Tevra Brands LLC v. Bayer HealthCare LLC

Opinion

1 2 6 7 TEVRA BRANDS LLC, Case No. 19-cv-04312-BLF

8 Plaintiff, OMNIBUS MIL SEALING ORDER 9 v.

10 BAYER HEALTHCARE LLC, et al., [Re: ECF Nos. 366, 369, 375, 377, 379, 381, 383, 385] 11 Defendants.

12 13 Before the court are eight administrative motions filed in connection with the parties’ 14 motions in limine: 15 1. Administrative Motion to Consider Whether Another Party’s Material Should Be 16 Sealed. ECF No. 366. 17 2. Administrative Motion to File Under Seal. ECF No. 369. 18 3. Administrative Motion to Consider Whether Another Party’s Material Should Be 19 Sealed. ECF No. 375. 20 4. Administrative Motion to Consider Whether Another Party’s Material Should Be 21 Sealed. ECF No. 377. 22 5. Administrative Motion to Consider Whether Another Party’s Material Should Be 23 Sealed. ECF No. 379. 24 6. Administrative Motion to Consider Whether Another Party’s Material Should Be 25 Sealed. ECF No. 381. 26 7. Administrative Motion to Consider Whether Another Party’s Material Should Be 27 Sealed. ECF No. 383. 1 For the reasons described below, the Court rules as follows: the administrative motions at 2 ECF Nos. 369, 375, 377, and 379 are GRANTED; the administrative motions at ECF Nos. 366, 3 381, and 383 are GRANTED IN PART AND DENIED IN PART; the administrative motion at 4 ECF No. 385 is DENIED. 6 “Historically, courts have recognized a ‘general right to inspect and copy public records 7 and documents, including judicial records and documents.’” Kamakana v. City & Cty. Of 8 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 9 U.S. 589, 597 & n.7 (1978)). Accordingly, when considering a sealing request, “a ‘strong 10 presumption in favor of access’ is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto. 11 Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to 12 motions that are “more than tangentially related to the underlying cause of action” bear the burden 13 of overcoming the presumption with “compelling reasons” that outweigh the general history of 14 access and the public policies favoring disclosure. Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 15 1092, 1099 (9th Cir. 2016); Kamakana, 447 F.3d at 1178–79. 16 Records attached to motions that are “not related, or only tangentially related, to the merits 17 of a case,” however, are not subject to the strong presumption of access. Ctr. for Auto Safety, 809 18 F.3d at 1099; see also Kamakana, 447 F.3d at 1179 (“[T]he public has less of a need for access to 19 court records attached only to non-dispositive motions because those documents are often 20 unrelated, or only tangentially related, to the underlying cause of action.”). Parties moving to seal 21 the documents attached to such motions must meet the lower “good cause” standard of Rule 22 26(c). Kamakana, 447 F.3d at 1179 (internal quotations and citations omitted). This standard 23 requires a “particularized showing,” id., that “specific prejudice or harm will result” if the 24 information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 25 1210–11 (9th Cir. 2002); see Fed. R. Civ. P. 26(c). “Broad allegations of harm, unsubstantiated 26 by specific examples of articulated reasoning” will not suffice. Beckman Indus., Inc. v. Int’l Ins. 27 Co., 966 F.2d 470, 476 (9th Cir. 1992). 2 A. ECF No. 366 3 Tevra filed the Administrative Motion to Consider Whether Another Party’s Material 4 Should Be Sealed on May 30, 2024. ECF No. 366. Bayer submitted a declaration. ECF No. 385- 5 1. Bayer seeks to seal selected portions of Motion in Limine No. 1 and its corresponding exhibits. 6 Id. ¶ 2. Bayer writes that the information should be sealed because it contains “competitively 7 sensitive business information relating to Bayer’s internal business strategy and practices, 8 including Bayer’s analysis of the flea and tick market and Bayer’s surveying practices and 9 methodology” and because the information has been “designated as either ‘Highly Confidential – 10 Attorneys’ Eyes Only’ or Confidential.’” Id. ¶ 3. Bayer argues that the portions are narrowly 11 tailored. Id. ¶ 6. 12 Except as noted below, the Court finds that good cause exists to seal the highlighted 13 portions of the document. Kamakana, 447 F.3d at 1179; see Finjan, Inc. v. Proofpoint, Inc., No. 14 13-CV-05808-HSG, 2016 WL 7911651, at *1 (N.D. Cal. Apr. 6, 2016) (finding “technical 15 operation of [defendant’s] products” sealable under “compelling reasons” standard); Exeltis USA 16 Inc. v. First Databank, Inc., No. 17-CV-04810-HSG, 2020 WL 2838812, at *1 (N.D. Cal. June 1, 17 2020) (noting that courts have found “confidential business information” in the form of “business 18 strategies” sealable under the compelling reasons standard.). The Court finds that the request is 19 narrowly tailored. Civ. L.R. 79-5(c)(3). 20 The Court’s ruling is summarized below:

