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 GRANTING IN PART AND

DENYING IN PART

9 v. ADMINISTRATIVE MOTIONS TO

SEAL

10 NOVARTIS PHARMACEUTICALS CORPORATION, Re: Dkt. Nos. 499, 539, 542, 583, 596 11 Defendant. 12 13 14 Pending before the Court are Plaintiff Plexxikon Inc.’s administrative motions to file under 15 seal portions of documents in connection with its opposition to Defendant Novartis 16 Pharmaceuticals Corporation’s motion to exclude expert witnesses at trial; trial disputes about the 17 admissibility of evidence; and the parties’ post-trial motions. See Dkt. Nos. 499, 539, 542, 583, 18 596. For the reasons detailed below, the Court DENIES Dkt. Nos. 499, 539, and 542; and 19 GRANTS IN PART and DENIES IN PART Dkt. Nos. 583 and 596. 20 I. LEGAL STANDARD 21 Courts generally apply a “compelling reasons” standard when considering motions to seal 22 documents. Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010) (quoting Kamakana 23 v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006)). “This standard derives from the 24 common law right ‘to inspect and copy public records and documents, including judicial records 25 and documents.’” Id. (quoting Kamakana, 447 F.3d at 1178). “[A] strong presumption in favor of 26 access is the starting point.” Kamakana, 447 F.3d at 1178 (quotations omitted). To overcome this 27 strong presumption, the party seeking to seal a judicial record attached to a dispositive motion 1 general history of access and the public policies favoring disclosure, such as the public interest in 2 understanding the judicial process” and “significant public events.” Id. at 1178–79 (quotations 3 omitted). “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in 4 disclosure and justify sealing court records exist when such ‘court files might have become a 5 vehicle for improper purposes,’ such as the use of records to gratify private spite, promote public 6 scandal, circulate libelous statements, or release trade secrets.” Id. at 1179 (quoting Nixon v. 7 Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)). “The mere fact that the production of records 8 may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, 9 without more, compel the court to seal its records.” Id. 10 Civil Local Rule 79-5 supplements the “compelling reasons” standard. The party seeking 11 to file under seal must submit “a request that establishes that the document, or portions thereof, are 12 privileged, protectable as a trade secret or otherwise entitled to protection under the law . . . . The 13 request must be narrowly tailored to seek sealing only of sealable material . . . .” Civil L.R. 79- 14 5(b). Courts have found that “confidential business information” in the form of “license 15 agreements, financial terms, details of confidential licensing negotiations, and business strategies” 16 satisfies the “compelling reasons” standard. See In re Qualcomm Litig., No. 3:17-cv-0108-GPC- 17 MDD, 2017 WL 5176922, at *2 (S.D. Cal. Nov. 8, 2017) (observing that sealing such information 18 “prevent[ed] competitors from gaining insight into the parties’ business model and strategy”); 19 Finisar Corp. v. Nistica, Inc., No. 13-cv-03345-BLF (JSC), 2015 WL 3988132, at *5 (N.D. Cal. 20 June 30, 2015). 