Opinion
23-MC-206 (ALC) (BCM)
09-01-2023
OASIS MEDICAL, INC., Plaintiff, v. I-MED PHARMA USA INC., I-MED PHARMA INC., and ILAN HOFMANN, Defendants.
ORDER REGARDING SEALING MOTIONS AND REDACTION OF MEMORANDUM AND ORDER
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE
I have filed, under seal, a Memorandum and Order (the Order) (Dkt. 61) (i) granting in part and denying in part the motion of Biocia, Inc. to quash a subpoena duces tecum (the Oasis Document Subpoena) served upon Wesley Domareki by Oasis Medical, Inc. (Oasis), the plaintiff in Oasis Medical, Inc. v. I-Med Pharma USA Inc., I-Med Pharma Inc., and Ilan Hofmann, No. 2:21-CV-8879 (C.D. Cal.) (the California Action), as well as an earlier subpoena ad testificandum (the Oasis Deposition Subpoena) served on Domareki by Oasis (Dkt. 2); (ii) granting in part and denying in part the cross-motion of Oasis to enforce the Oasis Document Subpoena and the Oasis Deposition Subpoena (Dkt. 15); and (iii) denying the motion of the defendants in the California Action, I-MED Pharma Inc. (I-Med Pharma), I-MED Pharma USA Inc. (I-Med USA), and Ilan Hofmann (together, the I-MED Defendants) to enforce their competing subpoena ad testificandum (the I-MED Deposition Subpoena), which they served on Domareki on June 8, 2023. (Dkt. 48.)
The Order is, at present, accessible only to the attorneys appearing for the parties and to Court personnel, because it discusses information contained in documents that Oasis filed under temporary seal. (Dkts. 11-12, 32, 43, 58.) In its accompanying sealing motions (Dkts. 10, 31, 42, 57), Oasis explains that the documents at issue were designated "CONFIDENTIAL" or "CONFIDENTIAL-ATORNEYS EYES ONLY" when produced in the California Action. Oasis "takes no position" as to whether the documents are sufficiently sensitive to qualify for sealing under the standards set forth in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006), but seeks leave to maintain them under seal "to comply with the Protective Order" issued in the California Action.
In accordance with Moses Ind. Prac. § 3, redacted copies of the same documents are filed in public view on ECF. (Dkts. 13-14, 33, 44, 59.)
I am reluctant to grant Oasis's sealing requests in full, for three reasons.
First, the Protective Order in the California Action (a copy of which has been submitted in this action at Dkt. 3-3) does not entitle the parties to file documents under seal simply because they, or the information they contain, were designated "CONFIDENTIAL" or "CONFIDENTIAL-ATORNEYS EYES ONLY" when produced in discovery. The proponent of sealing must seek leave from the court under the applicable local rules and standards. See Prot. Order §§ 1.1, 12.3.
Second, the I-Med Defendants, who are the only remaining defendants in the California Action, likewise take no position as to whether the materials that Oasis seeks to seal warrant an exception to the presumption of public access that applies to all "to judicial documents." Lugosch, 435 F.3d at 119. The I-Med Defendants have filed all of their own briefs, declarations, and other materials in this action unsealed on the public docket. This Court thus has no basis upon which to evaluate the sealing requests.
Third, at least some of the material that Oasis filed under temporary seal has been freely disclosed by other parties now before this Court, such that any claim of confidentiality has been waived. For example, Oasis seeks to seal an email exchange among counsel which discusses, among other things, Domareki's health, and to redact the corresponding portion of its brief in opposition to Biocia's motion to quash the Oasis Document Subpoena. (See Dkt. 14-8; Dkt. 13 at 4.) But Domareki has publicly disclosed extensive information about his health, both in his own declaration and in a letter from his cardiologist, which is also summarized in his counsel's letterbriefs in opposition to Oasis's motion to enforce the Oasis Document Subpoena and in opposition to the I-Med Defendants' motion to enforce the I-Med Deposition Subpoena. (See Dkt. 23 ¶¶ 2125; Dkt. 23-2; Dkt. 24 at 7; Dkt. 55 at 3.)
Oasis also seeks to seal the settlement agreement entered into between Domareki and Hofmann on May 23, 2023, to resolve litigation then pending in a New Jersey state court, and to redact the corresponding portions of several of its briefs. (See Dkt. 14-6; Dkt. 13 at 2-4, 12-14; Dkt. 32 at 1-6, 9; Dkt. 43 at 1-2; Dkt. 58 at 1-3.) But both Domareki and Biocia have publicly disclosed the (non-financial) terms of that settlement agreement in their own papers. (See Dkt. 3 ¶ 14; Dkt. 4 at 3; Dkt. 22 ¶¶ 15-16; Dkt. 23 ¶¶ 13-15; Dkt. 24 at 3-4.)
As another example, Oasis seeks to seal its own Notice of Subpoena to Biocia, Inc., dated June 18, 2023. (See Dkt. 14-14.) But Domareki has publicly filed a copy of that same document as an attachment to his counsel's declaration. (See Dkt. 22-12.)
Because the Court requires more information before it can determine what documents and information genuinely require sealing, it is hereby ORDERED that the parties (including, for this purpose, Domareki and Biocia) meet and confer in good faith, and then submit a joint letter, no later than September 8, 2023, identifying the documents and information currently under seal (i) that can safely be unsealed, and (ii) that should remain under seal. As to the latter category, the letter must explain why continued sealing is appropriate, without relying solely on the designation of the documents or information as "CONFIDENTIAL" or "CONFIDENTIAL-ATORNEYS EYES ONLY" when produced in discovery. See Moses Ind. Prac. § 3(e).
It is further ORDERED that, within one week (seven days) after the sealing motions are resolved, the parties shall submit (by email to MosesNYSDChambers@nysd.uscourts.gov) their proposed redactions to the Order before it is publicly filed. The parties shall be mindful that such redactions should be minimized, wherever possible, in light of the presumption of public access to judicial documents. See Brown v. Maxwell, 929 F.3d 41, 47-48 (2d Cir. 2019); Lugosch, 435 F.3d at 119-20.
SO ORDERED.