Pickering’s declaration refers is also
being offered for a non-hearsay purpose, i.e. to show the effect
on the listeners, in this case Braintree employees. See Ira
Green, Inc. v. Military Sales & Serv. Co., 775 F.3d 12, 19 (1st
Cir. 2014).

Because Ms. Pickering is the vice president of
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marketing at Braintree, she has adequate personal knowledge to
make her declaration.
Ms. Pickering’s supplemental declaration includes two
Exhibits.

Exhibit A is a picture of a poster from Ferring’s

booth at a GI roundtable event in Dallas/Fort Worth, Texas that
occurred on March 10-12, 2016.

Exhibit B contains photos of

Ferring promotions that “ran in widely published journals
between September 2013 and October 2014.”

Ferring takes issue

with the supplemental declaration, contending that the Court
limited this case to specified advertisements mentioned in the
Court’s ruling on the motion to dismiss and that there is
inadequate foundation for Exhibit B.

Braintree responds that

its counterclaim is not limited to specific advertisements.
The Court did not limit the false advertising claims to
certain advertisements in its ruling on the motion to dismiss.
Therefore, the Court rejects Ferring’s contention that Braintree
cannot offer evidence of promotions in addition to those
mentioned in the subject ruling.

Moreover, there is sufficient

foundation for the Exhibit A photo from the GI roundtable event
because Ms. Pickering explained where and when the photo was
taken in her declaration.
The advertisements in Exhibit B, however, lack sufficient
foundation.

Ms. Pickering’s declaration contains no information

whatsoever about which publications these advertisements are
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from, stating only that they were in “widely published
journals.” See Baybank Middlesex v. 1200 Beacon Properties,
Inc., 760 F. Supp. 957, 962 n.5 (D. Mass. 1991).

Consequently,

the Court will allow the motion to strike paragraph five in Ms.
Pickering’s supplemental declaration and Exhibit B to that
declaration.

The Court notes that if Braintree were able to lay

the requisite foundation for the photos in Exhibit B, such
advertisements would likely be admissible at trial.
c. The Declaration of Shannon Callahan Meeks
Ferring objects to the declaration of Shannon Callahan
Meeks, a Braintree district manager, on the grounds that it is
lay testimony based on hearsay and lacks foundation.

Braintree

maintains that the out of court statements are offered for nonhearsay purposes, including to show their effect on the
listener, Ms. Meeks, and to provide context for the audio
recording and emails of Keeley Van Genderen, a Braintree sales
representative.

Ferring refers to both the recording and Ms.

Van Genderen’s emails in its motions for summary judgment.
The out-of-court statements in Ms. Meeks’ declaration are
not being offered for their truth but rather to provide context
for the audio-recording and emails on which Ferring relies in
its statements of fact for its motions for summary judgment.
Thus, those statements are not hearsay. United States v. Murphy,
193 F.3d 1, 5–6 (1st Cir. 1999).

Furthermore, there is

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sufficient foundation for the testimony in Ms. Meeks’
declaration.

As a Braintree district manager, she would know

which methods of promotion were and were not authorized by
Braintree.

In contrast to Ferring’s position, the fact that Ms.

Meeks limits her observations to her personal knowledge actually
strengthens her declaration against evidentiary attack.

The

Court will deny Ferring’s motion to strike Ms. Meeks’
declaration.
d. Robert Klein’s Third Survey
Ferring also moves to strike Robert Klein’s third survey
and his testimony regarding that survey.

Mr. Klein’s third

survey examines the message that the Ferring “superior cleansing
efficacy” advertisement conveys.

The survey asked participants

whether the promotion communicated anything about the need for
an over-the-counter supplement to be used with Prepopik and how
important that information would be for a doctor making a
prescription.

