1 2 6 7 TEVRA BRANDS LLC, Case No. 19-cv-04312-BLF
8 Plaintiff, ORDER GRANTING 9 v. ADMINSTRATIVE MOTION TO SEAL
10 BAYER HEALTHCARE LLC, et al., [Re: ECF No. 496] 11 Defendants.
12 13 Before the court is Bayer’s Administrative Motion to Seal. ECF No. 496. For the reasons 14 described below, the administrative motion is GRANTED. 16 “Historically, courts have recognized a ‘general right to inspect and copy public records 17 and documents, including judicial records and documents.’” Kamakana v. City & Cty. Of 18 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc'ns, Inc., 435 19 U.S. 589, 597 & n.7 (1978)). Accordingly, when considering a sealing request, “a ‘strong 20 presumption in favor of access’ is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto. 21 Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to 22 motions that are “more than tangentially related to the underlying cause of action” bear the burden 23 of overcoming the presumption with “compelling reasons” that outweigh the general history of 24 access and the public policies favoring disclosure. Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 25 1092, 1099 (9th Cir. 2016); Kamakana, 447 F.3d at 1178–79. 26 Records attached to motions that are “not related, or only tangentially related, to the merits 27 of a case,” however, are not subject to the strong presumption of access. Ctr. for Auto Safety, 809 1 court records attached only to non-dispositive motions because those documents are often 2 unrelated, or only tangentially related, to the underlying cause of action.”). Parties moving to seal 3 the documents attached to such motions must meet the lower “good cause” standard of Rule 4 26(c). Kamakana, 447 F.3d at 1179 (internal quotations and citations omitted). This standard 5 requires a “particularized showing,” id., that “specific prejudice or harm will result” if the 6 information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 7 1210–11 (9th Cir. 2002); see Fed. R. Civ. P. 26(c). “Broad allegations of harm, unsubstantiated 8 by specific examples of articulated reasoning” will not suffice. Beckman Indus., Inc. v. Int'l Ins. 9 Co., 966 F.2d 470, 476 (9th Cir. 1992). 11 Bayer filed the Administrative Motion to Seal on August 19, 2024. ECF No. 496; ECF 12 No. 496-1 (“Boshkoff Decl.”). Bayer writes that the information should be sealed because the 13 “These portions of the admitted exhibits contain highly confidential, sensitive business 14 information relating to Bayer’s internal sales, marketing, and pricing strategies and agreements 15 with retailers and distributors. If this information were made public, competitors and counterparts 16 would have insight into how Elanco, as successor to Bayer HealthCare LLC, structures its 17 business arrangements, allowing them to modify their own business strategy.” Boshkoff Decl. ¶ 3. 18 Bayer argues that the portions are narrowly tailored. Id. ¶ 6. 19 The Court finds that compelling reasons exist to seal the highlighted portions of the 20 document. See Finjan, Inc. v. Proofpoint, Inc., No. 13-CV-05808-HSG, 2016 WL 7911651, at *1 21 (N.D. Cal. Apr. 6, 2016) (finding “technical operation of [defendant's] products” sealable under 22 “compelling reasons” standard); Exeltis USA Inc. v. First Databank, Inc., No. 17-CV-04810-HSG, 23 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020) (noting that courts have found “confidential 24 business information” in the form of “business strategies” sealable under the compelling reasons 25 standard.). The Court also finds that the request is narrowly tailored. 26 The Court’s ruling is summarized below: 27 \\ Trial Document Portion(s) to Seal Ruling 1 Ex. No. 2 3 Trial Exhibit 3: 2017 Document in Granted, as it contains confidential Wave 2 Pet Owner – entirety information relating to Bayer’s 3 Awareness & Usage marketing strategies and survey DRAFT Report methods. See Boshkoff Decl. ¶¶ 3-4. 