21 Records attached to nondispositive motions must meet the lower “good cause” standard of 22 Rule 26(c) of the Federal Rules of Civil Procedure, as such records “are often unrelated, or only 23 tangentially related, to the underlying cause of action.” Id. at 1179–80 (quotations omitted). This 24 requires a “particularized showing” that “specific prejudice or harm will result” if the information 25 is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210–11 (9th 26 Cir. 2002); see also Fed. R. Civ. P. 26(c). “Broad allegations of harm, unsubstantiated by specific 27 examples of articulated reasoning” will not suffice. Beckman Indus., Inc. v. Int’l Ins. Co., 966 1 II. DISCUSSION 2 As indicated in the table below, the only proffered justification for sealing many of the 3 documents is that Defendant or third parties designated information as “highly confidential.” But 4 a designation of confidentiality is not sufficient to establish that a document is sealable. See Civ. 5 L. R. 79-5(c). “Confidential” is merely the parties’ initial designation of confidentiality to 6 establish coverage under the stipulated protective order. See Verinata Health, Inc. v. Ariosa 7 Diagnostics, Inc., No. 12-cv-05501-SI, 2015 WL 5117083, at *5 (N.D. Cal. Aug. 31, 2015) (“But 8 good cause ‘cannot be established simply by showing that the document is subject to a protective 9 order or by stating in general terms that the material is considered to be confidential’”) (quoting 10 Bain v. AstraZeneca LP, No. 09-cv-4147, 2011 WL 482767, at *1 (N.D. Cal. Feb. 7, 2011)). 11 Thus, in many instances the designating party for the materials did not comply with Civil Local 12 Rule 79-5(f)(3), because they did not file a declaration within seven days of the motion. The 13 Court therefore finds that sealing is not warranted as to those documents. 14 Plaintiff also seeks to file under seal portions of documents and exhibits that the Court has 15 previously found sealable. The Court adopts the rationale it articulated earlier in finding these 16 materials sealable, and grants the motions to seal as to these documents. 17 Lastly, third parties GlaxoSmithKline PLC and GlaxoSmithKline LLC seek to seal 18 portions of documents that reference confidential and proprietary business, pharmaceutical 19 research and development, and licensing information. The Court finds that GSK has established 20 compelling reasons to seal these documents, as detailed in the chart below. The public release of 21 these documents could give non-party competitors an unfair advantage in the development, 22 marketing, or licensing of rival products. See In re Elec. Arts, Inc., 298 F. App’x 568, 569 (9th 23 Cir. 2008) (ordering sealing where documents could be used “‘as sources of business information 24 that might harm a litigant’s competitive standing’”) (quoting Nixon, 435 U.S. at 598). 25 // 26 // 27 // 1 Docket No. Document Portion(s) Sought to be Ruling 2 Public /(Sealed) Sealed 3 Dkt. No. 499 – DENIED Dkt. No. 497/ Plexxikon’s Opposition to p. 2:9–10 DENIED 4 (499-4) Novartis’s Motion to p. 4:10–16 (No supporting Preclude Plexxikon from p. 5:7–11 declaration filed. See 5 Calling Dr. Zuosheng Liu Civ. L.R. 79-5(f)(3).) as a Witness at Trial 6 Dkt. No. 539 – DENIED 7 Dkt. No. 538 / July 13, 2021 Joint p. 2:26–28, & n.1 DENIED (539-2) Statement Regarding p. 3:10 (No supporting 8 Evidence of GSK’s p. 5:2–3, 15–20 declaration filed. See Use of Plexxikon Work Civ. L.R. 79-5(f)(3).) 9 and of GSK’s Patents 10 Dkt. No. 538-3 / Exhibit 2 to the Entire Document DENIED (539-4) Declaration of (No supporting 11 Daralyn J. Durie in declaration filed. See Support of July 13, 2021 Civ. L.R. 79-5(f)(3).) 12 Joint Statement Regarding Evidence of 13 GSK’s Use of Plexxikon 14 Work and of GSK’s Patents 15 Dkt. No. 542 – DENIED Dkt. No. 543 / Plaintiff Plexxikon, Inc.’s p. 2:15–17, 26–28, & n.2 DENIED 16 (542-4) Response to Novartis’s p. 3:17–18, 25–27, & n.3 (No supporting Proffer of Testimony of declaration filed. See 17 Dr. Tara Rheault Civ. L.R. 79-5(f)(3).) 