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Merck Eprova AG v. Prothera

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


October 6, 2009

MERCK EPROVA AG AND MERCK KGAA, PLAINTIFFS,
v.
PROTHERA, INC., DEFENDANT.

The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge

(ECF)

MEMORANDUM AND ORDER

On September 17, 2009, I issued a Memorandum and Order determining a motion by plaintiffs Merck Eprova AG and Merck KGaA (collectively, "Merck") to disqualify one of the counsel for defendant Prothera, Inc. Because Merck had previously raised concerns that my opinion might contain confidential information, I filed the decision under seal and invited the parties to suggest redactions for the version that would be publicly filed. Merck has now done so by letter dated September 28, 2009, which has also been filed under seal.

Court records are presumptively open to the public. See United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) ("Amodeo I"); McDonough v. Nassau County Board of Cooperative Educational Services, No. 05 CV 2507, 2008 WL 565511, at *1 (E.D.N.Y. Feb. 29, 2008); Encyclopedia Brown Productions, Ltd. v. Home Box Office, Inc., 26 F. Supp. 2d 606, 610 (S.D.N.Y. 1998). That is particularly true of documents that "directly affect an adjudication," such as a judicial opinion. United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995) ("Amodeo II"); see also McDonough, 2008 WL 565511, at *1. Indeed, "[n]othing could more 'directly affect' the adjudication than the Opinion itself." Scheiner v. Wallace, No. 93 Civ. 0062, 1996 WL 633226, at *1 (S.D.N.Y. Oct. 31, 1996). In such instances, a document should not be sealed "absent the most compelling reasons." Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982) (applying standard to submissions of parties).

Of course, "it is proper for a district court, after weighing competing interests, to edit and redact a judicial document in order to allow access to appropriate portions of the document . . . ." Amodeo I, 44 F.3d at 147; see also S.E.C. v. TheStreet.com, 273 F.3d 222, 231 (2d Cir. 2001). Among the interests that may be weighed against the right of public access is the private interest in maintaining trade secrets. See TheStreet.com, 273 F.3d at 231 n.10 (quoting Amodeo I, 44 F.3d at 147).

Here, Merck has failed to overcome the presumption in favor of access to a judicial opinion. Although it asserts that revelation of the material that it seeks to have redacted would harm its business, it advances this argument in only the most general terms. Indeed, most of the information that Merck asks to delete from the opinion is either already publicly available as part of Merck's patent applications or could be readily inferred fromthose applications. Conclusory allegations of commercial injury are an insufficient basis for redacting or sealing a judicial opinion.

Conclusion

For the reasons set forth above, Merck's application to redact portions of the publicly-filed version of my September 17, 2009 Memorandum and Order is denied, and that document shall be unsealed. This order is stayed for three days so that Merck may appeal this ruling if it is so advised.

SO ORDERED.

20091006

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