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Nuvasive, Inc. v. Alphatec Holdings, Inc.

United States District Court, S.D. California

January 15, 2020

NUVASIVE, INC., Plaintiff,
v.
ALPHATEC HOLDINGS, INC. et al., Defendants.

          ORDER DENYING MOTION TO FILE UNDER SEAL DOC. NO. 245

          Hon. Cathy Ann Bencivengo United States District Judge

         Plaintiff NuVasive, Inc. has filed a motion seeking an order requiring Defendants Alphatec Holdings, Inc., and Alphatec Spine, Inc. (together, “Alphatec”), to file under seal certain portions of the deposition transcripts of:

1. Matthew Link;
2. Blake Inglish;
3. Eric Finley; and,
4. Jim A. Youssef, M.D. (“Youssef Deposition”),

         along with portions of Inglish's expert reports in connection with the motions for summary judgment and to exclude expert testimony that Alphatec intends to file. NuVasive contends that compelling reasons exist to seal portions of these documents. As discussed below, the motion is denied.

         I. Legal Standards

         “When discovery material is filed with the court [] its status changes.” Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1134 (9th Cir. 2003). “[T]he public policy reasons behind a presumption of access to judicial documents (judicial accountability, education about the judicial process etc.) apply.” Id. (internal citation omitted). Both the common law and the Constitution afford the public a qualified right of access to judicial records and proceedings. Times Mirror Co. v. U.S., 873. F.2d 1210, 1211 n.1 (9th Cir. 1989); Pintos v. Pacific Creditors Ass'n, 605 F.3d 665, 678 (9th Cir. 2010).

         In the Ninth Circuit there is a strong presumption in favor of access to court records and a party must show compelling reasons to file materials under seal as part of a non-discovery motion, even if they were produced subject to a discovery protective order. See Foltz, 331 F.3d at 1135-36; see also Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006) (“[C]ompelling reasons must be shown to seal judicial records attached to a dispositive motion.”). Once the protected discovery documents are made part of a dispositive motion, “they lose their status of being raw fruits of discovery” and no longer enjoy protected status without some overriding interests in favor of keeping the material sealed. Foltz, 331 F.3d at 1136.

         Court records should be sealed to keep confidential only what must be kept secret, temporarily or permanently, as the situation requires. The party seeking to file under seal must provide articulable facts showing a compelling reason to limit public access to court filings. That a litigant might be embarrassed or exposed to additional liability or litigation, without more, is not sufficient. Id. at 1136. A court's decision to seal material must be based on a compelling reason and the order allowing a filing under seal must articulate the factual basis for its ruling without relying on hypothesis or conjecture. Pintos, 605 F.3d at 679. “A ‘good cause' showing will not suffice to fulfill the ‘compelling reasons' standard that a party must meet to rebut the presumption of access to dispositive pleadings and attachments.” Id. (citing Kamakana, 447 F.3d at 1180).

         II. Discussion

         According to NuVasive, the information it contends should be sealed falls into three categories: (1) financial information related to NuVasive's XLIF product; (2) future product development and product improvement projects; and (3) surgeon consultancy agreements.

         A. XLIF ...


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