Phillips v. C.R. Bard, Inc. et al

Filing 328

ORDER denying 317 Motion to Seal; denying without prejudice 326 Motion to Enforce Protective Order. Signed by Judge Robert C. Jones on 6/1/2015. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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_____________________________________
KEVIN PHILLIPS,

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Plaintiff,
vs.
C.R. BARD, INC. et al.,

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Defendants.

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3:12-cv-00344-RCJ-WGC
ORDER

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This case arises out of an allegedly defective medical device. The parties settled during

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trial. Defendants have asked the Court to seal certain trail exhibits and portions of the trial

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transcript.

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A court may “make any order which justice requires to protect the party or person from

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annoyance, embarrassment, oppression or undue burden or expense” upon motion by a party or a

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person from whom discovery is sought. Fed. R. Civ. Pro. 26(c). “The mere fact that the

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production of records may lead to a litigant's embarrassment, incrimination, or exposure to

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further litigation will not, without more, compel the court to seal its records. Kamakana v. City &

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Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir.2006). There is a strong presumption towards

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public access to judicial records. See id. at 1178. Under Kamakana, judicial records are

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separated into two groups, each with its own standard to be met if litigants wish to seal them.

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First, judicial records attached to dispositive motions must meet the “compelling reasons”

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standard in order for those documents to be sealed. Id. at 1180. Those compelling reasons must

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outweigh the competing interests of the public in gaining access to the judicial records and to

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understand the judicial process. Id. at 1178–79. Second, judicial records attached to

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nondispositive motions must meet the lesser “good cause” standard to be sealed. Id. A motion to

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seal transcripts and evidence adduced at trial must satisfy the “compelling reasons” test, because

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a trial is a dispositive proceeding. In re Elec. Arts, Inc., 298 Fed. App’x 568, 569 (9th Cir. 2008).

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The Court of Appeals has rejected requests to seal documents under the “compelling reasons”

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standard where the movant makes nothing more than “conclusory statements about the content of

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the documents—that they are confidential and that, in general,” their disclosure would harm the

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movant. Id. at 1182.

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Defendants argue that three categories of material should be sealed: (1) product design

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and testing, including confidential communications between Defendants and the FDA; (2) sales

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and marketing information; and (3) Defendant’s internal quality control procedures, complaint

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and adverse event responses, reporting and handling, device tracking procedures, and corrective

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action procedures. The Court finds that these categories of information do not satisfy the

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compelling reasons test. The only harm that could come to Defendants form the release of this

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information is the precipitation of further lawsuits against it. Preventing lawsuits due to the

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release of inculpating information is not a compelling reason to seal otherwise public legal

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proceedings. Indeed, the exposure of facts relevant to the material claims in a lawsuit is the

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purpose of a trial, and these facts should remain public unless the harm likely to result from their

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release is unrelated to the nature of the claims. The information does not directly implicate trade

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secrets.

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Even if the test could be satisfied, Plaintiff correctly notes that Defendants have waived

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the issue because Defendants made no motion to seal the exhibits or testimony at the public trial.

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See, e.g., Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 & n.11 (2nd Cir. 2004); Littlejohn v.

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BIC Corp., 851 F.2d 673, 680 (3d Cir. 1988); Nat’l Polymer Prods. v. Borg–Warner Corp., 641

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F.2d 418, 421 (6th Cir. 1981); Level 3 Commc’ns, LLC v. Limelight Networks, Inc., 611 F. Supp.

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2d 572, 588 (E. D. Va. 2009) (“The First Amendment public right of access to these exhibits

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sprang into existence upon their being offered into evidence for the jury’s consideration at trial,

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and since no request was made to seal them prior to or at that time, Savvis waived any future

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right to assert any competing interest to be weighed by the Court and, thus, any objection to the

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public availability of the exhibits in the Court’s files.”).
CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Seal (ECF No. 317) is DENIED.

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IT IS FURTHER ORDERED that the Motion (ECF No. 326) is DENIED without

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prejudice, as it has been incompletely filed.

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IT IS SO ORDERED.

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Dated this 29th day of May, 2015.
Dated this 1st day of June, 2015.

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_____________________________________
ROBERT C. JONES
United States District Judge

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