18 Dkt. No. 543-3, Exhibits 2 and 3 to the Entire Documents DENIED 543-4 / Declaration of Daralyn J. (No supporting 19 (542-5, 542-6) Durie in Support of declaration filed. See Plaintiff Plexxikon, Inc.’s Civ. L.R. 79-5(f)(3).) 20 Response to Novartis’s Proffer of Testimony of 21 Dr. Tara Rheault Dkt. No. 583 – GRANTED IN PART and DENIED IN PART 22 Dkt. No. 585 / Plaintiff Plexxikon, Inc.’s p. 3:22–25 GRANTED IN (583-4) Motion for Enhanced p. 7:3, 5–7 PART AND 23 Damages p. 17:16–23 DENIED IN PART (The following 24 excerpts disclose 25 proprietary pharmaceutical 26 research and development, and 27 licensing information: • p. 17:16–23 1 See Dkt. No. 588.) 2 Dkt. No. 585-11 Exhibit 10 to the Entire Document DENIED / (583-6) Declaration of Hannah (No supporting 3 Jiam in Support of declaration filed. See Plaintiff Plexxikon, Inc.’s Civ. L.R. 79-5(f)(3).) 4 Motion for Enhanced Damages 5 Dkt. No. 585-13 Exhibit 12 Declaration of p. 1:9–10 GRANTED 6 / (583-8) Hannah Jiam In Support p. 2:6–9 (Previously sealed by of Plaintiff Plexxikon, p. 3:16–20, 22–25 Court order. See Dkt. 7 Inc.’s Motion For p. 4:2–7, 11–12, 27–28 No. 386 at 38.) Enhanced Damages p. 5:1, 7–9, 12–27 8 p. 6:4–7, 13–15, 17–28 9 p. 7:1–2, 5–25, 27–28 p. 8:1–6, 15–17; 10 p. 9:20–25, 27–28 p. 10:1–10, 18–22 11 p. 12:26–28 p. 13:1–8, 11–13 12 p. 14:2–3, 11–15 13 p. 15:6, 14, 19 Dkt. No. 585-14 Exhibit 13 to the Entire Document GRANTED 14 / (583-10) Declaration of Hannah (Previously sealed by Jiam In Support of Court order. See Dkt. 15 Plaintiff Plexxikon, Inc.’s No. 386 at 29–30.) Motion for Enhanced 16 Damages 17 Dkt. No. 585-24 Exhibit 23 to the Entire Document DENIED / (583-12) Declaration of Hannah (No supporting 18 Jiam In Support of declaration filed. See Plaintiff Plexxikon, Inc.’s Civ. L.R. 79-5(f)(3).) 19 Motion for Enhanced Damages 20 Dkt. No. 585-28 Exhibit 27 to the Entire Document DENIED 21 / (583-14) Declaration of Hannah (No supporting Jiam In Support of declaration filed. See 22 Plaintiff Plexxikon, Inc.’s Civ. L.R. 79-5(f)(3).) Motion For Enhanced 23 Damages Dkt. No. 596 – GRANTED IN PART and DENIED IN PART 24 Dkt. No. 598-4 / Exhibit 3 to the p. 16:16–24 DENIED (596-4) Declaration of Eugene (No supporting 25 Novikov in Support of declaration filed. See Plaintiff Plexxikon, Inc.’s Civ. L.R. 79-5(f)(3).) 26 Opposition to Novartis’ 27 Motion for Judgment as a Matter of Law, New Trial, I to Federal Rules of Civil Procedure 50 and 59 2 Dkt. No. 598-4/ | Exhibit 3 to the p. 12, n.6 GRANTED (596-4) Declaration of Eugene p. 21:26-27 (The excerpts contai 3 Novikov in Support of proprietary Plaintiff Plexxikon, Inc.’s pharmaceutical 4 Opposition to Novartis’ research and 5 Motion for Judgment as a development Matter of Law, New Trial, information. See □□ 6 and/or Remittur Pursuant No. 601.) to Federal Rules of Civil 7 Procedure 50 and 59 8 9 || I. CONCLUSION 10 The Court DENIES Dkt. Nos. 499, 539, and 542; and GRANTS IN PART and DENIES ll IN PART Dkt. Nos. 583 and 596. Pursuant to Civil Local Rule 79-5(g)(1), documents filed under a 12 seal as to which the administrative motions are granted will remain under seal. The Court

13 DIRECTS the parties to file public versions of all documents for which the proposed sealing has

v 14 been denied, as indicated in the chart above, within seven days from the date of this order. ©

IT IS SO ORDERED.

16 || Dated: 3/31/2022

HAYWOOD S. GILLIAM, JR.

Z 18 United States District Judge 19 20 21 22 23 24 25 26 27 28