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Nevro Corp. v. Boston Scientific Corp.

United States District Court, N.D. California

June 27, 2017

NEVRO CORP, Plaintiff,
v.
BOSTON SCIENTIFIC CORPORATION, et al., Defendants.

          DISCOVERY ORDER Re: Dkt. Nos. 91, 142

          MARIA-ELENA JAMES United States Magistrate Judge

         INTRODUCTION

         Plaintiff 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.

         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'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 motions.”).

         B. Discussion

         As BSC 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.

         DISCOVERY DISPUTE

          A. Legal Standard

         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.; 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.

         B. Discussion

         This 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 ...


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