1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 TEVRA BRANDS LLC, Case No. 19-cv-04312-BLF

8 Plaintiff,

ORDER GRANTING

9 v. ADMINSTRATIVE MOTIONS

10 BAYER HEALTHCARE LLC, et al., [Re: ECF Nos. 428, 430] 11 Defendants.

12 13 Before the court are two administrative motions filed in connection with the parties’ trial 14 briefs: 15 1. Bayer’s Administrative Motion to Consider Whether Another Party’s Material Should 16 Be Sealed. ECF No. 428. 17 2. Tevra’s Administrative Motion to Consider Whether Another Party’s Material Should 18 Be Sealed. ECF No. 430. 19 The Court previously denied both motions without prejudice because the designating 20 parties did not file declarations seeking to seal the information. Since then, both parties have filed 21 declarations. For the reasons described below, the administrative motions at ECF Nos. 428 and 22 430 are GRANTED. 23 I. LEGAL STANDARD 24 “Historically, courts have recognized a ‘general right to inspect and copy public records 25 and documents, including judicial records and documents.’” Kamakana v. City & Cty. Of 26 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc'ns, Inc., 435 27 U.S. 589, 597 & n.7 (1978)). Accordingly, when considering a sealing request, “a ‘strong 1 Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to 2 motions that are “more than tangentially related to the underlying cause of action” bear the burden 3 of overcoming the presumption with “compelling reasons” that outweigh the general history of 4 access and the public policies favoring disclosure. Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 5 1092, 1099 (9th Cir. 2016); Kamakana, 447 F.3d at 1178–79. 6 Records attached to motions that are “not related, or only tangentially related, to the merits 7 of a case,” however, are not subject to the strong presumption of access. Ctr. for Auto Safety, 809 8 F.3d at 1099; see also Kamakana, 447 F.3d at 1179 (“[T]he public has less of a need for access to 9 court records attached only to non-dispositive motions because those documents are often 10 unrelated, or only tangentially related, to the underlying cause of action.”). Parties moving to seal 11 the documents attached to such motions must meet the lower “good cause” standard of Rule 12 26(c). Kamakana, 447 F.3d at 1179 (internal quotations and citations omitted). This standard 13 requires a “particularized showing,” id., that “specific prejudice or harm will result” if the 14 information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 15 1210–11 (9th Cir. 2002); see Fed. R. Civ. P. 26(c). “Broad allegations of harm, unsubstantiated 16 by specific examples of articulated reasoning” will not suffice. Beckman Indus., Inc. v. Int'l Ins. 17 Co., 966 F.2d 470, 476 (9th Cir. 1992). 18 II. DISCUSSION 19 A. ECF No. 428 20 Bayer filed the Administrative Motion to Consider Whether Another Party’s Material 21 Should Be Sealed on July 15, 2024. ECF No. 428. Tevra submitted a declaration seeking to seal 22 selected portions of the trial brief. ECF No. 491. Tevra writes that the information should be 23 sealed because “portions include highly confidential discussions between Tevra and a named 24 retailer Tevra dealt with, profit and loss figures, sales figures, internal discussion regarding 25 competitors, and discussions about products that would otherwise not be available to the public.” 26 Id. ¶ 3. Tevra argues that the portions are narrowly tailored. Id. ¶ 4. 27 The Court finds that compelling reasons exist to seal the highlighted portions of the 1 (N.D. Cal. Apr. 6, 2016) (finding “technical operation of [defendant's] products” sealable under 2 “compelling reasons” standard); Exeltis USA Inc. v. First Databank, Inc., No. 17-CV-04810-HSG, 3 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020) (noting that courts have found “confidential 4 business information” in the form of “business strategies” sealable under the compelling reasons 5 standard.). The Court also finds that the request is narrowly tailored. 6 The Court’s ruling is summarized below: ECF or Document Portion(s) to Seal Ruling 7 Exhibit No. 8 ECF No. Defendant Highlighted portions at Granted, as it contains highly 428-2 Bayer p. 1, lines 12, 15; confidential information regarding profits 9 HealthCare p. 4, lines 20, 22; and losses (p. 1 ), sales figures (p. 1, 4 ), LLC's Trial p. 5, lines 27-28; internal communications regarding 10 Brief p. 6, lines 1-2; competitors and competitive analysis (p. p. 11, lines 15-21; 5, p. 6, p. 11 ), and communications to 11 p. 12, lines 2-13, 16-19. named retailers regarding marketing and 12 Tevra's product (p. 11, p. 12). 13 A. ECF No. 430 14 Tevra filed the Administrative Motion to Consider Whether Another Party’s Material 15 Should Be Sealed on July 15, 2024. ECF No. 430. 16 Bayer submitted a declaration seeking to seal selected portions of the trial brief. ECF No. 17 493. Bayer writes that the information should be sealed because the “highlighted portions of the 18 brief contain highly confidential, sensitive business information relating to Bayer’s customers, 19 marketing strategies, and pricing strategies.” Id. ¶ 3. Bayer argues that the portions are narrowly 20 tailored. Id. ¶ 6. 21 The Court finds that compelling reasons exist to seal the highlighted portions of the 22 document. See Finjan, Inc. v. Proofpoint, Inc., No. 13-CV-05808-HSG, 2016 WL 7911651, at *1 23 (N.D. Cal. Apr. 6, 2016) (finding “technical operation of [defendant's] products” sealable under 24 “compelling reasons” standard); Exeltis USA Inc. v. First Databank, Inc., No. 17-CV-04810-HSG, 25 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020) (noting that courts have found “confidential 26 business information” in the form of “business strategies” sealable under the compelling reasons 27 standard.). The Court also finds that the request is narrowly tailored. I ECF or Document Portion(s) to Seal Ruling Exhibit No. 2 ECF No. |PlaintiffTevra | Highlighted portions at Granted, as it contains confidential 430-2 Brands, LLC’s_ |p. 1, lines 25-26; information relating to Bayer’s 3 Trial Brief p.3, lines 26-27; customers, marketing strategies, and p.4, lines 1-5, 10-16, 26; | pricing strategies. See ECF No. 493 4 p.5, lines 1-7, 19, 21-28 | 493-4. 5 || I. ORDER 6 For the foregoing reasons, IT IS HEREBY ORDERED that: 7 1. ECF No. 428 is GRANTED. 8 2. ECF No. 430 is GRANTED. 9 The parties SHALL refile public versions of each filing where the redactions and sealing 10 || granted by the Court are narrower than what was redacted in the current public versions by 11 September 20, 2024. a 12

13 || Dated: August 22, 2024

_fpwineciian)

B LABSON FREEMAN

15 United States District Judge 16

it

4 18 19 20 21 22 23 24 25 26 27 28