SUPERNUS PHARMACEUTICALS, INC. v. TWI PHARMACEUTICALS, INC. et al

Filing 332

ORDER granting 215 Motion to Seal. Signed by Magistrate Judge Joel Schneider on 8/24/17. (dd, )

[Doc. No. 215]
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
SUPERNUS
PHARMACEUTICALS, INC.,
Plaintiff,
Civil No. 15-0369 (RMB/JS)
v.
TWI PHARMACEUTICALS, INC.,
et al.,
Defendants.
O R D E R
This matter is before the Court on the renewed “Joint Motion
to Seal” [Doc. No. 215] filed by defendants. Plaintiff does not
oppose the motion. The Court is in receipt of the Declaration of
Yuling Lin (“Lin Decl.”) [Doc. No. 246] in further support of
defendants’ motion. Defendants seek to seal certain portions of
the

June

14,

2016

Telephone

Discovery

Conference

Transcript

(“Transcript”) [Doc. No. 150] and plaintiff’s July 15, 2016 letter
to the Court with exhibit A attached thereto [Doc. No. 132]. 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, defendants’ motion is GRANTED.
As noted, the instant motion represents the parties’ second
attempt to seal the subject materials. Defendants initially filed
1

a motion to seal certain portions of the transcript because a
specific

ingredient

of

defendants’

Abbreviated

New

Drug

Application (“ANDA”) product was referenced during the conference.
First Mot. ¶ 5 [Doc. No. 128-1]. Plaintiff initially filed a motion
to seal certain portions of its July 15, 2016 letter because
defendants designated certain information referenced in the letter
as “Highly Confidential” pursuant to the Discovery Confidentiality
Order (“DCO”) [Doc. No. 40]. Second Mot. at 2 [Doc. No. 131-1]. On
February 24, 2017, the Court denied both motions without prejudice,
finding that defendants failed to “show good cause to seal because
the motion[s] [are] not supported by the requisite affidavit[s]
executed by a person with personal knowledge of the referenced
facts.”1 Accordingly, the Court found it was without sufficient
information

to

determine

whether

the

motions

satisfied

the

standards to seal pursuant to L. Civ. R. 5.3(c) and Pansy v.
Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994). Feb. 24, 2017
Order at 1-2 [Doc. No. 205]; Feb. 24, 2017 Order at 2 [Doc. No.
206].2 Defendants timely filed their renewed motion to seal.

“Any motion papers shall
declaration, certification or
referenced in 28 U.S.C. § 1746,
knowledge as required by Local
5.3(c)(3).
2 The Court’s February 24,
are incorporated herein.
1

include as part of an affidavit,
other documents of the type
which shall be based on personal
Civil Rule 7.2(a).” L. Civ. R.
2017 Orders [Doc. Nos. 205, 206]
2

It is well-established there exists “a common law public right
of access to judicial proceedings and records.” In re Cendant
Corp., 260 F.3d 183, 192 (3d Cir. 2001) (citation omitted). Whether
or not the presumption of public access applies a party 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); Allied Corp. v. Jim Walter Corp., C.A. No. 86-3086,
1996 WL 346980, at *4 (E.D. Pa. June 17, 1996) (“Although there is
no public right of access to discovery motions or the raw fruits
of discovery, federal judges are not free to indiscriminately
permit parties to pursue some or all of their discovery under the
cloak

of

court-ordered

secrecy.”);

Lite,

New

Jersey

Federal

Practice Rules Comment 3 to L. Civ. R. 5.3 (Gann). Good cause
requires “a particularized showing that disclosure will cause a
‘clearly defined and serious injury to the party seeking closure.’”
Securimetrics, 2006 WL 827889, at *2 (quoting Pansy, 23 F.3d at
786).
In this District motions to seal are governed by Local Civil
Rule 5.3(c) 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
3

alternative to the relief sought is not available. In particular,
“[b]road allegations of harm, unsubstantiated by specific examples
or articulated reasoning” cannot satisfy the required showing of
“clearly defined and serious injury.”
(citation

omitted).

