SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC et al

Filing 355

MEMORANDUM OPINION AND ORDER signed by JUDGE CATHERINE C. EAGLES on 12/4/2017. 1. Syngenta's motion to seal, (Doc. 330 ), is granted in part and denied in part as follows: a. The motion to seal is GRANTED as to DTX 35 and 252, and PTX 6.b-d, 110.a, 123.a, 140.a, and 148.a. The Clerk shall maintain these documents under seal. b. The motion to seal is GRANTED as to DTX 68, 82, 86, 88, 92, 94, 99, 107, 108, 128, 160 and 211 and PTX 225.a. The Clerk shall maintain these docum ents under seal and include in the public record the redacted version of these documents as provided in Exhibit E of (Doc. 333). c. The motion to seal is DENIED as to PTX 259, 276, and 277. The Clerk need not maintain these exhibits under sea l. d. The motion to seal is GRANTED as to the following trial testimony: 9/12/17 Tr. at 138-40. The Clerk shall maintain these lines from the trial transcript under seal and shall only make publicly available the redacted versions of these tr anscripts as provided in Exhibit I of (Doc. 333). e. The motion to seal is DENIED as to the following trial testimony: 9/6/17 Tr. at 167-175; 9/7/17 Tr. at 41, 133-35, 146-52 and 199; 9/8/17 Tr. at 70-76, 131-132, and 155; 9/12/17 Tr. at 33. The transcripts need not be filed under seal. 2. Syngentas motion to seal, (Doc. 287 ), is DENIED as moot.(Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SYNGENTA CROP PROTECTION,
LLC,
Plaintiff,
v.
WILLOWOOD, LLC, WILLOWOOD
USA, LLC, WILLOWOOD
AZOXYSTROBIN, LLC and
WILLOWOOD LIMITED,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

1:15-CV-274

MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
In 2015, Syngenta sued Willowood, seeking millions of dollars in lost profits as a
result of alleged patent infringement. The case was tried to a jury in September 2017.
Syngenta now seeks to seal certain trial exhibits and related portions of the trial transcript
that contain confidential business information. The public interest in open trials is
extraordinarily high. Open courts promote the integrity of the judiciary, increase public
understanding of the court system, and assure the public that proceedings and the
resulting verdicts are fair, impartial and non-arbitrary. Secret trials and verdicts based on
secret evidence kindle suspicions of corruption, unfairness, and conspiracies. Public
access should rarely be restricted when the information sought to be sealed is important
to understanding what happened at trial

As to some of the exhibits and testimony, the information that Syngenta seeks to
seal is crucial to understanding the trial, and Syngenta has not established that its private
interest outweighs the public interest in open courts. As to these materials, the motion
will be denied.
As to other materials, Syngenta primarily seeks to seal confidential information
that was never mentioned during the trial but is in evidence because it was part of an
exhibit containing relevant information and Syngenta does not seek to seal the relevant
portions of the exhibit or accompanying testimony. The public interest in access to such
information is small and disclosure of Syngenta’s confidential information would harm
its competitive standing. As to these materials, non-disclosure will not interfere with
public understanding and oversight and the motion will be granted.
BACKGROUND
I.

OVERVIEW OF THE CASE

In 2015, Syngenta sued Willowood1 for patent infringement, seeking millions of
dollars in lost profits on its fungicides containing azoxystrobin. There were four patents
at issue: the compound patents (the ‘076 Patent and the ‘256 Patent) both claim a group
of chemical compounds that includes azoxystrobin, and the process patents (the ‘138
Patent and the ’761 Patent) both claim methods of manufacturing azoxystrobin. See, e.g.,

1

There are four Willowood defendants: Willowood, LLC; Willowood USA, LLC;
Willowood Azoxystrobin, LLC; and Willowood Limited. Where issues are specific to an
individual defendant, the entity’s full name will be used. Otherwise, the Court will use the word
“Willowood” for simplicity.
2

Doc. 1 at ¶ 21; PTX 1-4. The compound patents and the ‘138 Patent expired before trial,
and the ’761 Patent expires in 2029. See PTX 1, 2, 3 and 4; 35 U.S.C. § 154. Syngenta
asserted that the infringement began in 2013 and, as to the ‘761 Patent, was continuing.
The Court granted summary judgment in favor of Syngenta as to validity and
infringement of the compound patents by certain Willowood defendants. Doc. 141. The
remaining issues were tried to a jury in September 2017. The jury found that: Willowood
Limited did not infringe the compound patents; Willowood did not infringe the ‘138
Patent; the ‘761 Patent was valid and Willowood infringed it; Syngenta proved that it was
entitled to $75,600 in damages for Willowood’s infringement of the compound patents;
Syngenta proved that it was entitled to $900,000 in damages for Willowood’s
infringement of the ‘761 Patent; and Willowood’s infringement of the compound patents
was not willful. Doc. 319.
After trial, Syngenta filed the pending motion, seeking to seal twelve exhibits in
full and to redact information from an additional thirteen exhibits. See Doc. 331 at 12,
14, 16-18. Syngenta also seeks to redact information from the publicly available trial
transcript that, for the most part, discloses information in the exhibits. Id. at 13, 15, 17.2
II.