Based on the survey, Mr. Klein concluded that the

Ferring promotion does not communicate that Prepopik requires a
supplement and that if doctors were informed that a supplement
was necessary, it would decrease the likelihood that the doctors
would prescribe the medication.
According to Ferring, this survey is irrelevant because the
Court limited Braintree’s false advertising counterclaims to
claims regarding literal falsity in its earlier ruling.
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Ferring

further asserts that Mr. Klein’s third survey and related
testimony must be stricken under Fed. R. Evid. 702 because it
sets up a strawman and has flawed and leading questions.
Braintree responds that its counterclaims include claims that
the “superior cleansing” advertisement is both false and
misleading and contends that the survey is relevant when
juxtaposed to evidence that Ferring responded to efficacy issues
by adding off-label instructions and suggesting the use of
supplements.

Braintree also claims that Mr. Klein’s survey goes

to the materiality of information omitted from Ferring’s
advertisement.
The Court did not limit Braintree’s counterclaims regarding
false advertising to literal falsity, and Braintree may continue
to pursue claims that the “superior cleansing efficacy” and
“lowest volume” promotions were misleading.

Relevance is a low

bar, and Mr. Klein’s third survey and testimony regarding it are
relevant to whether Ferring’s advertisements were misleading.
See Fed. R. Evid. 401, 402; United States v. Burnett, 579 F.3d
129, 132 (1st Cir. 2009).
Ferring does not contest Mr. Klein’s credentials or the
overall methodology of his survey and conclusions.

Instead,

Ferring quibbles about the form and sequence of Mr. Klein’s
questions.

Consequently, Ferring’s objections to the third

survey go to the weight, not the admissibility, of Mr. Klein’s
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testimony. Cummings v. Standard Register Co., 265 F.3d 56, 65
(1st Cir. 2001).

Mr. Klein’s survey can be tested through the

“[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof” that
are essential to the adversarial process. Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 596 (1993).

The Court will deny the

motion to strike that survey and Mr. Klein’s related testimony.
B. Ferring’s Objections to the Declarations of Dr.
Douglas Rex, John McGowan and Dr. Jack DiPalma based
on Inadequate Disclosure under Fed. R. Civ. P. 26
1. Legal Standard
Parties are required to disclose experts that they may use
to present evidence at trial under Fed. R. Evid. 702, 703 or 705
and provide a written report for experts who have been
retained or specially employed to provide expert testimony
in the case or [] whose duties as the party’s employee
regularly involve giving expert testimony.
Fed. R. Civ. P 26(a)(2)(B).

In contrast, for expert witnesses

who have not been retained or specially employed, the party need
only disclose the subject of the witness’s expected expert
testimony and a summary of the facts and opinions that the
expert may offer. Fed. R. Civ. P. 26(a)(2)(C).
The First Circuit Court of Appeals has elaborated on the
difference between retained and non-retained experts, explaining
that when “the expert is part of the ongoing sequence of events”
his opinion testimony is not retained. Downey v. Bob's Disc.
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Furniture Holdings, Inc., 633 F.3d 1, 7 (1st Cir. 2011).

On the

other hand, if the
expert comes to the case as a stranger and draws the
opinion from facts supplied by others, in preparation for
trial,
he is a retained or specially employed expert under Fed. R. Civ.
P. 26. Id.

Determining whether to preclude expert testimony

that has been disclosed after the pertinent deadline is “not a
strictly mechanical exercise,” and in making the preclusion
decision, district courts may consider various factors such as
the history of the litigation, the proponent’s need for the
challenged evidence, the justification (if any) for the
late disclosure, and the opponent’s ability to overcome its
adverse effects.
Santiago-Diaz v. Laboratorio Clinico Y De Referencia Del Este
And Sara Lopez, M.D., 456 F.3d 272, 276–77 (1st Cir. 2006)
(internal quotations and citation omitted).
2. Analysis
Ferring moves to strike the declarations of Dr. Douglas
Rex, John McGowan and Dr. Jack DiPalma that Braintree filed in
support of its motion for summary judgment and/or in opposition
to Ferring’s motions for summary judgment.

Ferring contends

that by first disclosing Dr. Rex, Mr. McGowan and Dr. DiPalma on
February 15, 2016, Braintree violated the Court’s February 14,
2016 deadline for disclosing expert rebuttal reports under Rule
26(a)(2)(B).