4 10 Trial Exhibit 10: Petco Highlighted portions Granted, as it contains confidential 2016-2018 Retailer information relating to Bayer’s 5 Agreement agreements with retailers. See Boshkoff Decl. ¶¶ 3-4. 6 28 Trial Exhibit 28: Highlighted portion Granted, as it contains confidential 7 Bayer email to information relating to Bayer’s PetSmart agreements with retailers. See 8 Boshkoff Decl. ¶¶ 3-4. 33 Trial Exhibit 33: 2017 Document in Granted, as it contains confidential 9 Wave 1 Pet Owner – entirety information relating to Bayer’s Awareness & Usage marketing strategies and survey 10 FINAL Report methods. See Boshkoff Decl. ¶¶ 3-4. 42 Trial Exhibit 42: Pet Document in Granted, as it contains confidential 11 Owner Awareness & entirety information relating to Bayer’s 12 Usage Presentation – marketing strategies and survey Wave 2 2016 IPSOS methods. See Boshkoff Decl. ¶¶ 3-4. 13 Animal Health 47 Trial Exhibit 47: Pet Document in Granted, as it contains confidential 14 Insight 2019 Pet Owner entirety information relating to Bayer’s Awareness & Usage marketing strategies and survey 15 Study methods. See Boshkoff Decl. ¶¶ 3-4. 50 Trial Exhibit 50: Highlighted portions Granted, as it contains confidential 16 Management Approval on pp.1 and 4-7 information relating to Bayer’s Form agreements with retailers and sales 17 strategy. See Boshkoff Decl. ¶¶ 3-4. 18 65 Trial Exhibit 65: 2016 Document in Granted, as it contains confidential Brand Plans entirety information relating to Bayer’s 19 Presentation marketing and sales strategies. See Boshkoff Decl. ¶¶ 3-4. 20 66 Trial Exhibit 66: Highlighted portions Granted, as it contains confidential Global Integrated at pp.2-7 information relating to Bayer’s 21 Communication marketing and sales strategies. See Concept Briefing Boshkoff Decl. ¶¶ 3-4. 22 69 Trial Exhibit 69: 2018 Document in Granted, as it contains confidential Pet Owner Awareness entirety information relating to Bayer’s 23 & Usage Study – Dog marketing strategies and survey 24 Report methods. See Boshkoff Decl. ¶¶ 3-4. 78 Trial Exhibit 78: Document in Granted, as it contains confidential 25 Willingness to Pay entirety information relating to Bayer’s Study pricing strategies and survey 26 methods. See Boshkoff Decl. ¶¶ 3-4. 79 Trial Exhibit 79: 2019 Document in Granted, as it contains confidential 27 Brand + Competitive entirety information relating to Bayer’s Trial Document Portion(s) to Seal Ruling 1 Ex. No. 2 92 Trial Exhibit 92: Highlighted portions Granted, as it contains confidential 30(b)(6) Stipulation on pp.1-7 and information relating to Bayer’s 3 Exhibits A, B agreements with retailers and distributors. See Boshkoff Decl. ¶¶ 3- 4 4. 194 Trial Exhibit 194: Document in Granted, as it contains confidential 5 Pricing Strategy entirety information relating to Bayer’s Workshop United pricing strategies and survey 6 States methods. See Boshkoff Decl. ¶¶ 3-4. 7 195 Trial Exhibit 195: Highlighted portions Granted, as it contains confidential PetSmart Presentation at pp.2-3, 8-12 information relating to Bayer’s 8 agreements with retailers and sales strategy. See Boshkoff Decl. ¶¶ 3-4. 9 196 Trial Exhibit 196: Document in Granted, as it contains confidential PetSmart Planogram entirety information of a retailer. See 10 Boshkoff Decl. ¶¶ 3-4. 11 213 Trial Exhibit 213: Highlighted portions Granted, as it contains confidential Petco Marketing at pp.1-5, 7, 9 information relating to Bayer’s 12 Agreement agreements with retailers. See Boshkoff Decl. ¶¶ 3-4.
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1 2 6 7 TEVRA BRANDS LLC, Case No. 19-cv-04312-BLF
