Amarin Pharma, Inc. et al v. Roxane Laboratories, Inc. et.al,

Filing 343

ORDERED that Defendants' motion to seal (ECF No. 334 ) is denied. It is further ordered that Plaintiffs must show cause in writing within five days of the date of entry of this order (1/15/2020) why the Court should not unseal the un redacted briefs referenced in Defendants' motion to seal (ECF Nos. 335 , 336 ). If Plaintiffs do not respond within five days, the Court will direct the Clerk of Court to unseal the documents. Signed by Chief Judge Miranda M. Du on 1/10/2020. (Copies have been distributed pursuant to the NEF - DRM)

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Case 2:16-cv-02525-MMD-NJK Document 343 Filed 01/10/20 Page 1 of 3 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 *** 6 AMARIN PHARMA, INC., et al., 7 Plaintiffs, 8 9 10 Case No. 2:16-cv-02525-MMD-NJK ORDER v. HIKMA PHARMACEUTICALS USA INC., et al., Defendants. 11 12 This is a consolidated patent infringement case brought under the Hatch-Waxman 13 Act where Plaintiffs Amarin Pharma, Inc. and Amarin Pharmaceuticals Ireland Limited 14 seek to prevent Defendants West-Ward Pharmaceuticals International Limited and Hikma 15 Pharmaceuticals USA Inc. (collectively, “Hikma”), and Dr. Reddy’s Laboratories, Inc. and 16 Dr. Reddy’s Laboratories, Ltd. (collectively, “DRL”) from launching generic competitor 17 drugs to Plaintiffs’ drug Vascepa. Before the Court is Defendants’ motion to seal, seeking 18 to file redacted versions of their pretrial brief and pretrial proposed findings of fact and 19 conclusions of law (the “Motion”).1 (ECF No. 334.) As further explained below, the Court 20 will deny Defendants’ motion to seal, but will also give Plaintiffs an opportunity to show 21 cause why the Court should not unseal the unredacted versions of Defendants’ briefs that 22 Defendants filed with their Motion (ECF Nos. 335, 336). 23 In the Ninth Circuit there is “a strong presumption in favor of access to court 24 records.” Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). To 25 overcome this presumption, a party must articulate “compelling reasons” justifying 26 27 28 1Plaintiffs order. have not filed a response to the Motion as of the date of entry of this Case 2:16-cv-02525-MMD-NJK Document 343 Filed 01/10/20 Page 2 of 3 1 nondisclosure, such as use of the record to gratify spite, permit public scandal, circulate 2 libelous statements, or release trade secrets. Kamakana v. City of Honolulu, 447 F.3d 3 1172, 1179 (9th Cir. 2006). “The mere fact that the production of records may lead to a 4 litigant’s embarrassment, incrimination, or exposure to further litigation will not, without 5 more, compel the court to seal its records.” Id. (citation omitted). Moreover, a party seeking 6 redactions must provide “specific compelling reasons” to justify them. Id. at 1183-84. 7 “Simply mentioning a general category of privilege, without any further elaboration or any 8 specific linkage with the documents, does not satisfy the burden.” Id. at 1184. 9 Defendants have not met their burden here. First, Defendants do not specifically 10 describe the categories of information they seek to seal, or provide any reasons why that 11 information should be redacted beyond stating that the information generally falls within 12 the scope of the parties’ stipulated protective order and is the type of information that 13 pharmaceutical companies generally treat as confidential. (ECF No. 334 at 2.) See also 14 Kamakana, 447 F.3d at 1183-84 (explaining this is insufficient). Second, it is clear the 15 Motion is not specifically tailored to the materials it seeks to seal because the motion itself 16 refers to “Defendants’ Motion to Compel.” (ECF No. 334 at 3.) But there is no currently 17 pending motion to compel in this case. Third, the Motion makes no effort to explain how 18 any of the information Defendants seek to seal would be considered a trade secret, or 19 exactly how its unsealing would harm Plaintiffs. 20 Further, in this case, Magistrate Judge Koppe issued an order approving the 21 parties’ blanket protective order making it very clear “there has been no showing, and the 22 Court has not found, that any specific documents are secret or confidential.” (ECF No. 70 23 at 1.) That order also imposed a procedure for filing documents under seal when the 24 sealing is based entirely on the other party’s designation of the material as confidential 25 under the protective order, but the Court cannot ascertain whether Defendants complied 26 with this procedure from reviewing the Motion. (Id. at 2.) And while the Court has granted 27 some previously-filed motions to seal in this case, the impending bench trial prompted the 28 2 Case 2:16-cv-02525-MMD-NJK Document 343 Filed 01/10/20 Page 3 of 3 1 Court to take a hard look at Defendants’ Motion. The Court is concerned about the 2 implications—logistical and otherwise—of allowing the parties to maintain some 3 information under seal at trial if they have not first specifically articulated compelling 4 reasons in support of sealing each piece of information they seek to seal. 5 However, because the unsealing of the unredacted versions of these briefs could 6 prejudice Plaintiffs—and that is the risk Defendants seem to seek to avoid in their Motion— 7 the Court will grant Plaintiffs leave to show cause in writing within five days why the Court 8 should not unseal the documents referenced in Defendants’ Motion. If Plaintiffs do not 9 respond within five days, or indicate in writing they do not object to these documents being 10 unsealed within that time, the Court will direct that the unredacted briefs (ECF Nos. 335 11 336) be unsealed. 12 It is therefore ordered that Defendants’ motion to seal (ECF No. 334) is denied. 13 It is further ordered that Plaintiffs must show cause in writing within five days of the 14 date of entry of this order why the Court should not unseal the unredacted briefs 15 referenced in Defendants’ motion to seal (ECF Nos. 335, 336). If Plaintiffs do not respond 16 within five days, the Court will direct the Clerk of Court to unseal the documents. 17 DATED THIS 10th day of January 2020. 18 19 20 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 3

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