1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 NantKest, Inc. and Brink Biologics, Inc., Case No.: 3:19-cv-1266-L-MSB

11 Plaintiffs,

ORDER:

12 v. (1) GRANTING DEFENDANTS’ 13 Merck KGaA, Merck Serono S.p.A., and

MOTION TO FILE DOCUMENTS

EMD Serono Research & Development 14 UNDER SEAL [Doc. 40] Institute, Inc.,

15 Defendants. (2) GRANTING PLAINTIFFS’ 16 MOTION TO FILE OPPOSITION TO

DEFENDANTS’ MOTION TO

17

DISMISS AND SUPPORTING

18 EXHIBITS UNDER SEAL [Doc. 44]

19 Pending before the Court are Plaintiffs’ and Defendants’ motions to file portions of 20 documents under seal. On July 30, 2019, the Court granted Plaintiffs’ administrative 21 motion to file motion to enjoin and supporting exhibits under seal [Doc. 17] and Plaintiffs’ 22 administrative motion to file Complaint and supporting exhibits under seal [Doc. 19]. In 23 that order, the Court found that public disclosure of these documents might harm 24 Defendant’s competitive standing in its business. See Doc. 27. The Court also found that 25 a particularized showing had been made supporting the necessity of the redactions of 26 portions of the Complaint and supporting exhibits. See id. 27 28 1 Sealing court records implicates the "general right to inspect and copy public records 2 and documents, including judicial records and documents." Nixon v. Warner Commc'ns, 3 Inc., 435 U.S. 589, 597 & n.7 (1978). The lack of opposition to a motion to seal therefore 4 does not automatically resolve it. See Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 5 1128, 1130 & passim (9th Cir. 2003). Aside from “grand jury transcripts and warrant 6 materials in the midst of a pre-indictment investigation,” a strong presumption applies in 7 favor of public access to judicial records. Kamakana v. City and County of Honolulu, 447 8 F.3d 1172, 1178 (9th Cir. 2006). Accordingly, a party seeking to seal a judicial record 9 bears the burden of overcoming the strong presumption of public access by meeting the 10 “compelling reasons” standard. Id. at 1178. Whether a party’s proffered reasons for filing 11 documents under seal are compelling is fact specific and left to the “sound discretion of 12 the trial court.” Nixon v. Warner Comms., Inc., 435 U.S. 589, 599 (1978). If public access 13 to a document might harm a litigant’s competitive standing in its business, the Court has 14 discretion to allow a party to file the document under seal. Id. at 598–99. 15 Here, Defendants seek to file under seal the following: (1) certain exhibits to 16 Defendants’ opposition to Plaintiffs’ motion to enjoin pending AAA Arbitration, (2) 17 portions of Defendants’ opposition to Plaintiffs’ motion to enjoin AAA Arbitration 18 referencing the exhibits, and (3) portions of the declaration of Vanita Sood, Ph.D. in 19 support of Defendants’ opposition which reference the exhibits. See Doc. 40. In their 20 motion, Defendants clearly tie its request to seal portions of exhibits A, D, G, and H to to 21 portions of documents the Court previously ordered to be filed in the July 30, 2019 order. 22 See id. In light of the Court’s July 30, 2019 order redacting the same information and the 23 sustained need for confidentiality of such information, the Court GRANTS Defendants’ 24 motion to file the above-mentioned ortions of documents under seal [Doc. 40]. 25 Also, Plaintiffs seek to file portions of exhibits supporting its opposition to 26 Defendants’ motion to dismiss under seal. See Doc. 44. While Plaintiffs’ motion to seal 27 such documents was bereft of any specificity regarding a compelling interest served by the 28 sealing and that would be harmed by disclosure, the Court finds that a particularized 1 || showing has been made, in the Declaration of Sandra Haberny, supporting the necessity of 2 ||sealing of the portions of the requested documents ((a) Arbitration Demand discussing 3 || specific aspects of the Confidential License Agreement; (b) Amended Arbitration Demand 4 ||discussing specific aspects of the Confidential License Agreement; (c) Confidential 5 || License Agreement; and (d) September 16, 2014 EMD Serono Payment Advice Note). See 6 ||Doc. 44-1. The Court therefore GRANTS Plaintiffs’ administrative motion to file its 7 || opposition to Defendants’ motion to dismiss and supporting exhibits under seal [Doc. 44]. 8 IT IS SO ORDERED. 9 ||Dated: August 13, 2019 L a 11 H6nKY James#orenzH 1D United States District Judge

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