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 IN PART AND

9 v. DENYING IN PART

ADMINISTRATIVE MOTION TO FILE

10 BAYER HEALTHCARE LLC, et al., UNDER SEAL AT ECF 130 11 Defendants.

12 13 Pursuant to Civil Local Rules 7-11 and 79-5, Plaintiff Tevra Brands, LLC (“Plaintiff” or 14 “Tevra”) moves for administrative relief to file under seal portions of its Brief in Opposition to 15 Defendants’ Motion to Dismiss the First Amended Complaint. ECF 130. 16 I. LEGAL STANDARD 17 “Historically, courts have recognized a ‘general right to inspect and copy public records 18 and documents, including judicial records and documents.’” Kamakana v. City & Cty. Of 19 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 20 U.S. 589, 597 & n. 7 (1978)). Accordingly, when considering a sealing request, “a ‘strong 21 presumption in favor of access’ is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto. 22 Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to 23 motions that are “more than tangentially related to the underlying cause of action” bear the burden 24 of overcoming the presumption with “compelling reasons” that outweigh the general history of 25 access and the public policies favoring disclosure. Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 26 1092, 1099 (9th Cir. 2016); Kamakana, 447 F.3d at 1178–79. 27 However, “while protecting the public’s interest in access to the courts, we must remain 1 their competitive interest.” Apple Inc. v. Samsung Elecs. Co., Ltd., 727 F.3d 1214, 1228–29 (Fed. 2 Cir. 2013). Records attached to motions that are “not related, or only tangentially related, to the 3 merits of a case” therefore are not subject to the strong presumption of access. Ctr. for Auto 4 Safety, 809 F.3d at 1099; see also Kamakana, 447 F.3d at 1179 (“[T]he public has less of a need 5 for access to court records attached only to non-dispositive motions because those documents are 6 often unrelated, or only tangentially related, to the underlying cause of action.”). Parties moving 7 to seal the documents attached to such motions must meet the lower “good cause” standard of 8 Rule 26(c). Kamakana, 447 F.3d at 1179 (internal quotations and citations omitted). This standard 9 requires a “particularized showing,” id., that “specific prejudice or harm will result” if the 10 information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 11 1210–11 (9th Cir. 2002); see Fed. R. Civ. P. 26(c). “Broad allegations of harm, unsubstantiated 12 by specific examples of articulated reasoning” will not suffice. Beckman Indus., Inc. v. Int’l Ins. 13 Co., 966 F.2d 470, 476 (9th Cir. 1992). A protective order sealing the documents during 14 discovery may reflect the court’s previous determination that good cause exists to keep the 15 documents sealed, see Kamakana, 447 F.3d at 1179–80, but a blanket protective order that allows 16 the parties to designate confidential documents does not provide sufficient judicial scrutiny to 17 determine whether each particular document should remain sealed. See Civ. L.R. 79-5(d)(1)(A) 18 (“Reference to a stipulation or protective order that allows a party to designate certain documents 19 as confidential is not sufficient to establish that a document, or portions thereof, are sealable.”). 20 In addition to making particularized showings of good cause, parties moving to seal 21 documents must comply with the procedures established by Civ. L.R. 79-5. Pursuant to Civ. L.R. 22 79-5(b), a sealing order is appropriate only upon a request that establishes the document is 23 “sealable,” or “privileged or protectable as a trade secret or otherwise entitled to protection under 24 the law.” “The request must be narrowly tailored to seek sealing only of sealable material, and 25 must conform with Civil L.R. 79-5(d).” Civ. L.R. 79-5(b). In part, Civ. L.R. 79-5(d) requires the 26 submitting party to attach a “proposed order that is narrowly tailored to seal only the sealable 27 material” which “lists in table format each document or portion thereof that is sought to be 1 highlighting or other clear method, the portions of the document that have been omitted from the 2 redacted version.” Civ. L.R. 79-5(d)(1)(d). “Within 4 days of the filing of the Administrative 3 Motion to File Under Seal, the Designating Party must file a declaration as required by subsection 4 79-5(d)(1)(A) establishing that all of the designated material is sealable.” Civ. L.R. 79-5(e)(1). 5 II. DISCUSSION 6 The Court has reviewed the sealing motion. The basis of Tevra’s request, as detailed in the 7 accompanying Declaration of Daniel D. Owen, is that the information is designated as 8 “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” by Defendant Bayer HealthCare 9 LLC (“Bayer”). See ECF 130-1 at 1-2. Bayer filed a declaration in support of the motion, noting 10 that the information sought to be sealed in Tevra’s motion “contain[s] highly confidential, 11 sensitive business information of Bayer and Bayer’s customers relating to Bayer’s agreements, 12 pricing arrangements with retailers, sales and product strategy, and competitive analysis.” ECF 13 134 at 2. 14 The Court finds that while some of Tevra’s requests are compelling given they implicate 15 Bayer’s financial and business information, some are overbroad or concern information that 16 appears to be publicly available. See Wasito v. City of San Diego, 2019 WL6877554, at *2 (S.D. 17 Cal. Dec. 16, 2019) (denying sealing request as “overbroad” because information appeared to 18 already be publicly available); Krieger v. Atheros Commc'ns, Inc., 2011 WL 2550831, at *1 (N.D. 19 Cal. Jun. 25, 2011) (granting sealing request of “long–term financial projections, discussions of 20 business strategy, and competitive analyses”). The Court’s rulings on the sealing request is set 21 forth in the table below. 22 23 ECF Document to be Result Reasoning No. Sealed: 24 ECF Plaintiff’s Brief in GRANTED as to The request as to the highlighted portions 132 Opposition highlighted portions at at page 6, lines 17-18; page 7, lines 2-3, 5- 25 page 8, lines 6-10, 12- 7, 9-16; page 9, lines 24-27; and page 13, 26 27; page 9, lines 2-10, lines 17-19 is overbroad. The Court notes 12-14, 16-18; and page that the parties had no objection to some 27 10, lines 1, 5-6. of this information being filed publicly in l ECF | Document to be Result Reasoning No. Sealed: DENIED as to ECF 157 (order on motion); ECF 158 3 highlighted portions at | (order requesting redactions on motion). page 6, lines 17-18; 4 page 7, lines 2-3, 5-7, |The remaining highlighted portions 9-16; page 9, lines 24- | contain confidential information relating 5 27; and page 13, lines | to Bayer’s agreements with retailers and 6 17-19. Bayer’s internal financial and business strategies. 4 ECF Exhibits H-X GRANTED as to The sealing request is overbroad as to 132-9- Exhibits H, I, K, L, M, | Exhibit J as it appears to contain publicly 9 25 N, 0, P, Q, R, S, T, U, |available information. See Wasito, 2019 V, W, and X. WL 6877554, at *2. 10 DENIED as to Exhibit |The information in the remaining exhibits 11 J. contains confidential information relating to Bayer’s agreements with retailers and Bayer’s internal financial and business 13 strategies.

15 Ill. ORDER

5 16 For the foregoing reasons, Tevra’s Motion to Seal at ECF 130 is GRANTED IN PART and

3 17. || DENIED IN PART. Tevra is DIRECTED to file its opposition brief and Exhibit J with partial 18 || redactions based on the above guidance. 19 IT IS SO ORDERED. 20 21 || Dated: December 3, 2020 kom Lh ham ty) 22 FN

BETH LABSON FREEMAN

23 United States District Judge 24 25 26 27 28