STANDARD FOR SEALING TRIAL TESTIMONY AND EXHIBITS

Because the public has a right to attend trials and oversee the courts, the First
Amendment protects the public’s right to access the trial testimony and exhibits that

2

Shortly before trial, Syngenta filed a much broader motion to seal, covering more trial
exhibits and seeking to close the courtroom during testimony related to those exhibits. See Doc.
3

Syngenta is moving to seal. See, e.g., In re Application of U.S. for an Order Pursuant to
18 U.S.C. Section 2703(D), 707 F.3d 283, 290-91 (4th Cir. 2013); Am. Civil Liberties
Union v. Holder, 673 F.3d 245, 252 (4th Cir. 2011) (collecting cases).3 The Court
therefore evaluates Syngenta’s motion under the First Amendment public right to access
standard.4
The public interest in open courts at this stage of the proceedings—a civil trial—is
almost at its peak, exceeded only by the public interest in a criminal trial. “A trial is a
public event. What transpires in the court room is public property.” Craig v. Harney,
331 U.S. 367, 374 (1947). Openness advances the civil adjudication process by
increasing public understanding of the court system and by assuring the public that
proceedings and the resulting verdicts are fair, impartial, and non-arbitrary. See, e.g.,
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571-72 (1980); Doe v. Pub.
Citizen, 749 F.3d 246, 263, 267 (4th Cir. 2014). Open trials also promote the institutional
integrity of the judiciary, Pub. Citizen, 749 F.3d at 263, 267, by encouraging a sense of

287. In the pending motion, Syngenta has significantly narrowed its motion to seal. Doc. 330.
Syngenta’s prior motion to seal, Doc. 287, is therefore moot and will be denied.
3

This case has had many requests to seal exhibits submitted in connection with various
motions. The Court has covered the rules relevant to such requests several times, which it will
not repeat in detail here. See, e.g., Doc. 171.
The Court does not find persuasive Syngenta’s argument that those portions of exhibits that
were not specifically displayed to the jury or presented in trial testimony are not subject to the
same public right of access as judicial records. See Doc. 331 at 18. The exhibits were provided
to the jury in full. Therefore, the First Amendment right of access applies. As discussed infra,
the public interests at issue may, however, be lower and subject to less weight for those materials
not discussed during testimony.
4

4

public responsibility by judges and jurors, see Cowley v. Pulsifer, 137 Mass. 392, 394
(1884), and by discouraging arbitrary decision-making. See In re Oliver, 333 U.S. 257,
270-71 (1948).
While “the operation of the court system is a matter of utmost public concern,” Va.
Dep’t of State Police v. Wash. Post, 386 F.3d 567, 574 (4th Cir. 2004),5 the public’s right
of access to trials and trial exhibits is neither absolute nor unlimited. Nixon v. Warner
Commc’ns, Inc., 435 U.S. 589, 598 (1978). Rather, it “must be balanced against other
compelling interests.” In re Knight Pub. Co., 743 F.2d 231, 234 (4th Cir. 1984).
Restrictions on the public’s right of access may be appropriate when access to judicial
records could provide a “source of business information that might harm a litigant’s
competitive standing.” Nixon, 435 U.S. at 598; see also Woven Elecs. Corp. v. Advance
Grp., Inc., Nos. 89-1580, 89-1588, 1991 WL 54118, at *6 (4th Cir. Apr. 15, 1991). “A
corporation may possess a strong interest in preserving the confidentiality of its
proprietary and trade-secret information, which in turn may justify partial sealing of court
records.” Pub. Citizen, 749 F.3d at 269; see also Apple, Inc. v. Samsung Elecs. Co., Ltd.,
727 F.3d 1214, 1218, 1228-29 (Fed. Cir. 2013) (applying Ninth Circuit law and sealing
narrow selection of records submitted in a patent case in connection with a nondispositive pretrial motion and a post-trial motion for injunctive relief and enhanced

