1 2 6 7 TEVRA BRANDS LLC, Case No. 19-cv-04312-BLF
8 Plaintiff, ORDER RE ADMINISTRATIVE 9 v. MOTIONS TO SEAL PORTIONS OF AND EXHIBITS TO SECOND 10 BAYER HEALTHCARE LLC, et al., AMENDED COMPLAINT AND MOTION TO DISMISS BRIEFING 11 Defendants. [Re: ECF Nos. 195, 199, 210, 215] 12 13 14 Before the Court are Plaintiff Tevra Brands LLC’s (“Tevra”) administrative motions to file 15 under seal portions of (1) the Second Amended Complaint, ECF No. 195, and (2) Plaintiff’s 16 Opposition to Defendants’ Motion to Dismiss the Second Amended Complaint, ECF No. 210, and 17 Defendants’ (collectively, “Bayer”) administrative motions to file under seal portions of and exhibits 18 to (3) Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint, ECF No. 199, and 19 (4) Defendants’ Reply in support of the Motion to Dismiss, ECF No. 215. Having reviewed the 20 parties’ submissions and applicable sealing law, the Court GRANTS IN PART and DENIES IN 21 PART the administrative motions. 23 “Historically, courts have recognized a ‘general right to inspect and copy public records and 24 documents, including judicial records and documents.’” Kamakana v. City & Cty. Of Honolulu, 25 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 26 & n. 7 (1978)). Accordingly, when considering a sealing request, “a ‘strong presumption in favor 27 of access’ is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1 Parties seeking to seal judicial records relating to motions that are “more than tangentially 2 related to the underlying cause of action” bear the burden of overcoming the presumption with 3 “compelling reasons” that outweigh the general history of access and the public policies favoring 4 disclosure. Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 1092, 1099 (9th Cir. 2016); Kamakana, 5 447 F.3d at 1178-79. Compelling reasons justifying the sealing of court records generally exist 6 “when such ‘court files might … become a vehicle for improper purposes,’” Kamakana, 447 F.3d at 7 1179 (quoting Nixon, 435 U.S. at 598), such as: “to gratify private spite, promote public scandal, 8 circulate libelous statements,” id.; to “release trade secrets,” id.; or “as sources of business 9 information that might harm a litigant’s competitive standing,” Ctr. for Auto Safety, 809 F.3d at 10 1097 (quoting Nixon, 435 U.S. at 598-99). On the other hand, “[t]he mere fact that the production 11 of records may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation 12 will not, without more, compel the court to seal its records.” Kamakana, 447 F.3d at 1179. Further, 13 “[b]road allegations of harm, unsubstantiated by specific examples of articulated reasoning” will 14 not suffice. Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). A protective 15 order sealing the documents during discovery may reflect the court’s previous determination that 16 good cause exists to keep the documents sealed, see Kamakana, 447 F.3d at 1179-80, but a blanket 17 protective order that allows the parties to designate confidential documents does not provide 18 sufficient judicial scrutiny to determine whether each particular document should remain sealed. 19 See Civ. L.R. 79-5(d)(1)(A) (“Reference to a stipulation or protective order that allows a party to 20 designate certain documents as confidential is not sufficient to establish that a document, or portions 21 thereof, are sealable.”). 22 In addition, in this district, all parties requesting sealing must comply with Civil Local 23 Rule 79-5. That rule requires, inter alia, the moving party to “establish[] that the document, or 24 portions thereof, are privileged, protectable as a trade secret or otherwise entitled to protection under 25 the law.” Civ. L.R. 79-5(b). The request must also “be narrowly tailored to seek sealing only of 26 sealable material.” Civ. L.R. 79-5(b). Section (d) lays out the procedural requirements for an 27 administrative motion to seal, namely, a “declaration establishing that the document sought to be 1 document or portion thereof that is sought to be sealed,” and an “unredacted version of the 2 document” that “indicate[s], by highlighting or other clear method, the portions of the document 3 that have been omitted from the redacted version.” Civ. L.R. 79-5(d). “Within 4 days of the filing 4 of the Administrative Motion to File Under Seal, the Designating Party must file a declaration as 5 required by subsection 79-5(d)(1)(A) establishing that all of the designated material is sealable.” 