EpicentRx, Inc. v. Carter

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EPICENTRX, INC., a Delaware Case No.: 20-CV-1058 TWR (LL) corporation, 12 ORDER (1) DENYING AS MOOT Plaintiff/Counter-Defendant, 13 PLAINTIFF’S APPLICATIONS TO v. FILE EXTRA PAGES AND FOR 14 RULINGS ON PENDING MOTIONS, COREY A. CARTER, M.D., 15 (2) GRANTING IN PART AND Defendant/Counter-Claimant. DENYING IN PART PLAINTIFF’S 16 SEALING APPLICATIONS, AND 17 (3) DENYING PLAINTIFF’S REQUEST FOR SANCTIONS 18

19 (ECF Nos. 65, 66, 81, 82, 95)

20 Presently before the Court are Plaintiff and Counter-Defendant EpicentRx’s 21 (1) Application for Page Limit Extension on Reply Brief in Support of Motion to 22 Disqualify Attorneys Guy A. Ricciardulli and Donald R. McKillop and Their Law Firms 23 (ECF No. 65); (2) Amended Application for Page Limit Extension on Reply Brief in 24 Support of Motion to Disqualify Attorneys Guy A. Ricciardulli and Donald R. McKillop 25 and Their Law Firms (ECF No. 66) (together with ECF No. 65, the “Apps. to File Extra 26 Pages”); (3) Ex Parte Application to File Under Seal Certain Portions of Plaintiff’s 27 Amended and Renewed Application for a Temporary Restraining Order Based on Newly 28 Discovered Facts (ECF No. 81 (“1st Sealing App.”)); (4) Application for Rulings on 1 Pending Motions and Lifting of Suspension on Briefing and Hearings (ECF No. 82 (“App. 2 for Rulings on Pending Mots.”)); and (5) Application to File Under Seal (1) Previously 3 Filed Documents Docket Nos. 23-3, 23-4, 23-11, 23-14–18, 92-13, 92-15, 92-22, and 92- 4 24–28; (2) Exhibit J in Support of EpicentRx’s Reply in Support of TRO; and Request for 5 Sanctions in the Amount of $3,675 (ECF No. 95 (“2d Sealing App.”)) (together with ECF 6 No. 81, the “Sealing Apps.”). In light of Judge Burns’ April 1, 2021 Order Granting in 7 Part Motion for Preliminary Injunction and Ex Parte Motion for Leave to File Reply Brief, 8 (see ECF No. 104 (the “Apr. 1 Order”)), and September 29, 2021 Order Denying Motion 9 to Disqualify Attorneys and Granting Application for Leave to File Supplemental 10 Submission, (see ECF No. 109 (the “Sept. 29 Order”)), which directed Plaintiff’s counsel 11 to call chambers to obtain a hearing date on Plaintiff’s pending Motion to Dismiss 12 Amended Counterclaim of Corey A. Carter, M.D. (ECF No. 44), (see Sept. 29 Order at 13 11), the Court DENIES AS MOOT Plaintiff’s Applications to File Extra Pages and for 14 Rulings on Pending Motions. 15 As for the Sealing Applications, “the courts of this country recognize a general right 16 to inspect and copy public records and documents, including judicial records and 17 documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a 18 particular court record is one ‘traditionally kept secret,’ a ‘strong presumption in favor of 19 access’ is the starting point.” Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 20 (9th Cir. 2006) (citing Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th 21 Cir. 2003)). A party seeking to seal a judicial record bears the burden of overcoming this 22 strong presumption. Foltz, 331 F.3d at 1135. The showing required to meet this burden 23 depends upon whether the documents to be sealed relate to a motion that is “more than 24 tangentially related to the merits of the case.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 25 809 F.3d 1092, 1102 (9th Cir. 2016). Where the underlying motion is more than 26 tangentially related to the merits of the case, the stringent “compelling reasons” standard 27 applies. Id. at 1096–98. Where the underlying motion does not surpass the tangential 28 relevance threshold, the less exacting “good cause” standard applies. Id. 1 Here, the documents Plaintiff seeks to file under seal were filed with regard to their 2 Amended and Renewed Ex Parte Application for Temporary Restraining Order and Order 3 to Show Cause re Preliminary Injunction Based on Newly Discovered Facts (ECF No. 80). 4 (See generally Seal Apps.) As Judge Burns previously explained, (see Apr. 1 Order at 6 5 (citing Ctr. for Auto Safety, 809 F.3d 1092)), the higher “compelling reasons” standard 6 therefore applies to the Sealing Applications. 7 Through the First Sealing Application, Plaintiff seeks to file under seal the following 8 documents and Exhibits or portions thereof: 9 • The Application, Notice, 3:18–20; Memorandum, 11:23–12:1, 12:4–14, 12:21–23, 12:26–28, 14:13–18, 14:26–15:3, 15:10–14, 10 15:16–18, 17:1–17, 27:16–28, 28:3, 28:8–12, 28:28–29:5, 29:8–11, 11 32:21–26, 34:3–6;