5

The Court has omitted internal citations, alterations, and quotation marks throughout this
opinion, unless otherwise noted. See United States v. Marshall, 872 F.3d 213, 217 n.6 (4th Cir.
2017).
5

damages where records contained product-specific financial information and other
information that, if public, would cause competitive harm).
Even under the less stringent common law right of access, the litigant seeking to
restrict access must show that its interest protected by sealing “heavily outweigh[s] the
public interests in access” to court proceedings before a district court may restrict or limit
public access. See Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.
1988). When the First Amendment right of access applies, the litigant must also present
“specific reasons” that “justify restricting access to the information”; conclusory
assertions are not sufficient. Lord Corp. v. S & B Tech. Prods., Inc., No. 5:09CV205D,
2012 WL 4056755, at *1 (E.D.N.C. Sept. 14, 2012); see Press–Enterprise Co. v.
Superior Court, 478 U.S. 1, 15 (1986). Further, the requested restriction on public access
must be narrowly tailored to serve the private interest. See Va. Dep’t of State Police, 386
F.3d at 575; accord Woven Elec., 1991 WL 54118, at *6 (“The district court should
review the entire record of the trial, including the exhibits and transcripts if any, and seal
only those portions necessary to prevent the disclosure of trade secrets.”).
ANALYSIS
The information Syngenta seeks to seal is confidential business information that
falls into five general categories: financial information; supply agreements; corporate
strategy documents; experiments related to the development of the ‘761 Patent; and
testing protocols. In support of its motion, Syngenta has submitted a declaration by
Andrew Fisher, Syngenta’s Product Lead for azoxystrobin products. He has testified to
the confidential nature of the trial exhibits that Syngenta is moving to seal, which he
6

asserts include confidential and trade secret information. See Doc. 332 at ¶¶ 3-13. Mr.
Fisher also affirms that Syngenta’s competitive standing will be harmed by the disclosure
of this confidential information. Id.
The Court has complied with the First Amendment notice requirements set forth in
Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 181 (4th Cir. 1988) and Rushford,
846 F.2d at 253-54. Syngenta filed a pretrial motion seeking similar relief on August 28,
2017, Doc. 287, and on August 30, 2017, the Court arranged for posting notice of that
motion on the Middle District’s website. Syngenta filed the post-trial motion on October
4, 2017. Doc. 330; see Mears v. Atl. Se. Airlines, Inc., No. 5:12CV613F, 2014 WL
5018907, at *2 (E.D.N.C. Oct. 7, 2014) (“The filing of a litigant’s motion to seal . . . is
sufficient to provide public notice and opportunity to challenge the request to seal.”). On
October 10, 2017, Willowood responded to the motion, but did not object to it. See Doc.
335. No one else has challenged either motion or otherwise asked to be heard on them.6
In order to determine whether Syngenta’s motion should be granted, the Court
evaluates: whether Syngenta has shown that the information sought to be sealed is
confidential; whether disclosure would harm Syngenta’s competitive standing or
otherwise harm its business interests; whether the motion is narrowly tailored; and
whether the interests in non-disclosure are compelling and heavily outweigh the public’s
interest in access to the information. In weighing the competing interests, the Court

6

When the case was called for trial on September 5, 2017, the Court inquired whether
anyone was present to speak to Syngenta’s pretrial motion to seal exhibits and close the
courtroom. No one objected or asked to be heard at that time. 9/5/17 Tr. at 161-66. The public
notice of Syngenta’s motion remained on the Middle District homepage for over two months.
7

considers, among other things, whether access to the evidence is needed to understand
what happened at trial and the degree of harm that disclosure would be likely to cause.
I.

FINANCIAL INFORMATION, SUPPLY AGREEMENTS, AND
CORPORATE STRATEGY DOCUMENTS

At trial, Syngenta sought approximately $75 million in damages for lost profits it
asserted were caused by Willowood’s infringement of the compound patents and alleged
infringement of the process patents. Willowood contended that Syngenta’s lost profits
damages were speculative and that Syngenta was limited to reasonable royalty damages.
Willowood’s expert, John Jarosz, calculated Syngenta’s damages at $900,000 for the
‘761 Patent. 9/12/17 Tr. at 21. Ultimately, the jury awarded damages in the amount
calculated by Mr. Jarosz. Doc. 319.
Specifically, Syngenta contended that Willowood’s infringing sales caused it to
lose sales and forced it to reduce prices to compete with Willowood, thus reducing its
profits. Syngenta presented testimony from its employees involved in selling and
marketing azoxystrobin fungicides about the effect Willowood’s entry into the market
had on its prices and sales. 9/6/17 Tr. at 86-204 and 9/7/17 Tr. at 9-200 (testimony of
Mr. Cecil and Mr. Fisher). It also presented testimony from an expert, Dr. Benjamin
Wilner, who offered an opinion on Syngenta’s lost profits for each relevant calendar year
and patent. 9/8/17 Tr. at 37-172. Dr. Wilner calculated Syngenta’s lost profits using
actual sales as compared to budgeted (or estimated) sales for azoxystrobin fungicides,