8 Plaintiff, ORDER GRANTING 9 v. ADMINSTRATIVE MOTION TO SEAL
10 BAYER HEALTHCARE LLC, et al., [Re: ECF No. 496] 11 Defendants.
12 13 Before the court is Bayer’s Administrative Motion to Seal. ECF No. 496. For the reasons 14 described below, the administrative motion is GRANTED. 16 “Historically, courts have recognized a ‘general right to inspect and copy public records 17 and documents, including judicial records and documents.’” Kamakana v. City & Cty. Of 18 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc'ns, Inc., 435 19 U.S. 589, 597 & n.7 (1978)). Accordingly, when considering a sealing request, “a ‘strong 20 presumption in favor of access’ is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto. 21 Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to 22 motions that are “more than tangentially related to the underlying cause of action” bear the burden 23 of overcoming the presumption with “compelling reasons” that outweigh the general history of 24 access and the public policies favoring disclosure. Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 25 1092, 1099 (9th Cir. 2016); Kamakana, 447 F.3d at 1178–79. 26 Records attached to motions that are “not related, or only tangentially related, to the merits 27 of a case,” however, are not subject to the strong presumption of access. Ctr. for Auto Safety, 809 1 court records attached only to non-dispositive motions because those documents are often 2 unrelated, or only tangentially related, to the underlying cause of action.”). Parties moving to seal 3 the documents attached to such motions must meet the lower “good cause” standard of Rule 4 26(c). Kamakana, 447 F.3d at 1179 (internal quotations and citations omitted). This standard 5 requires a “particularized showing,” id., that “specific prejudice or harm will result” if the 6 information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 7 1210–11 (9th Cir. 2002); see Fed. R. Civ. P. 26(c). “Broad allegations of harm, unsubstantiated 8 by specific examples of articulated reasoning” will not suffice. Beckman Indus., Inc. v. Int'l Ins. 9 Co., 966 F.2d 470, 476 (9th Cir. 1992). 11 Bayer filed the Administrative Motion to Seal on August 19, 2024. ECF No. 496; ECF 12 No. 496-1 (“Boshkoff Decl.”). Bayer writes that the information should be sealed because the 13 “These portions of the admitted exhibits contain highly confidential, sensitive business 14 information relating to Bayer’s internal sales, marketing, and pricing strategies and agreements 15 with retailers and distributors. If this information were made public, competitors and counterparts 16 would have insight into how Elanco, as successor to Bayer HealthCare LLC, structures its 17 business arrangements, allowing them to modify their own business strategy.” Boshkoff Decl. ¶ 3. 18 Bayer argues that the portions are narrowly tailored. Id. ¶ 6. 19 The Court finds that compelling reasons exist to seal the highlighted portions of the 20 document. See Finjan, Inc. v. Proofpoint, Inc., No. 13-CV-05808-HSG, 2016 WL 7911651, at *1 21 (N.D. Cal. Apr. 6, 2016) (finding “technical operation of [defendant's] products” sealable under 22 “compelling reasons” standard); Exeltis USA Inc. v. First Databank, Inc., No. 17-CV-04810-HSG, 23 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020) (noting that courts have found “confidential 24 business information” in the form of “business strategies” sealable under the compelling reasons 25 standard.). The Court also finds that the request is narrowly tailored. 26 The Court’s ruling is summarized below: 27 \\ Trial Document Portion(s) to Seal Ruling 1 Ex. No. 2 3 Trial Exhibit 3: 2017 Document in Granted, as it contains confidential Wave 2 Pet Owner – entirety information relating to Bayer’s 3 Awareness & Usage marketing strategies and survey DRAFT Report methods. See Boshkoff Decl. ¶¶ 3-4. 4 10 Trial Exhibit 10: Petco Highlighted portions Granted, as it contains confidential 2016-2018 Retailer information relating to Bayer’s 5 Agreement agreements with retailers. See Boshkoff Decl. ¶¶ 3-4. 6 28 Trial Exhibit 28: Highlighted portion Granted, as it contains confidential 7 Bayer email to information relating to Bayer’s PetSmart agreements with retailers. See 8 Boshkoff Decl. ¶¶ 3-4. 