6 Civ. L.R. 79-5(e)(1). 8 The Court has reviewed the sealing motions. The basis of the parties’ requests is that the 9 information has been designated as either “Highly Confidential - Attorneys’ Eyes Only” or 10 “Confidential” by Plaintiff or Defendants. ECF No. 195-1 at 1; ECF No. 198 at 1; ECF No. 199-1 11 ¶ 3; ECF No. 210-1 at 1; ECF No. 214 ¶ 3. For Plaintiffs’ two sealing motions, Defendants filed 12 declarations in support, noting that the information sought to be sealed in Tevra’s motions contains 13 Defendants’ confidential information. See ECF Nos. 198, 214. Plaintiffs seek to seal information 14 about “offers to retailers and comparing its pricing to Bayer’s pricing.” ECF No. 195-1 ¶ 2. 15 Defendants seek to seal information regarding “internal financial and business strategies, pricing, 16 and retailer agreements.” ECF No. 215 at 1. 17 The Court finds that the parties’ requests are compelling given the sensitive financial and 18 business information at issue. See, e.g., In re Electronic Arts, 298 Fed. Appx. 568, 569 (9th Cir. 19 2008) (finding compelling reasons for sealing “business information that might harm a litigant’s 20 competitive strategy”); In re Google Location Hist. Litig., No. 5:18-cv-05062-EJD, 21 514 F.Supp.3d 1147, 1162 (N.D. Cal. Jan. 25, 2021) (“Compelling reasons may exist to seal ‘trade 22 secrets, marketing strategies, product development plans, detailed product-specific financial 23 information, customer information, internal reports[.]’”) (quoting In re Apple Inc. Device 24 Performance Litig., No. 5:19-MD-02827-EJD, 2019 WL 1767158, at *2 (N.D. Cal. Apr. 22, 2019)); 25 Krieger v. Atheros Commc'ns, Inc., 2011 WL 2550831, at *1 (N.D. Cal. Jun. 25, 2011) (granting 26 sealing request of “long-term financial projections, discussions of business strategy, and competitive 27 analyses”). ECF No. Location Party Ruling 1 ECF No. p. 2, lines 3-5; p. 14, line 8, Bayer, see DENIED as to p. 39 line 11. 2 195-3 19-21, 25-26, 28, p. 15, ECF No. Bayer does not designate this line 1, 16, 18-19, 26-28; 198 ¶ 2 information as confidential. 3 p. 17, lines 8-10, 18; p. 20, See ECF No. 198 ¶ 2. 4 lines 16-17, 25-26; p. 30, lines 13-14; p. 31, lines 3, GRANTED as to all other 5 5-7, 11-14, 25, 28; p. 32, excerpts, as confidential lines 1-3, 5-7, 11-12, 16, 18, internal financial and 6 20; p. 33, lines 4-11, 13-18, business information of 22-24, 28; p. 37, lines 26-28; Bayer. 7 p. 38, lines 1-8, 13, 15-17, 19-22, 24-26; p. 39, 8 lines 1-7, 11; p. 40, line 6 to 9 p. 41, line 15; p. 44, lines 5-9, 25-27; p. 45, 10 lines 1, 3-7; p. 46, lines 7, 25; p. 47, lines 10-12, 17, 11 21-23, 26-27; p. 48, 12 lines 2-3, 8-10, 14-16, 20-22, 26-28; p. 49, lines 1-4, 7-12, 13 13-18 ECF No. p. 2, lines 7-8 Tevra, see GRANTED, as confidential 14 195-3 ECF No. internal financial and 195-1 ¶ 2 business information of 15 Tevra. 16 ECF No. p. 8, line 26; p.
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1 2 6 7 TEVRA BRANDS LLC, Case No. 19-cv-04312-BLF
8 Plaintiff, ORDER RE ADMINISTRATIVE 9 v. MOTIONS TO SEAL PORTIONS OF AND EXHIBITS TO SECOND 10 BAYER HEALTHCARE LLC, et al., AMENDED COMPLAINT AND MOTION TO DISMISS BRIEFING 11 Defendants. [Re: ECF Nos. 195, 199, 210, 215] 12 13 14 Before the Court are Plaintiff Tevra Brands LLC’s (“Tevra”) administrative motions to file 15 under seal portions of (1) the Second Amended Complaint, ECF No. 195, and (2) Plaintiff’s 16 Opposition to Defendants’ Motion to Dismiss the Second Amended Complaint, ECF No. 210, and 17 Defendants’ (collectively, “Bayer”) administrative motions to file under seal portions of and exhibits 18 to (3) Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint, ECF No. 199, and 19 (4) Defendants’ Reply in support of the Motion to Dismiss, ECF No. 215. Having reviewed the 20 parties’ submissions and applicable sealing law, the Court GRANTS IN PART and DENIES IN 21 PART the administrative motions. 23 “Historically, courts have recognized a ‘general right to inspect and copy public records and 24 documents, including judicial records and documents.’” Kamakana v. City & Cty. Of Honolulu, 25 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 26 & n. 7 (1978)). Accordingly, when considering a sealing request, “a ‘strong presumption in favor 27 of access’ is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1 Parties seeking to seal judicial records relating to motions that are “more than tangentially 2 related to the underlying cause of action” bear the burden of overcoming the presumption with 3 “compelling reasons” that outweigh the general history of access and the public policies favoring 4 disclosure. Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 1092, 1099 (9th Cir. 2016); Kamakana, 5 447 F.3d at 1178-79. Compelling reasons justifying the sealing of court records generally exist 6 “when such ‘court files might … become a vehicle for improper purposes,’” Kamakana, 447 F.3d at 7 1179 (quoting Nixon, 435 U.S. at 598), such as: “to gratify private spite, promote public scandal, 8 circulate libelous statements,” id.; to “release trade secrets,” id.; or “as sources of business 9 information that might harm a litigant’s competitive standing,” Ctr. for Auto Safety, 809 F.3d at 10 1097 (quoting Nixon, 435 U.S. at 598-99). On the other hand, “[t]he mere fact that the production 11 of records may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation 12 will not, without more, compel the court to seal its records.” Kamakana, 447 F.3d at 1179. Further, 13 “[b]road allegations of harm, unsubstantiated by specific examples of articulated reasoning” will 14 not suffice. Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). A protective 15 order sealing the documents during discovery may reflect the court’s previous determination that 16 good cause exists to keep the documents sealed, see Kamakana, 447 F.3d at 1179-80, but a blanket 17 protective order that allows the parties to designate confidential documents does not provide 18 sufficient judicial scrutiny to determine whether each particular document should remain sealed. 19 See Civ. L.R. 79-5(d)(1)(A) (“Reference to a stipulation or protective order that allows a party to 20 designate certain documents as confidential is not sufficient to establish that a document, or portions 21 thereof, are sealable.”). 22 In addition, in this district, all parties requesting sealing must comply with Civil Local 23 Rule 79-5. That rule requires, inter alia, the moving party to “establish[] that the document, or 24 portions thereof, are privileged, protectable as a trade secret or otherwise entitled to protection under 25 the law.” Civ. L.R. 79-5(b). The request must also “be narrowly tailored to seek sealing only of 26 sealable material.” Civ. L.R. 79-5(b). Section (d) lays out the procedural requirements for an 27 administrative motion to seal, namely, a “declaration establishing that the document sought to be 1 document or portion thereof that is sought to be sealed,” and an “unredacted version of the 2 document” that “indicate[s], by highlighting or other clear method, the portions of the document 3 that have been omitted from the redacted version.” Civ. L.R. 79-5(d). “Within 4 days of the filing 4 of the Administrative Motion to File Under Seal, the Designating Party must file a declaration as 5 required by subsection 79-5(d)(1)(A) establishing that all of the designated material is sealable.” 6 Civ. L.R. 79-5(e)(1). 8 The Court has reviewed the sealing motions. The basis of the parties’ requests is that the 9 information has been designated as either “Highly Confidential - Attorneys’ Eyes Only” or 10 “Confidential” by Plaintiff or Defendants. ECF No. 195-1 at 1; ECF No. 198 at 1; ECF No. 199-1 11 ¶ 3; ECF No. 210-1 at 1; ECF No. 214 ¶ 3. For Plaintiffs’ two sealing motions, Defendants filed 12 declarations in support, noting that the information sought to be sealed in Tevra’s motions contains 13 Defendants’ confidential information. See ECF Nos. 198, 214. Plaintiffs seek to seal information 14 about “offers to retailers and comparing its pricing to Bayer’s pricing.” ECF No. 195-1 ¶ 2. 15 Defendants seek to seal information regarding “internal financial and business strategies, pricing, 16 and retailer agreements.” ECF No. 215 at 1. 