United States District Court, N.D. California
DISCOVERY ORDER Re: Dkt. Nos. 91,
MARIA-ELENA JAMES United States Magistrate Judge
Nevro Corp. (“Nevro”) seeks to disclose to its in
house counsel, Peter Socarras, a specific high level summary
that concerns information Defendants Boston Scientific
Corporation and Boston Scientific Neuromodulation Corporation
(together, “BSC”) designated as “Highly
Confidential - Attorneys' Eyes Only.” See
Jt. Ltr. at 3, Dkt. No. 91. BSC opposes this disclosure.
Id. at 3-5. Finding it lacked sufficient information
about Socarras, the Court ordered Nevro to file a declaration
describing, among other things, Socarras'
responsibilities and duties. Disc. Order at 5, Dkt. No. 109.
Nevro timely filed the Socarras Declaration. See
Socarras Decl., Dkt. No. 121. BSC filed a Response to the
Socarras Declaration, portions of which it seeks to file
under seal. BSC Resp., Dkt. No. 141; Mot. to Seal, Dkt. No.
142. Having considered the parties' positions, the record
in this case, and the relevant legal authority, the Court
issues the following order.
TO FILE UNDER SEAL
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
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'l
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
seeks to redact portions of a document filed in connection
with a discovery letter, the good cause standard applies. BSC
seeks to seal the following portions of its Response: (1)
page 1, lines 16-25; and (2) page 2, lines 8-16. Mot. at 3.
Thomas Carmack, counsel for BSC, declares that this
information “contains BSC's trade secrets and
confidential information related to the development of new
spinal cord stimulation (SCS') products and
services.” Carmack Decl. ¶ 2, Dkt. No. 142-2. The
undersigned, as well as the Presiding Judge in this matter,
previously allowed the parties to seal information concerning
the same subject matter. See Dkt. Nos. 85, 101.
Having reviewed the aforementioned portions of BSC's
Response, the undersigned finds good cause exists to seal
them, as they are protectable as trade secrets. See
Civ. L.R. 79-5(a). In addition, the proposed redactions are
narrowly tailored to redact only sealable material.
See Civ. L.R. 79-5(b). The undersigned accordingly
GRANTS the Motion to Seal.
A. Legal Standard
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.; see In re
Deutsche Bank Tr. Co. Ams., 605 F.3d 1373, 1380 (Fed.
Cir. 2010) (“It is . . . important for a court, in
assessing the propriety of an exemption from a patent
prosecution bar, to examine all relevant facts surrounding
counsels actual preparation and prosecution activities, on a
counsel-by-counsel basis.”). 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.” U.S. Steel, 730 F.2d at 1468.
litigation concerns BSC's alleged infringement of
Nevro's patented high frequency SCS therapy system.
See Compl., Dkt. No. 1. Nevro contends it needs to
disclose the high level summary in light of ...