21 ECF or Document Portion(s) to Ruling 22 Exhibit No. Seal ECF 366-1 Tevra’s Motion in Highlighted DENIED as to p. 5, line 8 as it is already 23 Limine No. 1 to portions at p. publicly disclosed. ECF No. 360 at 5:9. Exclude the Bayer- 5, lines 8, 13. 24 Commissioned GRANTED, as to p. 5, line 13 as it Consumer Study contains competitively sensitive 25 (“Tevra’s Motion in information relating to Bayer’s internal 26 Limine No. 1”) business strategy and practices. See ECF No. 385-1 ¶¶ 4-5. 27 ECF 366-3 McNally Decl. Ex. A Entire exhibit GRANTED as the cited document 1 (BAH000277771) contains competitively sensitive 2 information relating to Bayer’s internal business strategy and practices. See ECF 3 No. 385-1. ¶¶ 4-5. ECF 366-4 McNally Decl. Ex. B Entire exhibit GRANTED as the cited document 4 (BAH000225558) contains competitively sensitive information relating to Bayer’s internal 5 business strategy and practices. See ECF 6 No. 385-1¶¶ 4-5. ECF 366-5 McNally Decl. Ex. C Entire exhibit GRANTED as the cited document 7 (BAH000257273) contains competitively sensitive information relating to Bayer’s internal 8 business strategy and practices. See ECF No. 385-1 ¶¶ 4-5. 9 10 B. ECF No. 369 11 Bayer filed the Administrative Motion to File Under Seal on May 30, 2024. ECF No. 369. 12 Bayer seeks to seal selected portions of Bayer’s Motion in Limine No. 4 and Motion in Limine No. 13 5. ECF No. 369-1 ¶ 2. Bayer writes that the information should be sealed because, “if this 14 information were made public, competitors and counterparts would have insight into how Elanco, 15 as successor to Bayer HealthCare LLC, structures its business arrangements, allowing them to 16 modify their own business strategy.” Id. ¶ 5. Bayer argues that the portions are narrowly tailored. 17 Id. ¶ 7. 18 The Court finds that good cause exists to seal the highlighted portions of the documents. 19 Kamakana, 447 F.3d at 1179; see Finjan, Inc. v. Proofpoint, Inc., No. 13-CV-05808-HSG, 2016 20 WL 7911651, at *1 (N.D. Cal. Apr. 6, 2016) (finding “technical operation of [defendant’s] 21 products” sealable under “compelling reasons” standard); Exeltis USA Inc. v. First Databank, Inc., 22 No. 17-CV-04810-HSG, 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020) (noting that courts 23 have found “confidential business information” in the form of “business strategies” sealable under 24 the compelling reasons standard.). The Court finds that the request is narrowly tailored. Civ. L.R. 25 79-5(c)(3). 26 \\ 27 \\ 1 The Court’s ruling is summarized below:

