ABC v. DEF

Filing 167

ORDER: denying 165 Letter Motion to Seal. Application denied. The proposed redactions are not narrowly tailored to protect Defendants' privacy interests. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006). Among other things, the designation of McKesson's documents as "confidential" is insufficient on its own to overcome the presumption of public access. Dodona I, LLC v. Goldman, Sachs & Co., 119 F. Supp. 3d 152, 155 (S.D.N.Y. 2015) ("[E]ven if materia l is properly designated as Confidential or Highly Confidential by a protective order governing discovery, that same material might not overcome the presumption of public access once it becomes a judicial document."). Moreover, McKesson's p rivacy interest in protecting its internal business and salesstrategies does not warrant the permanent sealing of the substantial portions of the Second Amended Complaint that describe the core of the alleged wrongdoing. See Brandon v. NPG Recs., Inc ., No. 1:19-CV-01923 (GHW), 2020 WL 2086008, at *11 (S.D.N.Y. Apr. 30, 2020), aff'd, 840 F. App'x 605 (2d Cir. 2020) (denying sealing request where "Plaintiff's only justification for sealing [was] that the information "conta ins proprietary business information which is generally not available to the public and/or is information that is subject to confidentiality agreements."). Accordingly, the application to permanently seal the Second Amended Complaint is denied. Defendants may, however, file proposed redactions that are more narrowly tailored to its asserted interests by July 8, 2022. SO ORDERED. (Signed by Judge Ronnie Abrams on 6/24/2022) (ama)

Case 1:15-cv-00903-RA-JLC Document 165 Filed 06/22/22 Page 1 of 4

Via ECF

June 22, 2022

Hon. Ronnie Abrams
United States District Judge
United States District Court
Southern District of New York
40 Foley Square, Room 2203
New York, NY 10007
Re: United States ex rel. Hart v. McKesson Corp., No. 15-Civ-0903 (RA) (JLC)
Dear Judge Abrams:
Pursuant to the Court’s Individual Rules 5.A.ii. and 5.A.iii., Defendants McKesson
Corporation, McKesson Specialty Distribution LLC, McKesson Specialty Care Distribution
Corporation (collectively “Defendants” or “McKesson”) respectfully submit this letter-motion in
support of permanently redacting portions of the Second Amended Complaint (“SAC”) in the
above-captioned case. See Dkt. 160; Dkt. 159 (unredacted version). Alongside the filing of the
SAC, Relator filed a letter-motion requesting that the Court permit portions of the SAC to be
filed provisionally under seal. Dkt. 157. The Court granted Relator’s request on June 9, 2022.
Dkt. 161. McKesson now requests that the provisionally sealed redactions in the SAC and
attached appendices be made permanent.
As the Court will recall, while Defendant’s motion to dismiss the First Amended
Complaint was pending, the Court ordered that the parties proceed with discovery. Dkt. 76.
Thus, this is an unusual situation where the parties conducted approximately a year of fact
discovery before the Court granted McKesson’s motion to dismiss. Dkt. 155.
Relator has now sought to amend his complaint for a second time. The additional
allegations included in the Second Amended Complaint are drawn primarily from internal
McKesson documents. Dkts. 160, 159. Many of these documents were originally produced by

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McKesson to the Department of Justice (“DoJ”) with a confidentiality designation, consistent
with 31 U.S.C § 3733, which limits use of documents produced in response to a civil
investigative demand. See, e.g., 31 U.S.C § 3733(i)(2)(C) (limiting the availability of
documentary material produced to the Department of Justice pursuant to a CID). Other
references in the new Second Amended Complaint cite documents produced to Relator during
the discovery that preceded the Court’s grant of McKesson’s motion to dismiss. These
documents were marked “Confidential” pursuant to the Parties’ protective order because they
concern proprietary information about McKesson’s business tools and sales practices. See Dkt.
78. McKesson requests that all of the allegations based on these confidential documents remain
permanently under seal.
The requested redactions are narrowly tailored and focused strictly on portions of the
SAC that concern proprietary commercial information, and are therefore permissible under
Lugosch v. Pyramid Co. of Onondaga and other established precedent. See 435 F.3d 110, 124
(2d Cir. 2006) (holding “judicial documents” are afforded rebuttable presumption of public
access that can be overcome where “sealing is necessary to preserve higher values and only if the
sealing order is narrowly tailored to achieve that aim”); Church & Dwight Co. v. SPD Swiss
Precision Diagnostics GmbH, 2018 WL 4253181, at *2 n.1 (S.D.N.Y. Sept. 5, 2018) (finding
proposed redactions in post-trial submissions appropriate under Lugosch because they were
“‘narrowly tailored’ to serve the parties’ privacy interests in maintaining the confidentiality of
their proprietary and competitively sensitive information”); Standard & Poor’s Corp. v.
Commodity Exch., Inc., 541 F. Supp. 1273, 1277 (S.D.N.Y. 1982) (finding limited redactions
justified where redactions were tailored to protecting party’s commercial information).

