Eshelman v. Auerbach et al

Filing 240

ORDER granting in part and denying in part 164 Motion to Seal Document. Signed by US Magistrate Judge Robert B. Jones, Jr on 1/2/2018. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:16-CV-18-D
FREDRIC N. ESHELMAN,
Plaintiff,
v.
PUMA BIOTECHNOLOGY, INC.,
Defendant.

)
)
)
)
)
)
)
)
)

ORDER

Defendant Puma Biotechnology, Inc. ("Defendant") has moved to seal certain portions of
documents located on the docket at [DE-161], and [DE-161-1] through [DE-161-5]. [DE-164].
Plaintiff Fredric N. Eshelman ("Plaintiff') opposes the motion. [DE-203]. All matters raised in
the briefing are ripe for decision. The motion has been referred for disposition pursuant to 28
U.S.C. § 636(b)(l)(A). [DE-191]. For the reasons stated below, Defendant's motion is allowed
in part and denied in part.

I. BACKGROUND
On October 18, 2017, Plaintiff filed a motion to compel the production of unredacted
documents responsive to Requests for Production Nos. 10, 19-25. [DE-160]. Plaintiffs motion
was supported by his memorandum and attachments [DE-161through161-5], all of which are the
subject of Defendant's motion to seal. Upon their filing, Plaintiffs supportive memorandum and
attachments were sealed provisionally by the clerk per the parties' joint protective order because
they contained materials considered confidential by one party.
On October 23, 2017, Defendant moved to seal certain portions of Plaintiffs memorandum
and attachments on the ground that the documents contained confidential information, as defined

in the Joint Stipulated Protective Order. Def.'s Mem. [DE-165] at 3. On November 6, 2017,
Plaintiff filed an omnibus opposition to Defendant's motion to seal, as well as to subsequent
motions to seal filed by Defendant apart from this one. Pl. 's Opp'n. [DE-203].

II. DISCUSSION
"[T]he courts of this country recognize a general right to inspect and copy public records
and documents, including judicial records and documents." Nixon v. Warner Commc 'ns, Inc., 435
U.S. 589, 597 (1978) (internal footnote omitted). The Fourth Circuit has directed that before
sealing publicly-filed documents, the court must first determine if the source of the public's right
to access the documents is derived from the common law or from the First Amendment. Stone v.
Univ. of Md., 855 F .2d 178, 180 (4th Cir. 1988). "[T]he common law presumption in favor of
access attaches to all 'judicial records and documents,' [while] the First Amendment guarantee of
access has been extended only to particular judicial records and documents[,]" such as those filed
in connection with a motion for summary judgment. Id. (quoting Nixon, 435 U.S. at 597 & citing
Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988); In re Washington Post
Co., 807 F.2d 383, 390 (4th Cir. 1986)). "[D]ocuments filed with the court are 'judicial records'
if they play a role in the adjudicative process, or adjudicate substantive rights." In re Application
of the US.for an Order Pursuant to 18 US.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir. 2013)
(citations omitted); see also United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) ("[T]he item
filed must be relevant to the performance of the judicial function and useful in the judicial process
in order for it to be designated a judicial document.").
Defendant seeks to seal deposition transcripts, and the memorandum itself to the extent it
references the deposition transcripts. Def.' s Mem. [DE-165]. Given that the discovery process is
generally not open to the public, any right of access would arise under the common law. 360 Mort.

2

Grp., LLC v. Stonegate Mort. Corp., No. 5:14-CV-310-F, 2016 WL 3030166, at *7 n.6 (E.D.N.C.

May 25, 2016 (applying the "experience and logic" test, which considers whether the,proceeding
before the court is of the type traditionally open to the public and whether the proceeding benefits
from public access, in determining when the First Amendment right to access applies). The
presumption of access under the common law is not absolute and its scope is a matter left to the
discretion of the district court. Va. Dep 't of State Police v. Washington Post, 386 F.3d 567, 575
(4th Cir. 2004). This presumption "'can be rebutted if countervailing interests heavily outweigh
the public interests in access,' and '[t]he party seeking to overcome the presumption bears the
burden of showing some significant interest that outweighs the presumption."' Id. (quoting
Rushford, 845 F.2d at 253). Some factors for consideration when analyzing the common law

presumption of access "include whether the records are sought for improper purposes, such as
promoting public scandals or unfairly gaining a business advantage; whether release would
enhance the public's understanding of an important historical event; and whether the public has
already had access to the information contained in the records." Id. (quoting In re Knight Publ'g
Co., 743 F.2d 231, 235 (4th Cir. 1984)).

Here, Defendant moves to seal Plaintiffs memorandum in support of his motion to compel,
as well as portions of the attached exhibits. Although those submissions are currently under seal
in their entirety, pending decision by the court, Defendant now asks the court only to keep under
seal certain enumerated portions of Mr. Zavrl's fact deposition [DE-161-1], Mr. Auerbach's fact
deposition [DE-162-2, -3], and Mr. Auerbach's 30(b)(6) deposition [DE-161-4, -5]. 1 Defendant
argues that the depositions contain business information of the kind considered "confidential"
pursuant to the Joint Stipulated Protective Order, [DE-59]. Def.'s Mem. [DE-165] at 3. Defendant

1 Defendant's

memorandum lists specific pages and line numbers of each attachment that it argues are confidential
and should be sealed. Def.'s Mem. [DE-165] at 2-3. The court incorporates the enumerated list in this order.

