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Theranos, Inc. v. Fuisz Pharma LLC

United States District Court, Ninth Circuit

October 24, 2013

THERANOS, INC. and ELIZABETH HOLMES, Plaintiffs,
v.
FUISZ PHARMA LLC, et al., Defendants.

ORDER GRANTING-IN-PART DEFENDANTS' REQUEST TO FILE PORTIONS OF DEFENDANTS' REPLY IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND ACCOMPANYING EXHIBITS UNDER SEAL (Re: Docket No. 236)

PAUL S. GREWAL, Magistrate Judge.

Before the court is Defendants Fuisz Pharma LLC, Richard C. Fuisz, and Joseph M. Fuisz's (collectively, "the Fuisz Defendants") administrative motion to file documents under seal.[1] The court considers these documents below.

I. LEGAL STANDARDS

"Historically, courts have recognized a general right to inspect and copy public records and documents, including judicial records and documents.'"[2] Accordingly, when considering a sealing request, "a strong presumption in favor of access' is the starting point."[3] Parties seeking to seal judicial records relating to dispositive motions bear the burden of overcoming the presumption with "compelling reasons" that outweigh the general history of access and the public policies favoring disclosure.[4]

Records attached to nondispositive motions, however, are not subject to the strong presumption of access.[5] Because the documents attached to nondispositive motions "are often unrelated, or only tangentially related, to the underlying cause of action, " parties moving to seal must meet the lower "good cause" standard of Rule 26(c).[6] As with dispositive motions, the standard applicable to nondispositive motions requires a "particularized showing"[7] that "specific prejudice or harm will result" if the information is disclosed.[8] "Broad allegations of harm, unsubstantiated by specific examples of articulated reasoning" will not suffice.[9] A protective order sealing the documents during discovery may reflect the court's previous determination that good cause exists to keep the documents sealed, [10] but a blanket protective order that allows the parties to designate confidential documents does not provide sufficient judicial scrutiny to determine whether each particular document should remain sealed.[11]

In addition to making particularized showings of good cause, parties moving to seal documents must comply with the procedures established by Civ. L.R. 79-5. Pursuant to Civ. L.R. 79-5(b), a sealing order is appropriate only upon a request that establishes the document is "sealable, " or "privileged or protectable as a trade secret or otherwise entitled to protection under the law." "The request must be narrowly tailored to seek sealing only of sealable material, and must conform with Civil L.R. 79-5(d)."[12] "Within 4 days of the filing of the Administrative Motion to File Under Seal, the Designating Party must file a declaration as required by subsection 79-5(d)(1)(A) establishing that all of the designated material is sealable."[13]

II. DISCUSSION

A. The Fuisz Defendants' Reply Brief and Supporting Exhibits

The Fuisz Defendants filed an administrative motion to seal (1) portions of its reply in support of its motion for summary judgment and (2) Exhibits 1-3 and 5-6 in support of their motion.[14] Because these documents relate to a dispositive motion for summary judgment, the compelling reasons standard applies.

1. Exhibits 2, 3, and 5

The Fuisz Defendants ask the court to seal Exhibits 2, 3, and 5 which have been designated "Confidential" or "Highly Confidential - Attorneys' Eyes Only" by the Fuisz Defendants pursuant to the protective order in this case. The Fuisz Defendants claim that these exhibits contain business or personal information relating to the development and prosecution of the '612 patent as well as general business discussions. Additionally, "the excerpts from Richard Fuisz's deposition discuss other inventions and technical work that he has done in the past. As such, they contain information that the Fuisz Defendants consider confidential business and technical information that would be harmful to the Fuisz Defendants if made public."[15]

After reviewing the Fuisz Defendants' declaration and Exhibits 2, 3, and 5, the court finds the compelling reasons standard has been met as to Exhibit 5 which details technical information that the Fuisz Defendants represent remains confidential. Exhibits 2 and 3 do not meet the compelling reasons standard and will not be sealed.

2. Exhibit 1

The Fuisz Defendants ask the court to seal Exhibit 1 from the transcript of John Fuisz because it was designated "Confidential" pursuant to the protective order in this case by third-party McDermott, Will, & Emery LLP ("MWE").[16] No declaration supporting the sealing of Exhibit 1 was filed pursuant to Civ. L.R. 79-5. After reviewing Exhibit 1 the court finds the compelling reasons standard has not been met. Exhibit 1 will not be sealed.

3. Exhibit 6

Exhibit 6 contains excerpts from the transcript of Elizabeth Holmes' ("Holmes") deposition. Defendants claim Plaintiffs designated the deposition testimony as either "Confidential" or "Highly Confidential - Attorneys' Eyes Only" pursuant to the protective order in this case.[17] Plaintiffs filed a declaration supporting the sealing of Exhibit 6 pursuant to Civ. L.R. 79-5.[18] Plaintiffs limit their proposed redactions to lines 1-7 of page 208 of the Holmes deposition transcript. Plaintiffs claim that the transcript appears "to contain a partial answer to a question that may relate to terms of an employment agreement made by Theranos with a current or former Theranos employee and/or may implicate an agreement with a third party and/or a current or former Theranos employee, which may contain a confidentiality provision."[19] The court previously issued an order granting the limited redactions requested by Plaintiffs.[20]

4. Reply Brief

The Fuisz Defendants' sealing motion asks the court to seal "portions of its motion that refer or cite to the above confidential exhibits."[21] "Although Defendants do not believe that these sections alone are summaries or extractions of the confidential information in the exhibits themselves" the Fuisz Defendants ask the court to seal the portions of the reply brief out of an abundance of caution.[22] No declaration supporting the sealing of Defendants' reply brief has been filed. After reviewing the redacted portions of the reply brief the court finds the compelling reasons standard has not been satisfied. The reply brief will not be sealed.

The court GRANTS-IN-PART the Fuisz Defendants' administrative motion to seal.


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