Tevra Brands LLC v. Bayer HealthCare LLC

Opinion

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

8 Plaintiff, ORDER GRANTING 9 v. ADMINISTRATIVE MOTIONS

10 BAYER HEALTHCARE LLC, et al., [Re: ECF Nos. 334, 336] 11 Defendants.

12 13 Before the court are two administrative motions filed in connection with two recent 14 hearings: 15 1. Joint Administrative Motion to File Under Seal Portions of March 21, 2024 Summary 16 Judgment Hearing Transcript. ECF No. 334. 17 2. Joint Administrative Motion to File Under Seal Portions of April 18, 2024 Daubert 18 Hearing Transcript. ECF No. 336. 19 For the reasons described below, the administrative motions at are GRANTED. 21 “Historically, courts have recognized a ‘general right to inspect and copy public records 22 and documents, including judicial records and documents.’” Kamakana v. City & Cty. Of 23 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc'ns, Inc., 435 24 U.S. 589, 597 & n.7 (1978)). Accordingly, when considering a sealing request, “a ‘strong 25 presumption in favor of access’ is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto. 26 Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to 27 motions that are “more than tangentially related to the underlying cause of action” bear the burden 1 access and the public policies favoring disclosure. Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 2 1092, 1099 (9th Cir. 2016); Kamakana, 447 F.3d at 1178–79. 3 Records attached to motions that are “not related, or only tangentially related, to the merits 4 of a case,” however, are not subject to the strong presumption of access. Ctr. for Auto Safety, 809 5 F.3d at 1099; see also Kamakana, 447 F.3d at 1179 (“[T]he public has less of a need for access to 6 court records attached only to non-dispositive motions because those documents are often 7 unrelated, or only tangentially related, to the underlying cause of action.”). Parties moving to seal 8 the documents attached to such motions must meet the lower “good cause” standard of Rule 9 26(c). Kamakana, 447 F.3d at 1179 (internal quotations and citations omitted). This standard 10 requires a “particularized showing,” id., that “specific prejudice or harm will result” if the 11 information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 12 1210–11 (9th Cir. 2002); see Fed. R. Civ. P. 26(c). “Broad allegations of harm, unsubstantiated 13 by specific examples of articulated reasoning” will not suffice. Beckman Indus., Inc. v. Int'l Ins. 14 Co., 966 F.2d 470, 476 (9th Cir. 1992). 16 A. ECF No. 334 17 The parties seek to seal selected portions of the March 21, 2024 summary judgment 18 transcript. ECF No. 334 ¶ 7. Bayer writes that the information should be sealed because “[i]f this 19 information were made public, competitors and counterparts would have insight into how Elanco, 20 as successor to Bayer HealthCare LLC, structures its business arrangements, allowing them to 21 modify their own business strategy.” ECF No. 334-1 ¶ 4. Bayer argues that the portions are 22 narrowly tailored. Id. ¶ 6. Tevra writes that the information should be sealed because 23 “[p]ublicizing this information would allow Tevra’s competitors insight into Tevra’s offers to 24 retailers, allowing them to modify their business strategy.” ECF No. 335 ¶ 4. Tevra argues that 25 the portions are narrowly tailored. Id. ¶ 5. 26 The Court finds that compelling reasons exist to seal the highlighted portions of the 27 document. See Finjan, Inc. v. Proofpoint, Inc., No. 13-CV-05808-HSG, 2016 WL 7911651, at *1 1 “compelling reasons” standard); Exeltis USA Inc. v. First Databank, Inc., No. 17-CV-04810-HSG, 2 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020) (noting that courts have found “confidential 3 business information” in the form of “business strategies” sealable under the compelling reasons 4 standard.). The Court also finds that the request is narrowly tailored. 5 The Court’s ruling is summarized below:

6 ECF or Document Portion(s) to Seal Ruling 7 Exhibit No. ECF No. March 21, 2024 Highlighted portions at page Granted, as the portions contain 8 334-4 Summary 55, lines 10, 12, 14, 21-23; confidential and competitively Judgment page 56, lines 8, 10; page 57, sensitive information relating to 9 Hearing line 12; page 59, lines 10-12, the details of Bayer’s retailer Transcript 15, 17, 23; page 60, lines 19- agreements and identity of 10 20; page 61, lines 1-2; page retailers with whom Bayer 11 63, lines 16-18, 22, 24-25; contracts. page 64, lines 1, 3-4; page 12 87, line 24. ECF No. March 21, 2024 Highlighted portions at page Granted, as the portions contain 13 334-4 Summary 60, lines 5, 8. confidential and competitively Judgment sensitive information relating to 14 Hearing Tevra’s pricing arrangements. 15 Transcript 16 B. ECF No. 336 17 The parties seek to seal selected portions of the April 18, 2024 Daubert transcript. ECF 18 No. 336. Bayer writes that the information should be sealed because “[i]f this information were 19 made public, competitors and counterparts would have insight into Bayer’s competitive strategies 20 and business arrangements, allowing them to modify their own business strategy.” Id. at 1. Bayer 21 argues that the portions are narrowly tailored. Id. at 2. Tevra writes that the information should 22 be sealed because “retailers would have insight as to how much Tevra sells and Tevra's position in 23 the market based on the estimate using confidential sales data and could choose to change their 24 future negotiation strategy or order quantities based on this new information.” ECF No. 338 ¶ 7. 25 Tevra argues that the portions are narrowly tailored. Id. at 2. 26 The Court finds that compelling reasons exist to seal the highlighted portions of the 27 document. See Finjan, Inc. v. Proofpoint, Inc., No. 13-CV-05808-HSG, 2016 WL 7911651, at *1 1 “compelling reasons” standard); Exeltis USA Inc. vy. First Databank, Inc., No. 17-CV-04810-HSG, 2 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020) (noting that courts have found “confidential 3 || business information” in the form of “business strategies” sealable under the compelling reasons 4 standard.). The Court also finds that the request is narrowly tailored. 5 The Court’s ruling is summarized below: 6 ECF or Document Portion(s) to Seal Ruling 7 Exhibit No. April 18, 2024 | Highlighted portions at page | Granted, as the portions contain 8 Daubert 26, line 5 and page 52, lines | confidential and competitively Hearing 11-13 sensitive information relating to 9 Transcript Bayer’s retailer and license 10 agreements. April 18, 2024 | Highlighted portions at page | Granted, as the portions contain 11 Daubert 9 line 22; page 23 lines 12- __| highly confidential information Hearing 13; page 31 line 15; page 38 |regarding Tevra’s unit sales data %L Transcript line 16. (page 23), and alleged percent estimates of Tevra’s market share 13 based on confidential past sales 14 data (page 9, 31, 38).

15 || I. ORDER A 16 For the foregoing reasons, IT IS HEREBY ORDERED that:

17 1. ECF No. 334 is GRANTED.

4 18 2. ECF No. 336 is GRANTED. 19 20 || Dated: May 6, 2024

BETH LABSON FREEMAN 22 United States District Judge 23 24 25 26 27 28