8

adjusted to the same extent an allegedly similar product, mesotrione, met its budget
projections.7
Willowood contended that its infringement, if any, did not cause Syngenta’s lost
sales and price reductions because Willowood had a small part of the market and there
were other competitors selling azoxystrobin fungicides. See, e.g., 9/8/18 Tr. at 103-04.
Willowood also challenged Dr. Wilner’s testimony as, inter alia, relying on inaccurate
budgets, failing to consider particular aspects of the budget process, and selecting an
inappropriate product as a benchmark. See id. at 92-171 (cross examination of Dr.
Wilner).
As part of resolving the dispute over Syngenta’s damages, both parties presented
evidence about Syngenta’s gross sales of azoxystrobin fungicides and its pricing of those
fungicides before and after Willowood entered the market. Both Syngenta and
Willowood offered numerous exhibits and questioned witnesses about detailed sales

7

For most of his calculations, Dr. Wilner used two benchmarks to assist him in
developing an opinion as to what Syngenta’s gross profits would have been for azoxystrobin
products in a hypothetical market unaffected by Willowood’s alleged infringement. See 9/8/17
Tr. at 53 (Dr. Wilner). He began with the first benchmark: Syngenta’s budgeted gross profits for
azoxystrobin. He then adjusted that figure using the budgeted gross profits and actual
performance of the second benchmark, mesotrione, an herbicide made by Syngenta. See id. at
59, 76. Using these benchmarks, he reached an opinion as to what Syngenta’s profits would
have been in a hypothetical non-infringing world. See generally Ericsson, Inc. v. Harris Corp.,
352 F.3d 1369, 1377-79 (Fed. Cir. 2003) (discussing the benchmark methodology for calculating
gross profits and lost profits). According to Dr. Wilner, this method results in a lost profits
figure that takes into account both lost sales and price erosion. See 9/8/17 Tr. at 52-53, 96-97;
see generally Syngenta Crop Prot., LLC v. Willowood Azoxystrobin, LLC, et al., No. 1:15CV274,
2017 WL 3088383, at *1 (M.D.N.C. July 20, 2017) (ruling on Willowood’s motion to exclude
Dr. Wilner’s testimony). While some understanding of Dr. Wilner’s method is necessary for
context, it is not necessary to go into minute detail. Therefore, the Court’s explanation is a
summary and is somewhat oversimplified.
9

figures and pricing information for both mesotrione and azoxystrobin, as well as details
about Syngenta’s budget process and marketing strategies. Syngenta seeks to seal in
whole or in part a number of these trial exhibits, and it also seeks to redact some pricing
and sales numbers disclosed in trial testimony.
A. Financial Information
Syngenta seeks to seal in full five trial exhibits (PTX 110.a, 123.a, 140.a, 148.a,
and DTX 252) that contain detailed information on the budgeted and actual sales
quantity, gross profits, discounts, net price, cost of goods sold, and gross prices for
azoxystrobin and mesotrione products. Syngenta relied on these exhibits to support its
contention that its budgeting process was thorough and reliable and that use of budgeted
profits was an appropriate benchmark for the lost profits calculations. See 9/6/17 Tr. at
117-27, 139-40 (testimony of Mr. Cecil); 9/7/17 Tr. at 142-52 (Mr. Fisher). Willowood
used one exhibit, DTX 252, which compared budgeted and actual figures, to show that
the budget projections were not good predictors of actual sales. 9/6/17 Tr. at 166-72
(testimony of Mr. Cecil).
Syngenta also seeks to redact witness testimony that quotes the sales and pricing
numbers from the exhibits. These numbers present: budgeted and actual azoxystrobin
figures for 2009 through 2013, Doc. 333-9 at 3-4, Doc. 333-11 at 3-4, 6; budgeted and
actual mesotrione sales for 2014, Doc. 333-9 at 4-5; Syngenta’s herbicide sales from
2013 to 2015, Doc. 333-10 at 3; azoxystrobin product prices in 2013 and 2014, Doc. 33310 at 5-6; and estimated sales, absent infringement, of azoxystrobin in 2015. Doc. 33311 at 5; Doc. 333-12 at 3.
10