2 ECF or Document Portion(s) to Seal Ruling 3 Exhibit No. ECF 369-3 Bayer’s Motion Highlighted portions at p. 1, GRANTED as the highlighted 4 in Limine No .4 lines 2, 3, 4, 6, 8, 9, 23, 26; p. portions contain confidential to Exclude 2, lines 1, 7, 8, 9, 10, 18, 19, information relating to 5 Evidence 25; p. 3, lines 1, 2, 3, 16, 18; agreements with retailers and Regarding p. 4, lines 7, 8. customer information. See ECF 6 Retailer Product No. 369-1 ¶¶ 5-6. 7 Removal ECF 369-4 Bayer’s Motion Highlighted portions at p. 4, GRANTED as the highlighted 8 in Limine No. 5 lines 25, 26. portions contain confidential to Preclude Use information relating to 9 of the Word agreements with retailers and “Conspiracy” customer information. See ECF 10 and Exclude No. 369-1 ¶¶ 5-6. 11 Evidence Regarding 12 Extra- Contractual 13 Arrangements 14 ECF 369-5 Asimow Decl., Highlighted portions at GRANTED as the highlighted Exhibit 5 231:8-12, 17-22 portions contain confidential 15 (Deposition of information relating to Scott Bauer) agreements with retailers and 16 customer information. See Boshkoff Decl. ¶¶ 5-6. 17 ECF 369-6 Asimow Decl., Highlighted portions at GRANTED as the highlighted 18 Exhibit 6 41:2, 7, 11, 16, 20, portions contain confidential (Deposition of 21, 42:5, 6, 9, 11, 24, information relating to 19 Chris Diesel) 25, 43:6, 23, 25, 44:5, agreements with retailers and 7, 11, 19, 20, 25 customer information. See ECF 20 No. 369-1¶¶ 5-6. ECF 369-7 Asimow Decl., Entire document GRANTED as the highlighted 21 Exhibit 37 portions contain confidential 22 (BAH00004053 information relating to 3) agreements with retailers and 23 customer information. See ECF No. 369-1¶¶ 5-6. 24 25 C. ECF No. 375 26 Bayer filed the Administrative Motion to Consider Whether Another Party’s Material 27 Should Be Sealed on May 30, 2024. ECF No. 375. Tevra submitted a declaration. ECF No. 404. 1 corresponding exhibits. Id. ¶ 2. Tevra writes that the information in those documents should be 2 sealed because the “information would harm Tevra’s profitability if released publicly” and that it 3 “would also give Tevra’s competitors information that could be used to put Tevra at a 4 disadvantage.” Id. ¶ 3. Tevra also seeks to seal selected portions of thirty-three exhibits attached 5 to Asimow’s declaration. Id. Tevra writes that this information should be sealed because Tevra 6 argues that the portions are narrowly tailored. Id. ¶ 4. 7 The Court finds that good cause exists to seal the highlighted portions of the documents. 8 Kamakana, 447 F.3d at 1179; see Finjan, Inc. v. Proofpoint, Inc., No. 13-CV-05808-HSG, 2016 9 WL 7911651, at *1 (N.D. Cal. Apr. 6, 2016) (finding “technical operation of [defendant’s] 10 products” sealable under “compelling reasons” standard); Exeltis USA Inc. v. First Databank, Inc., 11 No. 17-CV-04810-HSG, 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020) (noting that courts 12 have found “confidential business information” in the form of “business strategies” sealable under 13 the compelling reasons standard.). The Court finds that the request is narrowly tailored. Civ. L.R. 14 79-5(c)(3). 15 The Court’s ruling is summarized below:

16 ECF or Document Portion(s) to Seal Ruling 17 Exhibit No. ECF No. Defendant Highlighted portions at 2:19- GRANTED as it contains 18 375-2 Bayer 22; 3:13 discussion of confidential loss HealthCare estimate. 19 LLC’s Motion in Limine No. 1 20 to Exclude 21 Tevra Damages Testimony 22 ECF No. Defendant Highlighted portions at 2:6- GRANTED as it contains 375-3 Bayer 14, 19-26; 3:1-23; 4:1-2, 6-7 confidential communications 23 HealthCare from named retailers. LLC’s Motion 24 in Limine No. 2 25 to Exclude Tevra Hearsay 26 Evidence Regarding 27 Retailer ECF No. Defendant Highlighted portions at 3:7- GRANTED as the cited portions 1 375-4 Bayer 13 contains exact figures offered to 2 HealthCare named retailers as part of Tevra’s LLC’s Motion offer to contract to sell generic 3 in Limine No. 4 imidacloprid topicals. to Exclude 4 Evidence Regarding 5 Retailer Product 6 Removal ECF No. Asimow Decl. Highlighted portions GRANTED as it contains 7 375-6 Ex. 1 at 142:1-144:25 confidential sales information.

