P&L DEVELOPMENT LLC v. BIONPHARMA, INC et al

Filing 149

MEMORANDUM OPINION AND ORDER signed by JUDGE N. C. TILLEY, JR. on 5/10/2019. For the reasons explained in this Memorandum Opinion, Bion's Motion to Seal (Doc. # 10 ) is DENIED; PLD's Motion to Seal (Doc. # 28 ) is GRANTED IN PART AND DENIED IN PART; Bion's Motion to Seal (Doc. # 38 ) is GRANTED IN PART AND DENIED IN PART; Bion's Motion to Seal (Doc. # 50 ) is GRANTED IN PART AND DENIED IN PART; PLD's Motion to Seal (Doc. # 65 ) is GRAN TED IN PART AND DENIED IN PART; PLD's Motion to Seal (Doc. # 73 ) is GRANTED IN PART AND DENIED IN PART; PLD's Motion to Seal (Doc. # 83 ) is DENIED AS MOOT; Patheon's Motion to Seal (Doc. # 108 ) is GRANTED; Bion's Motion to Seal (Doc. # 121 ) is DENIED; PLD's Motion to Seal (Doc. # 127 ) is DENIED; and Bion's Motion to Seal (Doc. # 132 ) is GRANTED IN PART AND DENIED IN PART. FURTHER that the parties have until May 24, 2019 to comply with this Order. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
P&L DEVELOPMENT LLC,
Plaintiff,
v.
1:17CV1154
BIONPHARMA INC. and
BIONPHARMA HEALTHCARE LLC,
Defendants.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on numerous motions to seal by all parties,
[Docs. #10, 28, 38, 50, 65, 73, 83, 108, 121, 127, 132]. For the reasons
explained below, the motions to seal are variously granted, denied, and granted in
part and denied in part.
I.
“When presented with a request to seal judicial records or documents, a
district court must comply with certain substantive and procedural requirements.”
Va. Dep’t of State Police v. Washington Post, 386 F.3d 567, 576 (4th Cir. 2004).
This is so because “[i]t is well settled that the public and press have a qualified
right of access to judicial documents and records filed in civil . . . proceedings.”
Doe v. Public Citizen, 749 F.3d 246, 265 (4th Cir. 2014). “Public access serves
to promote trustworthiness of the judicial process, to curb judicial abuses, and to
provide the public with a more complete understanding of the judicial system,
including a better perception of fairness.” Id. at 266.

However, “[f]or a right of access to exist . . . , the document must be a
‘judicial record.’” In re United States for an Order Pursuant to 18 U.S.C.
§ 2703(D), 707 F. 3d 283, 290 (4th Cir. 2013); otherwise, a motion to seal is
merely subject to the good cause standard in Rule 26(c) of the Federal Rules of
Civil Procedure, Agro v. Makhteshim Agan of N.A., Inc., No. 1:10CV276, 2011
WL 13157168, at *1 (M.D.N.C. July 13, 2011). A judicial record is a document
that “play[s] a role in the adjudicative process, or adjudicate[s] substantive rights”
such as when a document is “filed with the objective of obtaining judicial action or
relief”. In re United States for an Order Pursuant to 18 U.S.C. § 2703(D), 707 F.
3d at 290-91.
Substantively, a court “must determine the source of the right of access
with respect to each document, because only then can it accurately weigh the
competing interests at stake”. Va. Dep’t of State Police, 386 F.3d at 576 (internal
quotations and alteration omitted). At the least, “the common law presumes a
right of access” to judicial records. In re United States for an Order Pursuant to 18
U.S.C. § 2703(D), 707 F.3d at 290. The moving party can rebut this presumption
by “’showing some significant interest that outweighs the presumption.’” Va.
Dep’t of State Police, 386 F.3d at 575 (quoting Rushford v. New Yorker Magazine,
Inc., 846 F.2d 249, 253 (4th Cir. 1988)). Factors court weigh in this balancing
test “include whether the records are sought for improper purpose . . . ; whether
release would enhance the public’s understanding of an important historical event;
and whether the public already had access to the information contained in the
2

records.” In re Knight Publ’g Co., 743 F.2d 231, 235 (4th Cir. 1984) (citing Nixon
v. Warner Commc’ns, Inc., 435 U.S. 589, 597-608 (1978)).
In addition to the common law right of access, the First Amendment
guarantees access to “particular judicial records and documents”. In re United
States for an Order Pursuant to 18 U.S.C. § 2703(D), 707 F.3d at 290. It
provides more “substantive protection to the interests of the press and the public”
than the common law and can be restricted only where there is a compelling
governmental interest and the restriction is narrowly tailored to serve that interest.
Rushford, 846 F.2d at 253. Stated differently, “an overriding interest based on
findings that [sealing] is essential to preserve higher values” may overcome the
First Amendment right of access if the sealing is narrowly tailored to serve that
interest. Press-Enter. Co. v. Super. Ct. of Cal., Riverside Cty., 464 U.S. 501, 510
(1984).
“For private interests to satisfy this standard,” at least one court has found
that “the parties must establish a high likelihood of substantial and irreparable harm
if the motions to seal are denied.” Companion Prop. & Cas. Ins. Co. v. Wood, No.
3:14-cv-03719-CMC, 2017 WL 279767, at *2 (D.S.C. Jan. 23, 2017) (analyzing
Public Citizen, 749 F.3d at 269-70). The Eastern District of Virginia has
thoroughly analyzed the application of the First Amendment right of access in the
context of non-governmental interests. See Level 3 Commc’ns, LLC v. Limelight
Networks, Inc., 611 F. Supp. 2d 572, 580-83 (2009). There, the court recognized
that “in limited circumstances” some courts have found that “certain” “private
3

interests might also implicate higher values sufficient to override . . . the First
Amendment presumption of public access.” Id. at 580. Examples of those private
interests include a criminal defendant’s Sixth Amendment right to a fair trial,
privacy interests of non-parties, trade secrets, attorney-client relationships, and
contractual non-disclosure provisions. Id. at 580-83 (citing cases from various
federal courts). Even so, the courts have been careful to note that these interests
outweigh the First Amendment presumption of access only in certain
circumstances. Id. at 580-83.
While the First Amendment affords the public greater access than the
common law, the First Amendment only applies to documents such as those “filed
in connection with plea hearings and sentencing hearings in criminal cases” and “in
connection with a summary judgment motion in a civil case.” Rushford, 846 F.2d
at 253. Courts use the “’experience and logic’ test” to determine if the First
Amendment extends further by asking, “(1) whether the place and process have
historically been open to the press and general public, and (2) whether public
access plays a significant positive role in the functioning of the particular process
in question.” In re United States for an Order Pursuant to 18 U.S.C. § 2703(D),
707 F.3d at 291 (internal quotations omitted).
Once a court has determined whether the common law or First Amendment
attaches, it must comply with procedural requirements including providing “the
public notice of the request to seal and a reasonable opportunity to challenge the
request; . . . consider[ing] less drastic alternatives to sealing; and if it decides to
4

