1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PLEXXIKON INC., Case No. 17-cv-04405-HSG

8 Plaintiff, ORDER DENYING MOTIONS TO

SEAL

9 v. Re: Dkt. Nos. 344, 390 10 NOVARTIS PHARMACEUTICALS

CORPORATION,

11 Defendant. 12 13 Pending before the Court are Defendant Novartis Pharmaceuticals Corporation’s 14 administrative motions to file under seal portions of documents in connection with its request to 15 file a second motion for summary judgment as well as its objections to the Special Master’s 16 recommendation regarding Plaintiff Plexxikon Inc.’s motion in limine. See Dkt. Nos. 344, 390. 17 For the reasons detailed below, the Court DENIES the motions to file under seal. 18 I. LEGAL STANDARD 19 Courts generally apply a “compelling reasons” standard when considering motions to seal 20 documents. Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010) (quoting Kamakana 21 v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006)). “This standard derives from the 22 common law right ‘to inspect and copy public records and documents, including judicial records 23 and documents.’” Id. (quoting Kamakana, 447 F.3d at 1178). “[A] strong presumption in favor of 24 access is the starting point.” Kamakana, 447 F.3d at 1178 (quotations omitted). To overcome this 25 strong presumption, the party seeking to seal a judicial record attached to a dispositive motion 26 must “articulate compelling reasons supported by specific factual findings that outweigh the 27 general history of access and the public policies favoring disclosure, such as the public interest in 1 omitted). “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in 2 disclosure and justify sealing court records exist when such ‘court files might have become a 3 vehicle for improper purposes,’ such as the use of records to gratify private spite, promote public 4 scandal, circulate libelous statements, or release trade secrets.” Id. at 1179 (quoting Nixon v. 5 Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)). “The mere fact that the production of records 6 may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, 7 without more, compel the court to seal its records.” Id. 8 Civil Local Rule 79-5 supplements the “compelling reasons” standard. The party seeking 9 to file under seal must submit “a request that establishes that the document, or portions thereof, are 10 privileged, protectable as a trade secret or otherwise entitled to protection under the law . . . . The 11 request must be narrowly tailored to seek sealing only of sealable material . . . .” Civil L.R. 79- 12 5(b). Courts have found that “confidential business information” in the form of “license 13 agreements, financial terms, details of confidential licensing negotiations, and business strategies” 14 satisfies the “compelling reasons” standard. See In re Qualcomm Litig., No. 3:17-cv-0108-GPC- 15 MDD, 2017 WL 5176922, at *2 (S.D. Cal. Nov. 8, 2017) (observing that sealing such information 16 “prevent[ed] competitors from gaining insight into the parties’ business model and strategy”); 17 Finisar Corp. v. Nistica, Inc., No. 13-cv-03345-BLF (JSC), 2015 WL 3988132, at *5 (N.D. Cal. 18 June 30, 2015). 19 Records attached to nondispositive motions must meet the lower “good cause” standard of 20 Rule 26(c) of the Federal Rules of Civil Procedure, as such records “are often unrelated, or only 21 tangentially related, to the underlying cause of action.” Id. at 1179–80 (quotations omitted). This 22 requires a “particularized showing” that “specific prejudice or harm will result” if the information 23 is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210–11 (9th 24 Cir. 2002); see also Fed. R. Civ. P. 26(c). “Broad allegations of harm, unsubstantiated by specific 25 examples of articulated reasoning” will not suffice. Beckman Indus., Inc. v. Int’l Ins. Co., 966 26 F.2d 470, 476 (9th Cir. 1992) (quotation omitted). 27 // 1 II. DISCUSSION 2 The Court applies the lower good cause standard for those documents related to 3 Defendant’s request to file a second motion for summary judgment1 and the parties’ motions in 4 limine. 5 As indicated in the table below, the only proffered justification for sealing many of the 6 documents is that the information was designated as “highly confidential” by either Plaintiff or 7 Defendant. But a designation of confidentiality is not sufficient to establish that a document is 8 sealable. See Civ. L. R. 79-5(d)(1)(A). “Confidential” is merely the parties’ initial designation of 9 confidentiality to establish coverage under the stipulated protective order. See Verinata Health, 10 Inc. v. Ariosa Diagnostics, Inc., No. 12-cv-05501-SI, 2015 WL 5117083, at *5 (N.D. Cal. Aug. 11 31, 2015) (“But good cause ‘cannot be established simply by showing that the document is subject 12 to a protective order or by stating in general terms that the material is considered to be 13 confidential’”) (quoting Bain v. AstraZeneca LP, No. 09-cv-4147, 2011 WL 482767, at *1 (N.D. 14 Cal. Feb. 7, 2011)). Thus, many of the parties’ motions do not comply with Civil Local Rule 79- 15 5(d)(1)(A). In addition, in many instances the designating party for the materials did not comply 16 with Civil Local Rule 79-5(e)(1), because they did not file a declaration within four days of the 17 motion. See Civ. L.R. 79-5(e)(1). The Court finds that sealing is not warranted as to those 18 documents. 19 As to the others, Defendant offers nothing more than a conclusory explanation that the 20 documents contain either “highly confidential deposition testimony” or “highly confidential 21 information of Novartis.” See Dkt. No. 390-1. This is insufficient. Critically, Defendant provides 22 no explanation why this information is “highly confidential.” Thus, the Court finds that 23 Defendant has not established good cause to grant the motion to file under seal. 24 // 25 // 26

