Opinion
No. CV 12-0749-PHX-JAT
08-16-2012
John D'Agnese; Barbara D'Agnese, Plaintiffs, v. Novartis Pharmaceuticals Corporation, Defendant.
WO
ORDER
Pending before the Court is Novartis Pharmaceuticals Corporation's ("Defendant" or "Novartis") Motion to Seal Certain Documents (Doc. 78). The Court now rules on the Motion.
Defendant requests leave of the Court to file three expert reports under seal. Defendant plans to attach these expert reports as exhibits to motions to exclude certain of Plaintiff's experts under Daubert. These documents were produced subsequent to the entry of a Protective Order in the multi-district litigation before the case was remanded to this Court.
Defendant claims that it is necessary to keep these documents confidential to protect its' competitive position. Defendant further asserts that it has maintained a practice of keeping certain types of documents confidential. Defendant asserts that these expert reports "either are or quote, discuss, and reflect internal corporation documents." (Doc. 78 at 3).
The Motion to Seal is deficient for a number of reasons. First, the Motion makes no attempt to set forth the proper standard for sealing documents. The Ninth Circuit Court of Appeals has recently held that, in certain circumstances, "a Daubert motion connected to a pending summary judgment motion may be effectively 'dispositive of a motion for summary judgment,'" thus requiring the Court to apply the "compelling reasons" standard to any motion to seal documents attached to the Daubert motion. In re Midland Nat'l Life Ins. Co. Annuity Sales Practices Litig. v. Allianz Life Ins. Co of N.Am., _F.3d_, 2012 WL 3024192, at *3 (9th Cir. July 25, 2012) (internal quotation omitted); see Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006) ("Those who seek to maintain the secrecy of documents attached to dispositive motions must meet the high threshold of showing that 'compelling reasons' support secrecy.") (internal citation omitted).
Based on the information provided by Defendant, the Court cannot ascertain whether it should apply the "good cause" standard or the "compelling reasons" standard to Defendant's Motion to Seal. This alone constitutes a reason for denial of the Motion to Seal. However, the Court finds that, even if the lower good cause standard could be applied to Defendant's motion to seal, Defendant has failed to meet that standard.
Defendant has not made any attempt to explain to the court why these documents should be sealed, aside from making the conclusory assertion that there is "good cause" to seal confidential documents to protect its competitive position. Such conclusory assertions are not sufficient to overcome the strong presumption of public access because they do not provide the Court with a sufficient factual basis on which it can articulate a decision to seal court records. See Kamakana, 447 F.3d at 1179, 1182-83.
Further, even if Defendant had articulated good cause to seal some of the information in the expert report, which it did not, Defendant cannot contend that every portion of the expert reports need to be sealed. The policy of promoting access to public documents dictates that only that information which there is good cause or a compelling reason to seal should actually be sealed. Accordingly, to the extent that a party wishes to seal an entire document, rather than redacting certain secret information from that document, the party must provide either good cause or compelling reasons to seal all of the information in that document. See id. at 1183. Otherwise, the party must only seek to redact that information that there is good cause or compelling reasons to seal. Here, Defendant has not provided good cause or compelling reasons to seal any portion of the expert reports and has certainly not provided good cause or compelling reasons to seal those documents as a whole.
Further, the Parties should be aware that it is not the practice of this Court to "seal" public hearings and trials or the exhibits introduced therein. See TriQuint Semiconductor, Inc. v. Avago Technologies Limited, No. CV-09-1531-PHX-JAT, 2012 WL 1432519, at *10 (D. Ariz. April 25, 2012).
Based on the foregoing
IT IS ORDERED that Novartis Pharmaceuticals Corporation's ("Defendant" or "Novartis") Motion to Seal Certain Documents (Doc. 78) is denied.
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James A. Teilborg
United States District Judge