seal . . . stat[ing] the reasons (and specific supporting findings) for its decision and
the reasons for rejecting alternatives to sealing.” Va. Dep’t of State Police, 386
F.3d at 576.
II.
Defendants Bionpharma Inc. and Bionpharma Healthcare LLC (collectively
referred to as “Bion”) have moved to seal the Supply Agreements attached as
Exhibits C through F of the Verified Complaint. [Doc. #10.] Similarly, and more
recently, Plaintiff P&L Development LLC (“PLD”) has moved to seal the Supply
Agreements attached as Exhibits C through F to the Amended Complaint and
information in that complaint from the Rule 30(b)(6) deposition of Patheon
Softgels, Inc. (“Patheon”). [Doc. #127.] The public has had notice of these
motions since December 28, 2017 and July 12, 2018, respectively, but has filed
no objections despite reasonable opportunity to do so.
The common law right of access applies to a complaint, U.S. Tobacco, Inc.
v. Big South Wholesale of Virginia, LLC, No. 5:13-CV-527-F, 2013 WL 6145549,
at *3 (E.D.N.C. Nov. 21, 2013), and likely to documents attached to a complaint.
Therefore, Bion or PLD must show a significant countervailing interest that heavily
outweighs the public’s interest in accessing the Supply Agreements, yet neither
has done so. Bion argues that the agreements “contain sensitive pricing
information” and “sensitive information concerning the parties’ respective
obligations and profit allocations” which “[a]ny person” could use “to gain an
unfair business advantage”. (Bion’s Br. in Supp. at 2.) Similarly, PLD argues that
5

disclosure of the Supply Agreements would permit “a competitor [to] use them for
an improper purpose and jeopardize PLD’s position in the market.” (PLD’s Br. in
Supp. at 3.) According to PLD, the agreements “spell out the details of the
parties’ respective obligations, how PLD and Bion will allocate profits from their
business relationship, confidential information and commercially sensitive pricing
information that a third party could use to unfairly compete with PLD and Bion.”
(Id. at 4.) Disclosure of this information “(particularly with regard to the financial
aspects of their partnership) could harm PLD’s competitive standing”. (Id. at 5.)
Indeed, “courts have refused to permit their files to serve as . . . sources of
information that might harm a litigant’s competitive standing”, but Bion and PLD
simply rely on that statement from Nixon without actually explaining how it applies
to all of the information in each Supply Agreement. The persuasiveness of Bion’s
argument, if any, is further undermined by its public disclosure of portions of the
agreements, including profit allocations, in its Counterclaim.
The Supply Agreements were entered into in 2003, 2004, 2011, and 2012
by the parties’ predecessors. While the agreements include information about the
parties’ sale of certain generic pharmaceutical drugs, they are negotiated
instruments and products of compromise that do not necessarily reveal the extent
of the parties’ business capabilities independent of these particular circumstances.
Instead, the agreements memorialize what each party was willing to do at the time
it entered into (or became the assignee of) each agreement. For example,
whatever may be the “financial aspects” to which PLD refers, those are terms to
6

which each party agreed at the time it entered into or amended the agreements in
order to do business at the time with the other party. Furthermore, the
agreements expired in March 2018. Had either party sufficiently supported its
argument at the time it filed its motion to seal, the passage of time has now
lessened those concerns, and there is no information about the parties’ present
business relationship with each other or otherwise in the generic pharmaceutical
drug market. In sum, neither party has met its burden of showing a significant
countervailing interest that outweighs the public’s interest in accessing the Supply
Agreements, contracts that are at the heart of this action and which this Court
found PLD to have shown a substantial likelihood of success proving Bion
breached.
As for the information in the Amended Complaint from the Rule 30(b)(6)
deposition of Patheon, PLD does not believe that information should be sealed.
Accordingly, pursuant to Local Rule 5.4(b), Patheon or Bion was to have filed a
brief in support of sealing that information. No such brief has been filed, and the
motion to seal these portions of the Amended Complaint is denied. Therefore,
Bion’s Motion to Seal [Doc. #10] is denied, and PLD’s Motion to Seal [Doc. #127]
is denied.
III.
PLD has moved to seal certain portions of its brief and declarations filed in
support of its Motion for Temporary Restraining Order and/or Preliminary
Injunction. [Doc. #28.] PLD presumes only the common law right of access
7

applies, (see generally Br. in Supp.), and argues that the redacted portions of the
filings contain the parties’ confidential information including “the details of the
parties’ relationship, the process used for forecasting PLD’s product needs and
submitting orders to Bion, detailed information about purchase orders submitted by
PLD to Bion, Bion’s shipment (or lack thereof) of the products, . . . information
about PLD’s customers and the terms on which they do business together . . . ,
[and] some of the specific terms of the parties’ contracts”, (id. at 2-3). PLD
contends that less drastic measures would not adequately protect it because
release of the information could harm PLD’s competitive standing. (Id. at 3-4.) The
public has had notice of PLD’s request since January 2, 2018, and has not
opposed the motion despite reasonable opportunity to do so.
The declarations and brief at issue are judicial records, as PLD submitted
them to obtain judicial relief and the Court used them in assessing whether or not
to grant PLD’s requested preliminary relief. (See Mem. Order (Jan. 26, 2018) [Doc.
#85].) Accordingly, at the very least, the common law right of access applies. To
determine whether or not the First Amendment right of access applies, the
experience and logic test is applied. As the court in Agro explained, “preliminary
relief proceedings are typically conducted in an open fashion in part because courts
must consider the public interest in deciding whether to grant such relief”. 2011
WL 13157168, at *3 (internal quotations and citations omitted). “On the other
hand, . . . certain forms of preliminary relief may be granted without notice to the
adverse party, let alone notice to the general public” which “reflects the temporary
8

nature of such relief” and “diminishes the public’s interest in access to related
documents.” Id. Furthermore, any “public interest in curbing judicial misconduct
. . . is tempered by the preliminary and temporary nature of the requested relief”.
Id. Therefore, as in Agro, it is determined that there is no First Amendment right
of access to these documents.
PLD must then rebut the common law right of access by showing a
significant interest that outweighs the public’s interest in access. As PLD argues,
courts have recognized that a party has an interest in protecting “sources of
business information that might harm [its] competitive standing”. Nixon, 435 U.S.
at 598. While PLD has identified specific information to be sealed rather than
requesting to seal documents in their entireties, it has not sufficiently supported its
general arguments that disclosure “would harm PLD’s competitive standing” or
what information “a third party could use” – or how it could use that information –
“to unfairly compete with PLD” and “gain an unfair business advantage”, not only
at the time the motion to seal was filed, but now in 2019, long after the parties’
Supply Agreements expired in March 2018. PLD relies on these conclusory
arguments to support sealing all of the information it identified in its brief and
supporting declarations, without explaining why the disclosure of specific
information – which ranges from numbers of capsules to statements of irreparable
harm to terms from the Supply Agreements – would harm PLD. This leaves the
Court to guess PLD’s concerns. For example, how does public disclosure of the
Naproxen Supply Agreement’s requirement that PLD provide Bion with eighteen
9

month rolling forecasts harm PLD? Not only has the Supply Agreement expired,
but, as noted above, the terms of that agreement resulted from negotiations and
compromise and do not reveal PLD’s actual business capabilities or secrets.
Similarly, how does public disclosure of PLD’s “typical monthly forecast for each of
the drugs” or the amount of capsules of each drug PLD ordered and Bion
committed to ship in any given month harm its competitive standing, not only at
the time PLD moved to seal this information, but especially now in 2019?
Furthermore, despite PLD’s argument otherwise, much of the information PLD
requests to be sealed was already public in its Complaint.
In sum, unless otherwise noted below, PLD has not met its burden of
showing a significant countervailing interest that outweighs the public’s right of
access to this information. The heart of this action is the four Supply Agreements
between PLD and Bion and whether or not PLD and Bion were contractually
permitted to do what they are alleged to have done. For purposes of PLD’s Motion
for a Temporary Restraining Order, the Court found that PLD had shown a
substantial likelihood of success on the merits of its breach of contract claims.
Even the temporary nature of such an order does not displace the necessity for
PLD to show a significant countervailing interest that can restrict the public’s
access to the very documents and related information at the center of the parties’
dispute. PLD has largely failed to do so, as explained below.
PLD has also requested that information remain sealed “permanently
throughout the pendency of this case.” (Br. in Supp. at 5.) However, because the
10

