4 FIBROGEN, INC. Case No. 3:22-cv-07148-AMO 5 [PROPOSED] OMNIBUS ORDER 6 Plaintiff, SEALING DOCUMENTS
7 v. Re: Dkt. Nos. 5, 22, 23, 30, 37, 54, 62, 77, 8 HANGZHOU ANDAO PHARMACEUTICAL 94. LTD.; KIND PHARMACEUTICALS LLC; DR. 9 DONG LIU; AND DR. SHAOJIANG DENG, 10 Defendants. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Pursuant to the Court’s Order Re: Administrative Motions to Seal Re: Dkt. Nos. 5, 22, 30, 2 37, 54, 62, 77 (Dkt. No. 89) 1, plaintiff FibroGen Inc. (“Plaintiff” or “FibroGen”) and defendants 3 Hangzhou Andao Pharmaceutical Ltd., Kind Pharmaceuticals LLC, Dr. Dong Liu, and Dr. 4 Shaojiang Deng (collectively “Defendants” and, with FibroGen, “the Parties”) submit this 5 Proposed Order Sealing Documents. Having considered the arguments of the parties and the 6 papers submitted the Court hereby ORDERS as follows: 7 8 A. Legal Standard 9 Pursuant to Civil Local Rule 79-5, the party seeking to file a document or portions of it 10 under seal must explain “(i) the legitimate private or public interests that warrant sealing; (ii) the 11 injury that will result if sealing is denied; and (iii) why a less restrictive alternative to sealing is 12 not sufficient.” Civil L.R. 79-5(c)(1). The request must be “narrowly tailored to seal only the 13 sealable material.” Id. at 79-5(c)(3). 14 A party seeking to seal judicial records relating to motions that are “more than 15 tangentially related to the underlying cause of action,” Ctr. for Auto Safety v. Chrysler Grp., 16 LLC, 809 F.3d 1092, 1099 (9th Cir. 2016), bears the burden of overcoming the “strong 17 presumption in favor of access” with “compelling reasons supported by specific factual findings 18 that outweigh the general history of access and the public policies favoring disclosure, such as 19 the public interest in understanding the judicial process.” Kamakana v. City & Cty. Of 20 Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (internal quotation marks and citation 21 omitted). The standard derives from the “common law right ‘to inspect and copy public records 22 and documents, including judicial records and documents.’” Pintos v. Pac. Creditors Ass’n, 23 605 F.3d 665, 678 (9th Cir. 2010) (quoting Kamakana, 447 F.3d at 1178). The party must make 24 a “particularized showing” that “specific prejudice or harm will result” if the information is 25 1 Dkt. Nos. 22 (Defs. Kind Pharm. LLC and Dr. Shaojiang Deng’s Admin. Mot. to Unseal 26 Plaintiffs’ Compl.) and 37 (FibroGen’s Statement ISO Defs.’ Admin. Mot. to Consider Whether 27 Another Party’s Material Should Be Sealed) do not contain any confidential or highly confidential information and therefore have been omitted from the chart below. 28 1 disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th 2 Cir. 2002). 3 Complaints are “more than tangentially related to the underlying cause of action.” Ctr. 4 for Auto Safety, 809 F.3d at 1099; see In re Google Location Hist. Litig., 514 F. Supp. 3d 1147, 5 1161 (N.D. Cal. 2021) (citing cases using compelling reasons standard for sealing complaint). 6 “[T]he strong presumption of access to judicial records [also] applies fully to dispositive 7 pleadings . . . [t]hus, ‘compelling reasons’ must be shown to seal judicial records attached to a 8 dispositive motion.” Kamakana, 447 F.3d at 1179 (citation omitted). Motions to dismiss are 9 dispositive motions which must be considered under the “compelling reasons” standard. See, 10 e.g., Plexxikon Inc. v. Novartis Pharms. Corp., No. 17-CV-04405-HSG, 2020 WL 1233881, at 11 *2 (N.D. Cal. Mar. 13, 2020) (compelling reasons standard applied to summary judgment 12 motions); Santelices v. Apttus Corp., No. 19-cv-07414-HSG, 2020 WL 5870509, at *4 (N.D. 13 Cal. Oct. 2, 2020) (compelling reasons standard for motion to dismiss). 