DEPOMED, INC. v. PURDUE PHARMA L.P. et al

Filing 305

OPINION AND ORDER granting 297 Motion to Seal. Signed by Magistrate Judge Tonianne J. Bongiovanni on 6/29/2017. (km)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civil Action No. 13-571-MLC-TJB
AND ORDER

DEPOIvIED, INC.,

Plaintiff,
OPINION TO SEAL

v.
PURDUE PHARMA L.P., THE P.f.
LABORATORIES, INC., and PURDUE
PHARMACEUTICALS LP.,

Filed Electronically

Defendants.

THIS MATTER having been opened to the Court by the joint application of Plaintiff

Depomed, Inc. (“Plaintiff’) and Defendants Purdue Pharma L.P., The P.F. Laboratories, Inc., and
Purdue Pharmaceuticals L.P. (collectively, “Purdue”) by and through their undersigned counsel,
in connection with the parties’ Motion to Seal, pursuant to Local Civil Rule 5.3(c), portions of
Depomed’s Memorandum of Law in Support of Its Motion to Dismiss Purdue’s Third
Counterclaim Under Fed. R. Civ. P. 12(b)(6) and to Strike Purdue’s Sixth, Seventh, And Eighth
Affirmative Defenses Under Fed. R. Civ. P. 12(F) and Exhibits 5, 6, and 10 to the Declaration of
Hannah Lee, Esq. (D.E. 263), portions of Purdue’s Opposition to Depomed’s Motion to Dismiss
(D.E. 265), and portions of Depomed’s Reply Memorandum and Exhibit 3 to the Declaration of
Keith J. Miller, Esq. (D.E 270) (“the Confidential Documents”); and the Court having
considered the papers submitted by the parties in support of the Motion; and the Court having
considered and adopted the Declaration of Keith J. Miller, counsel for Plaintiff and the Court
having further found that the standards of Local Civil Rule 5.3(c) have been met and support the
sealing of the confidential documents and information; and for other and good cause having been
shown, the Court hereby finds:

FINDINGS OF FACT

A. Through discovery in this case, the parties have produced confidential information, the
public disclosure of which would affect legitimate business interests. To protect the
confidentiality of this information, the parties agreed to maintain the confidentiality of
any materials produced pursuant to the Amended Discovery Confidentiality Order
(“Amended DCO”), entered by this Court on January 8, 2014 (D.E. 67).
B. The Amended DCO allows the parties to designate information as “Confidential” or
“Highly ConfidentiaL.” The Amended DCO acknowledges that the parties will exchange
documents that contain confidential information, and strictly limit access to these
documents. The Amended DCO further provides that a party wishing to use material
designated as “Confidential” or “Highly Confidential” must move pursuant to Local Civil
Rule 5.3(c) for leave to file the submission under seal.
C. Pursuant to the Amended DCO and Local Civil Rule 5.3(c), the parties move to seal the
Confidential Documents relating to Plaintiffs research and development efforts including
as related to a third party and information in its laboratory notebooks related to research
and development efforts of its products.
Specifically, the following portions of the Confidential Documents contain confidential
information:
•

Depomed’s Memorandum of Law in Support of Its Motion to Dismiss Purdue’s
Third Counterclaim Under Fed. R. Civ. P. 12(b)(6) and to Strike Purdue’s Sixth,
Seventh, And Eighth Affirmative Defenses Under Fed. R. Civ. P. 12(F) (D.E.
263):

2

o

Page 5-6, second paragraph, line 9 from “(Louie-Helm IPR Decl.,

¶J

13,

21)” until line 2 of page 6;
o
o

Page 8, lines 6-12 of the first full paragraph;

o
•

Pages 6-7, last paragraph in its entirety until line 2 of page 7;

Page 17-18, last paragraph, line 3 from “64” to page 18, line 9.

Exhibits 5, 6, and 10 to the Declaration of Hannah Lee, Esq. (D.E. 263):
o

Exhibit 5, Transcriptpages 167:15-16, 23-25; 168:21-25; 169:9-25; 227:1;

o

Exhibit 6, Transcript page 48:9-19;

o Exhibit 10, Page 20, line 22 to Page 21, line 1 of Depomed Inc.’s
Objections and Responses to Defendants and Counter-claimants first Set
of Rule 33 Interrogatories to Plaintiff and Counter-Defendant;
•

Purdue’s Opposition to Depomed’s Motion to Dismiss (D.E. 265):
o

•

Depomed’s Reply Brief in Support of Motion to Dismiss and to Strike (D.E. 270):
o

•

Page 13, second from last paragraph from “done” to end of paragraph.

Page 9, footnote 4 from “that” to end of paragraph.

Exhibit 3 to the Declaration of Keith J. Miller (D.E. 270):
o

Exhibit 3, pages 4-16

These select portions of the above documents are collectively referred to herein as the
“Confidential Information.”
D. The Confidential Information contains and/or reflects information that Plaintiff has
designated as “Confidential” or “Highly Confidential” pursuant to the Amended DCO.

3

E. In particular, the Confidential Information discloses Plaintiffs research and development
efforts including as related to a third party and information in its laboratory notebooks
related to research and development efforts of its products.
F. The Amended DCO entered in this matter provides for the confidential treatment of this
type of proprietary information. The legitimate private or public interests which warrant
confidentiality are: Plaintiff, a party to this patent case has a legitimate interest in
maintaining the confidentiality of its commercial strategies, as well as information
relevant to research, development, technical and supplier information.