First Amendment right of access applies at summary judgment and trial, PLD would
need to meet a higher burden to restrict access to information at later stages of
this case. Therefore, to the extent any portion of PLD’s motion to seal is granted,
it is granted only for purposes of PLD’s Motion for Temporary Restraining Order
and/or Preliminary Injunction.
PLD’s Motion to Seal [Doc. #28] is granted in part and denied in part as
follows:
PLD’s Brief in Support of its Motion for Temporary Restraining Order and/or
Preliminary Injunction
Location of
Ruling
Explanation
Information
Requested to
be Sealed
p. 1
Denied.
PLD has not met its burden to show a
significant countervailing interest.
p. 4
Denied
Public information, (see Compl. ¶ 13 &
Am. Compl. ¶ 42); PLD has not met its
burden to show a significant
countervailing interest.
p. 6
Denied.
Public information, (see generally
Compl.; see also id. ¶¶ 23, 40-42 &
Am. Compl. ¶¶ 58, 84-87); PLD has not
met its burden to show a significant
countervailing interest.
p. 7
Denied.
Public information, (see generally
Compl. & Am. Compl.; see also Compl.
¶¶ 22, 38, 50, 61 & Am. Compl.
¶¶ 52, 82, 101, 118); PLD has not met
its burden to show a significant
countervailing interest.
p. 12
Denied.
Public information, (see Mem. Order
(Jan. 26, 2018) (granting in part PLD’s
Mot. for TRO)); PLD has not met its
burden to show a significant
countervailing interest.

11

p. 13-14

Denied.

p. 15

Denied.

p. 17

Denied.

p. 18

Denied.

p. 19-20

Denied.

Public information, (see Mem. Order
(Jan. 26, 2018) (granting in part PLD’s
Mot. for TRO)); PLD has not met its
burden to show a significant
countervailing interest.
Public information, (see Compl. ¶ 12 &
Am. Compl. ¶¶ 11(d), 40, 41;
Countercl. ¶¶ 1, 19); PLD has not met
its burden to show a significant
countervailing interest.
Public information, (see Compl. ¶¶ 27,
39, 40, 41, 52, 62 & Am. Compl.
¶¶ 68, 84, 85, 86, 103, 121); PLD has
not met its burden to show a significant
countervailing interest.
PLD has not met its burden to show a
significant countervailing interest.
Public information, (see Compl. ¶¶ 22,
27, 38, 39, 50, 52, 61, 62 & Am.
Compl. ¶¶ 57, 68, 82, 84, 101, 103,
118, 121); PLD has not met its burden
to show a significant countervailing
interest.

Declaration of Thomas L. Crowe (Jan. 1, 2018)
Location of
Information
Requested to
be Sealed
¶2

¶6

Ruling

Granted in part and
denied in part. PLD
may redact the
names of companies
other than CVS,
Walmart, Costco,
and Target.
Denied.

Explanation

Permissible redacted information is
confidential that could harm PLD’s and
the non-parties’ competitive advantage
if disclosed and would not enhance the
public’s understanding of historical
events. However, other information is
already public. (See Compl. ¶ 5 & Am.
Compl. ¶ 21.)
Public information, (see Compl. ¶ 13 &
Am. Compl. ¶ 42); PLD has not met its
burden to show a significant
countervailing interest.
12

¶9

Denied.

¶ 10

Denied.

¶ 11

Denied.

¶ 12

Denied.

¶ 14

Denied.

¶ 16

Denied.

¶ 17

Denied.

¶ 18

Denied.

¶ 20

Denied.

¶ 20(a)

Denied.

¶ 20(b)

Denied.

¶ 21

Denied.

¶ 22

Denied.

Exhibit A

Denied.

Public information, (see Mem. Order
(Jan. 26, 2018) (granting in part PLD’s
Mot. for TRO)); PLD has not met its
burden to show a significant
countervailing interest.
Public information, (see Mem. Order
(Jan. 26, 2018) (granting in part PLD’s
Mot. for TRO)); PLD has not met its
burden to show a significant
countervailing interest.
PLD has not met its burden to show a
significant countervailing interest.
PLD has not met its burden to show a
significant countervailing interest.
PLD has not met its burden to show a
significant countervailing interest.
Public information, (see Compl. ¶¶ 40,
42 & Am. Compl. ¶¶ 85-87); PLD has
not met its burden to show a significant
countervailing interest.
Public information, (see Compl. ¶¶ 23,
26, 27 & Am. Compl. ¶ 58); PLD has
not met its burden to show a significant
countervailing interest.
Public information, (see Compl. ¶ 48 &
Am. Compl. ¶ 98); PLD has not met its
burden to show a significant
countervailing interest.
PLD has not met its burden to show a
significant countervailing interest.
PLD has not met its burden to show a
significant countervailing interest.
PLD has not met its burden to show a
significant countervailing interest.
Public information, (see generally
Compl. & Am. Compl.); PLD has not
met its burden to show a significant
countervailing interest.
PLD has not met its burden to show a
significant countervailing interest.
PLD has not met its burden to show a
significant countervailing interest.
13

Declaration of Evan Singer (Jan. 1, 2018)
Location of
Information
Requested to
be Sealed
¶2

Ruling

Granted in part and
denied in part. PLD
may redact the
names of companies
other than CVS,
Walmart, Costco,
and Target.

¶6

Denied.

¶ 15

Denied.

¶ 16

Denied.

¶ 17

Denied.

Exhibit A

Denied.

Explanation

Permissible redacted information is
confidential that could harm PLD’s and
the non-parties’ competitive advantage
if disclosed and would not enhance the
public’s understanding of historical
events. However, other information is
already public. (See Compl. ¶ 5 & Am.
Compl. ¶ 21.)
Public information, (see Compl. ¶ 13 &
Am. Compl. ¶ 42); PLD has not met its
burden to show a significant
countervailing interest.
Public information, (see Compl. ¶¶ 27,
39, 52, 62 & Am. Compl. ¶¶ 68, 84,
103, 121); PLD has not met its burden
to show a significant countervailing
interest.
PLD has not met its burden to show a
significant countervailing interest.
PLD has not met its burden to show a
significant countervailing interest.
PLD has not met its burden to show a
significant countervailing interest.

Declaration of Brad Larson (Dec. 30, 2017)
Location of
Information
Requested to
be Sealed
¶2

Ruling

Granted in part and
denied in part. PLD
may redact the
names of companies
other than CVS,

Explanation

Permissible redacted information is
confidential that could harm PLD’s and
the non-parties’ competitive advantage
if disclosed and would not enhance the
public’s understanding of historical
events. However, other information is
14

¶4

Walmart, Costco,
and Target.
Denied.

¶5

Denied.

¶6

Denied.

¶7

Denied.

¶8

Denied.

¶9

Denied.

¶ 11

Denied.

¶ 12

Granted in part and
denied in part. PLD
may redact the two
references to the
customer name.

¶ 13

Denied.

¶ 14

Denied.

already public. (See Compl. ¶ 5 & Am.
Compl. ¶ 21.)
Public information, (see Compl. ¶ 5 &
Am. Compl. ¶ 21); PLD has not met its
burden to show a significant
countervailing interest.
PLD has not met its burden to show a
significant countervailing interest.
PLD has not met its burden to show a
significant countervailing interest.
Public information, (see Compl. ¶¶ 26,
27 & Am. Compl. ¶¶ 67, 68); PLD has
not met its burden to show a significant
countervailing interest.
PLD has not met its burden to show a
significant countervailing interest.
Public information, (see Compl. ¶¶ 4042 & Am. Compl. ¶¶ 85-87); PLD has
not met its burden to show a significant
countervailing interest.
Public information, (see Compl. ¶¶ 17,
25, 27, 28 & Am. Compl. ¶¶ 51, 65,
68, 69); PLD has not met its burden to
show a significant countervailing
interest.
Permissible redacted information is
confidential and could harm PLD’s and a
non-party’s competitive advantage if
disclosed and would not enhance the
public’s understanding of historical
events. However, as to the other
information, PLD has not met its burden
to show a significant countervailing
interest.
PLD has not met its burden to show a
significant countervailing interest.
PLD has not met its burden to show a
significant countervailing interest.