Syngenta’s request is narrowly tailored. It does not seek to seal all the testimony
about the exhibits, only specific sales and pricing figures.8 The financial information
presented in these exhibits and the sales and pricing data disclosed in the testimony is
kept confidential by Syngenta and Mr. Fisher testified that public disclosure would give
competitors an advantage. See Doc. 332 at ¶¶ 5-6.
Weighing this evidence, the Court determines that Syngenta has not shown a
compelling interest in sealing the testimony sufficient to outweigh the public interest.
The sales and pricing figures disclosed in the testimony are important to the public’s
understanding of the case because, as explained supra, actual and budgeted azoxystrobin
and mesotrione sales were used in Syngenta’s calculation of lost profit damages, and the
accuracy of the budget numbers was challenged by Willowood.
For example, on cross examination, Syngenta’s witnesses acknowledged that the
budgeted sales of azoxystrobin in 2009 were $249,812,000, but the actual sales were
$151,966,000—a $98 million difference. See 9/6/17 Tr. at 167 (testimony of Mr. Cecil).
Without the specific numbers, the testimony is difficult to follow. Moreover, it is
obvious that if the numbers are not available, one cannot understand how and why the
numbers support or undermine the damages calculations. For these reasons, sealing the
testimony would impede public understanding of the verdict. See Columbus-Am.

8

Syngenta attached the relevant pages of the trial transcripts to the publicly available motion.
As is apparent from those attachments, Syngenta has made very narrow requests to seal and does
not seek to seal entire sentences or paragraphs where the numbers are disclosed. Rather
Syngenta seeks to redact and seal only the number itself. See, e.g., Doc 333-9 at 3 (“So in 2009,
Syngenta’s budgeted sales for azoxystrobin was [redacted], correct?”).
11

Discovery Grp. v. Atl. Mut. Ins. Co., 203 F.3d 291, 303 (4th Cir. 2000) (noting that “it is
hardly possible” for the public “to come to a reasonable conclusion” about the result
“without knowing the facts of the case.”); see Publicker Indus., Inc. v. Cohen, 733 F.2d
1059, 1070 (3d Cir. 1984) (discussing the way “acting under the public gaze” during
court proceedings protects the public’s interest). Mr. Fisher did not identify any specific
harm arising from disclosure of these specific numbers, see Doc. 332, and it is unlikely
that their disclosure would put Syngenta at much of a competitive disadvantage; the
numbers discussed in the testimony are limited and the sales and pricing numbers are old.
Weighing the public interest in open access against Syngenta’s interest in keeping
confidential the sales and pricing figures disclosed during the testimony, the Court
concludes that the public’s interest is higher.
As to the exhibits, however, the weighing process leads to a different result. The
exhibits contain financial details that were not referenced during testimony or by counsel
during opening statements or closing arguments,9 and disclosure of this detailed
information will not further the public’s understanding of the case. Mr. Fisher was
specific about the harm that would arise from disclosure, Doc. 332 at ¶¶ 5-6, and the risk
of harm is enhanced if the exhibits are viewed in connection with the trial testimony, as
Syngenta witnesses explained how the information is gathered, developed, and used in
the ordinary course of business to make decisions about how much product to make,

9

For example, PTX 110.a breaks down azoxystrobin and mesotrione products by brand, with
at least ten categories for each brand, and provides historical numbers for each brand and each
category for 2012 and 2013, with 2014 budget projections for each.
12

pricing points, and other competitive matters. See, e.g., 9/6/17 Tr. at 116-27 (Mr. Cecil
explaining budgeting process); 9/7/17 Tr. at 142-52 (Mr. Fisher explaining meaning of
line items in financial documents and describing line items for certain years). Sufficient
sales and pricing numbers for azoxystrobin are disclosed in the trial transcript, thus
allowing the public to understand the evidence and to evaluate the fairness of the
proceedings and of the result, even without the exhibits in hand. The Court finds that
Syngenta has demonstrated that its compelling interest in protecting its competitive
standing heavily outweighs the public’s right to access these trial exhibits. See Doe, 749
F.3d at 266.
The Court will grant the motion as to the financial trial exhibits, but not the related
trial testimony.
B. Supply Agreements
Syngenta seeks to seal in full three trial exhibits (PTX 259, 276 and 277) that
consist of a supply agreement with Syngenta’s customer, Loveland Products, Inc. and
two amendments to that agreement. The agreement and amendments govern the
purchase and sale of azoxystrobin millbase from 2011 through 2018. Syngenta also seeks
to seal eight numbers from the trial testimony that reveal the specific prices and volumes
at which Syngenta sold its products to Loveland. See Doc. 334-2 at 4, 7.
Syngenta keeps its supply agreements confidential and the terms of these
agreements are not publicly known. Doc. 332 at ¶ 7. Mr. Fisher asserts that release of
this information would harm Syngenta’s competitive standing because disclosure of the
“terms on which Syngenta supplies azoxystrobin . . . allow[s] [competitors] to compete
13