The clearly

defined and serious injury that would result if the Confidential Information is disclosed
is: Plaintiff would be seriously injured. Information which was not intended to be seen
by competitors would be available for review and potential use against the Plaintiff.
Moreover, competitors (actual and potential) in the highly competitive pharmaceutical
industry, who are not parties to this action would have access to the information. There is
no less restrictive alternative to the sealing of the Confidential Information.
G. The parties have complied with the terms of the Amended DCO and Local Civil Rule
5.3(c) by moving to seal the Confidential Information.

CONCLUSIONS OF LAW
A. The Court, having considered this matter pursuant to Fed. R. Civ. P. 78 and L. Civ. R.
5.3, and the parties’ submissions in support of the Motion, finds that the parties have
satisfied their burden of proving under L. Civ. R. 5.3(c) and applicable case law, that the
Confidential Information is highly confidential or confidential and entitled to protection.
There exists in civil cases a common law public right of access to judicial proceedings

4

and records. Goldstein v. Forbes (In re Cendant Corp.), 260 F.3d 183, 192 (3d Cir. 2001)
(citing Littleiohn v. BIC Corp., 851 f.2d 673, 677-72 (3d Cit. 1988)). The party seeking
to seal any part of a judicial record bears the burden of demonstrating that “the material is
the kind of information that courts will protect.” Miller v. Indiana Hosp., 16 f.3d 549,
551 (3d Cir. 1994) (quoting Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir.
1984)).

This Court has the power to seal where confidential information may be

disclosed to the public. Fed. R. Civ. P. 26(c)(1)(G) allows the court to protect materials
containing “trade secret[s] or other confidential research, development, or commercial
information [,]“ upon motion by a party, to prevent harm to a litigant’s competitive
standing in the marketplace. $ Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 529
F. Supp. 866, 889-91 (E.D. Pa. 1981). Additionally, courts in this District have held that
the inclusion of trade secrets and other confidential information in documents warrants
the sealing of such documents. “A well-settled exception to the right of access is the
‘protection of a party’s interest in confidential commercial information, such as a trade
secret, where there is a sufficient threat of irreparable harm.” In re Gabapentin Patent
Litig., 312 F. Supp. 2d 653, 664 (D.N.J. 2004) (citation omitted).

As such, “[t]he

presence of trade secrets or other confidential information weighs against public access
and, accordingly, documents containing such information may be protected from
disclosure.” Id. (citations omitted).
B. Local Civil Rule 5.3(c) places the burden of proof on the moving party as to why a
motion to seal or otherwise restrict pubLic access should be granted.

Specifically, it

requires a showing of: (1) the nature of the materials or proceedings at issue; (2) the

5

legitimate private or public interest which warrants the relief sought; (3) the clearly
defined and serious injury that would result if the relief sought is not granted; and (4)
why a less restrictive alternative to the relief sought is not available.
C. The information in the parties’ submissions satisfies the standards set forth in Local Civil
Rule

5.3(c)

and there is no less restrictive alternative to sealing the Confidential

Information.
THEREFORE, it is on this 2

day of

]dn<..

,

2017;

ORDERED as follows:
1. The following portions of the Confidential Documents contain confidential information:
•

Depomed’s Memorandum of Law in Support of Its Motion to Dismiss Purdue’s
Third Counterclaim Under fed. R. Civ. P. 12(b)(6) and to Strike Purdue’s Sixth,
Seventh, And Eighth Affirmative Defenses Under fed. R. Civ. P. 12(f) (D.E.
263):
o

Page 5-6, second paragraph, line 9 from “(Louie-Helm IPR Deci.,

¶J

13,

21)” until line 2 of page 6;
o Pages 6-7, last paragraph in its entirety until line 2 of page 7;
o
o
•

Page 8, lines 6-12 of the first full paragraph;
Page 17-18, last paragraph, line 3 from “64” to page 18, line 9.

Exhibits 5, 6, and 10 to the Declaration of Hannah Lee, Esq. (D.E. 263):
o Exhibit 5, Transcript pages 167:15-16, 23-25; 168:21-25; 169:9-25; 227:1;
o Exhibit 6, Transcript page 48:9-19;

6

o

Exhibit 10, Page 20, line 22 to Page 21, line 1 of Depomed Inc.’s
Objections and Responses to Defendants and Counter-claimants first Set
of Rule 33 Interrogatories to Plaintiff and Counter-Defendant.

•

Purdue’s Opposition to Depomed’s Motion to Dismiss (D.E. 265):
o

•

Depomed’s Reply Brief in Support of Motion to Dismiss and to Strike (D.E. 270):
o

•

Page 13, second from last paragraph from “done” to end of paragraph.

Page 9, footnote 4 from “that” to end of paragraph.

Exhibit 3 to the Declaration of Keith J. Miller (D.E. 270):
o Exhibit 3, pages 4-16

2. The Court further finds that Plaintiff would suffer substantial and specific harm,
including but not limited to, potential financial damage through the divulgence of such
highly confidential or confidential information, that the public interest weighs in favor of
the information remaining confidential and being sealed, and that no less restrictive
alternative exists.
3. Therefore, the parties’ joint motion pursuant to Local Civil Rule 5.3(c) to seal the
Confidential Documents is GRANTED.

HONORABLE TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE

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