15

IV.
Bion has moved to seal portions of its response brief and supporting
documents in opposition to PLD’s Motion for a Temporary Restraining Order and/or
Preliminary Injunction. [Doc. #50.] As did PLD, Bion presumes that only the
common law right of access applies, (see generally Br. in Supp.), and argues that
the information it requests be sealed is “highly sensitive competitive information”,
including “sensitive transaction details, supply information, pricing and profit
information, and confidential contract terms”, (id. at 3). The public has had notice
of Bion’s request since January 12, 2018, and has not opposed the motion despite
reasonable opportunity to do so.
For the same reasons as explained above, supra § III, the common law right
of access applies to Bion’s response brief and supporting documents. With the
exception of James Hannan’s declaration, Bion has largely requested that only
specific information be redacted, rather than moving to seal documents in their
entireties. However, despites its characterization of the material as “highly
sensitive competitive information”, Bion has not explained why disclosure of the
specific information it seeks to seal – which ranges from contract terms to
numbers of capsules to accountant’s inquiries – would harm its competitive
standing. For example, Bion argues that “the Hannan declaration gives the results
of an independent review of a party’s financial records” and “[s]ensitive and
confidential information pervades the document”. Accordingly, Bion has moved to
seal that declaration in its entirety. Yet, there can be no doubt that the law does
16

not support sealing the basic introductory information about the declarant.
Furthermore, Bion has not explained how disclosure of the contents of the
declaration could harm its competitive standing, likely because that information
pertains to PLD, which did not file a brief supporting the protection of that
information1 and it is not apparent how PLD could have successfully argued in
favor of sealing. Similarly, Bion argues that “Appendix A to Mehrotra’s declaration
is a chart composed entirely of sensitive information”, but it has not explained how
disclosure of that information would harm Bion or PLD. Moreover, that information
pertains to PLD, which has not filed a brief in support of sealing that chart.
Likewise, Bion has not explained how references to numbers of capsules ordered or
shipped reveal sensitive information that could harm its competitive standing, and,
as elsewhere, PLD has not supplied an argument in favor of sealing this
information. Bion contends that it lawfully reduced or rejected orders that
exceeded forecasts and were not tied to the actual demand of PLD’s customers,
such that the numbers of capsules that PLD ordered may not even represent PLD’s
business capabilities. There is no information about PLD’s actual customers’ needs
and how, if it could, PLD met that demand. Instead, Bion relies on general
conclusory statements that disclosure of “these documents [would permit a non-

1

In its brief in support of its Motion to Seal information in its reply brief and
supporting declarations [Doc. #73], see infra § V, PLD generally alludes to
information that Bion has moved to seal here, including “details of an ‘audit’ of
PLD”. However, PLD simply relies on statements of competitive harm unsupported
by any specificity.
17

party] to gain an unfair business advantage” over Bion and its “competitive and
financial interest . . . would be harmed”. As with the previous motion to seal, the
Court is left to hypothesize how disclosure of each set of information – which
encompasses a wide variety of material – could harm Bion. Furthermore, the
passage of time has weakened any argument of injury from disclosure. Similarly,
since Bion filed this motion to seal, it publicly disclosed much of the information it
moved to seal when it filed its Counterclaim, as noted below.
Bion, like PLD, has requested that information remain sealed throughout the
pendency of this case. However, for the reasons explained above, supra § III, that
request is denied.
Bion’s Motion to Seal [Doc. #50] is granted in part and denied in part as
follows:
Bion’s Response Brief in Opposition to PLD’s Motion for a Temporary
Restraining Order and/or Preliminary Injunction
Location of
Ruling
Explanation
Information
Requested to
be Sealed
p. 1-2
Denied.
Public information, (see Countercl.
¶ 11); Bion has not met its burden to
show a significant countervailing
interest.
p. 3-4
Denied.
Public information, (see Countercl. ¶¶ 12); Bion has not met its burden to show
a significant countervailing interest.
p. 5
Denied.
Public information, (see Countercl. ¶ 11;
Mem. Order (Jan. 26, 2018) (granting in
part PLD’s Mot. for TRO)); Bion has not
met its burden to show a significant
countervailing interest.

18

p. 6

Denied.

p. 7

Granted in part and
denied in part. Bion
may redact the
name of Patheon’s
supplier.

p. 8

Granted in part and
denied in part. Bion
may redact the
names of the API
suppliers.

p. 9

Denied.

p. 10

Denied.

p. 11

Denied.

p. 12

Denied.

p. 15

Denied.

Public information, (see Mem. Order
(Jan. 26, 2018) (granting in part PLD’s
Mot. for TRO)); Bion has not met its
burden to show a significant
countervailing interest.
Permissible redacted information is
confidential and could harm non-parties’
competitive advantage if disclosed and
would not enhance the public’s
understanding of historical events.
However, as to the other information,
Bion has not met its burden to show a
significant countervailing interest.
Contains confidential information about
the non-parties’ business relationships
that could harm their competitive
advantage if disclosed and would not
enhance the public’s understanding of
historical events. However, as to the
other information, Bion has not met its
burden to show a significant
countervailing interest.
Public information, (see Mem. Order
(Jan. 26, 2018) (granting in part PLD’s
Mot. for TRO)); Bion has not met its
burden to show a significant
countervailing interest.
Public information, (see Countercl. ¶¶ 1,
15, 19; Ex. 8 to Punji Decl.); Bion has
not met its burden to show a significant
countervailing interest.
Public information, (see Countercl. ¶¶ 1,
2, 16, 21-23, 28, 31); Bion has not met
its burden to show a significant
countervailing interest.
Public information, (see Countercl.
¶¶ 32-35, 44); Bion has not met its
burden to show a significant
countervailing interest.
Public information, (see Mem. Order
(Jan. 26, 2018) (granting part PLD’s
Mot. for TRO)); Bion has not met its

19

p. 16

Denied.

p. 18

Denied.

p. 19

Granted.

p. 20

Denied.

burden to show a significant
countervailing interest.
Bion has not met its burden to show a
significant countervailing interest.
Public information, (see Countercl. ¶¶ 1,
2); Bion has not met its burden to show
a significant countervailing interest.
Contains confidential information about
Patheon’s API supplier that could harm
its and the supplier’s competitive
advantage if disclosed and would not
enhance the public’s understanding of
historical events.
Bion has not met its burden to show a
significant countervailing interest.

Declaration of Phanindranath Punji (Jan. 12, 2018)
Location of
Information
Requested to
be Sealed
¶8

Ruling

Explanation

Denied.

¶ 12

Granted.

¶ 13

Granted.

¶ 14

Granted.

Public information, (see Mem. Order
(Jan. 26, 2018) (granting part PLD’s
Mot. for TRO)); Bion has not met its
burden to show a significant
countervailing interest.
Contains confidential information about
Patheon’s API suppliers and non-parties
that could harm their competitive
advantage if disclosed and would not
enhance the public’s understanding of
historical events.
Contains confidential information about
non-parties that could harm their
competitive advantage if disclosed and
would not enhance the public’s
understanding of historical events.
Contains confidential information about
non-parties that could harm their
competitive advantage if disclosed and
20

¶ 15

Granted.

¶ 18

Granted.