Ferring also asserts that even if those experts

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are considered “non-retained,” Braintree failed to provide a
timely summary of their opinions in violation of Fed. R. Civ. P.
26(a)(2)(C).
a. The Declaration of Dr. Douglas Rex
Dr. Rex is a non-retained, non-specially employed expert.
Braintree is not paying him for his time and has not hired him
to testify.

Rather, Dr. Rex’s declaration addresses his SEE

CLEAR I study that compared Prepopik to HalfLytely, another
bowel preparation treatment.

Dr. Rex’s three page declaration

asserts that his SEE CLEAR I study and related article do not
support Ferring’s “superior cleansing efficacy” promotion.

In

his declaration, Dr. Rex clarifies that the superior colon
cleansing demonstrated by Prepopik in the study is likely due to
the fact that Prepopik is a split dosage treatment, while
HalfLytely is used only on the day before the colonoscopy.

Dr.

Rex’s declaration further states that he later conducted a study
comparing Suprep and Prepopik that found that Suprep resulted in
superior cleansing.
Given his involvement in the studies, Dr. Rex is “an actor
with regard to the occurrences from which the tapestry of the
lawsuit was woven,” and thus no Rule 26 report for Dr. Rex was
required. Gomez v. Rivera Rodriguez, 344 F.3d 103, 113 (1st Cir.
2003).

Braintree’s disclosure that Dr. Rex might provide

opinions regarding the studies but that his testimony will be
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largely factual in nature is sufficient disclosure under Rule
26(a)(2)(C), especially because Braintree anticipates calling
Dr. Rex primarily as a fact witness.
Moreover, although it would have been prudent for Braintree
to disclose, before the deadline for expert rebuttals, that it
might call Dr. Rex, this Court will not strike his declaration
because he was disclosed one day after the deadline.

Such a

modest oversight stands in contrast to other situations in which
courts have found it appropriate to strike expert testimony.
Santiago-Diaz, 456 F.3d at 275–78 (determining that preclusion
of expert testimony was warranted when plaintiff did not
disclose her expert until seven months after the close of
discovery); Macaulay v. Anas, 321 F.3d 45, 52–53 (1st Cir. 2003)
(holding that preclusion of expert testimony involving a new
theory of liability disclosed only a week before trial was
permissible).
The element of surprise that characterizes other cases in
which expert testimony has been excluded is also lacking in this
case. Macaulay, 321 F.3d at 51–52.

Ferring was aware of Dr.

Rex’s studies and articles because its “superior cleansing
efficacy” promotion referred to the 2010 article and depositions
of various witnesses referred to both the 2010 and 2013 studies
and articles.

Dr. Rex was identified in Braintree’s answers to

interrogatories on October 6, 2014 and September 8, 2015, and
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Dr. Rex was referred to during the deposition of Ferring’s Rule
30(b)(6) witness.

Moreover, Ferring filed a supplemental

disclosure of Dr. Gerald Bertiger in which Dr. Bertiger replies
to the declarations from Dr. Rex, Mr. McGowan and Dr. DiPalma.
It is within this Court’s discretion to allow Dr. Rex’s
declaration to remain on the record. Santiago-Diaz, 456 F.3d at
276–77.
b. The Declaration of John McGowan
John McGowan is the vice president of clinical research at
Braintree.

His declaration notes that he oversaw a 2013 study

comparing Suprep and Prepopik.

It also elaborates on the

prescribing information sheets for Suprep and Prepopik as well
as the Food and Drug Administration (“FDA”) Center for Drug
Evaluation and Research summary review of Prepopik.
Mr. McGowan is neither retained nor specially employed for
his testimony.

His declaration relates largely to factual

knowledge gained in the course of his daily job and the Suprep
studies in which he was involved.

To the extent that any expert

testimony is involved, it is not the testimony of a retained
expert.

Braintree included Mr. McGowan in its initial

disclosures, answers to interrogatories and also a Rule
26(a)(2)(C) disclosure.