14 However, records attached to motions that are only “tangentially related to the merits of 15 a case” are not subject to the strong presumption of access. Ctr. for Auto Safety, 809 F.3d at 16 1101. Instead, a party need only make a showing under the good cause standard of Rule 26(c) 17 to justify the sealing of the materials. Id. at 1097. Thus, motion for sanctions may be judged 18 under the “good cause” standard. 19 It is in the “sound discretion of the trial court” to determine what constitutes a 20 “compelling reason” for sealing a court document. Ctr. for Auto Safety, 809 F.3d at 1097 21 (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 599 (1978)). Compelling reasons 22 justifying sealing court records generally exist when such “court files might . . . become a 23 vehicle for improper purposes” such as “releas[ing] trade secrets,” Kamakana, 447 F.3d at 1179, 24 or “as sources of business information that might harm a litigant’s competitive standing,” Ctr. 25 26 for Auto Safety, 809 F.3d at 1097 (citation omitted); see In re Elec. Arts, Inc., 298 F. App’x 568, 27 28 1 569 (9th Cir. 2008) (sealing trade secret information about “the pricing terms, royalty rates, and 2 guaranteed minimum payment terms” in the parties’ licensing agreement). 3 B. Rulings 4 FibroGen seeks to seal materials in the following general categories: (1) the codenames, 5 date of first synthesis, and number of the allegedly misappropriated compounds; (2) references 6 to patent documents disclosing the chemical names of the compounds; and (3) employee 7 confidentiality agreements. See ECF 5 at 2; ECF 28 at 3-6. The Court considers each in turn. 8 FibroGen alleges in a conclusory manner that disclosing the number of overlapping 9 compounds, their codenames, and synthesis date would “allow FibroGen’s competitors to obtain 10 an unfair competitive advantage.” ECF 5-1 ¶ 4. FibroGen claims that “details of compounds in 11 FibroGen’s proprietary library and their dates of discovery would give competitors insight into 12 13 FibroGen’s research strategy, progress, and internal operations, allowing competitors to gain an 14 advantage over FibroGen in the development of a competing product.” ECF 28 at 4. However, 15 FibroGen fails to provide particularized facts or examples showing how disclosing the 16 codenames, synthesis dates of compounds, and number of overlapping compounds would 17 impact FibroGen’s competitive standing. “Broad allegations of harm, unsubstantiated by 18 specific examples or articulated reasoning,” do not even satisfy the lower “good cause” 19 20 standard. Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (citation 21 omitted); see In re Twitter Inc. Sec. Litig., No. 16-CV-05314-JST, 2020 WL 2519888, at *2 22 (N.D. Cal. May 18, 2020) (finding no compelling reasons where motion and declaration 23 “consist merely of generic assertions that the Court’s Order contains ‘highly sensitive, 24 confidential, and proprietary information, including non-public information about Twitter’s 25 operating metrics, the public disclosure of which would place Twitter at a competitive 26 disadvantage’”); In re Google Location Hist. Litig., 514 F. Supp. 3d at 1164 (no compelling 27 28 1 reason to seal codename that did not reveal detailed information because possibility of others 2 uncovering additional information was “largely speculative”). Like in Whitecryption, the 3 moving party failed to explain “how a competitor would use the information to obtain an unfair 4 advantage.” Whitecryption Corp. v. Arxan Techs., Inc., No. 15-cv-00754-WHO, 2016 WL 5 7852471, at *2 (N.D. Cal. Mar. 9, 2016).
Free access — add to your briefcase to read the full text and ask questions with AI
4 FIBROGEN, INC. Case No. 3:22-cv-07148-AMO 5 [PROPOSED] OMNIBUS ORDER 6 Plaintiff, SEALING DOCUMENTS