12 • Declaration of Scott Caroen, 8:11–12, 8:16–18, 8:26–27, 9:1–2, 13 9:4–11, 9:17–24; Exhibits D, E, F; and

14 • Declaration of Bryan Oronsky, M.D., 2:25, 5:14–20, 6:7–11, 6:14–22, 15 6:24–7:13, 7:23–8:11, 8:22–25, 8:27–9:2, 11:18–12:4, 12:6–12, 12:22–27, 13:3–6. 16

17 (See 1st Sealing App. at 3.) A number of the redactions Plaintiff proposes relate to publicly 18 filed articles or concern discussions or internal communications too vague to disclose 19 “confidential, proprietary, or trade secret information.” (See id.) The Court therefore 20 DENIES IN PART the First Sealing Application as to page 3 lines 18 through 20 of the 21 Notice, (see ECF No. 80 at 3); page 3 lines 18 through 20,1 page 12 lines 4 through 14, 22 page 12 lines 21 through 23, page 12 lines 26–28, page 14 lines 13 through 18, page 14 23 line 26 through page 15 line 3, page 15 lines 10 through 14, page 15 lines 16 through 18, 24 page 17 lines 1 through 17, page 28 line 28 through page 29 line 5, page 29 lines 8 through 25 11, page 32 lines 21 through 26, and page 34 lines 3 through 6 of the Memorandum (see 26

