UNITED STATES OF AMERICA et al v. OMNICARE, INC. et al

Filing 335

ORDER granting #274 Motion to Seal #241 Transcript. Signed by Magistrate Judge Joel Schneider on 6/9/16. (dd, )

[Doc. No. 274]
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
UNITED STATE OF AMERICA
ex rel. MARC SILVER, et al.,

:
:
:
Plaintiffs,
:
:
v.
:
:
OMNICARE, INC., et al.,
:
:
Defendants.
:
______________________________:

Civil No. 11-1326 (NLH/JS)

ORDER
This matter is before the Court on the Consent Motion to Seal
(“Motion”) [Doc. No. 274] filed by defendant PharMerica. The Court
exercises

its

discretion

to

decide

the

motion

without

oral

argument. See Fed. R. Civ. P. 78; L. Civ. R. 78.1. For the reasons
to be discussed, defendant’s motion is GRANTED.
The Court writes for the benefit of the parties, who are
already familiar with the pertinent background facts. Therefore,
only the facts necessary to deciding this dispute are recounted
here. The instant motion represents defendant’s second attempt to
seal page 74, line 22 of an October 27, 2015 Hearing Transcript
(“Transcript”). See Mot. at 1 [Doc. No. 274]; Consent Motion to
Seal at 1 (“First Motion”) [Doc. No. 242]. The Court denied
defendant’s first motion because it failed to “support its motion
with specific examples or articulated reasoning.” See Order at 4
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[Doc. No. 270]. In denying defendant’s first motion, the Court
gave

defendant

14

days

to

file

a

renewed

motion

to

seal.

Subsequently, defendant timely filed the instant motion. Mot.
[Doc. No. 274].

Litigants

seeking

to

seal

information

associated

with

a

judicial proceeding must demonstrate “good cause.” Securimetrics,
Inc. v. Iridian Techs., Inc., C.A. No. 03-4394 (RBK), 2006 WL
827889, at *2 (D.N.J. Mar. 30, 2006). Good cause requires “a
particularized

showing

that

disclosure

will

cause

a

‘clearly

defined and serious injury to the party seeking closure.’” Id.
(citing Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir.
1994)). In addition, the movant must support its motion with
“specific examples or articulated reasoning.” Supernus Pharm.,
Inc. v. Actavis, Inc., C.A. No. 13-4740 (RMB/JS), 2014 WL 6474039,
at *3 (D.N.J. Nov. 18, 2014) (collecting cases).
Motions to seal are governed by Local Civil Rule 5.3 which
requires the moving party to describe: (a) the nature of the
materials or proceedings at issue; (b) the legitimate private or
public interest which warrants the relief sought; (c) the clearly
defined and serious injury that would result if the relief sought
is not granted; and (d) why a less restrictive alternative to the
relief sought is not available. L. Civ. R. 5.3.
In support of its renewed motion defendant argues that the
material contained at page 74, line 22 of the transcript contains
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highly sensitive, confidential business information. Id. at 3. The
highly sensitive information identified by defendant consists of
the gross margin percentage of transactions between a particular
pharmacy and several nursing homes in the pharmacy’s geographic
region. Id. Defendant asserts it values the secrecy of this
information, and as a result declines to include such figures in
any of its public financial statements. Id.
Defendant also argues that disclosure of the information
would pose a serious risk to its competitive interests. Id.
Defendant maintains that the “long-term care pharmacy industry is
a highly competitive business” in which its competitors “are
aggressive in securing a nursing home’s business and in trying to
gain the business of nursing homes under contract with other longterm care pharmacies.” Id. at 4. Accordingly, defendant argues,
any disclosure of its gross margin percentages would subject
defendant to a “substantial risk of harm.” Id.
Defendant is also concerned about public disclosure of the
information. Defendant acknowledges that there may be some public
interest in the case considering the underlying allegations. Id.
at 5. Nonetheless, defendant argues that the proposed redaction is
so

narrow

that

it

will

not

“impede

the

public’s

ability

to

understand the discussion or to evaluate the case.” Id. at 4-5.
Similarly, defendant argues that its limited redaction is the least

3

restrictive means available to balance its interest in financial
privacy against the public’s interest in the case. Id.
Local Civil Rule 5.3 directs the court to evaluate defendants
motion under the following factors: (a) the nature of the materials
or proceedings at issue; (b) the legitimate private or public
interest which warrants the relief sought; (c) the clearly defined
and serious injury that would result if the relief sought is not
granted; and (d) why a less restrictive alternative to the relief
sought is not available. In the Court’s view, defendant has
satisfied the standards of Local Civil Rule 5.3, and shown “good
cause” to redact the identified information. Defendant identified
the subject of the material and specified where it appears in the
transcript, showed that the balance between public and private
interest weighs in its favor, supported its claim of economic harm
with specific examples and articulated reasoning, and selected the
least restrictive means to redact the information.
Accordingly, for the foregoing reasons,
IT

IS

hereby

ORDERED

this

9th

day

of

June,

2016,

that

defendant’s “Motion to Seal" [Doc. No. 274] is GRANTED. The Clerk
of the Court shall seal page 74, line 22 of the October 27, 2015
Hearing Transcript [Doc. No. 241].
/s/ Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge 

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