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Nevro Corp v. Boston Scientific Corp.

United States District Court, N.D. California

May 31, 2017

NEVRO CORP, Plaintiff,

          DISCOVERY ORDER Re: Dkt. No. 91

          MARIA-ELENA JAMES United States Magistrate Judge


         Plaintiff Nevro Corp. (“Nevro”) and Defendants Boston Scientific Corporation and Boston Scientific Neuromodulation Corporation (together, “BSC”) filed a Joint Letter concerning Nevro's ability to disclose certain confidential information to its in house counsel and Nevro's request that BSC supplement certain records. Jt. Ltr., Dkt. No. 91. Having considered the parties' positions, the relevant legal authority, and the record in this case, the Court issues the following order.


         This patent infringement action concerns Nevro's spinal cord stimulation (“SCS”) therapy, used to treat chronic pain. See Compl., Dkt. No. 1. “Traditional SCS therapy delivers „low frequency' electrical pulse waveforms . . . to generate a sensation known as paresthesia.” Id. ¶ 3. Paresthesia, which is experienced as a tingling, numbness, buzzing, or pins-and-needles sensation, masks the patient's pain. Id.

         Nevro alleges it developed and patented the Senza system, “an SCS therapy that differs dramatically from traditional SCS therapy”: by using a “high frequency” electrical waveform, Nevro's SCS therapy provides pain relief without generating paresthesia. Id. ¶ 5; see Id. ¶ 19. On May 8, 2015, the U.S. Food and Drug Administration (“FDA”) approved Nevro's Senza system for sale in the United States. Id. ¶¶ 7, 22.

         Nevro contends BSC “is now aggressively trying to mimic Nevro's SCS therapy” and initiated a clinical trial that uses SCS devices that operate at the same electrical frequency as Nevro's SCS system, and that BSC's devices infringe Nevro's patents. Id. ¶ 8; see Id. ¶¶ 30-31. Nevro further alleges BSC manufactures and/or sells these infringing in the United States, the United Kingdom, and the Netherlands. Id. ¶¶ 40, 43. Nevro asserts six claims for patent infringement and six declaratory judgment claims for infringement of those patents. Id. ¶¶ 52-141.


         Federal Rule of Civil Procedure 26 provides that a party may obtain discovery “regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed.R.Civ.P. 26(b)(1). Factors to consider include “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. Discovery need not be admissible in evidence to be discoverable. Id. However, “[t]he parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Fed.R.Civ.P. 26 advisory committee notes (2015 amendments). Thus, there is “a shared responsibility on all the parties to consider the factors bearing on proportionality before propounding discovery requests, issuing responses and objections, or raising discovery disputes before the courts.” Salazar v. McDonald's Corp., 2016 WL 736213, at *2 (N.D. Cal. Feb. 25, 2016); Goes Int'l, AB v. Dodur Ltd., 2016 WL 427369, at *4 (N.D. Cal. Feb. 4, 2016) (citing advisory committee notes for proposition that parties share a “collective responsibility” to consider proportionality and requiring that “[b]oth parties . . . tailor their efforts to the needs of th[e] case”).

         Rule 26(c) “confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, ” including by (1) prohibiting disclosure or discovery; (2) conditioning disclosure or discovery on specified terms; (3) preventing inquiry into certain matters; or (4) limiting the scope of disclosure or discovery to certain matters. Fed.R.Civ.P. 26(c)(1).


         A. Disclosures to In House Counsel

         Courts may not deny access to confidential information solely on the basis of counsel's in-house or retained status. U.S. Steel Corp. v. United States, 730 F.2d 1465, 1467-68 (Fed. Cir. 1984). “Denial or grant of access . . . cannot rest on a general assumption that one group of lawyers are more likely or less likely inadvertently to breach their duty under a protective order.” Id. at 1468. Rather, “the factual circumstances surrounding each individual counsel's activities, association, and relationship with a party, whether counsel be in-house or retained, must govern any concern for inadvertent or accidental disclosure.” Id. Denial of access may be appropriate in some instances; for example, “where in-house counsel are involved in competitive decisionmaking, it may well be that a party seeking access should be forced to retain outside counsel or be denied the access recognized as needed.” Id.

         Nevro seeks to disclose a “specific high level summary” of information that BSC designated as “Confidential - Attorneys' Eyes Only” to Peter Socarras, Nevro's Senior Director of Intellectual Property. Jt. Ltr. at 3. Socarras is presumably involved with Nevro's competitive decision-making. See Id. at 3 (“Nevro has five in-house counsel. . . . It does not have counsel who can run this suit who is not involved in competitive decision-making.”). Nevro argues Socarras needs this information so Nevro can make strategic decisions about this lawsuit. Id. at 1. BSC disputes the ...

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