3

·posits that, rather than seal the documents in their entirety, the court should either redact the
enumerated pages and line numbers from the attachments or require Plaintiff to re-file his motion
with only the portions of the transcripts that he contends are required for a ruling on his motion to
compel, excluding the specific portions that Defendant considers confidential. Def.'s Mem. [DE165] at 1.
Preliminarily, the court notes that Defendant has filed a subsequent motion to seal
documents with respect to Plaintiff's Statement of Material Facts, [DE-171], regarding its Motion
for Partial Summary Judgment, [DE-169]. [DE-195]. Plaintiff attached to his Statement of
Material Facts the same depositions of Mr. Zavrl and Mr. Auerbach that are at issue here. [DE171-2, -5, -8]. In its motion to seal documents as it pertains to [DE-171], Defendant only seeks to
have particular lines of Mr. Auerbach's fact deposition sealed, and does not request that any part
of Mr. Zavrl's deposition [DE-171-5], or Mr. Auerbach's 30(b)(6) deposition, [DE-171-8], be
sealed.

Further, the particular lines of Mr. Auerbach's fact deposition specified for sealing

pertaining to [DE-171] are not the same as those lines specified for sealing pertaining to the instant
motion, [DE-164]. The two requests only overlap with respect to the following portions of Mr.
Auerbach's fact deposition: 43:1-52:16, 232:14--261:3, 270:15-271:18, 271:25-272:19, and
284:17-287:14. [DE-165, -195]. Accordingly, because Mr. Zavrl's deposition, [DE-161-1], and
Mr. Auerbach's 30(b)(6) deposition [DE-161-4, -5], are publicly available on the docket and

Defendant has not sought to seal those depositions in its subsequent motion to seal, the court denies
the motion with respect to [DE-161-1, -4, and -5]. Cf Johnson v. City of Fayetteville, No. 5:12CV-456-F, 2014 WL 7151147, at *13 (E.D.N.C. Dec. 11, 2014) (concluding that documents
initially filed under seal in support of a motion to compel, but were later filed in connection with
the parties' dispositive motion and did not warrant sealing, should not remain sealed, "because the

4

documents will now appear on the public docket, [and] there appears to be little reason to keep
another version sealed on the docket."). For the same reason, the court will only consider those
portions of Mr. Auerbach's fact deposition, [DE-161-2, -3], that overlap with its subsequent
motion to seal the deposition, [DE-195], namely 43:1-52:16, 232:14-261:3, 270:15-271:18,
271 :25-272:19, and 284:17-287:14.
The court first considers that the document at issue is a deposition transcript. The Fourth
Circuit has held that, in order for a right of access to a document to exist, the document must be a
"judicial record." Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989). Further,
"documents filed with the court are 'judicial records' if they play a role in the adjudicative process,
or adjudicate substantive rights." In re US. for an Order Pursuant to 18 US. C. Section 2703(D),
707 F .3d at 290. Deposition transcripts-"raw fruits of discovery"-are not "judicial records" and
thus the right to access does not attach. See In re Policy Management Systems Corp., 67 F.3d 296,
1995 WL 541623, at *3 (4th Cir. Sept. 13, 1995).
Second, the court has reviewed the enumerated list of page and line numbers of the
deposition, and finds that these portions do contain sensitive business information-43:1-52:16
contains testimony with respect to specific language of a sensitive business contract, and 232: 14287:14 contains testimony with respect to details surrounding the clinical trial of another drug.
Accordingly, the enumerated portions of [DE-161-2, -3] are confidential and should remain under
seal. With respect to Mr. Auerbach's fact deposition, Plaintiff only cites 93:7-95:2 to support its
argument to compel, and those lines are not contained in the motion to seal. Pl.'s Mem. [DE-161]
at 7. Because the lines referenced in Plaintiffs memorandum, [DE-161], do not overlap with those
contained in the motion to seal, the memorandum itself does not contain confidential information
and thus the motion is denied with respect to [DE-161].

5

Because CM/ECF does not have the capability of maintaining under seal certain pages or

particular lines of the attachments, the court would either be compelled to place the entire
attachments under seal, or require that the document be refiled with the enumerated portions
redacted.

In light of the court's duty to consider less drastic alternatives to sealing, and

Defendant's willingness to tailor its request to specific portions, the court finds that refiling the
attachment with the confidential sections redacted is the most efficient remedy. Accordingly,
,-

Defendant's motion is DENIED with respect to [DE-161, 161-1, -4, and-5] and ALLOWED with
respect to [DE-161-2, -3]. The court orders Plaintiff to re-file [DE-161-2, -3] such that 43:152:16, 232:14-261:3, 270:15-271:18, 271:25-272:19, and 284:17-287:14 are redacted, and the
Clerk shall unseal [DE-161, 161-1, -4, and -5].

III. CONCLUSION
For the foregoing reasons, Defendant's motion to seal is ALLOWED in part and DENIED
in part.
So ordered, the 2nd day of January 2018.

United States Magistrate Judge

6