Trana Discovery, Inc. v. Southern Research Institute

Filing 21

ORDER denying without prejudice 12 Motion to Seal and 12 Motion to Seal Document. In accordance with Local Civil Rule 79.2(b)(3), and in the court's discretion, the court DIRECTS the Clerk of Court to maintain Exhibit A, located at Docket Entry 11 , under seal. Counsel is reminded to read the order in its entirety for critical deadlines and information. Signed by Senior Judge James C. Fox on 4/10/2014. (Edwards, S.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-848-F
TRANA DISCOVERY, INC.,
Plaintiff,
v.

SOUTHERN RESEARCH INSTITUTE,
Defendant.

)
)
)
)
)
)
)
)
)
)

ORDER

This matter is before the court on the Motion to Seal [DE-12] filed by Southern Research
Institute ("SRI"). Therein, SRI asks the court to seal Exhibit A to its Memorandum of Law in
support of its Partial Motion to Dismiss. The proposed sealed document is entitled "Data Report for
Compound Dose Response Testing against HIV -1 in CEM-SS Cells" (the "June 2009 Data Report")
prepared under a contract with the AIDS division ("DAIDS") of the National Institute of Allergy
and Infectious Diseases ("NIAID") (itself a division of the National Institute of Health ("NIH")),
entitled NIAID NO 1-AI-70042, Contract No. HHSN27220070042C, In Vitro Testing Resources for

AIDS Therapeutic Development; Part B: Specialized In Vitro Virological Assays for HIV
Therapeutics and Topical Mocrobides [DE-ll]. PlaintiffTrana Discovery, Inc. ("Trana") opposes
the motion.
Local Civil Rule 79.2 provides that any "party desiring to file a document under seal must
first file a motion seeking leave in accordance with Section T of the CM/ECF Policy Manual." Local
Civil Rule 79.2(a). Section T of the CMIECF Policy Manual, in turn, provides in relevant part the
following:
1. Except for motions filed under seal in accordance with Section T(l)(a)7 of this

Policy Manual, each time a party seeks to file under seal, said party shall accompany
the request with a motion to seal. The motion to seal may be filed without a
supporting memorandum only if the filing party can cite a statute or rule (federal,
local or standing order) that requires the filing to be sealed. Absent such authority,
the filing party must submit a supporting memorandum that specifies:
(i)
the exact document or item, or portions thereof, for which
filing under sale is requested;
(ii)
how such request to seal overcomes the common law or the
First Amendment presumption to access;
(iii)
the specific qualities of the material at issue which justify
sealing such material, taking into account the balance of
competing interest in access;
(iv)
the reasons why alternatives to sealing are inadequate; and
(v)
whether there is consent to the motion.
In addition to the motion and the supporting memorandum, the
filing party must set out such findings in a proposed order to seal,
which should be submitted in accordance with Section M of this
Policy Manual.

Policy Manual pp. 25-26 (emphasis in original).
The Memorandum in Support of the Motion to Seal [DE-13] and the Proposed Order [DE14] do not comply with the procedures set forth in Section T. Specifically, the SRI (1) fails to
articulate how its request to seal overcomes the common law or the First Amendment presumption
to access; (2) fails to explain why the specific qualities of the material at issue justify sealing the
material, taking into account the balance of competing interest in access, and (3) fails to explain why
alternatives to sealing are inadequate. Additionally, the Proposed Order submitted by the SRI fails
to set out the findings mandated by Section T.
Given the SRI's failure to comply with Section T, especially its failure to explain how its
request to seal overcomes the common law or First Amendment presumption to access, the Motion
to Seal [DE-12] is DENIED WITHOUT PREJUDICE. In accordance with Local Civil Rule
79.2(b)(3), and in the court's discretion, the court DIRECTS the Clerk of Court to maintain Exhibit
2

A, located at Docket Entry 11, under seal. SRI may, by April18, 2014: (1) file a renewed motion
to seal, which complies with the Local Rules of this court and Section T of the CM/ECF Policy
manual, (2) file the document at Docket Entry 11 as a public document, or (3) file a notice stating
that it no longer asks the court to consider Exhibit A when ruling on the Partial Motion to Dismiss. 1
SO ORDERED.
Jr..

This the 1!._ day of April, 2014.

Ja}itfsc. Fox
Senior United States District Judge

1

The court recognizes Trana's contention that it is improper for the court to consider Exhibit A because it
is outside the pleadings. The court does not yet reach that issue.

3