Foran v. Ulthera, Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ELIZABETH FORAN, No. 1:20-cv-00267-DAD-BAM 12 Plaintiff, 13 v. ORDER GRANTING REQUEST TO SEAL 14 ULTHERA, INC., et al., (Doc. No. 24) 15 Defendants. 16 17 On June 5, 2020, defendants Ulthera, Inc., Merz Incorporated, and Merz North America 18 filed a motion to dismiss in this action. (Doc. No. 23.) In connection with that motion, those 19 same defendants filed a notice of a request to file a document under seal pursuant to Local Rule 20 141. (Doc. No. 24.) Having reviewed the document that defendants seek to have sealed, the 21 court will grant defendants’ request. 22 LEGAL STANDARD 23 All documents filed with the court are presumptively public. San Jose Mercury News, 24 Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1103 (9th Cir. 1999) (“It is well-established that the fruits 25 of pretrial discovery are, in the absence of a court order to the contrary, presumptively public.”).1 26 1 Pursuant to Rule 5.2(d) of the Federal Rules of Civil Procedure, a court “may order that a filing 27 be made under seal without redaction.” However, even if a court permits such a filing, it may “later unseal the filing or order the person who made the filing to file a redacted version for the 28 public record.” Fed. R. Civ. P. 5.2(d). 1 “Historically, courts have recognized a ‘general right to inspect and copy public records and 2 documents, including judicial records and documents.’” Kamakana v. City & Cty. of Honolulu, 3 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 4 597 & n.7 (1978)). 5 Two standards generally govern requests to seal documents. Pintos v. Pac. Creditors 6 Ass’n, 605 F.3d 665, 677 (9th Cir. 2010). 7 [J]udicial records attached to dispositive motions [are treated] 8 differently from records attached to non-dispositive motions. Those who seek to maintain the secrecy of documents attached to 9 dispositive motions must meet the high threshold of showing that “compelling reasons” support secrecy. A “good cause” showing 10 under Rule 26(c) will suffice to keep sealed records attached to non- dispositive motions. 11 12 Kamakana, 447 F.3d at 1180 (citations omitted). The reason for the two different standards is 13 that “[n]ondispositive motions are often unrelated, or only tangentially related, to the underlying 14 cause of action, and, as a result, the public’s interest in accessing dispositive materials does not 15 apply with equal force to non-dispositive materials.” Pintos, 605 F.3d at 678 (internal quotation 16 marks omitted). 17 Under the “compelling reasons” standard applicable to dispositive motions such as 18 defendant’s motion to dismiss: 19 [T]he court must conscientiously balance the competing interests of the public and the party who seeks to keep certain judicial records 20 secret. After considering these interests, if the court decides to seal certain judicial records, it must base its decision on a compelling 21 reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture. 22 23 Id. at 1178–79 (internal quotation marks and citations omitted). The party seeking to seal a 24 judicial record bears the burden of meeting the “compelling reasons” standard. Id. at 1178; see 25 also Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003).2 26 2 While the terms “dispositive” and “non-dispositive” motions are often used in this context, the 27 Ninth Circuit has clarified that the “compelling reasons” standard applies whenever the motion at issue “is more than tangentially related to the merits of a case.” Ctr. for Auto Safety v. Chrysler 28 Grp., LLC, 809 F.3d 1092, 1101 (9th Cir. 2016). 1 “In general, ‘compelling reasons’ sufficient to . . . justify sealing court records exist when 2 such ‘court files might . . . become a vehicle for improper purposes,’ such as the use of records to 3 gratify private spite, promote public scandal, circulate libelous statements, or release trade 4 secrets.” Kamakana, 447 F.3d at 1179 (quoting Nixon, 435 U.S. at 598). “The mere fact that the 5 production of records may lead to a litigant’s embarrassment, incrimination, or exposure to 6 further litigation will not, without more, compel the court to seal its records.” Id. The 7 ‘compelling reasons’ standard is invoked even if the dispositive motion, or its attachments, were 8 previously filed under seal or protective order.” Id. at 1178–79. 9 ANALYSIS 10 Because defendants request sealing in connection with a motion to dismiss, the 11 “compelling reasons” standard plainly applies. Even under that higher standard, the court finds 12 that the document in question should remain sealed. Defendants request to seal their submission 13 to the federal Food and Drug Administration for 510(k) premarket clearance of the product at the 14 center of this products liability action. There appears to be little value to the public in releasing 15 this document. It consists of trade secret information and confidential commercial information, 16 “including information about the structure, execution, results, and analysis of clinical trials, 17 preclinical trials and testing, as well as product development information and information about 18 the technical characteristics and testing of the product.” (Doc. No. 24 at 2); see also 21 C.F.R. § 19 20.61 (defining trade secret information and confidential commercial information). As 20 defendants note, “[d]isclosure of this information would injure [their] business interests and 21 standing in the marketplace, as competitors would have access to information that they would not 22 otherwise have about Defendants’ product.” (Doc. No. 24 at 2.) The court therefore finds that 23 the document should not appear on the public docket. See Apple Inc. v. Psystar Corp., 658 F.3d 24 1150, 1162 (9th Cir. 2011) (“The publication of materials that could result in infringement upon 25 trade secrets has long been considered a factor that would overcome” the strong presumption in 26 favor of access.). 27 Here, having weighed the interests advanced by the parties in light of the public interest 28 and the duty of the court, defendants’ request to file this document under seal pursuant to Local wOAOe UVM EY POMERAT RAINE YVONNE PAY OT MT 1 | Rule 141 will be granted. 2 Accordingly, 3 1. Defendants’ request to seal (Doc. No. 24) is granted; and 4 2. The court orders that Exhibit A-1 to defendants’ motion to dismiss be sent via 5 email to ApprovedSealed @caed.uscourts.gov for filing under seal on the docket. 6 | IT IS SO ORDERED. si am 7 Li. wh F Dated: _ June 7, 2020 wae 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28