United States District Court, N.D. California, San Jose Division
ORDER DENYING MOTION TO SEAL [Re: ECF 354]
LABSON FREEMAN United States District Judge
the Court is Defendant's motion to file under seal its
exhibits in support of its motion to exclude expert
testimony. ECF 354. For the reasons discussed below, the
Court DENIES the motion.
courts have recognized a ‘general right to inspect and
copy public records and documents, including judicial records
and documents.'” Kamakana v. City & Cty. of
Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting
Nixon v. Warner Commc'ns, Inc., 435 U.S. 589,
597 & n. 7 (1978)). Accordingly, when considering a
sealing request, “a ‘strong presumption in favor
of access' is the starting point.” Id.
(quoting Foltz v. State Farm Mut. Auto. Ins. Co.,
331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal
judicial records relating to motions that are “more
than tangentially related to the underlying cause of
action” bear the burden of overcoming the presumption
with “compelling reasons” that outweigh the
general history of access and the public policies favoring
disclosure. Ctr. for Auto Safety v. Chrysler Grp.,
809 F.3d 1092, 1099 (9th Cir. 2016); Kamakana, 447
F.3d at 1178-79.
“while protecting the public's interest in access
to the courts, we must remain mindful of the parties'
right to access those same courts upon terms which will not
unduly harm their competitive interest.” Apple Inc.
v. Samsung Elecs. Co., Ltd., 727 F.3d 1214, 1228-29
(Fed. Cir. 2013). Records attached to motions that are
“not related, or only tangentially related, to the
merits of a case” therefore are not subject to the
strong presumption of access. Ctr. for Auto Safety,
809 F.3d at 1099; see also Kamakana, 447 F.3d at
1179 (“[T]he public has less of a need for access to
court records attached only to non-dispositive motions
because those documents are often unrelated, or only
tangentially related, to the underlying cause of
action.”). Parties moving to seal the documents
attached to such motions must meet the lower “good
cause” standard of Rule 26(c). Kamakana, 447
F.3d at 1179 (internal quotations and citations omitted).
This standard requires a “particularized showing,
” id., that “specific prejudice or harm
will result” if the information is disclosed.
Phillips ex rel. Estates of Byrd v. Gen. Motors
Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002);
see Fed. R. Civ. P. 26(c). “Broad allegations
of harm, unsubstantiated by specific examples of articulated
reasoning” will not suffice. Beckman Indus., Inc.
v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir.
1992). A protective order sealing the documents during
discovery may reflect the court's previous determination
that good cause exists to keep the documents sealed, see
Kamakana, 447 F.3d at 1179-80, 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. See Civ. L.R. 79-5(d)(1)(A)
(“Reference to a stipulation or protective order that
allows a party to designate certain documents as confidential
is not sufficient to establish that a document, or portions
thereof, are sealable.”).
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).” Civ. L.R. 79-5(b). In part, Civ. L.R. 79-5(d)
requires the submitting party to attach a “proposed
order that is narrowly tailored to seal only the sealable
material” which “lists in table format each
document or portion thereof that is sought to be sealed,
” Civ. L.R. 79-5(d)(1)(b), and an “unredacted
version of the document” that indicates “by
highlighting or other clear method, the portions of the
document that have been omitted from the redacted
version.” Civ. L.R. 79-5(d)(1)(d). “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.” Civ. L.R.
Court has reviewed Defendant's sealing motion and its
declaration in support thereof. ECF 354-1. Defendant seeks to
seal in their entirety Exhibits 3 and 4 to the Kreeger
Declaration in support of Defendant's Motion to Exclude
Expert testimony. ECF 355. According to Defendant, these
exhibits contain “references to confidential terms of
agreements between Genentech and third parties, including
quotations and financial terms.” Kreeger Decl.
¶¶ 3-4, ECF 354-1. Although Defendant has
articulated compelling reasons to seal portions of the
submitted exhibits, its request is not narrowly tailored.
Defendant seeks to seal each of the exhibits in their
entirety, whereas Defendants' statements regarding
confidentiality apply only to select portions of each of the
documents. For this reason, the Court DENIES Defendant's
sealing motion WITHOUT PREJUDICE.
sealing motion is DENIED WITHOUT PREJUDICE. No later than 10
days from the filing of this order, Defendant may renew its
motion so as to more narrowly tailor its request to seal
and/or provide sufficient reasons in the supporting
declaration to seal the documents in their entirety. If
Defendant does not renew its motion, it must, pursuant to
Civil Local Rule 79-5(e)(2), file the unredacted ...