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Nevro Corp. v. Boston Scientific Corp.

United States District Court, N.D. California

June 22, 2017

NEVRO CORP, Plaintiff,
v.
BOSTON SCIENTIFIC CORPORATION, et al., Defendants. Material BSC's Reasoning Joint Letter Adair Deposition Cassidy Deposition

          DISCOVERY ORDER RE: DKT. NO. 134

          MARIA-ELENA JAMES United States Magistrate Judge

         INTRODUCTION

         This patent action concerns Plaintiff Nevro Corp.'s (“Nevro”) Senza system, a spinal cord stimulation (“SCS”) system for treating chronic pain. Nevro and Defendants Boston Scientific Corporation and Boston Scientific Neuromodulation Corporation (together, “BSC”) have filed a Joint Letter regarding their dispute over a stipulated e-discovery order. Jt. Ltr., Dkt. No. 134. Nevro also seeks to file under seal portions of the Joint Letter and exhibits attached thereto. Mot., Dkt. No. 132. Having considered the parties' positions, the relevant legal authority, and the record in this case, the Court issues the following order.

         MOTION TO FILE UNDER SEAL

         A. Legal Standard

         There is a “strong presumption in favor of access” by the public to judicial records and documents accompanying dispositive motions. Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (citing Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). To overcome this presumption, a “party must articulate compelling reasons supported by specific fact[s].” Id. at 1178 (internal quotation and citation omitted); see also Apple, Inc. v. Samsung Elecs. Co., 727 F.3d 1214, 1223 (Fed. Cir. 2013) (finding sealing appropriate where companies “filed declarations from employees” that “explained the measures the two companies take to keep their product-specific financial information confidential” and “the harm they would suffer if their product-specific financial information were made public”).

         However, Rule 26(c)'s lesser “good cause” standard applies to documents submitted in connection with non-dispositive motions, including “private materials unearthed during discovery, as such documents are not part of the judicial record.” Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 678 (9th Cir. 2010) (internal quotation marks omitted); see In re Midland Nat. Life Ins. Co. Annuity Sales Practices Litig., 686 F.3d 1115, 1119 (9th Cir. 2012) (“[A] particularized showing of 'good cause' under Federal Rule of Civil Procedure 26(c) is sufficient to preserve the secrecy of sealed discovery documents attached to non-dispositive motions.”).

         B. Discussion

         Nevro seeks to seal portions of the Joint Letter and the Adair and Cassidy depositions that refer to material BSC designated as “Confidential” and “Highly Confidential - Attorneys' Eyes Only.” Mot. at 1; Hwang Decl. ¶¶ 2-4; Dkt. No. 132-1; see Jt. Ltr.; id., Ex A (Adair Dep.) & Ex. B (Cassidy Dep.). In support, BSC submits the Declarations of Rafael Carbunaru and Thomas Carmack. Carbunaru Decl., Dkt. No. 138; Carmack Decl., Dkt. No. 138-1.

         Carbunaru, Vice President of Research and Development for Defendant Boston Scientific Neuromodulation Corporation, declares that the documents contain “extremely sensitive information” including “research and development plans and activities that may or may not result in a commercial product, or . . . a product commercially manufactured and sold in the U.S.” which BSC consider to be trade secrets. Carbunaru Decl. ¶ 3; see Carmack Decl. ¶ 9. Carbunaru contends that if this information were to be made public, among other things, it could place “BSC . . . at a significant competitive disadvantage with respect to Nevro and other competitors because it would divulge the timing of certain planned commercial activities that could unfairly allow the competitor to alter their own regulatory and commercial plans in advance in order to unfairly compete with BSC in the marketplace”; “could improperly inform its competitors' research and development plans (months or years before potential commercialization) as well as their patent prosecution strategy”; and could allow competitors to “design products to compete with these future products by copying their specifications or designing improvements on [BSC's product] specifications.” Carbunaru Decl. ¶¶ 4-5.

         In addition, Carmack, counsel for BSC, declares that “information relating to the levels of staffing and resources that BSC has . . . could be used by competitors in their strategic planning and resource allocation to unfairly compete with BSC.” Carmack Decl. ¶ 11.

         BSC argues the following portions of the Joint Letter and the Adair and Cassidy Depositions are sealable and identifies the particular types of confidential information to which they relate as follows:

Material
BSC's Reasoning

• Page 2, starting after “Precision Novi, and” to before “Spectra WaveWriter”

• Page 2, starting after “documents show that” to before “(See ECF No. 89-4 at 1)”

• Page 2, starting after “(See ECF No. 89-4 at 1).” to before “(Id. at 2)”

• Page 2, starting after “(Id. at 2)” to before “(Id.)”

• Page 2, starting after “marketplace.” to before “James”

This information concerns the “[n]umber of products BSC has in development; technical capabilities of BSC's products in development; commercial launch plans.” Carbunaru Decl. at 3.

Joint Letter

• Page 2, starting after “Spectra WaveWriter” to “BSC's initial disclosures”

• Page 2, starting after “frequency parameters” to “(Id. at 32:14-33:14.)”

• Page 2, starting after “designee” to before “tried”

• Page 2, starting after “spoke to” to page 3, before “(Id. at 17:25-28:1.)”

• Page 3, starting after “(Id. at 17:25-28:1.)” to before “(Ex. A at 26:20-27:8.)”

• Page 3, starting after “identified” to before “(Ex. B at 37:19-39:1.)”

• Page 3, starting after “employees, with” to before “It is a”

The information concerns “BSC's resources and staffing levels for products in development.” Carbunaru Decl. at 4.

Adair Deposition

32:1-25

204:1-7

205:1-6

206:19

207:7-11

207:17-208:8

This information concerns the “[n]umber of products BSC has in development; technical capabilities of BSC's products in development; commercial launch plans.” Carbunaru Decl. at 3.

209:19-25

26:1-28:25 29:9-30:15 33:1-25 206:19.

The information concerns “BSC's resources and staffing levels for products in development.” Carbunaru Decl. at 4.

Cassidy Deposition

161:1-166:10 166:20-25

This information concerns the “[n]umber of products BSC has in development; technical capabilities of BSC's products in development; commercial launch plans.” Carbunaru Decl. at 3.

18:2-21:19

22:3-4

22:9-16

25:21-23

26:9-28:25

35:1-25

37:1-39:25

The information concerns “BSC's resources and staffing levels for products in development.” Carbunaru Decl. at 4.

         The Court finds there is good cause to seal the aforementioned portions to the Joint Letter and the Adair and Cassidy depositions, as disclosure could harm BSC's competitive standing. SeeNixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978); Apple Inc. v. Samsung Elecs. Co., 727 F.3d 1214, 1228 (Fed. Cir. 2013). In addition, the request in narrowly tailored to ...


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