17 The Court finds that the parties’ requests are compelling given the sensitive financial and 18 business information at issue. See, e.g., In re Electronic Arts, 298 Fed. Appx. 568, 569 (9th Cir. 19 2008) (finding compelling reasons for sealing “business information that might harm a litigant’s 20 competitive strategy”); In re Google Location Hist. Litig., No. 5:18-cv-05062-EJD, 21 514 F.Supp.3d 1147, 1162 (N.D. Cal. Jan. 25, 2021) (“Compelling reasons may exist to seal ‘trade 22 secrets, marketing strategies, product development plans, detailed product-specific financial 23 information, customer information, internal reports[.]’”) (quoting In re Apple Inc. Device 24 Performance Litig., No. 5:19-MD-02827-EJD, 2019 WL 1767158, at *2 (N.D. Cal. Apr. 22, 2019)); 25 Krieger v. Atheros Commc'ns, Inc., 2011 WL 2550831, at *1 (N.D. Cal. Jun. 25, 2011) (granting 26 sealing request of “long-term financial projections, discussions of business strategy, and competitive 27 analyses”). ECF No. Location Party Ruling 1 ECF No. p. 2, lines 3-5; p. 14, line 8, Bayer, see DENIED as to p. 39 line 11. 2 195-3 19-21, 25-26, 28, p. 15, ECF No. Bayer does not designate this line 1, 16, 18-19, 26-28; 198 ¶ 2 information as confidential. 3 p. 17, lines 8-10, 18; p. 20, See ECF No. 198 ¶ 2. 4 lines 16-17, 25-26; p. 30, lines 13-14; p. 31, lines 3, GRANTED as to all other 5 5-7, 11-14, 25, 28; p. 32, excerpts, as confidential lines 1-3, 5-7, 11-12, 16, 18, internal financial and 6 20; p. 33, lines 4-11, 13-18, business information of 22-24, 28; p. 37, lines 26-28; Bayer. 7 p. 38, lines 1-8, 13, 15-17, 19-22, 24-26; p. 39, 8 lines 1-7, 11; p. 40, line 6 to 9 p. 41, line 15; p. 44, lines 5-9, 25-27; p. 45, 10 lines 1, 3-7; p. 46, lines 7, 25; p. 47, lines 10-12, 17, 11 21-23, 26-27; p. 48, 12 lines 2-3, 8-10, 14-16, 20-22, 26-28; p. 49, lines 1-4, 7-12, 13 13-18 ECF No. p. 2, lines 7-8 Tevra, see GRANTED, as confidential 14 195-3 ECF No. internal financial and 195-1 ¶ 2 business information of 15 Tevra. 16 ECF No. p. 8, line 26; p. 9, Bayer, see GRANTED, as confidential 199-12 lines 13-19; p. 11, line 4; ECF No. internal financial and 17 p. 12, lines 9-15, 17-21, and 199-1 ¶ 2 business information of 23-27; p. 13, lines 4-11; Bayer. 18 p. 16, lines 22-26; p. 20, 19 lines 23-25; p. 21, line 21; p. 22, lines 12-17 20 ECF No. Entire exhibits Bayer, see GRANTED, as confidential 200, ECF No. internal financial and 21 Exs. 1-11 199-1 ¶ 2 business information of 22 (ECF Nos. Bayer. 199-2 to 23 199-11) The Court notes that Defendants failed to file an 24 unredacted copy of 25 Exhibit 11 to ECF No. 200. The Court REQUESTS that 26 Defendants file an unredacted copy of this 27 exhibit under seal. ECF No. Location Party Ruling 1 ECF No. p. 1, line 11; p. 7, lines 18, Bayer, see DENIED as to p. 1, line 11; 2 210-4 19; p. 8, lines 1, 5, 8, 9, 11, ECF No. p. 8, lines 8-9, 11; p. 16, 12, 24-26; p. 9, lines 3-6, 214 ¶ 2 line 10; p. 17, lines 11-12; 3 11-15, 20-21; p. 11, lines 4, p. 21 lines 13-15, 18. Bayer 5; p. 14 line 25; p. 16, does not designate this 4 lines 10, 13; p. 17, information as confidential. 5 line 11-12; p. 19, See ECF No. 214 ¶ 2. lines 23-26; p. 20, lines 1-3, 6 5-9, 11- 13, 18-20; p. 21, GRANTED as to the other lines 13- 15, 18 excerpts, as confidential 7 internal financial and 8 business information of Bayer. 9 ECF No. p. 5, lines 16-17; p. 6, Bayer, see DENIED as to p. 10, 215-2 lines 10, 12-14, 16-19; p. 7, ECF No. lines 9-11. Bayer states this 10 lines 3-4, 6-7; p. 8, 215 at 1 is Tevra’s confidential 11 lines 11-16; p. 9, lines 13-15; information, ECF No. 215 at p. 10, lines 9-11; p. 13, 1, but Tevra did not provide 12 lines 18-19; p. 14, lines 1-2, a declaration in support of 5-8 the confidentiality of this 13 information.
14 GRANTED as to all other 15 excerpts, as confidential internal financial and 16 business information of Bayer. 17 ECF No. Entire exhibits Bayer, see DENIED as to ECF No. 216, 18 216, Exs. ECF No. Ex. 2 (ECF No. 215-6). 1-3 215 at 1 Bayer states this is Tevra’s 19 (ECF Nos. confidential information, 215-4, ECF No. 215 at 2, but Tevra 20 215-6, did not provide a declaration 21 215-8) in support of the confidentiality of this 22 information.
23 GRANTED as to the other exhibits, as confidential 24 internal financial and 25 business information of Bayer. 26 III. ORDER 27 According to the above reasoning, the parties’ administrative motions are GRANTED IN 1 PART and DENIED IN PART. The above-listed denials are all WITHOUT PREJUDICE. Any 2 || renewed administrative motion to seal the material discussed in this order must be filed by October 3 14, 2021. 5 || Dated: October 7, 2021 kom Lh ham tn 6 BETH LABSON FREEMAN 7 United States District Judge 8 9 10 11 12
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