¶ 19

Granted in part and
denied in part. Bion
may redact the
name of Patheon’s
supplier.

¶ 20

Granted in part and
denied in part. Bion
may redact the
names of the API
suppliers.

¶¶ 21-23

Granted.

¶ 24

Granted in part and
denied in part. Bion
may redact the
name of Patheon’s
API supplier.

would not enhance the public’s
understanding of historical events.
Contains confidential information about
non-parties that could harm their
competitive advantage if disclosed and
would not enhance the public’s
understanding of historical events.
Contains confidential information about
Patheon and its API supplier that could
harm their competitive advantage if
disclosed and would not enhance the
public’s understanding of historical
events.
Permissible redacted information
contains confidential information about
non-parties that could harm their
competitive advantage if disclosed and
would not enhance the public’s
understanding of historical events.
However, as to the other information,
Bion has not met its burden to show a
significant countervailing interest.
Permissible redacted information
contains confidential information about
non-parties that could harm their
competitive advantage if disclosed and
would not enhance the public’s
understanding of historical events.
However, as to the other information,
Bion has not met its burden to show a
significant countervailing interest.
Contains confidential information about
non-parties that could harm their
competitive advantage if disclosed and
would not enhance the public’s
understanding of historical events.
Permissible redacted information
contains confidential information about
non-parties that could harm their
competitive advantage if disclosed and
would not enhance the public’s
understanding of historical events.
However, as to the other information,
21

¶ 25

Granted in part and
denied in part. Bion
may redact the
name of Patheon’s
API supplier.

¶ 26

Granted in part and
denied in part. Bion
may redact the
name of Patheon’s
supplier.

¶ 27

Granted in part and
denied in part. Bion
may redact the
name of the API
supplier.

¶ 28

Denied.

¶ 29

Denied.

¶¶ 30-33

Granted in part and
denied in part. Bion
may redact the
name of the API
supplier.

Bion has not met its burden to show a
significant countervailing interest.
Permissible redacted information
contains confidential information about
non-parties that could harm their
competitive advantage if disclosed and
would not enhance the public’s
understanding of historical events.
However, as to the other information,
Bion has not met its burden to show a
significant countervailing interest.
Permissible redacted information
contains confidential information about
non-parties that could harm their
competitive advantage if disclosed and
would not enhance the public’s
understanding of historical events.
However, as to the other information,
Bion has not met its burden to show a
significant countervailing interest.
Permissible redacted information
contains confidential information about
a non-party that could harm its
competitive advantage if disclosed and
would not enhance the public’s
understanding of historical events.
However, as to the other information,
Bion has not met its burden to show a
significant countervailing interest.
Bion has not met its burden to show a
significant countervailing interest.
Bion has not met its burden to show a
significant countervailing interest.
Permissible redacted information
contains confidential information about
a non-party that could harm its
competitive advantage if disclosed and
would not enhance the public’s
understanding of historical events.
However, as to the other information,
Bion has not met its burden to show a
significant countervailing interest.

22

¶ 34

Granted in part and
denied in part. Bion
may redact the
name of the API
supplier.

¶ 35

Granted in part and
denied in part.

¶ 38

Granted.

¶ 42

Denied.

¶ 43

Denied.

¶ 45

Denied.

¶ 46

Denied.

¶ 48

Denied.

¶ 49

Denied.

Permissible redacted information
contains confidential information about
a non-party that could harm its
competitive advantage if disclosed and
would not enhance the public’s
understanding of historical events.
However, as to the other information,
Bion has not met its burden to show a
significant countervailing interest.
Permissible redacted information
contains confidential information about
non-parties that could harm their
competitive advantage if disclosed and
would not enhance the public’s
understanding of historical events.
However, as to the other information,
Bion has not met its burden to show a
significant countervailing interest.
Contains confidential information about
non-parties that could harm their
competitive advantage if disclosed and
would not enhance the public’s
understanding of historical events.
Bion has not met its burden to show a
significant countervailing interest.
Bion has not met its burden to show a
significant countervailing interest.
Public information, (see Ex. 8 to Punji
Decl.); Bion has not met its burden to
show a significant countervailing
interest.
Public information, (see Ex. 8 to Punji
Decl.); Bion has not met its burden to
show a significant countervailing
interest.
Public information, (see Mem. Order
(Jan. 26, 2018) (granting in part PLD’s
Mot. for TRO)); Bion has not met its
burden to show a significant
countervailing interest.
Public information, (see Mem. Order
(Jan. 26, 2018) (granting in part PLD’s
Mot. for TRO)); Bion has not met its
23

¶ 50

Denied.

¶ 51

Denied.

¶ 52

Denied.

¶ 53

Denied.

¶ 57

Denied.

¶ 58

Granted in part and
denied in part. Bion
may redact
references to the
amount of API.

¶ 59

Denied.

¶ 61

Granted.

¶ 63

Granted.

burden to show a significant
countervailing interest.
Public information, (see Mem. Order
(Jan. 26, 2018) (granting in part PLD’s
Mot. for TRO)); Bion has not met its
burden to show a significant
countervailing interest.
Public information, (see Mem. Order
(Jan. 26, 2018) (granting in part PLD’s
Mot. for TRO)); Bion has not met its
burden to show a significant
countervailing interest.
Public information, (see Mem. Order
(Jan. 26, 2018) (granting in part PLD’s
Mot. for TRO)); Bion has not met its
burden to show a significant
countervailing interest.
Public information, (see Mem. Order
(Jan. 26, 2018) (granting in part PLD’s
Mot. for TRO)); Bion has not met its
burden to show a significant
countervailing interest.
Bion has not met its burden to show a
significant countervailing interest.
Permissible redacted information
contains confidential information about
a non-party that could harm its
competitive advantage if disclosed.
However, as to the other information,
Bion has not met its burden to show a
significant countervailing interest.
Bion has not met its burden to show a
significant countervailing interest.
Contains confidential information about
a non-party that could harm its
competitive advantage if disclosed and
would not enhance the public’s
understanding of historical events.
Contains confidential information about
the Bion’s and Patheon’s business
relationship that could harm their
competitive advantage if disclosed and

24

¶ 65

Denied.

¶ 67

Denied.

¶ 68

Denied.

¶ 69

Denied.

¶ 70

Denied.

Exhibits 1-122

Granted in part and
denied in part. Bion
may redact the
names of API
suppliers.

would not enhance the public’s
understanding of historical events.
Bion has not met its burden to show a
significant countervailing interest.
Public information, (see Compl. ¶ 26 &
Am. Compl. ¶ 67); Bion has not met its
burden to show a significant
countervailing interest.
Public information, (see Compl. ¶¶ 41,
42 & Am. Compl. ¶ 87); Bion has not
met its burden to show a significant
countervailing interest.
Public information, (see Compl. ¶¶ 22,
38, 50, 61 & Am. Compl. ¶¶ 52, 82,
101, 118); Bion has not met its burden
to show a significant countervailing
interest.
Bion has not met its burden to show a
significant countervailing interest.
Permissible redacted information
contains confidential information about
non-parties that could harm their
competitive advantage if disclosed and
would not enhance the public’s
understanding of historical events.
However, as to the other information, it
is public, (see Mem. Order (Jan. 26,
2018) (granting in part PLD’s Mot. for
TRO)); Bion has not met its burden to
show a significant countervailing
interest.

2

In its motion to seal, Bion mistakenly describes Exhibit 12 as “Emails”; however,
Exhibit 12 is a letter dated October 2, 2012.
25

Declaration of James J. Hannan (Jan. 12, 2018)
Location of
Information
Requested to
be Sealed
Entire
declaration

Ruling

Explanation

Denied.