27 1 The Court further notes that it did not rely the documents that are the subject of Defendant’s 1 Docket No. Document Portion(s) Sought to be Ruling 2 Public /(Sealed) Sealed 3 Dkt. No. 344 – DENIED Dkt. No. 345-2/ Defendant’s Notice of p. 7, ll. 19–28 DENIED 4 (344-4) Motion and Second p. 8, ll. 1–3, 18–26 (No supporting Motion for Summary p. 10, ll. 14–27 declaration filed. See 5 Judgment p. 11, ll. 1–11, 13–23, 25– Civ. L.R. 79-5(e)(1).) 27 6 p. 12, ll. 2–14, 16–28 7 p. 13, ll. 1–17, 18–27 p. 14, ll. 1–6, 9–14, 17–27 8 p. 15, ll. 2–4, 12–16\ p. 19, ll. 26–28 9 p. 21, ll. 22–26 p. 22, ll. 1–2, 5–8 10 Dkt. No. 345-7/ Declaration of Thomas P. Entire Document DENIED 11 (344-5) Steindler In Support of (No supporting Defendant’s Second declaration filed. See 12 Motion for Civ. L.R. 79-5(e)(1).) Summary Judgment, 13 Exhibit C 14 Dkt. No. 345-8/ Declaration of Thomas P. Entire Document DENIED (344-6) Steindler In Support of (No supporting 15 Defendant’s Second declaration filed. See Motion for Civ. L.R. 79-5(e)(1).) 16 Summary Judgment, Exhibit D 17 Dkt. No. 345-10/ Declaration of Thomas P. Entire Document DENIED 18 (344-7) Steindler In Support of (No supporting Defendant’s Second declaration filed. See 19 Motion for Civ. L.R. 79-5(e)(1).) Summary Judgment, 20 Exhibit F Dkt. No. 345-11/ Declaration of Thomas P. Entire Document DENIED 21 (344-8) Steindler In Support of (No supporting 22 Defendant’s Second declaration filed. See Motion for Civ. L.R. 79-5(e)(1).) 23 Summary Judgment, Exhibit G 24 Dkt. No. 345-13/ Declaration of Thomas P. Entire Document DENIED 25 (344-9) Steindler In Support of (No supporting Defendant’s Second declaration filed. See 26 Motion for Civ. L.R. 79-5(e)(1).) Summary Judgment, 27 Exhibit I (344-10) Steindler In Support of (No supporting 1 Defendant’s Second declaration filed. See 2 Motion for Civ. L.R. 79-5(e)(1).) Summary Judgment, 3 Exhibit J Dkt. No. 345-15/ Declaration of Thomas P. Entire Document DENIED 4 (344-11) Steindler In Support of (No supporting Defendant’s Second declaration filed. See 5 Motion for Civ. L.R. 79-5(e)(1).) 6 Summary Judgment, Exhibit K 7 Dkt. No. 345-16/ Declaration of Thomas P. Entire Document DENIED (344-12) Steindler In Support of (No supporting 8 Defendant’s Second declaration filed. See Motion for Civ. L.R. 79-5(e)(1).) 9 Summary Judgment, 10 Exhibit L Dkt. No. 390 – DENIED 11 Dkt. No. 389-8 / Declaration of Thomas P. Entire document DENIED (390-3) Steindler in Support of (Defendant states, in 12 Defendant Novartis conclusory fashion, 13 Pharmaceutical that the document Corporation’s Objections “contains highly 14 To The Special Master’s confidential Report And deposition 15 Recommendation, Ex. testimony.” See Dkt. C-4 No. 390-1. This 16 generic explanation is 17 insufficient to establish good cause.) 18 Dkt. No. 389-14 Declaration of Thomas P. Entire document DENIED / (390-4) Steindler in Support of (Defendant states, in 19 Defendant Novartis conclusory fashion, Pharmaceutical that the document 20 Corporation’s Objections “contains highly 21 To The Special Master’s confidential Report And deposition 22 Recommendation, Ex. testimony.” See Dkt. C-10 No. 390-1. This 23 generic explanation is insufficient to 24 establish good cause.) 