Merck Eprova AG et al v. Prothera, Inc.

Filing 52

MEMORANDUM AND ORDER that for the reasons set forth above, Merck's application to redact portions of the publicly-filed version of my 9/17/09 Memorandum and Order is denied, and that document shall be unsealed. This order is stayed for 3 days so that Merck may appeal this ruling if it is so advised. (Signed by Magistrate Judge James C. Francis on 10/6/09) Copies sent by chambers(cd)

UNITED STATES DISTRICT COURT (ECF) SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - -: MERCK EPROVA AG and MERCK KGaA, : 08 Civ. 0035 (RMB) (JCF) : Plaintiffs, : MEMORANDUM : AND ORDER - against : : PROTHERA, INC., : : Defendant. : - - - - - - - - - - - - - - - - - -: JAMES C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE On September 17, 2009, I issued a Memorandum and Order

determining a motion by plaintiffs Merck Eprova AG and Merck KGaA (collectively, "Merck") to disqualify one of the counsel for defendant Prothera, Inc. Because Merck had previously raised

concerns that my opinion might contain confidential information, I filed the decision under seal and invited the parties to suggest redactions for the version that would be publicly filed. Merck has now done so by letter dated September 28, 2009, which has also been filed under seal. Court records are presumptively open to the public. See

United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) ("Amodeo I"); McDonough v. Nassau County Board of Cooperative Educational Services, No. 05 CV 2507, 2008 WL 565511, at *1 (E.D.N.Y. Feb. 29, 2008); Encyclopedia Brown Productions, Ltd. v. Home Box Office, Inc., 26 F. Supp. true 2d of 606, 610 (S.D.N.Y. that 1998). That affect is an

particularly

documents

"directly

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adjudication," such as a judicial opinion.

United States v.

Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995) ("Amodeo II"); see also McDonough, 2008 WL 565511, at *1. `directly affect' the Indeed, "[n]othing could more than the Opinion itself."

adjudication

Scheiner v. Wallace, No. 93 Civ. 0062, 1996 WL 633226, at *1 (S.D.N.Y. Oct. 31, 1996). In such instances, a document should not be sealed "absent the most compelling reasons." Joy v. North, 692

F.2d 880, 893 (2d Cir. 1982) (applying standard to submissions of parties). Of course, "it is proper for a district court, after weighing competing interests, to edit and redact a judicial document in order to allow access to appropriate portions of the

document . . . ."

Amodeo I, 44 F.3d at 147; see also S.E.C. v. Among the

TheStreet.com, 273 F.3d 222, 231 (2d Cir. 2001).

interests that may be weighed against the right of public access is the private interest in maintaining trade secrets. See

TheStreet.com, 273 F.3d at 231 n.10 (quoting Amodeo I, 44 F.3d at 147). Here, Merck has failed to overcome the presumption in favor of access to a judicial opinion. Although it asserts that revelation

of the material that it seeks to have redacted would harm its business, it advances this argument in only the most general terms. Indeed, most of the information that Merck asks to delete from the opinion is either already publicly available as part of Merck's

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