Public information, (see Counterl.
¶¶ 14-16, 18-36; Hannan Decl. Exs. A
& B); Bion has not met its burden to
show a significant countervailing
interest.

Declaration of Michael Dalton (Jan. 11, 2018)
Location of
Information
Requested to
be Sealed
¶ 10

Ruling

Explanation

Denied.

¶ 11

Denied.

Bion has not met its burden to show a
significant countervailing interest.
Bion has not met its burden to show a
significant countervailing interest.

Declaration of Gaurav Mehrotra (Jan. 12, 2018)
Location of
Information
Requested to
be Sealed
¶7

Ruling

Explanation

Denied.

¶8

Denied.

¶9

Denied.

¶ 11

Denied.

Public information, (see Countercl.
¶ 29); Bion has not met its burden to
show a significant countervailing
interest.
Bion has not met its burden to show a
significant countervailing interest.
Bion has not met its burden to show a
significant countervailing interest.
Public information, (see, e.g., Countercl.
¶ 29); Bion has not met its burden to
show a significant countervailing
interest.
26

¶ 12

Denied.

¶ 15

Denied.

Appendix

Denied.

Bion has not met its burden to show a
significant countervailing interest.
Public information, (see, e.g., Countercl.
¶ 29); Bion has not met its burden to
show a significant countervailing
interest.
Bion has not met its burden to show a
significant countervailing interest.
V.

PLD has moved to seal its reply brief and declarations in further support of
its Motion for Temporary Restraining Order and/or Preliminary Injunction. [Doc.
#73.] The public has been on notice of PLD’s motion since January 20, 2018, and
has not filed objections despite reasonable opportunity to do so. For the reasons
explained above, supra § III, the common law right of access applies to these
documents. PLD moves to seal information in its brief taken from declarations for
which Bion moved to seal, see supra § IV, as well as “confidential business
information” in declarations that PLD has attached to its brief. PLD describes the
redacted information as containing “details of the parties’ business relationship,
Bion’s shipment (or lack thereof) of the products, PLD’s inventory levels,
information about PLD’s customers and the terms on which they do business
together, the profit split on the products between PLD and Bion, details of an
‘audit’ of PLD that Bion directed, and the parties’ course of dealing.” (Br. in Supp.
at 3.) There is also “information about PLD’s communications with customers, the
terms on which PLD does business with its customers, how PLD’s relationships
with its customers have been affected by Bion’s conduct, and the profits that PLD
27

has paid to Bion”. (Id. at 4.) According to PLD, this information is “proprietary and
confidential”, the disclosure of which could harm its competitive standing. (Id. at
3.) However, as before, PLD’s motion lacks necessary specificity.
For example, how would disclosure of the number of capsules of each drug
PLD ordered and forecast in 2017 harm its competitive advantage? As above,
Bion contends at least some of these forecasts and orders were not tied to
customer demand. Similarly, with the exception of the prices that PLD paid to
Bion listed on the purchase orders, how does disclosure of those purchase orders –
which PLD moves to seal in their entireties, including information in the headers
and the terms and conditions – harm its competitive advantage? Does disclosure
of general information about the process to find a new supplier harm PLD’s
competitive advantage when that information appears universally applicable to the
manufacture and sale of drugs? PLD has failed to answer these questions.
Furthermore, the passage of time lessens many of PLD’s concerns. Although
portions of PLD’s motion are granted, they are denied as to PLD’s request that
sealed material remain so permanently. See supra § III.
PLD’s Motion to Seal [Doc. #73] is granted in part and denied in part as
follows:

28

PLD’s Reply Brief in Further Support of its Motion for Temporary Restraining
Order and/or Preliminary Injunction
Location of
Ruling
Explanation
Information
Requested to
be Sealed
p. 2
Denied.
Public information generally; PLD has
not met its burden of showing a
significant countervailing interest.
p. 3
Denied.
Public information, (see Mem. Order
(Jan. 26, 2018) (granting in part PLD’s
Mot. for TRO)); PLD has not met its
burden of showing a significant
countervailing interest.
p. 4-5
Granted in part and Permissible redacted information
denied in part. PLD contains confidential information about
may redact the
non-parties that could harm their
name of Patheon’s
competitive advantage if disclosed and
API supplier.
would not enhance the public’s
understanding of historical events.
However, as to the other information, it
is public, (see Exs. 1-3 of Punji Decl.);
PLD has not met its burden of showing
a significant countervailing interest.
p. 7-8
Denied.
Public information, (see Counterl.
¶¶ 14-17, 19-26, 29 & Am. Compl.
¶ 159); PLD has not met its burden of
showing a significant countervailing
interest.
p. 9
Denied.
Public information, (see, e.g., Countercl.
¶¶ 14-17 & Am. Compl. ¶ 159); PLD
has not met its burden of showing a
significant countervailing interest.
p. 10
Denied.
Public information, (see, e.g., Second
Crowe Decl. ¶ 5); PLD has not met its
burden of showing a significant
countervailing interest.
p. 11
Denied.
PLD has not met its burden of showing
a significant countervailing interest.

29

Second Declaration of Thomas L. Crowe (Jan. 19, 2018)
Location of
Information
Requested to
be Sealed
¶5

Ruling

Explanation

Denied.

¶6

Denied.

¶7

Denied.

¶9

Denied.

¶ 14

Denied.

¶ 15

Denied.

¶ 17

Denied.

Exhibit B

Denied.

PLD has not met its burden of showing
a significant countervailing interest.
PLD has not met its burden of showing
a significant countervailing interest.
PLD has not met its burden of showing
a significant countervailing interest.
Public information, (see Mem. Order
(Jan. 26, 2018) (granting in part PLD’s
Mot. for TRO)); PLD has not met its
burden of showing a significant
countervailing interest.
Public information, (see First Larson
Decl. ¶ 5); PLD has not met its burden
of showing a significant countervailing
interest.
Public information, (see First Larson
Decl. ¶ 5); PLD has not met its burden
of showing a significant countervailing
interest.
Public information generally; PLD has
not met its burden of showing a
significant countervailing interest.
PLD has not met its burden of showing
a significant countervailing interest.

Second Declaration of Brad Larson (Jan. 17, 2018)
Location of
Information
Requested to
be Sealed
¶9

Ruling

Explanation

Denied.

Public information, (see generally
Compl.); PLD has not met its burden of
showing a significant countervailing
interest.

30

¶ 11

Denied.

¶ 14

Denied.

Exhibit B

Denied.

Exhibit C

Denied.

Exhibit D

Denied.

Exhibit E

Denied.

PLD has not met its burden of showing
a significant countervailing interest.
PLD has not met its burden of showing
a significant countervailing interest.
PLD has not met its burden of showing
a significant countervailing interest,
particularly in light of PLD’s redactions
from the sealed filing.
PLD has not met its burden of showing
a significant countervailing interest,
particularly in light of PLD’s redactions
from the sealed filing.
PLD has not met its burden of showing
a significant countervailing interest,
particularly in light of PLD’s redactions
from the sealed filing.
PLD has not met its burden of showing
a significant countervailing interest,
particularly in light of PLD’s redactions
from the sealed filing.

Second Declaration of Evan Singer (Jan. 18, 2018)
Location of
Information
Requested to
be Sealed
¶4

Ruling

Explanation

Denied.

¶5

Denied.

¶6

Denied.

¶7

Denied.