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Specifically, the redactions protect information about McKesson’s internal business and
sales strategies, including information derived from executive presentations, proprietary sales
tools, internal training programs, confidential business modeling, and internal emails. Many of
the paragraphs that McKesson seeks to permanently redact quote directly from McKesson’s
confidential documents. For example, paragraphs 77, 126, 129, 131, 139, and 141 quote from
emails and documents that reveal commercially sensitive information about McKesson’s
communications with customers, including materials used by McKesson employees with
customers, and trainings regarding those materials. In paragraphs 135, 137, and 160, Relator
refers to and quotes a confidential business analysis performed for a segment of McKesson by an
external consultant. Additionally, paragraphs 112, 121, and 138 quotes emails and presentations
reflecting internal business strategies and deliberations. The proposed redactions therefore
contain assessments of McKesson’s business and sales strategies and internal deliberations about
business and sales practices. This material should remain permanently under seal.
Finally, the permanent redaction of portions of the Second Amended Complaint
containing the above described confidential material is appropriate here because it is narrowly
tailored to serve McKesson’s privacy interests in protecting its proprietary information, while the
limited nature of the redactions—only to material taken directly from McKesson’s confidential
documents—does not hinder the public’s access to the allegations or claims asserted by Relator.
McKesson therefore respectfully requests that the Court order that the unredacted SAC
remain under seal permanently (Dkt. 159), and order that the redactions reflected in the publiclyfiled SAC (Dkt. 160), which protect from disclosure a limited set of herein identified references
relating to McKesson’s confidential business information, be made permanent.

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Respectfully submitted,
/s/ Ethan M. Posner
Ethan M. Posner
Krysten Rosen Moller
COVINGTON & BURLING LLP
850 Tenth Street, NW
Washington, DC 20001
[e-mail]
[e-mail]
Thomas E. Garten
COVINGTON & BURLING LLP
3000 El Camino Real
5 Palo Alto Square
Palo Alto, CA 94306
[e-mail]
Counsel for Defendants
Application denied.
The proposed redactions are not narrowly tailored to protect Defendants’ privacy interests. See Lugosch v.
Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006). Among other things, the designation of
McKesson’s documents as “confidential” is insufficient on its own to overcome the presumption of public
access. Dodona I, LLC v. Goldman, Sachs & Co., 119 F. Supp. 3d 152, 155 (S.D.N.Y. 2015) (“[E]ven if
material is properly designated as Confidential or Highly Confidential by a protective order governing
discovery, that same material might not overcome the presumption of public access once it becomes a
judicial document.”). Moreover, McKesson’s privacy interest in protecting its internal business and sales
strategies does not warrant the permanent sealing of the substantial portions of the Second Amended
Complaint that describe the core of the alleged wrongdoing. See Brandon v. NPG Recs., Inc., No. 1:19CV-01923 (GHW), 2020 WL 2086008, at *11 (S.D.N.Y. Apr. 30, 2020), aff'd, 840 F. App'x 605 (2d Cir.
2020) (denying sealing request where “Plaintiff's only justification for sealing [was] that the information
‘contains proprietary business information which is generally not available to the public and/or is
information that is subject to confidentiality agreements.’”).
Accordingly, the application to permanently seal the Second Amended Complaint is denied. Defendants
may, however, file proposed redactions that are more narrowly tailored to its asserted interests by July 8,
2022.
SO ORDERED.
______________________
Hon. Ronnie Abrams
06/24/22