33 Trial Exhibit 33: 2017 Document in Granted, as it contains confidential 9 Wave 1 Pet Owner – entirety information relating to Bayer’s Awareness & Usage marketing strategies and survey 10 FINAL Report methods. See Boshkoff Decl. ¶¶ 3-4. 42 Trial Exhibit 42: Pet Document in Granted, as it contains confidential 11 Owner Awareness & entirety information relating to Bayer’s 12 Usage Presentation – marketing strategies and survey Wave 2 2016 IPSOS methods. See Boshkoff Decl. ¶¶ 3-4. 13 Animal Health 47 Trial Exhibit 47: Pet Document in Granted, as it contains confidential 14 Insight 2019 Pet Owner entirety information relating to Bayer’s Awareness & Usage marketing strategies and survey 15 Study methods. See Boshkoff Decl. ¶¶ 3-4. 50 Trial Exhibit 50: Highlighted portions Granted, as it contains confidential 16 Management Approval on pp.1 and 4-7 information relating to Bayer’s Form agreements with retailers and sales 17 strategy. See Boshkoff Decl. ¶¶ 3-4. 18 65 Trial Exhibit 65: 2016 Document in Granted, as it contains confidential Brand Plans entirety information relating to Bayer’s 19 Presentation marketing and sales strategies. See Boshkoff Decl. ¶¶ 3-4. 20 66 Trial Exhibit 66: Highlighted portions Granted, as it contains confidential Global Integrated at pp.2-7 information relating to Bayer’s 21 Communication marketing and sales strategies. See Concept Briefing Boshkoff Decl. ¶¶ 3-4. 22 69 Trial Exhibit 69: 2018 Document in Granted, as it contains confidential Pet Owner Awareness entirety information relating to Bayer’s 23 & Usage Study – Dog marketing strategies and survey 24 Report methods. See Boshkoff Decl. ¶¶ 3-4. 78 Trial Exhibit 78: Document in Granted, as it contains confidential 25 Willingness to Pay entirety information relating to Bayer’s Study pricing strategies and survey 26 methods. See Boshkoff Decl. ¶¶ 3-4. 79 Trial Exhibit 79: 2019 Document in Granted, as it contains confidential 27 Brand + Competitive entirety information relating to Bayer’s Trial Document Portion(s) to Seal Ruling 1 Ex. No. 2 92 Trial Exhibit 92: Highlighted portions Granted, as it contains confidential 30(b)(6) Stipulation on pp.1-7 and information relating to Bayer’s 3 Exhibits A, B agreements with retailers and distributors. See Boshkoff Decl. ¶¶ 3- 4 4. 194 Trial Exhibit 194: Document in Granted, as it contains confidential 5 Pricing Strategy entirety information relating to Bayer’s Workshop United pricing strategies and survey 6 States methods. See Boshkoff Decl. ¶¶ 3-4. 7 195 Trial Exhibit 195: Highlighted portions Granted, as it contains confidential PetSmart Presentation at pp.2-3, 8-12 information relating to Bayer’s 8 agreements with retailers and sales strategy. See Boshkoff Decl. ¶¶ 3-4. 9 196 Trial Exhibit 196: Document in Granted, as it contains confidential PetSmart Planogram entirety information of a retailer. See 10 Boshkoff Decl. ¶¶ 3-4. 11 213 Trial Exhibit 213: Highlighted portions Granted, as it contains confidential Petco Marketing at pp.1-5, 7, 9 information relating to Bayer’s 12 Agreement agreements with retailers. See Boshkoff Decl. ¶¶ 3-4. 13 514 Trial Exhibit 514: Highlighted portions Granted, as it contains confidential March 2017 Global at pp. 1-2, 11-18, 20, information relating to Bayer’s 14 Brand Team 22-29, 31-34, and 37 marketing, sales, and pricing 15 Presentation strategies. See Boshkoff Decl. ¶¶ 3-4. 1003 Trial Exhibit 1003: Document in Granted, as it contains confidential 16 Bayer Antitrust entirety information regarding Bayer’s legal Compliance Policy policies. See Boshkoff Decl. ¶¶ 3-4. 17 1004 Trial Exhibit 1004: Document in Granted, as it contains confidential 18 Bayer Email Thread Re entirety information relating to Bayer’s KAM Round Table marketing and sales strategies. See 19 Boshkoff Decl. ¶¶ 3-4. 1005 Trial Exhibit 1005: Highlighted portions Granted, as it contains confidential 20 Bayer Email Thread Re information relating to Bayer’s Advantage Generic distribution strategy. See Boshkoff 21 Talking Points Decl. ¶¶ 3-4. 1012 Trial Exhibit 1012: Highlighted portions Granted, as it contains confidential 22 Bayer Email Thread Re information relating to Bayer’s 23 Frontline Market Share marketing and sales strategies. See Data Boshkoff Decl. ¶¶ 3-4. 