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Nycomed US, Inc. v. Glenmark Generics

March 8, 2010


The opinion of the court was delivered by: Roanne L. Mann, United States Magistrate Judge


On December 17, 2009, in response to the parties' continual "overdesignation" of court filings as confidential,*fn1 this Court issued an order that, "[b]y January 8, 2010, counsel shall review all court briefs and correspondence and other documents crafted by litigation counsel and filed with the Court since September 2009, and, with respect to any portion thereof that counsel wishes to retain under seal, counsel shall make a particularized showing as to why that portion should not be made public." Minute Order (Dec. 17, 2009) ("12/17/09 Order") at 2, D.E. #212.*fn2 Thereafter, Nycomed and Glenmark each submitted a request to maintain limited portions of court filings under seal. See Letter to the Court from Donald L. Rhoads (Jan. 8, 2010) ("Nycomed 1/8/10 Letter"), D.E. #216; Letter to the Court from Brian T. Moriarty (Jan. 8, 2010) ("Glenmark 1/8/10 Letter"), D.E. #215. For the reasons that follow, Nycomed's and Glenmark's requests are both denied.


On April 3, 2009, this Court modified and so-ordered a stipulated protective order ("Stipulation") submitted by the parties. See Stipulation, D.E. #65. Pursuant to that Stipulation, the "Producing Party" was permitted to designate materials as "Confidential" or "Confidential -- Attorneys Eyes Only." See id. ¶ 10. All documents, including briefs, that contained information designated as either level of "Confidential" were to be filed under seal, and a copy publicly filed via ECF, with such "Confidential Material" redacted. See id. ¶ 14.*fn3

The Stipulation further provided that "[a]t any time after the receipt of any Discovery Materials designated 'Confidential' or 'Confidential -- Attorneys' Eyes Only,' counsel for a Receiving Party may challenge the designation... [and] [t]he party seeking [to maintain the designation] shall have the burden of establishing that any Discovery Material in dispute is entitled to protection from unrestricted disclosure and to such designation." Id. ¶ 13.

Although nearly all of the parties' submissions contain redacted portions, this Court's Order of December 17, 2009 required the parties to reconsider the filings, not including exhibits, submitted since September 2009. See 12/17/09 Order at 2. The parties identified eight submissions that were filed under seal, with redacted versions publicly filed on ECF. See D.E. #143, 144, 145, 146, 147, 152, 169, 190. Of those, portions of only two are the subjects of the parties' respective requests to maintain confidentiality. Specifically, Nycomed objects to the unsealing of the identity of the individual named in D.E. #190, a letter to the Court dated November 13, 2009 ("Glenmark Letter Motion to Amend"), wherein Glenmark sought permission to amend its answer and counterclaims and to add new inequitable conduct allegations naming that individual. See Nycomed 1/8/10 Letter at 1.*fn4 Glenmark similarly asks the Court to maintain certain redactions in a single document, specifically, two paragraphs contained in Nycomed's Letter Motion to Amend the Complaint, D.E. #143 ("Nycomed Letter Motion to Amend"). See Glenmark 1/8/10 Letter at 1. Glenmark contends that the paragraphs in question "contain confidential information regarding Glenmark's ANDA that was submitted to the FDA." Id. Each side opposes the other's request to maintain confidentiality. See Glenmark 1/8/10 Letter at 2.


Rule 26(c) of the Federal Rules of Civil Procedure governs a court's power to issue an order "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense...." Fed. R. Civ. P. 26(c)(1). "The touchstone of the court's power under Rule 26(c) is the requirement of 'good cause.'" In re Zyprexa Injunction, 474 F.Supp.2d 385, 415 (E.D.N.Y. 2007); see also Fed. R. Civ. P. 5.2(e)(1) ("For good cause, the court may by order in a case... require redaction" of information other than social security numbers and other data expressly protected under Rule 5.2(a)). Ordinarily, 'good cause' is satisfied if "a 'clearly defined and serious injury'... would result from disclosure of the document." Allen v. City of New York, 420 F.Supp.2d 295, 302 (S.D.N.Y. 2006) (quotations and citations omitted); J. Moore, 6 Moore's Federal Practice & Procedure § 26.104[1], at 510-12 (3d ed. 2009). Where the document sought to be shielded from disclosure is part of the official court file, the Court must consider the public's presumptive right of access to such materials in making its determination as to good cause.

A. The Common Law Right of Public Access

"The courts have long recognized a common law right of public access to judicial documents." Stern v. Cosby, 529 F.Supp.2d 417, 420 (S.D.N.Y. 2007) (quotations and citations omitted); see, e.g., Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006). As the Second Circuit explained:

Transparency is pivotal to public perception of the judiciary's legitimacy and independence. The political branches of government claim legitimacy by election, judges by reason. Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat and requires rigorous justification.

United States v. Aref, 533 F.3d 72, 83 (2d Cir. 2008) (quotation and citation omitted).

While the existence of the common law right to inspect and copy judicial documents is beyond dispute, it is equally clear that it is not absolute. See Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978); accord United States v. Graham, 257 F.3d 143, 149 (2d Cir. 2001). Rather, the qualified common law right gives rise to a presumption of public access, the weight of which presumption "must be governed by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts." United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995) ("Amodeo II").

"The Second Circuit has set forth a three-part analysis for determining whether documents relating to a lawsuit must be made available to the public." Stern, 529 F.Supp.2d at 420 (citing Lugosch, 435 F.3d at 119-20; Amodeo II, 71 F.3d at 1048-52).

First, the court must determine whether the documents are indeed judicial documents, to which the public has a presumptive right of access. Second, if the documents are judicial documents, the court must determine the weight of the presumption, that is, whether the presumption is an especially strong one that can be overcome only by extraordinary circumstances or whether the presumption is a low one that amounts to little more than a prediction of public access absent a countervailing reason[,] or whether the presumption is somewhere in between. Third, once the weight of the presumption is determined, a court must balance competing considerations against it. Countervailing factors include, among others, the danger of impairing judicial efficiency and the privacy interests of those resisting disclosure.

Stern, 529 F.Supp.2d at 420 (internal quotations and citations omitted); accord Diversified Group, Inc. v. Daugerdas, 217 ...

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