Furthermore,

“it

Pansy, 23 F.3d at 786
is

well-settled

that

a

party's classification of material as protected or confidential
does not automatically satisfy the criteria for sealing pursuant
to Local Civil Rule 5.3.” In re: Benicar (Olmesarten) Prods. Liab.
Litig., C.A. No. 15-2606 (RBK/JS), 2016 WL 266353, at *3 (D.N.J.
Jan. 21, 2016).
The Court now turns to defendants’ renewed motion. As a
preliminary matter, the Court notes that defendants filed two
affidavits in support of the instant motion. See Yuling Decl.; see
also Declaration of John A. Sholar, Esquire (“Sholar Decl.”) [Doc.
No. 215-1]. The Court finds that the two Declarations—executed
pursuant to L. Civ. R. 5.3(c)(3)—provide sufficient information to
determine whether defendants satisfied the standard to seal in
this District. The Court has reviewed the subject materials and
the Declarations filed in support of defendants’ motion, and the
Court concludes that defendants have met their burden under L.
Civ. R. 5.3 and the applicable case law.
First, defendants have sufficiently described the nature of
the materials at issue. As to the transcript, defendants seek to
redact

only

a

portion

of

one

line
4

of

the

transcript

which

references a specific ingredient in defendants’ ANDA product.
Sholar Decl. ¶ 9; Index at 1 [Doc. No. 215-2]. As to plaintiff’s
July 15, 2016 letter and the attached exhibit A, defendants seek
to seal certain portions which reference defendants’ “ANDA product
and commercially sensitive communications with the FDA concerning
[defendants’] ANDA product.”3 Sholar Decl. ¶ 10; Index at 1-3.
Further, the Court finds that defendants possess a legitimate
private interest in keeping the subject materials confidential.
Defendants argue if the subject materials are not sealed, it would
give

defendants’

competitors

“in

this

highly

competitive

pharmaceutical marketplace an insight into [defendants’] business
operations and its highly confidential and proprietary research
and development, which would give them an unfair advantage.” Sholar
Decl. ¶ 15. After reviewing the subject materials, the Court agrees
there exists a private interest in keeping these materials sealed.
The Court further finds that if the subject materials are made
public,

defendants

could

be

harmed

by

way

disadvantage in the pharmaceutical marketplace.

of

competitive

Likewise, the

Court finds there is no less restrictive alternative than to redact
certain portions of the subject materials as requested.4 This is

Exhibit A is a confidential e-mail from defendants to FDA
regarding defendants’ ANDA and product formulation. Defendants
seek to seal the e-mail in its entirety. Sholar Decl. ¶ 10.
4 A redacted copy of plaintiff’s July 15, 2016 letter and
exhibit A has been filed. [Doc. No. 133]. A redacted copy of the
3

5

so because defendants only seek to protect materials that reference
their ANDA product and confidential communications with the FDA.
Accordingly for the foregoing reasons,
IT IS HEREBY ORDERED this 24th day of August 2017, that
defendants’ “Joint Motion to Seal” [Doc. No. 215] is GRANTED; and
it is further
ORDERED that defendants shall submit to the court reporter a
Statement of Redaction and Sealing pursuant to L. Civ. R. 5.3(g)(2)
regarding the transcript [Doc. No. 150] by August 31, 2017; and it
is further
ORDERED that upon submission of defendants’ Statement of
Redaction and Sealing, a redacted version of the transcript [Doc.
No. 150] shall be submitted to the Clerk of the Court for filing
on the public docket; and it is further
ORDERED that the Clerk of the Court is directed to maintain
under seal the complete unredacted transcript of the June 14, 2016
Telephone Discovery Conference [Doc. No. 150] and plaintiff’s July
15, 2016 letter with the attached exhibit A [Doc. No. 132].

/s/ Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge

transcript shall be separately filed of record pursuant to L. Civ.
R. 5.3(g)(2).
6