24 1014 Trial Exhibit 1014: Highlighted portions Granted, as it contains confidential Bayer Email Thread Re information relating to Bayer’s 25 Frontline Market Share marketing and sales strategies. See Data Boshkoff Decl. ¶¶ 3-4. 26 1028 Trial Exhibit 1028: Highlighted portions Granted, as it contains confidential Bayer Email Thread Re at pp. 2-6 information relating to Bayer’s 27 DefenseCare marketing and sales strategies. See Trial Document Portion(s) to Seal Ruling 1 Ex. No. 2 1029 Trial Exhibit 1029: Highlighted portions Granted, as it contains confidential Distributor Retail at pp. 2-3, 7-8, 11, information relating to Bayer’s 3 Summit Deck 13 distribution strategy. See Boshkoff Decl. ¶¶ 3-4. 4 1043 Trial Exhibit 1043: Highlighted portions Granted, as it contains confidential Bayer Email Thread Re information relating to Bayer’s 5 Phillips Advertisement pricing and sales strategies. See Boshkoff Decl. ¶¶ 3-4. 6 1055 Trial Exhibit 1055: Document in Granted, as it contains confidential 7 Bayer Email Thread entirety information relating to Bayer’s with Drs. Foster & agreements with retailers and sales 8 Smith strategy. See Boshkoff Decl. ¶¶ 3-4. 1056 Trial Exhibit 1056: Document in Granted, as it contains confidential 9 Bayer Email Thread entirety information relating to Bayer’s with Drs. Foster & agreements with retailers and sales 10 Smith strategy. See Boshkoff Decl. ¶¶ 3-4. 1057 Trial Exhibit 1057: Document in Granted, as it contains confidential 11 Bayer Email Thread entirety information relating to Bayer’s with Petco agreements with retailers and sales 12 strategy. See Boshkoff Decl. ¶¶ 3-4. 13 1058 Trial Exhibit 1058: Highlighted portions Granted, as it contains confidential Bayer Email Thread Re information relating to Bayer’s 14 Email to Petco Re agreements with retailers. See Bayer Terms Updates Boshkoff Decl. ¶¶ 3-4. 15 1067 Trial Exhibit 1067: Document in Granted, as it contains confidential Bayer 2016 entirety information relating to Bayer’s 16 Presentation to Petco agreements with retailers and sales strategy. See Boshkoff Decl. ¶¶ 3-4. 17 1069 Trial Exhibit 1069: Document in Granted, as it contains confidential Bayer 2016 entirety information relating to Bayer’s 18 Presentation to agreements with retailers and sales 19 PetSmart strategy. See Boshkoff Decl. ¶¶ 3-4. 1073 Trial Exhibit 1073: Highlighted portions Granted, as it contains confidential 20 Bayer Email Thread Re information relating to Bayer’s Drs. Foster & Smith agreements and discussions with 21 Meeting Agenda retailers. See Boshkoff Decl. ¶¶ 3-4. 1082 Trial Exhibit 1082: Highlighted portions Granted, as it contains confidential 22 2018-2020 Animal information relating to Bayer’s Supply Co. Distribution agreements with distributors. See 23 Agreement Boshkoff Decl. ¶¶ 3-4. 24 1083 Trial Exhibit 1083: Highlighted portions Granted, as it contains confidential Bayer Email Thread Re information relating to Bayer’s 25 Retailer Acceptance of agreements with retailers. See Imidacloprid Boshkoff Decl. ¶¶ 3-4. 26 Exclusivity Discount 1084 Trial Exhibit 1084: Highlighted portions Granted, as it contains confidential 27 Drs. Foster & Smith information relating to Bayer’s I Trial Document Portion(s) to Seal Ruling Ex. No. 2 1086 Trial Exhibit 1086: Highlighted portions | Granted, as it contains confidential Petco Presentation at pp. 3-4, 6-9, 15, information relating to Bayer’s 3 18 agreements with retailers and sales strategy. See Boshkoff Decl. 9 3-4. 4 1414 Trial Exhibit 1414: Document in Granted, as it contains confidential Bayer Spreadsheet re entirety information relating to Bayer’s 5 DefenseCare marketing and sales strategies. See 6 Boshkoff Decl. {fj 3-4. 1426 Trial Exhibit 1426: Document in Granted, as it contains confidential 7 Distributor Retail entirety information relating to Bayer’s Summit Presentation distribution strategy. See Boshkoff 8 Decl. {| 3-4. 9 10 || i. ~=ORDER 11 For the foregoing reasons, IT IS HEREBY ORDERED that the administrative motion to 12 | seal at ECF No. 496 is GRANTED.
14 Dated: August 26, 2024 15 AlwWlhccnan 6 BETH LABSON FREEMAN a United States District Judge
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