8 Non-highlighted lines: 160:21-23 9 ECF No. Asimow Decl. Highlighted portions at GRANTED as discusses 10 375-7 Ex. 2 132:17, 21-24; 133:4-6; communications with named 158:4, 11; 159:6-14; 162:10- retailers. 11 13; 169:6-7, 20; 170:15-17; 249:2, 5-6, 8-12, 16, 22; 12 250:1, 16, 18, 24; 298:1-23 13 ECF No. Asimow Decl. Highlighted portions at GRANTED as the cited portions 375-8 Ex. 3 58:2, 5, 8, 11; 89:6-7, 9, 18- contain names of retailers Tevra 14 19, 22-24; 178:1-2, 5-11, 14, approached or dealt with. 16; 179:11, 24 15 ECF No. Asimow Decl. Highlighted portions GRANTED as it discusses 16 375-9 Ex. 7 at 161:6-8, 11-25; confidential proposals to named 17 162:3. retailers and competitive strategy.

18 ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit contains 19 375-10 Ex. 8 confidential internal communications and business 20 strategy regarding named retailers 21 that Tevra was attempting to contract with. 22 ECF No. Asimow Decl. Entire Exhibit GRANTED as this exhibit 375-11 Ex. 9 contains confidential internal 23 communications and business 24 strategy regarding named retailers that Tevra was attempting to 25 contract with.

26 27 ECF No. Asimow Decl. Entire Exhibit GRANTED as this exhibit 1 375-12 Ex. 10 contains confidential internal 2 communications and business strategy regarding named retailers 3 that Tevra was attempting to contract with. 4 ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit contains 5 375-13 Ex. 11 confidential internal 6 communications and business strategy regarding named retailers 7 that Tevra was attempting to contract with. 8 ECF No. Asimow Decl. Entire Exhibit GRANTED as this exhibit 375-14 Ex. 12 contains confidential internal 9 communications and business 10 strategy regarding named retailers that Tevra was attempting to 11 contract with.

12 ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit 13 375-15 Ex. 13 contains confidential internal communications and business 14 strategy regarding named retailers that Tevra was attempting to 15 contract with. ECF No. Asimow Decl. Entire Exhibit GRANTED as this exhibit 16 375-16 Ex. 14 contains confidential internal 17 communications and business strategy regarding named retailers 18 that Tevra was attempting to contract with. 19 ECF No. Asimow Decl. Entire Exhibit GRANTED as this exhibit 20 375-17 Ex. 15 contains confidential internal 21 communications and business strategy regarding named retailers 22 that Tevra was attempting to contract with. 23 24 ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit contains 375-18 Ex. 16 confidential internal account notes 25 and business strategy regarding named retailers that Tevra was 26 attempting to contract with. 27 ECF No. Asimow Decl. Entire Exhibit GRANTED as this exhibit 1 375-19 Ex. 17 contains confidential internal 2 communications and business strategy regarding named retailers 3 that Tevra was attempting to contract with. 4 ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit 5 375-20 Ex. 18 contains confidential internal 6 communications and business strategy regarding named retailers 7 that Tevra was attempting to contract with. 8 ECF No. Asimow Decl. Entire Exhibit GRANTED as this exhibit 375-21 Ex. 19 contains confidential internal 9 communications and business 10 strategy regarding named retailers that Tevra was attempting to 11 contract with.

12 ECF No. Asimow Decl. Entire Exhibit GRANTED as this exhibit 13 375-22 Ex. 20 contains confidential internal communications and business 14 strategy regarding named retailers that Tevra was attempting to 15 contract with.

17 ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit 375-23 Ex. 21 contains confidential internal 18 communications and business strategy regarding named retailers 19 that Tevra was attempting to contract with. 20 ECF No. Asimow Decl. Entire Exhibit GRANTED exhibit contains 21 375-24 Ex. 22 confidential internal research and development information, 22 including information on Tevra’s product formula 23 ECF No. Asimow Decl. Entire Exhibit GRANTED as this exhibit 24 375-25 Ex. 23 contains confidential internal communications and business 25 strategy regarding named retailers that Tevra was attempting to 26 contract with.