for Syngenta’s customers’ business.” Doc. 332 at ¶ 7. He also asserts that disclosure of
this information “could impact Syngenta’s existing and future customer relationships.”
Id.
While disclosure of the supply agreement terms, such as volume and pricing,
would cause some competitive disadvantage to Syngenta, Mr. Fisher did not explain why
or how other information in the supply agreement would have competitive effects.
Syngenta has not explained why disclosure of additional terms like warranties,
indemnification, and payment would affect the customer relationship or competition.
Thus the request is not narrowly tailored. Moreover, neither the agreement nor the
amendments state a currently effective price, and it is not obvious why disclosure of old
pricing terms would result in a significant competitive disadvantage. Nor is Mr. Fisher’s
conclusory statement that disclosure “could impact” customer relationships sufficient to
establish a compelling need. See Va. Dep’t of State Police, 386 F.3d at 575; Press–
Enterprise, 478 U.S. at 15.
In contrast, the public’s interest in this information is great. Syngenta presented
these documents as evidence that it decreased its azoxystrobin price in 2015 in response
to Willowood’s early entry into the market, which allegedly came about as a result of its
infringement. See 9/7/17 Tr. at 130-35, 198-99 (Mr. Fisher). This was a key issue for
resolution by the jury. The public would find it difficult to follow the testimony and to

14

evaluate the jury’s rejection of Syngenta’s damages theory if the pricing numbers and
pricing formula were redacted.
Weighing these interests, the Court finds that the public interest outweighs
Syngenta’s interest. As discussed, disclosure of the information would cause minimal
harm to Syngenta’s interest. Syngenta’s interest in sealing the supply agreement
documents does not outweigh the public’s interest in open access to this information,
which is key to understanding what happened at trial. Moreover, as to the exhibits,
Syngenta’s request is not narrowly tailored. The Court will deny the motion as to these
trial exhibits and the related trial testimony.
C. Corporate Strategy Documents
Syngenta seeks to redact thirteen trial exhibits to seal pricing and sales data as well
as market strategies, business plans, product lifecycle management, and analysis of
competition.10 Generally speaking, these exhibits were multi-page internal Syngenta
presentation materials used at meetings to set prices and budgets, establish business
plans, and make other product decisions. See, e.g., Doc. 332 at ¶ ¶ 8-13; Doc. 333-1 to
333-8. Syngenta has not requested redaction of the trial testimony that discusses these
documents.
Through Mr. Fisher’s affidavit, Syngenta has established that these materials are
kept confidential. Doc. 332 at ¶¶ 8-13. His testimony also establishes that its

10

These thirteen exhibits are PTX 225.a, DTX 68, 82, 86, 88, 92, 94, 99, 107, 108, 128,

160 and 211. The redacted versions are available in Exhibit E of Doc. 333. Doc. 333-1
to Doc. 333-8.
15

competitive standing would be harmed by disclosure of the information in these
documents because a competitor could use the information to price and market competing
products in a manner that places Syngenta at a competitive disadvantage. Doc. 332 at ¶¶
8-13. Mr. Fisher also testified that one of the exhibits contains information Syngenta
bought from a third party and as to which it has a contractual duty to keep confidential.
Id. at ¶ 8 (DTX 86).
At trial, Willowood questioned Syngenta’s witnesses about limited and very
specific information in these exhibits to undermine factual assertions driving Syngenta’s
lost profits claim. Specifically, these exhibits identified other generic and brand
competitors for azoxystrobin products and supported Willowood’s argument that sales by
Willowood were not the only cause of Syngenta’s decision to lower its azoxystrobin
prices. See 9/6/17 Tr. at 188-97 (DTX 68), at 198-209 (DTX 82); 9/7/17 Tr. at 11-13
(DTX 211), at 15-28 (DTX 88), at 28-38 (DTX 108), at 42-47 (DTX 92), at 52-56, 11214 (DTX 68), at 9-11, 74-76 (DTX 99), at 176-184 (DTX 107); 9/8/17 Tr. at 150-52
(DTX128). Willowood also used the documents to highlight differences in the
azoxystrobin and mesotrione markets, which supported its arguments that mesotrione was
not an appropriate benchmark product for Dr. Wilner’s lost profits analysis. See 9/7/17
Tr. at 15-28 (DTX 88), at 40-42 (DTX 86), at 42-46 (DTX 92), at 48-50 (DTX 160), at
50-51 (DTX 94); 9/8/17 Tr. at 11-14 (DTX 92).11