Braintree’s disclosure of Mr. McGowan

as a non-retained expert occurred only one day after the
deadline and Ferring has had the opportunity to respond to his
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testimony through Dr. Bertiger’s supplemental disclosure.

The

Court will not strike the declaration of Mr. McGowan.
c. The Declaration of Dr. Jack DiPalma
Dr. DiPalma is the Medical Director for Braintree.

His

declaration addresses the FDA notice of contra-indication for
Prepopik patients with severe renal impairments and the FDA’s
summary review.

The declaration also addresses two articles.

One, titled “Bowel Preparation before Colonoscopy,” refers to
the risks of sodium picosulfate, the active ingredient in
Prepopik.

The other, “Hyponatremia and Sodium Picosulfate Bowel

Preparations in Older Adults,” addresses sodium picosulfate use
in Canada.

Dr. DiPalma’s declaration further addresses the

efficacy studies for the bowel preparation treatments.
Similar to Dr. Rex and Mr. McGowan, Dr. DiPalma is neither
retained nor specially employed and his non-retained expert
testimony was disclosed only one day after the deadline for
rebuttal expert testimony.

Ferring has had the opportunity to

counter Dr. DiPalma’s declaration through Dr. Bertiger’s
supplemental disclosure and any additional foundation needed for
his testimony can be addressed at trial.
strike the declaration of Dr. DiPalma.

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The Court will not

III. Braintree’s Motion to Strike Ferring’s Replies to
Braintree’s Counterstatements of Material Facts
In support of its motions for summary judgment Ferring
filed statements of undisputed material facts.

Braintree

responded with its own statements of material facts.

On June 3,

2016, Ferring filed an assented-to motion for leave to file
replies in support of its motions for summary judgment.

The

assented-to motion asserted that Ferring would file two 15-page
reply briefs along with, among other things, responses and
objections to Braintree’s counterstatements of material facts.
Braintree asserts that Ferring’s responses to Braintree’s
counterstatements of material facts are not permitted under
Local Rule 56.1 and that consequently they should be stricken.
LR, D.Mass 56.1.

Braintree further contends that even if such

responses were permitted, Ferring’s responses exceed the scope
of Local Rule 56.1 responses because they are not concise and
include evidentiary arguments, inferences and exhibits. Id.
Ferring responds that its responses and objections to
Braintree’s counterstatements of material facts are permissible
because the Court allowed the assented-to motion requesting
leave to file them, and Fed. R. Civ. P. 56(c)(1)-(2) permit
parties to reply and object to counterstatements of material
facts.

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While the Court agrees with Braintree that Ferring’s
replies are needlessly lengthy and notes that Braintree’s
responsive statements of facts are hardly concise at 51 and 95
pages, the Court will not strike Ferring’s replies.

The

assented-to motion refers to Ferring’s intent to file responses
and objections to Braintree’s counterstatements of material
facts.

It is within this Court’s discretion to allow the

responses and objections to stand, see Castello v. Martin, 197
F. App'x 14, 16–17 (1st Cir. 2006), but it hastens to note that
it will give scant consideration to improper legal and factual
assertions from either party.
IV.

Braintree’s Renewed Motion to Unseal Certain Testimony
and Documents
A. Legal Standard

There is a well-established presumption of public access to
judicial documents. Fed. Trade Comm’n v. Standard Fin. Mgmt.
Corp., 830 F.2d 404, 408 (1st Cir. 1987).

Non-disclosure of

judicial records can be justified for “only the most compelling
reasons.” Id.

District courts therefore “must carefully balance

the competing interests that are at stake in the particular
case.” Siedle v. Putnam Investments, Inc., 147 F.3d 7, 10 (1st
Cir. 1998).

What constitutes sufficient cause depends on the

nature of the records the parties seek to impound.

The more

essential a document is to the Court’s core function of

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adjudicating the parties’ claims, the higher the burden to
overcome the presumption of public access. Bradford & Bigelow,
Inc. v. Richardson, No. 13-cv-11025-RWZ, 2015 WL 3819234 at *2
(D. Mass. June 19, 2015).
Furthermore, the First Circuit Court of Appeals has held
that the possible revelation of embarrassing information does
not provide adequate reason to seal records. Siedle, 147 F.3d at
10.

