Bayer Healthcare LLC v. Norbrook Laboratories Ltd et al

Filing 105

ORDER signed by Judge Rudolph T Randa on 10/22/2009 granting 78 Motion to Seal Document. No later than 11/05/2009, the parties may file a statement of any facts that they believe provide the basis for sealing Exhibit Q to the Simpson Declaration filed on 10/05/2009, and, excerpts or discussions of it in Bayer's reply brief in support of its motion to compel. (cc: all counsel) (Koll, J)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

B A Y E R HEALTHCARE, LLC, P l a i n t i f fC o u n t e r c l a i m Defendant, v. C a s e No. 08-C-0953 ( C o n s o l id a t e d With C a s e No. 09-C-0108)

NORBROOK LABORATORIES, LTD., and, NORBROOK, INC. USA, DefendantsC o u n t e r c la i m a n t s .

DECISION AND ORDER

T h is Decision and Order addresses the Civil Local Rule 7.4 expedited n o n -d is p o s itiv e motions to seal filed by Plaintiff Bayer Healthcare, LLC's ("Bayer") on A u g u s t 28, 2009, and October 5, 2009. Bayer seeks permission to file under seal portions of its brief in support of its motion to compel discovery from Defendants Norbrook Laboratories, L td . and Norbrook, Inc., USA ("Norbrook"); Exhibits B, C, D, E, G, and J to the Declaration o f Jamie L. Simpson ("Simpson") filed on August 28, 2009; Exhibit D to the Simpson C e rtif ic a tio n ; portions of Bayer's reply brief in support of its motion to compel that cite or d is c u ss evidence designated as confidential by Norbrook; and, Exhibits P and Q to the S im p s o n Declaration filed on October 5, 2009. Bayer has filed redacted versions of its initial a n d reply briefs in support of its motion to compel.

O n September 15, 2009, Norbrook filed a statement in support of sealing the A u g u s t 28, 2009, materials relying upon the policy of confidentiality reflected by 21 C.F.R. § 20.61 and § 314.430, United States Food and Drug Administration ("FDA") regulations, w h ic h govern the disclosure of the existence of abbreviated new animal drug applications (" A N A D A s" ) and data and information in ANADAs. Norbrook also provides specific in f o rm a tio n regarding Exhibits B, C, D, E, G, and J to the Simpson Declaration filed on A u g u s t 28, 2009, and Exhibit D to the Simpson Certification filed on August 28, 2009. Norbrook has not established that the exhibits proffered with the sealing request w e re filed with the FDA, nor has it provided any case law or similar authority for extending th e scope of the regulations beyond FDA filings. Thus, the Court will not rely upon the FDA r e g u la tio n s or the policy underlying those regulations as providing "good cause" to seal the m a te ri a ls . However, based on the specific information provided by Norbrook, the Court c o n c lu d e s that "good cause" exists to seal Exhibit B to the Simpson Declaration, which is an e x c erp t from the Rule 30(b)(6) deposition of Norbrook witness William G. Zollers ("Zollers") w h o s e testimony relates to proprietary Norbrook commercial information related to the filing o f the ANADA with the FDA, and Exhibits C, D, E, and G to the Simpson Declaration which a re internal proprietary emails from Norbrook containing commercial information and strategy re late d to the filing of the ANADA with the FDA. Good cause also exists for sealing Exhibit J to the Simpson Declaration, which is the same as Exhibit D to the Simpson Certification. T h a t Exhibit is a letter from Norbrook's counsel to Bayer's counsel which contains Norbrook

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c o n f id e n tia l development and commercial information including a list of distributors that N o rb ro o k has used to distribute some of its products other than the generic version of the in je c ta b le animal drug product BAYTRILŪ 100 at issue in this litigation. The Court further f in d s that the redaction of Bayer's brief in support of its motion to compel is limited to c o n f id e n tia l material and that, therefore, good cause exists for sealing that brief. Thus, the C o u rt will grant Bayer's motion to seal Exhibits B, C, D, E, G, and J to the Simpson D e c la r a tio n filed on August 28, 2009, Exhibit D to the Simpson Certification filed on August 2 8 , 2009, and the brief in support of Bayer's motion to compel. However, the sealing order w ill expressly provide that any party and any interested member of the public may challenge th e sealing of those papers. See County Materials Corp. v. Allan Block Corp., 502 F.3d 730, 7 4 0 (7th Cir. 2007). As to Bayer's motion to seal filed October 5, 2009, no facts are provided other th a n Norbrook has designated Exhibits Q and P as confidential. Review of Exhibit P discloses th a t it contains confidential development and commercial information which provides good c a u se for its sealing. However, as to Exhibit Q, good cause for sealing is not disclosed from th e Court's review of that document. See id. Thus, the Court will allow the parties to file a b rie f statement of any facts which they believe establish good cause to seal Exhibit Q, and e x c erp ts of, or discussions of it in Bayer's reply brief in support of its motion to compel. The p a rties may file that statement of facts by November 5, 2009. After that date, the Court will d e c id e the expedited motion to seal filed on October 5, 2009.

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N O W , THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT: Bayer's Civil Local Rule 7.4 expedited non-dispositive motion to seal filed on A u g u st 28, 2009, (Docket No. 78) is GRANTED. E x h ib its B, C, D, E, G, and J to the Simpson Declaration filed on August 28, 2 0 0 9 , (Docket No. 83), Exhibit D to the Simpson Certification filed on August 28, 2009, (D o ck et No. 84); and, Bayer's brief in support of its motion to compel (Docket No. 82) are SEALED. Any party or interested member of the public may challenge the sealing of any o r all of the following papers: Exhibits B, C, D, E, G, and J to the Simpson Declaration filed o n August 28, 2009 (Docket No. 83); Exhibit D to the Simpson Certification filed on August 2 8 , 2009, (Docket No. 84); and, Bayer's brief in support of its motion to compel (Docket No. 8 2 ). No later than November 5, 2009, the parties may file a statement of any facts th a t they believe provide the basis for sealing Exhibit Q to the Simpson Declaration filed on O c to b e r 5, 2009, and, excerpts or discussions of it in Bayer's reply brief in support of its m o tio n to compel. Dated at Milwaukee, Wisconsin this 22nd day of October 2009. BY THE COURT

s / Rudolph T. Randa Hon. Rudolph T. Randa U .S . District Judge 4