7 v. Re: Dkt. Nos. 5, 22, 23, 30, 37, 54, 62, 77, 8 HANGZHOU ANDAO PHARMACEUTICAL 94. LTD.; KIND PHARMACEUTICALS LLC; DR. 9 DONG LIU; AND DR. SHAOJIANG DENG, 10 Defendants. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Pursuant to the Court’s Order Re: Administrative Motions to Seal Re: Dkt. Nos. 5, 22, 30, 2 37, 54, 62, 77 (Dkt. No. 89) 1, plaintiff FibroGen Inc. (“Plaintiff” or “FibroGen”) and defendants 3 Hangzhou Andao Pharmaceutical Ltd., Kind Pharmaceuticals LLC, Dr. Dong Liu, and Dr. 4 Shaojiang Deng (collectively “Defendants” and, with FibroGen, “the Parties”) submit this 5 Proposed Order Sealing Documents. Having considered the arguments of the parties and the 6 papers submitted the Court hereby ORDERS as follows: 7 8 A. Legal Standard 9 Pursuant to Civil Local Rule 79-5, the party seeking to file a document or portions of it 10 under seal must explain “(i) the legitimate private or public interests that warrant sealing; (ii) the 11 injury that will result if sealing is denied; and (iii) why a less restrictive alternative to sealing is 12 not sufficient.” Civil L.R. 79-5(c)(1). The request must be “narrowly tailored to seal only the 13 sealable material.” Id. at 79-5(c)(3). 14 A party seeking to seal judicial records relating to motions that are “more than 15 tangentially related to the underlying cause of action,” Ctr. for Auto Safety v. Chrysler Grp., 16 LLC, 809 F.3d 1092, 1099 (9th Cir. 2016), bears the burden of overcoming the “strong 17 presumption in favor of access” with “compelling reasons supported by specific factual findings 18 that outweigh the general history of access and the public policies favoring disclosure, such as 19 the public interest in understanding the judicial process.” Kamakana v. City & Cty. Of 20 Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (internal quotation marks and citation 21 omitted). The standard derives from the “common law right ‘to inspect and copy public records 22 and documents, including judicial records and documents.’” Pintos v. Pac. Creditors Ass’n, 23 605 F.3d 665, 678 (9th Cir. 2010) (quoting Kamakana, 447 F.3d at 1178). The party must make 24 a “particularized showing” that “specific prejudice or harm will result” if the information is 25 1 Dkt. Nos. 22 (Defs. Kind Pharm. LLC and Dr. Shaojiang Deng’s Admin. Mot. to Unseal 26 Plaintiffs’ Compl.) and 37 (FibroGen’s Statement ISO Defs.’ Admin. Mot. to Consider Whether 27 Another Party’s Material Should Be Sealed) do not contain any confidential or highly confidential information and therefore have been omitted from the chart below. 28 1 disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th 2 Cir. 2002). 3 Complaints are “more than tangentially related to the underlying cause of action.” Ctr. 4 for Auto Safety, 809 F.3d at 1099; see In re Google Location Hist. Litig., 514 F. Supp. 3d 1147, 5 1161 (N.D. Cal. 2021) (citing cases using compelling reasons standard for sealing complaint). 6 “[T]he strong presumption of access to judicial records [also] applies fully to dispositive 7 pleadings . . . [t]hus, ‘compelling reasons’ must be shown to seal judicial records attached to a 8 dispositive motion.” Kamakana, 447 F.3d at 1179 (citation omitted). Motions to dismiss are 9 dispositive motions which must be considered under the “compelling reasons” standard. See, 10 e.g., Plexxikon Inc. v. Novartis Pharms. Corp., No. 17-CV-04405-HSG, 2020 WL 1233881, at 11 *2 (N.D. Cal. Mar. 13, 2020) (compelling reasons standard applied to summary judgment 12 motions); Santelices v. Apttus Corp., No. 19-cv-07414-HSG, 2020 WL 5870509, at *4 (N.D. 13 Cal. Oct. 2, 2020) (compelling reasons standard for motion to dismiss). 14 However, records attached to motions that are only “tangentially related to the merits of 15 a case” are not subject to the strong presumption of access. Ctr. for Auto Safety, 809 F.3d at 16 1101. Instead, a party need only make a showing under the good cause standard of Rule 26(c) 17 to justify the sealing of the materials. Id. at 1097. Thus, motion for sanctions may be judged 18 under the “good cause” standard. 