27 1 Although the First Sealing Application requests leave to file under seal page 3 lines 18 through 20 of the 28 Notice, the public redacted version filed on the record instead redacts page 3 lines 18 through 20 of the 1 ECF No. 80 at 18, 27, 29–30, 32, 43–44, 47, 49); page 8 lines 11 through 12, page 8 lines 2 16 through 18, page 8 lines 26 through 27, page 9 lines 1 through 2, page 9 lines 4 through 3 11, and page 9 lines 17 through 24 of the Caroen Declaration (ECF No. 80-1 at 8–9); and 4 page 2 line 25, page 5 lines 14 through 20, page 6 lines 16 through 19, page 6 line 24 5 through page 7 line 13, page 7 line 23 through page 8 line 11, page 8 lines 22 through 25, 6 page 8 line 27 through page 9 line 2, page 12 lines 22 through 27, and page 13 lines 3 7 through 6 of the Oronsky Declaration (ECF No. 80-2 at 2, 5–8, 12–13). Plaintiff has, 8 however, met its burden as to the redacted portions of Exhibits D, E, and F to the Caroen 9 Declaration and limited portions of the Memorandum and Oronsky Declaration that 10 provide further detail about Plaintiff’s protected business information. Accordingly, the 11 Court GRANTS IN PART the First Sealing Application as to page 11 line 23 through 12 page 12 line 1, page 27 lines 16 through 28, page 28 line 3, and page 28 lines 8 through 12 13 of the Memorandum (ECF No. 80 at 26–27, 42–43); the redacted portions of Exhibits D, 14 E, and F to the Caroen Declaration (ECF No. 80-2 at 24–26, 28–29, 32–33); and page 6 15 lines 7 through 11, page 6 lines 19 through 22, page 11 line 18 through page 12 line 4, page 16 12 lines 6 through 12 of the Oronsky Declaration (ECF No. 80-2 at 6, 11–12). The Clerk 17 of Court SHALL FILE UNDER SEAL ECF Nos. 83, 83-1, and 83-2. Within fourteen 18 (14) days of the electronic docketing of this Order, Plaintiff SHALL PUBLICLY FILE 19 redacted versions of their Memorandum and Caroen and Oronsky Declarations in 20 conformance with this Order. 21 As for the Second Sealing Application, Plaintiff seeks to file under seal ECF Nos. 22 92-13, 92-15, 92-22, and 92-24–28, which were previously lodged under seal as ECF Nos. 23 23-2, 23-4, 23-11, and 23-14–18, as well as Exhibit J to the Declaration of Scott Caroen in 24 support of Plaintiff’s Reply (ECF No. 94-2, lodged under seal at ECF No. 96). (See 2d 25 Sealing App. at 2.) Plaintiff also requests that the Court sanction Defendant pursuant to its 26 inherent authority in the amount of $3,675, the approximate cost of preparing the Second 27 Sealing Application, because Defendant publicly filed—for the second time and in bad 28 faith—certain documents that Plaintiff maintained were confidential. (See id. at 1.) 1 Exhibit J to the Caroen Declaration is an email from one of Plaintiff’s collaborators 2 expressing concern regarding Defendant’s alleged conduct. (See generally ECF No. 96.) 3 Plaintiff and its collaborator are parties to a confidentiality agreement, and Plaintiff seeks 4 to file Exhibit J under seal “to honor this contractual duty of confidentiality.” (See 2d 5 Sealing App. at 5.) Because the public dissemination of Exhibit J could harm Plaintiff’s 6 business relationship with its collaborator, the Court concludes that Plaintiff has identified 7 sufficiently compelling reasons to file that document under seal. See, e.g., In re Qualcomm 8 Litig., No. 3:17-CV-0108-GPC-MDD, 2017 WL 5176922, at *2 (S.D. Cal. Nov. 8, 2017) 9 (concluding that the parties established compelling reasons to file under seal information 10 subject to confidentiality agreements). As for the remainder of Plaintiff’s request, applying 11 the compelling reasons standard, Judge Burns already has determined that Plaintiff met its 12 burden to file under seal ECF Nos. 23-17 and 23-18, but failed to meet its burden as to ECF 13 Nos. 23-2, 23-4, 23-11, and 23-14–16. (See Apr. 1 Order at 7–9.) Accordingly, the Court 14 GRANTS IN PART the Second Sealing Application as to Exhibit J, ECF No. 92-27, and 15 ECF No. 92-28, but DENIES IN PART Plaintiff’s request as to ECF Nos. 92-13, 92-15, 16 92-22, and 92-24–26. The Clerk of Court SHALL FILE UNDER SEAL Exhibit J to the 17 Caroen Declaration (lodged at ECF No. 96) and ECF Nos. 92-27 and 92-28. 18 Finally, the Court addresses Plaintiff’s request for sanctions. Because the 19 undersigned and Judge Burns have determined that Plaintiff has demonstrated that 20 compelling reasons exist to seal only a quarter of the documents Plaintiff sought to file 21 under seal, the Court concludes that Plaintiff has not adequately demonstrated that 22 Defendant acted in bad faith. The Court therefore DENIES Plaintiff’s request for 23 sanctions. Nonetheless, the Court notes that Defendant agreed to be bound by the 24 Stipulated Protective Order entered in this action on September 30, 2020, (see generally 25 ECF No. 49), including the procedure for “Filing Protected Material in Court,” (see id. at 26 8 (¶ 12.3, as modified by Magistrate Judge Lopez)), and the punishment for violations of 27 the Stipulated Protective Order. (See id. ¶ 14 (“Any violation of this Order may be 28 punished by any and all appropriate measures including, without limitation, contempt 1 ||proceedings and/or monetary sanctions.”).) The Court therefore ADMONISHES 2 Defendant that failure to abide by the Stipulated Protective Order and/or other Orders of 3 || the Court—including this one—“may be grounds for imposition by the Court of any and 4 sanctions authorized by statute or rule or within the inherent power of the Court, 5 ||including, without limitation, dismissal of any actions, entry of default, finding of 6 contempt, imposition of monetary sanctions or attorneys' fees and costs, and other lesser 7 ||sanctions.” See S.D. Cal. CivLR 83.1(a). 8 IT IS SO ORDERED. 9 Dated: October 1, 2021 (Sm 1S bre Honorable Todd W. Robinson 12 United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28