United States District Court, S.D. California
ORDER DENYING MOTION TO FILE UNDER SEAL DOC. NO.
Cathy Ann Bencivengo United States District Judge
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”),
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.
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).
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.
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).
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