19 It is in the “sound discretion of the trial court” to determine what constitutes a 20 “compelling reason” for sealing a court document. Ctr. for Auto Safety, 809 F.3d at 1097 21 (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 599 (1978)). Compelling reasons 22 justifying sealing court records generally exist when such “court files might . . . become a 23 vehicle for improper purposes” such as “releas[ing] trade secrets,” Kamakana, 447 F.3d at 1179, 24 or “as sources of business information that might harm a litigant’s competitive standing,” Ctr. 25 26 for Auto Safety, 809 F.3d at 1097 (citation omitted); see In re Elec. Arts, Inc., 298 F. App’x 568, 27 28 1 569 (9th Cir. 2008) (sealing trade secret information about “the pricing terms, royalty rates, and 2 guaranteed minimum payment terms” in the parties’ licensing agreement). 3 B. Rulings 4 FibroGen seeks to seal materials in the following general categories: (1) the codenames, 5 date of first synthesis, and number of the allegedly misappropriated compounds; (2) references 6 to patent documents disclosing the chemical names of the compounds; and (3) employee 7 confidentiality agreements. See ECF 5 at 2; ECF 28 at 3-6. The Court considers each in turn. 8 FibroGen alleges in a conclusory manner that disclosing the number of overlapping 9 compounds, their codenames, and synthesis date would “allow FibroGen’s competitors to obtain 10 an unfair competitive advantage.” ECF 5-1 ¶ 4. FibroGen claims that “details of compounds in 11 FibroGen’s proprietary library and their dates of discovery would give competitors insight into 12 13 FibroGen’s research strategy, progress, and internal operations, allowing competitors to gain an 14 advantage over FibroGen in the development of a competing product.” ECF 28 at 4. However, 15 FibroGen fails to provide particularized facts or examples showing how disclosing the 16 codenames, synthesis dates of compounds, and number of overlapping compounds would 17 impact FibroGen’s competitive standing. “Broad allegations of harm, unsubstantiated by 18 specific examples or articulated reasoning,” do not even satisfy the lower “good cause” 19 20 standard. Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (citation 21 omitted); see In re Twitter Inc. Sec. Litig., No. 16-CV-05314-JST, 2020 WL 2519888, at *2 22 (N.D. Cal. May 18, 2020) (finding no compelling reasons where motion and declaration 23 “consist merely of generic assertions that the Court’s Order contains ‘highly sensitive, 24 confidential, and proprietary information, including non-public information about Twitter’s 25 operating metrics, the public disclosure of which would place Twitter at a competitive 26 disadvantage’”); In re Google Location Hist. Litig., 514 F. Supp. 3d at 1164 (no compelling 27 28 1 reason to seal codename that did not reveal detailed information because possibility of others 2 uncovering additional information was “largely speculative”). Like in Whitecryption, the 3 moving party failed to explain “how a competitor would use the information to obtain an unfair 4 advantage.” Whitecryption Corp. v. Arxan Techs., Inc., No. 15-cv-00754-WHO, 2016 WL 5 7852471, at *2 (N.D. Cal. Mar. 9, 2016). 6 Next, FibroGen seeks to seal references to public patents and the chemical names of the 7 8 overlapping compounds listed in those patents, alleging that these are “trade secrets.” ECF 5- 9 1 ¶ 4. FibroGen argues that the compounds were unlawfully published and that the public is 10 unaware that they were developed by FibroGen. ECF 28 at 3-4. However, FibroGen does not 11 explain the particularized harm that will result if the chemical names are disclosed. Instead, it 12 vaguely states that “[a]llowing competitors insight into FibroGen’s research and development 13 strategy would harm its competitive standing.” Id. at 3. This is at best conclusory, and simply 14 15 not enough for the Court to find that there is a compelling reason to seal the chemical 16 compounds. Cf. Todd v. Tempur-Sealy Int’l, Inc., No. 13CV04984JST (MEJ), 2015 WL 17 1006534, at *3 (N.D. Cal. Mar. 6, 2015) (finding particularized harm where research reports 18 included “commercially sensitive” market research on prospective buyers, current owners, and 19 the consumer market that could give competitors an advantage). 