Spectrum Pharmaceuticals, Inc. et al v. Sandoz Inc.

Filing 242

ORDER Granting 239 Motion to Seal Exhibit to the Declaration of Amanda K. Antons in support of Plaintiffs' Motion for Summary Judgment. Docket No. 238 shall therefore remain under seal at this time. The Court further ORDERS that, within one day of serving the opposing party in the Ben Venue Litigation with this report, Plaintiffs must file Exhibit 5 on the public docket in the instant case. Signed by Magistrate Judge Nancy J. Koppe on 7/1/14. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
DISTRICT OF NEVADA
9
10
SPECTRUM PHARMACEUTICALS, INC, et al,
11
Plaintiffs,
12
vs.
13
SANDOZ INC.,
14
Defendant.
15

)
)
)
)
)
)
)
)
)
)

Case No. 2:12-cv-00111-GMN-NJK
ORDER GRANTING MOTION
TO SEAL
(Docket No. 239)

16

Pending before the Court is Plaintiffs’ motion to seal. Docket No. 239. Plaintiff filed the

17

Declaration of Amanda K. Antons in support of the motion. Docket No. 240. The motion seeks to file

18

under seal Exhibit 5 to the Declaration of Amanda K. Antons in support of Plaintiffs’ Motion for

19

Summary Judgment (sealed version: Docket No. 238; public version: Docket No. 237).

20

I.

STANDARD

21

The Ninth Circuit has held that there is a strong presumption of public access to judicial records.

22

See Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006); Foltz v. State Farm

23

Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). A party seeking to file documents under seal

24

bears the burden of overcoming that presumption. Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678

25

(9th Cir. 2010) (quoting Kamakana, 447 F.3d at 1178). Parties “who seek to maintain the secrecy of

26

documents attached to dispositive motions must meet the high threshold of showing that ‘compelling

27
28

1

reasons’ support secrecy.” Kamakana, 447 F.3d at 1180.1 Those compelling reasons must outweigh the

2

competing interests of the public in having access to the judicial records and understanding the judicial

3

process. Id. at 1178-79; see also Pintos, 605 F.3d at 679 & n.6 (court must weigh “relevant factors,”

4

including the public’s interest in understanding the judicial process). The Ninth Circuit has indicated

5

that “‘compelling reasons’ sufficient to outweigh the public’s interest in disclosure and justify sealing

6

court records exist when such ‘court files might have become a vehicle for improper purposes,’ such as

7

the use of records to . . . release trade secrets.” Kamakana, 447 F.3d at 1179.

8

II.

ANALYSIS

9

In her Declaration, Antons represents that Exhibit 5 is the [rebuttal] expert report of Spectrum’s

10

validity expert, Dr. Richard G. Moran. Docket No. 240, at 2. Dr. Moran is Spectrum’s principal expert

11

on the issue of the validity of Spectrum’s patent. Id. Antons further represents that, if this report were

12

to be disclosed at this point, such disclosure could injure Plaintiffs’ competitive posture in a companion

13

case (the “Ben Venue Labs Litigation,” 2:14-cv-980-GMN-PAL) that involves the same, or similar,

14

invalidity arguments as this litigation. Id. A scheduling order has not yet been entered in the Ben Venue

15

Litigation, and Antons represents that providing the opposing party in that case with its expert sumission

16

would give that party an unfair advantage. Id., at 2-3. Plaintiffs request that the Court seal this expert

17

report until such time as they have served expert reports in the Ben Venue Litigation. Id., at 3. Plaintiffs

18

further note that the Court previously sealed this report in the instant case, based on a similar argument -

19

that providing the opposing party in a different case (the “Delaware Litigation”) would provide that

20

opposing party with an unfair advantage. Id., at 2. See also Docket No. 194, at 3.2 Antons additionally

21
22
23
24
25

1

Kamakana and Foltz involve non-parties’ attempts to obtain sealed court documents. The same
analysis and standards apply to a party’s motion to seal. See Pintos, 605 F.3d at 679 n.5; see also
Kamakana, 447 F.3d at 1182 n.9 (for the case before it, noting that “[t]he effective bottom line is that
the district court was determining whether documents should be sealed”).
2

26
27
28

At that time, Plaintiffs assured the Court that Plaintiffs would file the expert report on the public
docket within one day of serving the opposing party in the Delaware Litigation. Docket no. 194, at 3.
Plaintiffs make no mention in their current motion as to whether the opposing party has been served with
this report in the Delaware Litigation. See Docket No. 239.
2

1

represents that Exhibit 5 cannot be easily redacted while leaving meaningful information available to

2

the public. Docket No. 240, at 3.

3

The Court has reviewed Exhibit 5 concludes that it contains information that could injure

4

Plaintiffs’ competitive posture in the Ben Venue Litigation, which warrants keeping it sealed at this

5

time, pending the expert deadlines in the Ben Venue Litigation. Further, the Court finds that both good

6

cause and compelling reasons exist to seal this information that overcome the presumption of public

7

access, and that Exhibit 5 cannot be easily redacted while leaving meaningful information available to

8

the public.

9

III.

CONCLUSION

10

For the reasons discussed more fully above and for good cause shown, the Court GRANTS

11

Plaintiffs’ motion to seal Exhibit 5 to the Declaration of Amanda K. Antons in support of Plaintiffs’

12

Motion for Summary Judgment (Docket No. 239). Docket No. 238 shall therefore remain under seal

13

at this time. The Court further ORDERS that, within one day of serving the opposing party in the Ben

14

Venue Litigation with this report, Plaintiffs must file Exhibit 5 on the public docket in the instant case.

15

IT IS SO ORDERED.

16

DATED: July 1, 2014.

17
18
19

______________________________________
NANCY J. KOPPE
United States Magistrate Judge

20
21
22
23
24
25
26
27
28
3