11

Syngenta also referred to these exhibits during redirect. E.g., 9/7/17 Tr. at 52-55 (DTX
68); at 56-60 (DTX 99). One of these exhibits, PTX 225a, was offered into evidence by
Syngenta, but the only questions ever asked about it were authentication and foundational
16

As noted previously, Syngenta does not seek to seal any of the testimony about
these exhibits. With three very small exceptions, it does not seek to seal the specific
pages or paragraphs within these exhibits that witnesses discussed. For these exceptions,
the relevant information from the pages Syngenta seeks to seal was fully disclosed during
the testimony, see 9/7/17 Tr. at 22-23 (DTX 88), at 37-38 (DTX 108), at 40-42 (DTX
86), but the pages contain significantly more information than discussed during the trial,
all of which is of a confidential and proprietary nature. Thus, Syngenta’s request to
redact these exhibits is narrowly tailored.
The public has little interest in having access to information in the many pages of
these exhibits as to which there was no testimony and that do not appear to have any
particular relevance to the case. For the few pages as to which there was testimony, the
testimony about the relevant information in the exhibits will be publicly available. As to
all of these exhibits, one does not need the redacted information in hand in order to
understand the importance and meaning of the relevant information, which is clear from
reading the testimony.
Weighing these interests, the Court determines that Syngenta has shown a
compelling interest in sealing the requested excerpts of these trial exhibits, that its request
to seal is narrowly tailored to protect that interest, and that its interest heavily outweighs
the public’s interest in open access. The additional benefit accruing to the public from
making the entire exhibits available is small, especially as compared to Syngenta’s

questions. Id. at 106-07. No witnesses discussed the substance of PTX 225a nor was it
mentioned during closing argument.
17

interest in keeping the non-relevant and non-public information on those pages
confidential. As to these strategy exhibits, the motion to seal will be granted.
II.

EXPERIMENTS

The ‘761 Patent claims a process for making azoxystrobin technical that uses
DABCO,12 a catalyst, in a specified range. Doc. 1-11 at 2. Willowood presented
testimony and evidence at trial in support of its claim that the ‘761 Patent was invalid
because it was obvious in light of Weintritt, an earlier patent application. See, e.g.,
9/11/17 Tr. at 158-239 (Dr. Lipton). This evidence included DTX 35, a collection of
Syngenta lab notebooks. Syngenta seeks to seal in full these lab notebooks, which
contain experiments conducted to improve the azoxystrobin manufacturing processes.
See Doc. 332 at ¶ 4.
Syngenta normally keeps lab notebooks confidential. Doc. 332 at ¶ 4. The
information in the notebooks could be used to assist a competitor in improving its
manufacturing processes, thus harming Syngenta’s competitive standing. Doc. 332 at ¶
4; 9/5/17 Tr. at 70-72, 94-96 (Dr. Whitton explaining the importance of the experiments
in improving the manufacturing process).
Only a small and very specific piece of information in the notebooks was
mentioned during the trial: a reference to the Weintritt patent. Willowood asked several
Syngenta witnesses about this reference to support its contention that the use of DABCO
within the claimed range was obvious. See, e.g., 9/5/17 Tr. at 86-96. Syngenta does not

12

DABCO stands for 1,4-diazabicyclo[2.2.2]octane. Doc. 1-11 at 3.
18

ask to seal or redact the transcript testimony where the Weintritt patent reference was
read into the record and discussed. Thus, its motion is narrowly tailored.
Weighing the interests, the Court determines that Syngenta has shown a
compelling interest in sealing DTX 35, that its request to seal is narrowly tailored to
protect that interest, and that its interest heavily outweighs the public’s interest in open
access. The validity of the ‘761 Patent was upheld at trial, Syngenta has a strong interest
in preventing competitors from using its confidential information to develop noninfringing alternatives, and disclosure of the information gives rise to a potential for use
of the confidential information by competitors. Taken together, these things show a
strong likelihood of competitive harm to Syngenta.
On the other side of the scale, the information in the lab notebooks is largely
irrelevant to the case, and the relevant information is available in the trial transcript. It is
not necessary to have the notebooks in hand to understand the trial testimony or how the
relevant information in the lab notebook fits into the overall case. Public access to the
confidential details is not needed to protect the public’s interest and confidence in fair
proceedings and the integrity of the fact-finding process. See Publicker Indus., 733 F.2d
at 1070 (discussing the way “acting under the public gaze” during court proceedings
protects public’s interest). The motion will be granted as to DTX 35.
III.