20 Moreover, the compounds at issue have been in the public domain in Kind’s patents 21 since 2018. ECF 22 at 5. Information that is in the public domain is not sealable. See Oliver v. 22 23 Kontrabecki, 745 F.3d 1024, 1026 (9th Cir. 2014) (finding that the “compelling reasons” 24 standard was not satisfied where information “had been a matter of public record since at least 25 2004”); In re Twitter Inc. Sec. Litig., 2020 WL 2519888, at *2 (compelling reasons standard not 26 met where the information was “already in the public domain”). 27 28 1 Finally, FibroGen also fails to show compelling reasons to seal language from employee 2 confidentiality agreements. FibroGen seeks to seal the entire confidentiality agreement and 3 termination certification for Defendants Liu and Deng. ECF 5 at 2. The fact that the contracts 4 are confidential does not automatically mean that they must be sealed in court. See Louisiana 5 Pac. Corp. v. Money Mkt. 1 Institutional Inv. Dealer, No. 09-CV-03529 JSW NC, 2013 WL 6 636028, at *1 (N.D. Cal. Feb. 20, 2013) (citing Foltz v. State Farm Mut. Auto. Ins. Co., 331 7 8 F.3d 1122, 1136 (9th Cir. 2003)) (“[t]he existence of a confidentiality provision, without more, 9 does not constitute good cause, ‘let alone a compelling reason,’ to seal”); Bronson v. Samsung 10 Elecs. Am., Inc., No. C 18-02300 WHA, 2019 WL 7810811, at *1 (N.D. Cal. May 28, 2019) 11 (“[r]eference[s] to a stipulation or protective order that allows a party to designate certain 12 documents as confidential is not sufficient to establish that a document, or portions thereof, are 13 sealable”). 14 15 While district courts have allowed litigants to file under seal contracts with third parties 16 that “contain proprietary and confidential business information,” Stout v. Hartford Life & 17 Accident Ins. Co., No. CV 11-6186 CW, 2012 WL 6025770, at *2 (N.D. Cal. Dec. 4, 2012), 18 FibroGen offers no evidence that the employee agreements contain such information. The 19 employee agreements contain definitions for what constitutes “confidential information,” 20 “inventions,” and “trade secrets” and require employees to keep confidential information secret, 21 return documents and materials, and disclose and assign inventions to the company. ECF 5-5. 22 23 FibroGen has not articulated what “proprietary” or “business” information is contained in these 24 contracts requiring they be sealed. Cf. Stout, 2012 WL 6025770, at *2 (sealing contract with 25 third party vendor where it included “confidential and proprietary information about the ‘cost 26 and manner’ in which [the company] secures its medical reviews through medical vendors and 27 28 1 physicians and ‘how those materials are used to evaluate claims,’” which competitors could use 2 to adjust their own contracts with vendors). 3 FibroGen “may not relay on vague boilerplate language or nebulous assertions of 4 potential harm but must explain with particularity why any document or portion thereof remains 5 sealable under the applicable legal standard.” Bronson, 2019 WL 7810811, at *1. Moreover, 6 FibroGen brings six causes of action against the Defendants related to the alleged breach of 7 8 contract, each of which relies on the language in the confidentiality agreements. Compl. ¶¶ 95- 9 158. If the Court were to seal these contracts, it would prevent the public from understanding 10 the Court’s ruling on these claims. See Kamakana, 447 F.3d at 1178-79 (citation omitted) 11 (there is a “public interest in understanding the judicial process”). 12 Accordingly, the Court makes the following rulings regarding the materials requested to 13 be sealed: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Document or Evidence Offered in Objections Ruling Portions of Support of Sealing 2 Document to Be Sealed 3
