PharmacyChecker.com LLC v. National Association of Boards of Pharmacy

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

PharmacyChecker.com LLC, Civil Action No. 7:19-cv-07577-KMK Plaintiff, PharmacyChecker.com’s Memorandum of Law Supporting vs. Motion to Permanently Seal

Documents National Association of Boards of Pharmacy et al., Judge Kenneth M. Karas Defendants. Magistrate Judge Paul E. Davison

Plaintiff PharmacyChecker.com respectfully requests an order sealing portions of defendants’ pre-motion summary judgment letter and associated exhibits, pre- motion Daubert letter and associated exhibits, and plaintiff’s responses thereto and associated exhibits. Dkts. 233, 235, 238–239. The disclosure of these documents, which were previously filed under conditional seal, would cause injury to plaintiff PharmacyChecker.com’s business by exposing confidential and competitively sensitive business information to the general public. PharmacyChecker.com therefore requests that the Court permanently seal these conditionally sealed materials. ARGUMENT While courts presume a public right of access to public court proceedings, that right is “not absolute,” and the Court has discretion to seal confidential materials. Mirlis v. Greer, 952 F.3d 51, 59 (2d Cir. 2020) (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 599 (1978)). In evaluating whether to grant a sealing request, the Court must evaluate several factors: (1) whether the document qualifies as a judicial document; (2) the weight of the presumption of public access; and (3) whether any countervailing reasons outweigh the right of public access to the judicial document. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119–20 (2d Cir. 2006). This

balancing is a fact-intensive exercise is subject to review for abuse of discretion. United States v. Amodeo, 71 F.3d 1044, 1053 (2d Cir. 1995). Even assuming the first two factors favor a presumption of public access, there is a countervailing reason that outweighs the right of public access here: the confidential materials reflect sources of non-public, competitively sensitive business information. Documents that reflect, for example, sales figures, confidential business

plans, trade secrets, or details regarding a company’s relationships with its suppliers or customers are all appropriately restricted from public access. See, e.g., In re New York Times Co. to Unseal Wiretap & Search Warrant Materials, 577 F.3d 401, 410 n.4 (2d Cir. 2009) (“When litigation requires the disclosure of trade secrets, the court may disclose certain materials only to the attorneys involved.”); Gate Guard Servs. L.P. v. Solis, No. V-10-91, 2012 WL 4625679, at *2–3 (S.D. Tex. Sept. 30, 2012) (sealing client identities and marketing strategy documents); In re High-Tech Emp. Antitrust Litig.,

No. 11-CV-02509-LHK, 2013 WL 163779, at *4, *9 (N.D. Cal. Jan. 15, 2013) (sealing documents relating to parties’ strategies, competitive positions, and business operations). All of the information plaintiff seeks to have permanently sealed are such competitively sensitive business information that is routinely subject to sealing. CONCLUSION For the foregoing reasons, plaintiff respectfully requests that the Court grant the motion to permanently seal the conditionally sealed materials. Respectfully submitted,

DATED: May 2, 2022 BONA LAW PC

Plaintiff's request to permanently seal the By: conditionally sealed materials is overbroad. /s/Aaron R. Gott Plaintiff seeks to seal the entirety of over 20 AARON R. GOTT (admitted pro hac vice) exhibits (and quotations thereto) on the basis that the exhibits contain confidential, aaron.gott@bonalawpc.com competitively-sensitive information. 331 2nd Avenue South #420 However, the Court finds that any such Minneapolis, MN 55401 concerns can be handled via the redaction of (612) 824-5001 any such information within the exhibits, rather than fully sealing the entire exhibits. James Lerner (2371599) Plaintiff is to propose redactions by no later james.lerner@bonalawpe.com than May 13, 2022. 287 Park Avenue South, Suite 422 SO ORBERED New York, NY 10010 i . (212) 634-6861 Tt 3 ih C 1 for Plaintiff INETH M. f S U:S.D.J. ounset fOr QtUntt PharmacyChecker.com 5/6/22

CERTIFICATE OF SERVICE I, Lisa Mittwol, hereby certify that on this 2nd day of May 2022, I caused a copy of PharmacyChecker’s Memorandum of Law Supporting Motion to Permanently Seal Documents be served upon counsel of record via the Court’s electronic filing system.

pea Witter LISA MITTWOL