27 ECF No. Asimow Decl. Entire Exhibit GRANTED as this exhibit 1 375-26 Ex. 24 contains confidential internal 2 communications and business strategy regarding named retailers 3 that Tevra was attempting to contract with. 4 ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit contains 5 375-27 Ex. 25 confidential internal 6 communications and business strategy regarding named retailers 7 that Tevra was attempting to contract with. 8 ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit contains 375-28 Ex. 26 confidential internal 9 communications and business 10 strategy regarding named retailers that Tevra was attempting to 11 contract with. ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit 12 375-29 Ex. 27 contains confidential internal 13 communications and business strategy regarding named retailers 14 that Tevra was attempting to contract with. 15 ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit 375-30 Ex. 28 contains confidential internal 16 communications and business 17 strategy regarding named retailers that Tevra was attempting to 18 contract with. ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit 19 375-31 Ex. 29 contains confidential internal communications and business 20 strategy regarding named retailers 21 that Tevra was attempting to contract with. 22 ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit contains 375-32 Ex. 30 confidential internal 23 communications and business 24 strategy regarding named retailers that Tevra was attempting to 25 contract with. ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit 26 375-33 Ex. 31 contains confidential internal communications and business 27 strategy regarding named retailers contract with. 1 2 3 ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit contains 4 375-34 Ex. 32 confidential internal communications and business 5 strategy regarding named retailers 6 that Tevra was attempting to contract with. 7 ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit 375-35 Ex. 33 contains confidential internal 8 communications and business strategy regarding named retailers 9 that Tevra was attempting to 10 contract with. ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit contains 11 375-36 Ex. 34 confidential internal communications and business 12 strategy regarding named 13 retailers that Tevra was attempting to contract with. 14 ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit contains 375-37 Ex. 35 confidential internal 15 communications and business strategy regarding named retailers 16 that Tevra was attempting to contract with. 17 18 D. ECF No. 377 19 Tevra filed the Administrative Motion to Consider Whether Another Party’s Material 20 Should Be Sealed on May 30, 2024. ECF No. 377. Bayer submitted a declaration. ECF No. 401. 21 Bayer seeks to seal selected portions of Tevra’s Opposition to Bayer’s Motion in Limine No. 4. 22 Id. ¶ 2. Bayer writes that the information should be sealed because it contains “competitively 23 sensitive business information relating to Bayer’s internal business strategy and practices, 24 including Bayer’s analysis of the flea and tick market and Bayer’s surveying practices and 25 methodology.” Id. ¶ 4. Bayer argues that the portions are narrowly tailored. Id. ¶ 6. 26 The Court finds that good cause exists to seal the highlighted portions of the document. 27 Kamakana, 447 F.3d at 1179; see Finjan, Inc. v. Proofpoint, Inc., No. 13-CV-05808-HSG, 2016 1 products” sealable under “compelling reasons” standard); Exeltis USA Inc. v. First Databank, Inc., 2 No. 17-CV-04810-HSG, 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020) (noting that courts 3 have found “confidential business information” in the form of “business strategies” sealable under 4 the compelling reasons standard.). The Court finds that the request is narrowly tailored. Civ. L.R. 5 79-5(c)(3). 6 The Court’s ruling is summarized below:

7 ECF or Document Portion(s) to Seal Ruling 8 Exhibit No. ECF 377-1 Plaintiff Tevra’s Highlighted portions at GRANTED, as the cited 9 Opposition to p. 1:3, 1:4, 1:7, document contains competitively Bayer’s Motion in 1:18, 1:24, 1:26, sensitive information relating to 10 Limine No. 4 to 1:28, p. 2:3, 2:12, Bayer’s internal business strategy Exclude Evidence 2:17, 2:25, p. 3:12, and practices. See ECF No. 401. 11 Regarding Retailer 3:19 ¶¶ 4-5. 12 Product Removal 13 E. ECF No. 379 14 Tevra filed the Administrative Motion to Consider Whether Another Party’s Material 15 Should Be Sealed on May 30, 2024. ECF No. 379. Bayer submitted a declaration. ECF No. 401. 16 Bayer seeks to seal selected portions of Tevra’s Opposition to Bayer’s Motion in Limine No. 2. 17 Id. ¶ 2. Bayer writes that the information should be sealed because “competitively sensitive 18 business information relating to Bayer’s internal business strategy and practices, including Bayer’s 19 analysis of the flea and tick market and Bayer’s surveying practices and methodology.” Id. ¶ 4. 20 Bayer argues that the portions are narrowly tailored. Id. ¶ 6. 21 The Court finds that good cause exists to seal the highlighted portions of the document. 22 Kamakana, 447 F.3d at 1179; see Finjan, Inc. v. Proofpoint, Inc., No. 13-CV-05808-HSG, 2016 23 WL 7911651, at *1 (N.D. Cal. Apr. 6, 2016) (finding “technical operation of [defendant’s] 24 products” sealable under “compelling reasons” standard); Exeltis USA Inc. v. First Databank, Inc., 25 No. 17-CV-04810-HSG, 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020) (noting that courts 26 have found “confidential business information” in the form of “business strategies” sealable under 27 the compelling reasons standard.). The Court finds that the request is narrowly tailored. Civ. L.R. 1 The Court’s ruling is summarized below:

