1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, ex rel. Case No.: 19-CV-1199 TWR (WVG) 3729, LLC, 12

ORDER GRANTING DEFENDANTS’

Plaintiff and Relator, 13 MOTION TO FILE DOCUMENT v. UNDER SEAL IN SUPPORT OF 14

THEIR MOTION TO DISMISS

EXPRESS SCRIPTS HOLDING

15 COMPANY and EXPRESS SCRIPTS, (ECF Nos. 56, 59) 16 INC.; 17 Defendants. 18

19 Presently before the Court is Defendants Express Scripts Holding Company and 20 Express Scripts, Inc.’s Motion to File Document Under Seal in Support of Their Motion to 21 Dismiss (“Mot. to Seal,” ECF No. 56). It is unclear whether Defendants met and conferred 22 with Plaintiff-Relator 3729, LLC as required under Section III.A.1 of the undersigned’s 23 Standing Order for Civil Cases or whether Relator opposes the Motion to Seal. In the 24 future, the Court may summarily deny a motion that fails to comply with these 25 requirements. 26 “[T]he courts of this country recognize a general right to inspect and copy public 27 records and documents, including judicial records and documents.” Nixon v. Warner 28 Commc'ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one 1 ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” 2 Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz 3 v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). A party seeking 4 to seal a judicial record bears the burden of overcoming this strong presumption. Foltz, 5 331 F.3d at 1135. The showing required to meet this burden depends upon whether the 6 documents to be sealed relate to a motion that is “more than tangentially related to the 7 merits of the case.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1102 (9th 8 Cir. 2016). Where the underlying motion is more than tangentially related to the merits of 9 the case, the stringent “compelling reasons” standard applies. Id. at 1096–98. Where the 10 underlying motion does not surpass the tangential relevance threshold, the less exacting 11 “good cause” standard applies. Id. The decision to seal documents is “one best left to the 12 sound discretion of the trial court” upon consideration of “the relevant facts and 13 circumstances of the particular case.” Nixon, 435 U.S. at 599. 14 As Defendants acknowledge, (see Mot. to Seal at 1), the more stringent “compelling 15 reasons” standard applies where the underlying motion is brought pursuant to Federal Rule 16 of Civil Procedure 12(b)(6). See, e.g., Black v. City of Blythe, 562 F. Supp. 3d 820, 828 17 (C.D. Cal. 2022) (applying “compelling reasons” standard to document sought to be sealed 18 in support of Rule 12(b)(6) motion). Here, Defendants seek to file under seal Exhibit F in 19 support of their Motion to Dismiss, which is “an email exchange between [Express Scripts, 20 Inc.] and the Defense Health Agency (“DHA”), which is a component of the Department 21 of Defense (“DoD”), regarding a new article’s coverage of the DoD Inspector General’s 22 2013 audit and report of the TRICARE pharmacy program.” (See Mot. to Seal at 1; see 23 also generally ECF No. 57 (lodged proposed sealed document).) According to 24 Defendants, compelling reasons exist to file this document under seal because “[p]ublic 25 disclosure of this document would reveal details regarding the business operations of the 26 government and its administration of its contract with ESI.” (See Mot. to Seal at 1 (citing 27 Doe v. Camp Pendleton & Quantico Housing LLC, No. 20-cv-224-GPC-AHG, 2020 WL 28 1890576, at *3 n.1 (S.D. Cal. Apr. 16, 2020)).) “Furthermore, the email contains non-final 1 || deliberative material and discussions that would chill DHA’s decision-making processes if 2 ||made public[ ajnd ... personal identifying information for DHA employees. (See id. at 1- 3 ||2 (citing Nightingale v. U.S. Citizenship & Immigration Servs., 507 F. Supp. 3d 1193, 4 || 1212-13 (N.D. Cal. 2020)). 5 The Court agrees that compelling reasons exist to file under seal Exhibit F to 6 || Defendants’ Motion to Dismiss. Accordingly, the Court GRANTS Defendants’ Motion to 7 and ORDERS the Clerk of the Court to file under seal Exhibit F, which was lodged 8 || conditionally under seal at ECF No. 59. 9 IT IS SO ORDERED. 10 Dated: January 9, 2023 — i [ od) (2 re Honorable Todd W. Robinson United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28