Instead, the moving party must provide “a particular

factual demonstration of potential harm.” Standard Fin. Mgmt.
Corp., 830 F.2d at 412.

In accordance with the First Circuit

Court of Appeals, this Court declines to adopt the presumption
that parties should be “entitled to rely upon the enforceability
of a protective order.” See In re Grand Jury Subpoena, 138 F.3d
442, 444–45 (1st Cir. 1998).
B. Analysis
This Court authorized a protective order applicable to
discovery in this case on April 9, 2015.

It lays out

requirements for parties to label discovery as “confidential” or
“highly confidential.”

As explained in the order, an item is

confidential if it “contains nonpublic confidential,
proprietary, or commercially sensitive information,” and an item
is highly confidential if it contains confidential information
that is also “forward-looking or currently relevant” and
“constitutes highly sensitive technical, development, or
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financial information” regarding, among others things, the
parties’ strategic plans, products or trade secrets.

The

protective order further declares that if a designation is
challenged, the designating party has the burden of showing that
1) the item falls within a protected category under the order
and 2) good cause for impounding the document exists under Fed.
R. Civ. P. 26(c).
Braintree renews its motion to unseal certain testimony and
documents, including briefs and exhibits related to Braintree’s
motion for summary judgment, Daubert motions, summary judgment
oppositions and motion under Rule 56(d) and 37.

According to

Braintree, Ferring has designated the vast majority of its
discovery as highly confidential even when it is not forwardlooking or currently relevant as required by the order.
Braintree asserts that counsel should be permitted to share
information with their client’s in house counsel or management,
especially at the adjudicative stage.

Ferring responds that the

Court should not be required to spend time re-designating the
sealed information and that examining the documents before
pretrial is impractical.

In Ferring’s view, the documents at

least meet the confidential standard.
Ferring fails to provide particular factual demonstrations
of harm that would occur were the documents unsealed. See
Standard Fin. Mgmt. Corp., 830 F.2d at 412.
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Bare assertions of

inconvenience are insufficient cause to seal documents.
Similarly, Ferring’s contention that all of its emails are
confidential without providing good cause for sealing the emails
is unavailing.

Ferring’s concerns about protecting private

information in its emails can be addressed by redacting the
names and identifying information of doctors and their offices.
Ferring raises specific concerns about parts of Dr.
Bertiger’s deposition and information regarding an internal
study that he conducted in 2013.

Ferring also maintains that

Dr. Bertiger’s discussion of the use of additional hydration in
his deposition, including anecdotes from his practice, is
confidential and should remain sealed.

Because the internal

study dates back to 2013, it is neither forward looking nor
currently relevant as required for the highly confidential
designation.

While the study and deposition may contain non-

public, confidential information as required for the
confidential category, Ferring must also meet its burden to show
good cause under Fed. R. Civ. P. 26(c).

Ferring has not

demonstrated the required particular factual need for the
continued sealing of the information.
Corp., 830 F.2d at 412.

Standard Fin. Mgmt.

Consequently, Ferring has failed to

meet its burden under the protective order to show that good
cause to seal the items exists, and the Court will, therefore,
allow Braintree’s motion to unseal.
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Order
For the foregoing reasons,
1. Ferring’s motion to strike (Docket No. 428) is DENIED,
2. Ferring’s motion to strike (Docket No. 404) is DENIED,
3. Ferring’s motion to strike (Docket No. 478) is, with
respect to paragraph five in Ms. Pickering’s supplemental
declaration and Exhibit B to that declaration, ALLOWED but
otherwise DENIED,
4. Ferring’s motion to strike (Docket No. 475) is DENIED,
5. Braintree’s motion to strike (Docket No. 500) is DENIED and
6. Braintree’s renewed motion to unseal (Docket No. 516) is
ALLOWED.
So ordered.

/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated October 14, 2016

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