2 ECF or Document Portion(s) to Seal Ruling 3 Exhibit No. ECF 379-1 Plaintiff Tevra’s Highlighted portions at: GRANTED, as it contains 4 Opposition to 2:22- 28; 3:1-13, competitively sensitive Bayer’s Motion 18-27; 4:16-23; 5:1- information relating to Bayer’s 5 in Limine No. 2 3. internal business strategy and to Exclude practices. See ECF No. 401 ¶¶ 4-5. 6 Retailer 7 Statements 8 F. ECF No. 381 9 Tevra filed the Administrative Motion to Consider Whether Another Party’s Material 10 Should Be Sealed on June 06, 2024. ECF No. 381. Bayer submitted a declaration. ECF No. 401. 11 Bayer seeks to seal the entirety of five exhibits, and selection portions of one exhibit, 12 accompanying Dan Owen’s declaration in support of Tevra’s Opposition to Bayer’s Motion in 13 Limine No. 5. Id. ¶ 2. Bayer writes that the information should be sealed because if it “were 14 made public, competitors and counterparts would have insight into how Elanco, as successor to 15 Bayer HealthCare LLC, structures its business arrangements, allowing them to modify their own 16 business strategy.” Id. ¶ 4. Bayer argues that the portions are narrowly tailored. Id. ¶ 6. 17 Except as noted below, the Court finds that good cause exists to seal the highlighted 18 portions of the document. Kamakana, 447 F.3d at 1179; see Finjan, Inc. v. Proofpoint, Inc., No. 19 13-CV-05808-HSG, 2016 WL 7911651, at *1 (N.D. Cal. Apr. 6, 2016) (finding “technical 20 operation of [defendant’s] products” sealable under “compelling reasons” standard); Exeltis USA 21 Inc. v. First Databank, Inc., No. 17-CV-04810-HSG, 2020 WL 2838812, at *1 (N.D. Cal. June 1, 22 2020) (noting that courts have found “confidential business information” in the form of “business 23 strategies” sealable under the compelling reasons standard.). Except as noted below, the Court 24 finds that the request is narrowly tailored. Civ. L.R. 79-5(c)(3). 25 The Court’s ruling is summarized below: 26 \\ 27 \\ 1 ECF or Document Portion(s) to Seal Ruling 2 Exhibit No. ECF 381-1 Owen Decl. Ex. Entire exhibit DENIED as Bayer has not 3 A in support of demonstrated that the information Tevra’s in the attachment is 4 Opposition to “competitively sensitive,” ECF Bayer’s Motion No. 401 ¶¶ 4-5, and the request is 5 in Limine No. 5 not narrowly tailored. 6 (Email Chain) ECF 381-2 Owen Decl. Ex. Entire exhibit GRANTED as the exhibit 7 B in support of contains competitively sensitive Tevra’s information relating to Bayer’s 8 Opposition to internal business strategy and Bayer’s Motion practices. See ECF No. 401 ¶¶ 4- 9 in Limine No. 5 5. 10 (Exhibit 1008) ECF 381-3 Owen Decl. Ex. Entire exhibit GRANTED as the exhibit 11 D in support of contains competitively sensitive Tevra’s information relating to Bayer’s 12 Opposition to internal business strategy and 13 Bayer’s Motion practices. See ¶¶ ECF No. 401 4- in Limine No. 5 5. 14 (Exhibit 1039) ECF 381-4 Owen Decl. Ex. Entire exhibit GRANTED as the exhibit 15 E in support of contains competitively sensitive Tevra’s information relating to Bayer’s 16 Opposition to internal business strategy and 17 Bayer’s Motion practices. See ECF No. 401 ¶¶ 4- in Limine No. 5 5. 18 (Exhibit 1110) ECF 381-5 Owen Decl. Ex. Entire exhibit GRANTED as the exhibit 19 F in support of contains competitively sensitive Tevra’s information relating to Bayer’s 20 Opposition to internal business strategy and 21 Bayer’s Motion practices. See ECF No. 401 ¶¶ 4- in Limine No. 5 5. 22 (Exhibit 1055) ECF 381-6 Owen Decl. Ex. Highlighted portions at GRANTED as the exhibit 23 G in support of 28:12, 24; 29:1-4, contains competitively sensitive 24 Tevra’s 6-7, 9, 12, 16, 21-22, information relating to Bayer’s Opposition to 24-25, 42:1, 5, 6, 9, internal business strategy and 25 Bayer’s Motion 11, 24, 25, 43:6, 23, practices. See ECF No. 401 ¶¶ 4- in Limine No. 5 25, 51:2, 4, 9, 11, 12, 5. 26 (excerpts of 24, 25, 52:5-6, 10-12, Chris Diesel 17-18, 54:10-13, 24- 27 deposition) 25, 55:1-2, 4-6, 8-9, 57:4, 9, 10, 15, 18- 1 20, 25, 58:1, 3, 4, 6- 8, 14, 15, 18, 19, 22, 2 23, 61:1, 7, 8, 16, 23, 24, 3 62:4, 5, 7, 10, 11, 16-18, 22, 23, 63:1-3, 4 6, 9-11, 16, 19, 22, 23, 64:5-8, 12, 17-20, 5 25, 65:1-2, 6, 9-10, 66:1-3, 7-10, 13-14, 6 19-22, 25, 67:4-8, 10, 7 16-17, 20-25, 96:17- 18, 97:1, 4, 6, 11-14, 8 98:3, 4, 8, 11, 12, 15, 19-22, 99:7, 11, 9 105:3, 6, 15, 17, 20, 106:1, 2, 6, 8, 13, 15, 10 17-20, 24-25, 107:11, 12, 108:5, 14-15, 18- 11 19, 24-25, 109:1, 8-9, 12 23-24, 110:3, 6, 16- 17, 20, 24-25, 111:4- 13 8, 10, 22-23, 112:10, 16-17, 23, 113:5-9, 14 24, 114:6, 8, 25, 115:9, 20, 23, 118:4, 15 5, 17, 18, 119:1, 3, 6, 16 13, 16, 120:1, 2, 23, 24, 121:4, 17-19, 17 122:12-15, 18-20, 23, 25, 125:4-7, 13-19, 18 126:2-10, 137:2, 4, 24, 138:3, 13, 18-19, 19 139:4, 9, 10, 13-15, 20 19-21, 23-25, 140:1, 141:4, 8-9, 12-13, 24, 21 142:1-2, 20-24, 143:1-3, 5-7, 10, 13- 22 14, 18-19, 21, 23, 144:2, 12, 20-22, 23 145:8, 14-16, 18, 23- 24, 146:9, 13, 16-17, 24 24-25, 147:7-8, 13- 25 14, 148:3, 9-10, 14- 15, 24-25, 149:1-3, 6, 26 10-11, 16-17, 19-22, 153:4, 6-8, 12-14, 23, 27 25, 154:1, 155:16-19, 1 G. ECF No. 383 2 Tevra filed the Administrative Motion to Consider Whether Another Party’s Material 3 Should Be Sealed on June 06, 2024. ECF No. 383. Bayer submitted a declaration. ECF No. 401. 4 Bayer seeks to seal the entirety of two exhibits attached to Tevra’s opposition to Bayer’s Motion 5 in Limine No.3. Id. ¶ 2. Bayer writes that the information should be sealed because the 6 documents contain “competitively sensitive business information relating to Bayer’s internal 7 business strategy and practices, including Bayer’s analysis of the flea and tick market and Bayer’s 8 surveying practices and methodology.” Id. ¶ 4. Bayer argues that the portions are narrowly 9 tailored. Id. ¶ 6. 10 Except as noted below, the Court finds that good cause exists to seal the highlighted 11 portions of the document. Kamakana, 447 F.3d at 1179; see Finjan, Inc. v. Proofpoint, Inc., No. 12 13-CV-05808-HSG, 2016 WL 7911651, at *1 (N.D. Cal. Apr. 6, 2016) (finding “technical 13 operation of [defendant’s] products” sealable under “compelling reasons” standard); Exeltis USA 14 Inc. v. First Databank, Inc., No. 17-CV-04810-HSG, 2020 WL 2838812, at *1 (N.D. Cal. June 1, 15 2020) (noting that courts have found “confidential business information” in the form of “business 16 strategies” sealable under the compelling reasons standard.). The Court finds that the request is 17 narrowly tailored. Civ. L.R. 79-5(c)(3). 18 The Court’s ruling is summarized below:

19 ECF or Document Portion(s) to Seal Ruling 20 Exhibit No. ECF 383-1 Exhibit A – Entire exhibit GRANTED as the documents 21 April 30, 2024 contain competitively sensitive Motions in information relating to Bayer’s 22 Limine Email internal business strategy and practices. See ECF No. 401 ¶¶ 4- 23 5. 24 ECF 383-2 Exhibit B – Entire exhibit DENIED as Bayer has not May 31- June 1, demonstrated that the information 25 2024 MIL in the attachment is Filings Email “competitively sensitive,” ECF 26 No. 401 at 4, and the request is not narrowly tailored. 27 1 H. ECF No. 385 2 Bayer filed the Administrative Motion to File under Seal on June 06, 2024. ECF No. 385. 3 Bayer seeks to seal selected portions of their Opposition to Tevra’s Motion in Limine No. 1. ECF 4 No. 385-1. Bayer writes that the information should be sealed because it contains “competitively 5 sensitive business information relating to Bayer’s internal business strategy and practices, 6 including Bayer’s analysis of the flea and tick market and Bayer’s surveying practices and 7 methodology.” Id. ¶ 4. Bayer argues that the portions are narrowly tailored. Id. ¶ 6 8 The Court finds that good cause does not exist to seal the highlighted portions of the 9 document. Kamakana, 447 F.3d at 1179 see Finjan, Inc. v. Proofpoint, Inc., No. 13-CV-05808- 10 HSG, 2016 WL 7911651, at *1 (N.D. Cal. Apr. 6, 2016) (finding “technical operation of 11 [defendant’s] products” sealable under “compelling reasons” standard); Exeltis USA Inc. v. First 12 Databank, Inc., No. 17-CV-04810-HSG, 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020) 13 (noting that courts have found “confidential business information” in the form of “business 14 strategies” sealable under the compelling reasons standard.). The Court’s ruling is summarized 15 below:

16 ECF or Document Portion(s) to Seal Ruling 17 Exhibit No. ECF No. Defendant Highlighted portions at p. 1, DENIED for line 3 as 18 385-3 Bayer lines 3, 4. as it is already publicly disclosed. HealthCare ECF No. 360 at 5:9-10. 19 LLC’s Opposition to DENIED for line 4, as Bayer has 20 Tevra’s Motion not demonstrated that the figure is 21 in Limine No. 1 “competitively sensitive” to Exclude the information. ECF No. 385-1 at 22 Bayer- ¶¶ 4-5. Commissioned 23 Consumer Study (Bayer’s 24 Opposition to 25 Tevra’s Motion in Limine No. 26 1”) 27 2 For the foregoing reasons, IT IS HEREBY ORDERED that: 3 1. ECF No. 366 is GRANTED IN PART AND DENIED IN PART. 4 2. ECF No. 369 is GRANTED. 5 3. ECF No. 375 is GRANTED. 6 4. ECF No. 377 is GRANTED. 7 5. ECF No. 379 is GRANTED. 8 6. ECF No. 381 is GRANTED IN PART AND DENIED IN PART. 9 7. ECF No. 383 is GRANTED IN PART AND DENIED IN PART. 10 8. ECF No. 385 is DENIED. 11 All denials are WITHOUT PREJUDICE. Any refiled administrative motion or declaration 12 || SHALL be filed no later than July 17, 2024. The parties SHALL refile public versions of each 5 13 filing where the redactions and sealing granted by the Court are narrower than what was redacted 14 || inthe current public versions by July 17, 2024, unless they are filing a renewed sealing motion for 3 15 any document in that filing. 2 16

= 17 Dated: June 26, 2024 18 hachien BETH LABSON FREEMAN 19 United States District Judge 20 21 22 23 24 25 26 27 28