Public information, (see Countercl.
¶ 19); PLD has not met its burden of
showing a significant countervailing
interest.
Public information, (see Countercl.
¶¶ 19-28); PLD has not met its burden
of showing a significant countervailing
interest.
Public information, (see Countercl.
¶¶ 19-28); PLD has not met its burden
of showing a significant countervailing
interest.
Public information, (see Countercl.
¶¶ 19-28); PLD has not met its burden

31

¶8

¶9
¶ 10
¶ 11

¶ 14
¶ 21

¶ 22

¶ 23

Exhibit A

Exhibit B

of showing a significant countervailing
interest.
Denied.
Public information, (see Countercl.
¶¶ 19-28); PLD has not met its burden
of showing a significant countervailing
interest.
Denied.
PLD has not met its burden of showing
a significant countervailing interest.
Denied.
PLD has not met its burden of showing
a significant countervailing interest.
Granted in part and The permissible redacted information
denied in part. PLD contains confidential information that
may redact the last
could harm a party’s competitive
two lines on page 4 advantage if disclosed. However, as to
and the first two
the other information, PLD has not met
lines on page 5.
its burden of showing a significant
countervailing interest.
Denied.
PLD has not met its burden of showing
a significant countervailing interest.
Denied.
Public information, (see First Larson
Decl. ¶ 5); PLD has not met its burden
of showing a significant countervailing
interest.
Denied.
Public information, (see First Larson
Decl. ¶ 5); PLD has not met its burden
of showing a significant countervailing
interest.
Denied.
Public information, (see generally
Compl.); PLD has not met its burden of
showing a significant countervailing
interest.
Denied.
Public information, (see Countercl.
¶ 19); PLD has not met its burden of
showing a significant countervailing
interest.
Granted in part and Permissible redacted information
denied in part. PLD contains confidential pricing information
may redact the Unit that could harm the parties’ competitive
advantage if disclosed and would not
Price, Total, and
Total PO Amount on enhance the public’s understanding of
each purchase
historical events. However, as to the
order.
other information, PLD has not met its

32

burden of showing a significant
countervailing interest.
Declaration of Peter Napoli (Jan. 18, 2018)
Location of
Information
Requested to
be Sealed
¶7

Ruling

Explanation

Denied.

¶ 15

Denied.

¶ 17

Denied.

¶ 18

Denied.

¶ 19

Denied.

¶ 22a.-l.

Granted.

¶ 23

Denied.

¶ 24

Denied.

¶ 25

Denied.

¶ 27

Denied.

¶ 28

Denied.

PLD has not met its burden of showing
a significant countervailing interest.
PLD has not met its burden of showing
a significant countervailing interest.
Public information, (see Countercl.
¶¶ 16, 17); PLD has not met its burden
of showing a significant countervailing
interest.
Public information, (see Countercl.
¶¶ 16, 17); PLD has not met its burden
of showing a significant countervailing
interest.
Public information, (see Counterl. ¶ 29);
PLD has not met its burden of showing
a significant countervailing interest.
Contains confidential information
provided by PLD to accountants as part
of the review of PLD’s books and
records and disclosure would not
enhance the public’s understanding of
historical events.
Public information, (see Countercl.
¶¶ 19-22); PLD has not met its burden
of showing a significant countervailing
interest.
PLD has not met its burden of showing
a significant countervailing interest.
PLD has not met its burden of showing
a significant countervailing interest.
PLD has not met its burden of showing
a significant countervailing interest.
PLD has not met its burden of showing
a significant countervailing interest.
33

¶ 32

Denied.

¶ 33(a)-(b)

Exhibit A

Exhibit B
Exhibit C
Exhibit E

Exhibit F

Public information, (see, e.g., Countercl.
¶ 15); PLD has not met its burden of
showing a significant countervailing
interest.
Granted.
Contains confidential information
surrounding the accountant’s work and
review of PLD’s books and records and
disclosure would not enhance the
public’s understanding of historical
events.
Denied.
Public information, (see Countercl.
¶¶ 15-17, 29); PLD has not met its
burden of showing a significant
countervailing interest.
Denied.
PLD has not met its burden of showing
a significant countervailing interest.
Denied.
PLD has not met its burden of showing
a significant countervailing interest.
Granted in part and Permissible redacted information
denied in part. PLD contains confidential information of
may redact its
PLD’s customers that could harm PLD’s
customer names in
competitive advantage if disclosed and
number 5 except for would not enhance the public’s
Target.
understanding of historical events.
However, as to the other information, it
is public, (see Compl. ¶ 5; Am. Compl.
¶ 21; Countercl. ¶¶ 29-40); PLD has
not met its burden of showing a
significant countervailing interest.
Denied.
Public information, (see, e.g., Countercl.
¶¶ 29-40); PLD has not met its burden
of showing a significant countervailing
interest.
VI.

PLD moved to close the courtroom during the hearing on its Motion for a
Preliminary Injunction held on February 5, 2018. [Doc. #83.] However, the parties
arrived at the hearing having already reached an agreement on PLD’s motion.
Accordingly, no further evidence was presented and no additional arguments were
34

made in support of the motion. Therefore, PLD’s Motion to Seal [Doc. #83] is
denied as moot.
VII.
Patheon moved to seal Exhibit D of its Brief in Support of its Motion to
Quash Hearing Subpoena and for a Protective Order. [Doc. #108.] However, the
Court did not consider Exhibit D when ruling on Patheon’s motion; therefore, that
exhibit is not a judicial record. Patheon must merely show good cause pursuant to
Rule 26(c) of the Federal Rules of Civil Procedure to restrict the public’s access to
Exhibit D, and it has done so. Exhibit D is the deposition transcript of Jason
Mieding, a Patheon employee who sat for a Rule 30(b)(6) deposition, and exhibits.
The parties have treated the content of that deposition as confidential and for
attorneys’ eyes only. For good cause shown, Patheon’s Motion to Seal [Doc.
#108] is granted.
VIII.
Bion has moved to seal portions of its Answer and Counterclaim that discuss
information produced by PLD pursuant to the Court’s January 30, 2018 Order,
specifically paragraphs 42 and 43 of the Counterclaim. [Doc. #121.] Because Bion
was not seeking to restrict the public’s access to that information and, instead,
PLD was claiming confidentiality, PLD filed a supporting brief pursuant to Local
Rule 5.4(b). That motion has been pending since June 21, 2018, and no member
of the public has filed objections despite reasonable opportunity to do so.