4 FibroGen’s Compl. FibroGen’s Admin. (1) Number of Denied. Plaintiff (Dkt. No. 5-2): Mot. to File compounds at issue states, in conclusory 5 Documents Under and development fashion, that “public • highlighted Seal (Dkt. No. 5) at year (Dkt. No. 22 at access to this 6 portions 2; ln. 3:20-4:14; Dkt. [proprietary] 7 concerning the No. 40 at ln. 3:3- information would highly confidential Decl. of Susan 4:2). allow FibroGen’s 8 and proprietary Krumplitsch (Dkt. competitors to obtain FibroGen No. 5-1) at ¶¶ 3-4, 6; (2) Compounds at an unfair commercial 9 compounds at issue issue at (Dkt. No. 22 advantage . . .” ECF at ¶¶ 4, 11, 27, 65, FibroGen’s Opp. to at ln. 4:16-5:10) 5-1 ¶ 4. This generic 10 68, 69, 73, 74, 83, Defs. Kind Pharm. explanation of harm 11 84, 85, 90, 105, LLC’s and Dr. (3) Codenames of is insufficient to 107, 109, 111, 117, Shaojiang Deng’s compounds at issue establish compelling 12 125, 126, 127, 129, Admin. Mot. to (Dkt. No. 22 at ln. reason for sealing 131, 133, 139. 146, Unseal Pl.’s Compl., 3:20-4:11; Dkt. No. the codenames, 13 155, and 157. (Dkt. No. 28) at 2-4; 40 at ln. 3:3-4:2). synthesis date, or number of 14 Decl. of Gail compounds at issue. 15 Walkinshaw (Dkt. Information about No. 28-2) at ¶¶ 7-16. the chemical 16 compounds has been in the public domain 17 in patents since 2018. 18 19 20 21 22 23 24 25 26 27 28 1 FibroGen’s Compl. FibroGen’s Admin. (1) Portions of Denied. Plaintiff (Dkt. No. 5-2): Mot. to File employment does not show why 2 Documents Under agreements. (Dkt. definitions of terms • highlighted Seal (Dkt. No. 5) at No. 22 at ln. 5:12- and provisions in the 3 portions 2; 24; Dkt. No. 40 at ln. employee 4 concerning 5:4-19) confidentiality FibroGen’s Decl. of Susan contract would harm 5 confidential Krumplitsch (Dkt. business standing. employment No. 5-1) at ¶¶ 3, 5-6; The mere fact that 6 agreements at the contracts are 7 ¶¶ 36, 42, 50, 55, FibroGen’s Opp. to confidential is 97, 121, 143, and Defs. Kind Pharm. insufficient. 8 152. LLC’s and Dr. Plaintiff’s Shaojiang Deng’s conclusory 9 Admin. Mot. to allegations that the Unseal Pl.’s Compl. contracts “reveal 10 (Dkt. No. 28) at 5. FibroGen’s internal operations” and that 11 “[c]ompetitors may 12 use this information to obtain an 13 advantage over FibroGen in the 14 recruiting and 15 retention of researchers and 16 partnerships,” ECF 28 at 5-6, do not 17 provide a compelling reason to seal. 18 Additionally, sealing 19 this language would prevent the public 20 from understanding the Court’s rulings 21 on the breach of contract claims. 22 23 24 25 26 27 28 1 Ex. A to FibroGen’s FibroGen’s Admin. (1) Terms of Dr. Denied. Plaintiff Compl. (Dkt. No. 5- Mot. to File Liu’s Confidentiality does not show why 2 3): Documents Under agreement (Dkt. No. definitions of terms Seal (Dkt. No. 5) at 22 at ln. 5:12-24; and provisions in 3 • entire Sep. 14, 2; Dkt. No. 40 at ln. employee 4 2006 Confidential 5:4-19) confidentiality Information, Decl. of Susan contract would harm 5 Secrecy and Krumplitsch (Dkt. business standing. Invention No. 5-1) at ¶¶ 3, 7-8; Sealing the contract 6 Agreement would prevent the 7 between Dr. Liu FibroGen’s Opp. to public from and FibroGen. Defs. Kind Pharm. understanding the 8 LLC’s and Dr. Court’s rulings on Shaojiang Deng’s the breach of 9 Admin. Mot. to contract claims. Unseal Pl.’s Compl. 10 (Dkt. No. 28) at 5. 