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