25 Dkt. No. 389-15 Declaration of Thomas P. Entire document DENIED / (390-5) Steindler in Support of (Defendant states, in 26 Defendant Novartis conclusory fashion, Pharmaceutical that the document 27 Corporation’s Objections “contains highly Report And information of 1 Recommendation, Ex. Novartis.” See Dkt. 2 C-11 No. 390-1. This generic explanation is 3 insufficient to establish good cause.) 4 Dkt. No. 389-16 Declaration of Thomas P. Entire document DENIED / (390-6) Steindler in Support of (Defendant states, in 5 Defendant Novartis conclusory fashion, 6 Pharmaceutical that the document Corporation’s Objections “contains highly 7 To The Special Master’s confidential Report And information of 8 Recommendation, Ex. Novartis.” See Dkt. C-12 No. 390-1. This 9 generic explanation is 10 insufficient to establish good cause.) 11 Dkt. No. 389-17 Declaration of Thomas P. Entire document DENIED / (390-7) Steindler in Support of (Defendant states, in 12 Defendant Novartis conclusory fashion, Pharmaceutical that the document 13 Corporation’s Objections “contains highly 14 To The Special Master’s confidential Report And information of 15 Recommendation, Ex. Novartis.” See Dkt. C-13 No. 390-1. This 16 generic explanation is 17 insufficient to establish good cause.) 18 Dkt. No. 389-18 Declaration of Thomas P. Entire document DENIED / (390-8) Steindler in Support of (Defendant states, in 19 Defendant Novartis conclusory fashion, Pharmaceutical that the document 20 Corporation’s Objections “contains highly 21 To The Special Master’s confidential Report And deposition 22 Recommendation, Ex. testimony.” See Dkt. C-14 No. 390-1. This 23 generic explanation is insufficient to 24 establish good cause.) 25 Dkt. No. 389-19 Declaration of Thomas P. Entire document DENIED / (390-9) Steindler in Support of (Defendant states, in 26 Defendant Novartis conclusory fashion, Pharmaceutical that the document 27 Corporation’s Objections “contains highly I Report And deposition Recommendation, Ex. testimony.” See Dk 2 C-15 No. 390-1. This generic explanation 3 insufficient to establish good cause 4 Dkt. No. 389-20 | Declaration of Thomas P. | Entire document DENIED 5 / (390-10) Steindler in Support of (Defendant states, ir Defendant Novartis conclusory fashion, 6 Pharmaceutical that the document Corporation’s Objections “contains highly 7 To The Special Master’s confidential Report And deposition 8 Recommendation, Ex. testimony.” See Dk 9 C-16 No. 390-1. This generic explanation 10 insufficient to establish good cause 11 12 Wl. CONCLUSION

13 The Court DENIES the administrative motions to file under seal. The Court DIRECTS

v 14 || the parties to file public versions of all documents for which the proposed sealing has been denied, © 15 as indicated in the chart above, within seven days from the date of this order. 16 IT IS SO ORDERED.

|| Dated: 11/30/2020

Z 18 Alper 3 Sb) 1 HAYWOOD S. GILLIAM, JR. 9 United States District Judge 20 21 22 23 24 25 26 27 28