TESTING PROTOCOLS
At trial, Willowood presented evidence that its supplier did not use DABCO in

making azoxystrobin and thus that Willowood did not infringe the ‘761 Patent which, as

19

discussed supra, claims a process for making azoxystrobin that uses DABCO.13
Syngenta presented testimony from an expert witness, Dr. Fortunak, that internal
Syngenta tests of a Willowood azoxystrobin fungicide showed the presence of DABCO.
See, e.g., 9/12/17 Tr. at 137-38. He identified four trial exhibits, PTX 6b-6d, with graphs
showing those testing protocols and results.
Syngenta seeks to seal in full these four trial exhibits. It also seeks to redact from
the publicly available transcript of Dr. Fortunak’s testimony three numbers used in the
testing protocol. See Doc. 333-12 at 4. Syngenta does not seek to seal Dr. Fortunak’s
testimony about the testing protocol in general. It seeks to seal only the exhibits and
extremely limited parts of the trial transcript that disclose key numbers necessary to
determine if DABCO is present. Thus, the request to seal is narrowly tailored.
Syngenta normally keeps this kind of testing information confidential. Doc. 332 at
¶ 3. If the testing protocols and numbers were made public, a competitor could use that
information to “seek a work around” to Syngenta’s infringement testing and “potentially
allow[] them to infringe Syngenta’s patents without consequence.” Id. This would harm
Syngenta’s competitive interest.
Weighing the interests, the Court determines that Syngenta has shown a
compelling interest in sealing PTX 6b-6d and that its interest outweighs the public’s
interest in open access. Syngenta has a strong interest in protecting the confidential
information it uses to monitor potential infringement of and to protect its ‘761 Patent

13

Before trial, the Court shifted the burden of proof to Willowood to show that it did not
infringe the ‘761 Patent pursuant to 36 U.S.C. § 295. Doc. 141 at 16-24.
20

rights, which extend for many more years. Disclosure of the information gives rise to a
potential for use of the confidential information by competitors. On the other side of the
scale, the numbers and graphs are not needed to understand Dr. Fortunak’s testimony in
general, and thus the public’s interest in access is relatively small at this point. Because
an interested reader of the trial transcript can easily follow the general nature of the
evidence without these exhibits in hand and without the specific numbers provided in the
testimony that Syngenta seals to redact, public access to the confidential details is not
needed to protect the public’s interest and confidence in fair proceedings and the integrity
of the fact-finding process. The motion will be granted as to these materials.
IV.

CONCLUSION
The courts of this country have traditionally been open, and public trials protect

many values crucial to public trust and confidence in the third branch of government.
The public’s right of access can be overcome only by a very strong showing by litigants
seeking to keep secret the information used by judges and juries to decide cases. In this
case, Syngenta has met that burden as to limited categories of confidential business
information not particularly helpful to understanding the jury’s decision and those
documents will be maintained under seal, subject to further order of the Court. But as to
the information required to understand the trial and its result, the motion will be denied.
For the reasons state, it is ORDERED that:
1. Syngenta’s motion to seal, Doc. 330, is granted in part and denied in part as
follows:

21

a. The motion to seal is GRANTED as to DTX 35 and 252, and PTX 6.b-d,
110.a, 123.a, 140.a, and 148.a. The Clerk shall maintain these documents
under seal.
b. The motion to seal is GRANTED as to DTX 68, 82, 86, 88, 92, 94, 99, 107,
108, 128, 160 and 211 and PTX 225.a. The Clerk shall maintain these
documents under seal and include in the public record the redacted version of
these documents as provided in Exhibit E of Doc. 333.
c. The motion to seal is DENIED as to PTX 259, 276, and 277. The Clerk need
not maintain these exhibits under seal.
d. The motion to seal is GRANTED as to the following trial testimony: 9/12/17
Tr. at 138-40. The Clerk shall maintain these lines from the trial transcript
under seal and shall only make publicly available the redacted versions of these
transcripts as provided in Exhibit I of Doc. 333.
e. The motion to seal is DENIED as to the following trial testimony: 9/6/17 Tr. at
167-175; 9/7/17 Tr. at 41, 133-35, 146-52 and 199; 9/8/17 Tr. at 70-76, 131132, and 155; 9/12/17 Tr. at 33. The transcripts need not be filed under seal.
2. Syngenta’s motion to seal, Doc. 287, is DENIED as moot.
This the 4th day of December, 2017.

__________________________________
UNITED STATES DISTRICT JUDGE

22