11 Ex. B to FibroGen’s FibroGen’s Admin. (1) Terms of Dr. Denied. Plaintiff has Compl. (Dkt. No. 5- Mot. to File Liu’s Termination not demonstrated 12 4): Documents Under Certificate (Dkt. No. compelling reasons Seal (Dkt. No. 5) at 22 at ln. 5:12-24; why disclosing the 13 • entire Jun. 15, 2; Dkt. No. 40 at ln. termination 2015 Termination 5:4-19) certificate will reveal 14 Certification of Dr. Decl. of Susan confidential business 15 Liu. Krumplitsch (Dkt. or proprietary No. 5-1) at ¶¶ 3, 7, 9; information. 16 FibroGen’s Opp. to 17 Defs. Kind Pharm. LLC’s and Dr. 18 Shaojiang Deng’s 19 Admin. Mot. to Unseal Pl.’s Compl. 20 (Dkt. No. 28) at 5. 21 22 23 24 25 26 27 28 1 Ex. C to FibroGen’s FibroGen’s Admin. (1) Terms of Dr. Denied. Plaintiff Complaint (Dkt. No. Mot. to File Deng’s does not show why 2 5-5): Documents Under Confidentiality definitions of terms Seal (Dkt. No. 5) at Agreement (Dkt. No. and provisions in 3 • entire Nov. 15, 2; 22 at ln. 5:12-24; employee 4 2004 Confidential Dkt. No. 40 at ln. confidentiality Information, Decl. of Susan 5:4-19) contract would harm 5 Secrecy and Krumplitsch (Dkt. business standing. Invention No. 5-1) at ¶¶ 3, 7, Sealing the contract 6 Agreement 10; would prevent the 7 between Dr. Deng public from and FibroGen. FibroGen’s Opp. To understanding the 8 Defs. Kind Pharm. Court’s rulings on LLC’s and Dr. the breach of 9 Shaojiang Deng’s contract claims. Admin. Mot. to 10 Unseal Pl.’s Compl. (Dkt. No. 28) at 5. 11 Ex. D to FibroGen’s FibroGen’s Admin. (1) Terms of Dr. Denied. Plaintiff has 12 Complaint (Dkt. No. Mot. to File Deng’s Termination not demonstrated 5-6): Documents Under Certification (Dkt. compelling reasons 13 Seal (Dkt. No. 5) at No. 22 at ln. 5:12- why disclosing the • entire May 3, 2019 2; 24; Dkt. No. 40 at ln. termination 14 Termination 5:4-19). certificate will reveal 15 Certification of Dr. Decl. of Susan confidential business Deng. Krumplitsch (Dkt. or proprietary 16 No. 5-1) at ¶¶ 3, 7, information. 11; 17 FibroGen’s Opp. To 18 Defs. Kind Pharm. 19 LLC’s and Dr. Shaojiang Deng’s 20 Admin. Mot. to Unseal Pl.’s Compl. 21 (Dkt. No. 28) at 5. 22 23 24 25 26 27 28 1 Defs.’ Mot. to FibroGen’s (1) Number of Denied. Plaintiff Dismiss (Dkt. No. Statement ISO compounds at issue fails to show 2 30-3): Defs.’ Admin. Mot. (Dkt. No. 22 at ln. compelling reason to Consider Whether 3:20-4:14; Id. at ln. for sealing the 3 • information about Another Party’s 4:16-5:10; Dkt. No. codenames, 4 the number of Material Should Be 40 at ln. 3:3-4:2). synthesis date, or FibroGen’s highly Sealed (Dkt. No. 37) number of 5 confidential and at 2-4. (2) Year compounds compounds at issue. proprietary were developed Additionally, 6 compounds at issue (Dkt. No. 22 at ln. FibroGen fails to 7 at i, 1, 3-4, 6, 8-9, 4:11-14; Dkt. No. 40 narrowly tailor its 13-17, and 22-25; at ln. 3:3-4:2). redactions. It points 8 to broad categories • information about (3) Codenames of of material on 9 the development compounds at issue various pages of timeline for the (Dkt. No. 22 at ln. Defendants’ motion 10 highly confidential 3:20-4:11; Dkt. No. to dismiss without 11 and proprietary 40 at ln. 3:3-4:2). clarifying which FibroGen particular words or 12 compounds at issue (4) Passages of phrases must be at 1, 3, and 22-25; employment redacted. 13 contracts (Dkt. No. • names of the 22 at ln. 5:12-24; Denied. Plaintiff 14 highly confidential Dkt. No. 40 at ln. does not show why 15 and proprietary 5:4-19) definitions of terms FibroGen and provisions in 16 compounds as they employee exist in FibroGen’s confidentiality 17 proprietary contract would harm research library at business standing. 18 15-16; Sealing the contract 19 would prevent the • passages from public from 20 FibroGen’s understanding the confidential Court’s rulings on 21 employment the breach of 22 contracts at 4-5, 9- contract claims. 12, 14-16, and 18- 23 20. 24 25 26 27 28 1 FibroGen’s Opp. To FibroGen’s Admin. (1) Development Denied. Plaintiff’s Defs.’ Mot. to Mot. to File Under year, number of generic allegations 2 Dismiss (Dkt. No. Seal (Dkt. No. 54) at molecules, and of harm are 54-3): 1-4; identities of insufficient to 3 compounds (Dkt. establish compelling 4 • highlighted Decl. of Susan No. 22 at ln. 3:20- reason for sealing portions Krumplitsch (Dkt. 4:11; Id. at ln. 4:16- the codenames, 5 concerning the No. 54-1) at ¶¶ 3-6. 5:10; Dkt. No. 40 at synthesis date, or highly confidential ln. 3:3-4:2; Dkt. No. number of 6 and proprietary 59 at ln. 2:11-5:1). compounds at issue. 7 FibroGen No compelling compounds at issue reasons to seal 8 at 16 and 20-21. references to public patents that have 9 been in the public domain since 2018. 10 Defs.’ Rep. ISO FibroGen’s (1) Number of Denied. Plaintiff’s 11 Mot. to Dismiss Statement ISO compounds at issue generic allegations (Dkt. No. 62-3): Defs.’ Admin. Mot. and development of harm are 12 to Consider Whether year (Dkt. No. 22 at insufficient to • highlighted Another Party’s ln. 3:20-4:14; Dkt. establish compelling 13 portions Material Should Be No. 40 at ln. 3:3- reason for sealing concerning the Sealed (Dkt. No. 68) 4:2). the codenames or 14 highly confidential at 1-3; number of 15 and proprietary (2) Compounds at compounds at issue. FibroGen FibroGen’s issue at (Dkt. No. 22 No compelling 16 compounds at issue Statement ISO ISO at ln. 4:16-5:10) reasons to seal on pages 1, 10-12, Defs.’ Admin. Mot. references to public 17 and 14. to Consider Whether (3) Codenames of patents that have Another Party’s compounds at issue: been in the public 18 • highlighted Material Should Be at line (Dkt. No. 22 domain since 2018. 19 passages from Sealed (Dkt. No. 68) at ln. 3:20-4:11; Dkt. FibroGen’s at 1-3. No. 40 at ln. 3:3- Denied. Plaintiff 20 confidential 4:2). does not show why employment definitions of terms 21 contracts on pages (4) Portions of and provisions in 22 2-6 and 13. employment employee agreements (Dkt. confidentiality 23 No. 22 at ln. 5:12- contract would harm 24; Dkt. No. 40 at ln. business standing. 24 5:4-19) Sealing the contract would prevent the 25 public from understanding the 26 Court’s rulings on 27 the breach of contract claims. 28 1 Defs.’ Mot. for FibroGen’s (1) Number of Denied. Plaintiff's Sanctions (Dkt. No. | Statement ISO compounds at issue | generic allegations 2 77-3): Defs.’ Admin. Mot. | and development of harm are to Consider Whether | year (Dkt. No. 22 at | insufficient to 3 e highlighted Another Party’s In. 3:20-4:14; Dkt. establish good cause 4 portions Material Should Be | No. 40 at In. 3:3- for sealing the concerning the Sealed (Dkt. No. 80) | 4:2). codenames, number 5 highly confidential | at {| 3-6. of compounds at and proprietary (2) Compounds at issue, or the publicly 6 FibroGen issue (Dkt. No. 22 available molecule 7 compounds at issue In. 4:16-5:10) names and diagrams. at 1, 10-12, and 15- 8 18. Decl. of Jeffrey FibroGen’s (1) Number of Denied. Plaintiffs 9 Winkler ISO Defs.’ | Statement ISO of compounds at issue | generic allegations Mot. for Sanctions Defs.’ Admin. Mot. | and development of harm are 10 (Dkt. No. 77-4): to Consider Whether | year (Dkt. No. 22 at | insufficient to 11 Another Party’s In. 3:20-4:14; Dkt. establish good cause e information Material Should Be | No. 40 at In. 3:3- for sealing the 12 concerning the Sealed (Dkt. No. 80) | 4:2). codenames, number highly confidential | at 3-6. of compounds at 13 and proprietary (2) Compounds at issue, or references 14 FibroGen issue (Dkt. No. 22 at | to publicly available compounds at issue In. 4:16-5:10) patents. 15 at 13, 20, and 38-39. 16 17 18 The Court DIRECTS the parties to file public versions of all documents for which the 19 proposed sealing has been denied within seven days from the date of this order. 20 21 22 IT IS SO ORDERED. 23 Dated: September 22, 2023 Woc = (Nac tks 25 e Hon. Araceli Martinez-Olguin %6 United States District Judge 27 28 13 CASE NO. 3:22-CV-07148-AMO fPROPOSED} OMNIBUS ORDER SEALING DOCTIMENTS