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PLD’s argument in support of sealing is actually a request to maintain the
attorneys’-eyes-only designation afforded to information obtained pursuant to the
Court’s January 30, 2018 Order. As that Order stated, though, “[t]he attorneys’eyes-only designation for information obtained from the Rule 30(b)(6) deposition of
PLD and the summary sheet is for purposes of the preliminary hearing only.” (Order
at 6 (emphasis added).) Accordingly, protection of that information beyond the
preliminary hearing must meet separate standards. Specifically, here, in support of
sealing paragraphs 42 and 43 of the Counterclaim, PLD must rebut the common
law’s presumption of access. See U.S. Tobacco, Inc., 2013 WL 6145549, at *3.
PLD has failed to show a countervailing interest that heavily outweighs the public’s
interest in access. Despite PLD’s argument to the contrary, the two paragraphs at
issue in the Counterclaim do not “set forth specifics” or include “sales information
. . . at the customer level (with customers being identified by letters)” or “sensitive
financial information”. There is no indication that disclosure of the information in
paragraphs 42 and 43 is being sought for an improper purpose, particularly in light
of the passage of time since the motion; whereas, releasing the information would
enhance the public’s understanding of Bion’s position with respect to the accuracy
of information that PLD produced. Furthermore, the information in paragraph 43
primarily consists of Bion’s argument, rather than revealing any particular
information garnered from PLD. Accordingly, because PLD has shown no
countervailing interest that heavily outweighs the public’s interest, this Motion to
Seal [Doc. #121] is denied.
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IX.
Bion has moved to seal Exhibit A of its Reply Brief related to the motion to
seal in § VIII and portions of that brief that quote paragraphs 42 and 43 of the
Counterclaim. [Doc. #132.] Bion filed a brief in support of sealing Exhibit A;
however, as above, it did not assert confidentiality as to paragraphs 42 and 43 of
the Counterclaim, so PLD filed a supporting brief.
With respect to Exhibit A, the Court did not consider it when ruling on the
motion to seal for which Bion submitted a reply brief to which it attached Exhibit
A. As a result, there only needs to be a showing of good cause to restrict access,
and the parties have made such a showing. Exhibit A is a profit sharing statement
which “discloses the price, cost, sales, revenue, and profit data for PLD’s sales to
each customer.” (Bion’s Br. in Supp. at 3.) The parties have treated this
information as confidential, and good cause supports the sealing of Exhibit A.
However, as explained above, supra § VIII, PLD did not meet its burden to
restrict the public’s access to the information in paragraphs 42 and 43 of the
Counterclaim, and that same information quoted in Bion’s reply brief will not be
sealed. Therefore, Bion’s Motion to Seal [Doc. #132] is granted in part and denied
in part.
X.
Bion has moved to seal portions of its brief and the entirety of Exhibits 4, 5,
6, 7, and 10 in support of its Motion to Disqualify and Dismiss Without Prejudice.
[Doc. #38.] The motion was filed on January 10, 2018, and no objections have
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been filed despite reasonable opportunity to do so. Bion’s brief and supporting
exhibits are judicial documents, as they were filed with the objective of obtaining
judicial relief and were used by the Court in making that determination. Bion
apparently presumes that only the common law right of access applies to these
materials; however, case law supports applying the more strenuous First
Amendment right of access, particularly because Bion moved to disqualify in
conjunction with its request to dismiss the action if counsel were disqualified. See
360 Mortg. Grp., LLC v. Stonegate Mortg. Corp., No. 5:14-CV-310-F, 2016 WL
3030166, at *6-7 (E.D.N.C. May 25, 2016) (applying the experience and logic test
to find that the First Amendment right of access applies to motions to allow
withdrawal of counsel and to disqualify counsel); see also United States ex rel.
Thomas v. Duke Univ., No. 1:17-CV-276, 2018 WL 4211375, at *5 (M.D.N.C.
Sept. 4, 2018) (agreeing with 360 Mortg. Grp., LLC and applying the First
Amendment right of access to a motion for sanctions, just as the 360 court
applied it to a motion to disqualify counsel). Therefore, a compelling governmental
interest must necessitate the sealing of this material, which can be established by
showing a high likelihood of substantial and irreparable harm if the motion is
denied, and any restriction on the public’s access must be narrowly tailored to
serve that interest.
The words or phrases on pages 5, 6 and 14 of Bion’s brief in support of its
motion to disqualify that it requests be sealed contain several details from Bion’s
2015 purchase of its generic pharmaceutical business, including the price it paid
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for the business and the number of third-party agreements and regulatory
approvals it purchased. Exhibit 4 is the purchase agreement, Exhibit 5 is the
schedules to that agreement, and Exhibit 6 is the transition services agreement.
Exhibit 7 is a letter to PLD describing the transition of that business. Exhibit 10 is
a letter from PLD’s counsel to Bion’s counsel responding to Bion’s conflict of
interest concern.
Bion mistakenly relies on the factors applicable to the common law right of
access, and such analysis and argument is insufficient under these circumstances.
See Va. Dep’t of State Police, 386 F.3d at 575 (describing the In re Knight factors
as “factors to be weighed in the common law balancing test”). The Fourth Circuit
has suggested that “[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”, but it did so when analyzing whether a
corporation may protect itself from embarrassing revelations and cited Nixon, 435
U.S. at 598, where the Court analyzed the common law right of access and
recognized that generally courts have refused to allow their files to serve as
sources of business information that may harm a party’s competitive standing.
Public Citizen, 749 F.3d at 269. Furthermore, Bion has only provided a cursory
argument generally applicable to the materials it seeks to seal, similar arguments it
proffered when the common law right of access applied to its respective motions.
Nevertheless, it is determined that the following information may be
redacted to protect the confidential business details of non-parties involved in a
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2015 sale of a generic pharmaceutical business: the reference on page 5 of Bion’s
brief to the purchase price and Exhibits 4-6 in their entireties. Unlike the
permissible redactions of specific information in documents subject to other
motions to seal, it is not practical to direct Bion to redact specific portions of these
exhibits, as opposed to sealing the documents entirely, in large part because Bion
would need to redact essentially all of the substantive information in the exhibits,
leaving nothing of value for the public. Bion’s general argument about
confidentiality simply does not overcome the public’s First Amendment right of
access to the other information, though. Therefore, its Motion to Seal [Doc. #38]
is granted in part and denied in part.
XI.
PLD has also moved to seal portions of its brief in opposition to Bion’s
Motion to Disqualify. [Doc. #65.] Because “PLD discusses certain information that
[Bion] redacted . . . and moved to seal”, “PLD similarly seeks to redact certain
information from its Opposition Brief”, “[a]lthough PLD does not necessarily
concede that such information was properly redacted” by Bion. (Br. in Supp. at 2.)
For the reasons stated above, supra § X, PLD’s Motion to Seal [Doc. #65] is
granted in part as to the purchase price referred to on page 12 of its brief and
otherwise denied.
XII.
The Court is cognizant of companies’ desires to protect from public
disclosure the nature and details of their businesses. Even though the parties may
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treat information as confidential among themselves, as counsel is well aware, the
standards for maintaining such protection change once that information is filed
with the Court in litigation. For the most part here, the parties failed to meet their
burden of showing countervailing interests that outweigh the public’s right of
access to judicial records. General, albeit strongly worded, contentions that
information is confidential, secret, sensitive, or proprietary, the disclosure of which
could cause competitive business harm, are simply insufficient, as is evident from
the rulings on the parties’ motions to seal to the extent they based such motions
on arguments of confidentiality. Furthermore, much of the information the parties
sought to seal was already public at the time of their motions, despite arguments
that the public had thus far had no access to the information.
Should the parties move to seal again during the pendency of this matter,
they must ensure that the law actually supports restricting public access to that
information, and they must sufficiently explain why. They cannot rely on overly
generalized arguments. Moreover, before moving to seal any information, the
parties must carefully review all of the filings in this matter to ensure that the
information is not already public. The Court spent an inordinate amount of time
doing what the parties should have done prior to filing their motions to seal.
XIII.
For the reasons explained in this Memorandum Opinion, IT IS HEREBY
ORDERED THAT:
1. Bion’s Motion to Seal [Doc. #10] is DENIED;
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2. PLD’s Motion to Seal [Doc. #28] is GRANTED IN PART AND DENIED IN
PART;
3. Bion’s Motion to Seal [Doc. #38] is GRANTED IN PART AND DENIED IN
PART;
4. Bion’s Motion to Seal [Doc. #50] is GRANTED IN PART AND DENIED IN
PART;
5. PLD’s Motion to Seal [Doc. #65] is GRANTED IN PART AND DENIED IN
PART;
6. PLD’s Motion to Seal [Doc. #73] is GRANTED IN PART AND DENIED IN
PART;
7. PLD’s Motion to Seal [Doc. #83] is DENIED AS MOOT;
8. Patheon’s Motion to Seal [Doc. #108] is GRANTED;
9. Bion’s Motion to Seal [Doc. #121] is DENIED;
10.

PLD’s Motion to Seal [Doc. #127] is DENIED; and

11.

Bion’s Motion to Seal [Doc. #132] is GRANTED IN PART AND DENIED

IN PART.
IT IS FURTHER ORDERED that the parties have until May 24, 2019 to
comply with this Order.
This the 10th day of May, 2019.
/s/ N. Carlton Tilley, Jr.
Senior United States District Judge

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