Case 1:22-cv-00252-MSG Document 211 Filed 02/02/24 Page 1 of 21 PageID #: 14381
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`REDACTED - PUBLIC VERSION
`Original filing date: January 25, 2024
`Redacted filing date: February 2, 2024
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`

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`OF COUNSEL:
`
`OF COUNSEL:
`
`Patricia A. Carson, Ph.D.
`Jeanna M. Wacker, P.C.
`Mark C. McLennan
`Yan-Xin Li
`Caitlin Dean
`Nancy Kaye Horstman
`Shaoyao Yu
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, NY 10022
`(212) 446-4800
`
`Alina Afinogenova
`KIRKLAND & ELLIS LLP
`200 ClarendonStreet
`Boston, MA 02116
`(617) 385-7500
`
`David I. Berl
`Adam D. Harber
`ThomasS. Fletcher
`Jessica Palmer Ryen
`Shaun P. Mahaffy
`Jihad J. Komis
`Anthony H. Sheh
`Matthew W. Lachman
`Philip N. Haunschild
`WILLIAMS & CONNOLLY LLP
`680 Maine Avenue S.W.
`Washington, DC 20024
`(202) 434-5000
`
`Attorneysfor PlaintiffGenevant
`Sciences GmbH
`
`Daralyn J. Durie
`Adam R.Brausa
`Eric C. Wiener
`Annie A. Lee
`Shaelyn K. Dawson
`MORRISON & FOERSTER LLP
`425 Market Street
`San Francisco, CA 94105-2482
`(415) 268-6080
`Kira A. Davis
`MORRISON & FOERSTER LLP
`707 Wilshire Boulevard
`Los Angeles, CA 90017-3543
`(213) 892-5200
`
`David N. Tan
`MORRISON & FOERSTER LLP
`2100 L Street, NW, Suite 900
`Washington, DC 20037
`(202) 887-1500
`
`Attorneysfor PlaintiffArbutus
`Biopharma Corporation
`
`January 25, 2024
`
`

`

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`TABLE OF CONTENTS
`
`Page
`
`TL.
`
`TL,
`
`INTRODUCTION oeceeccsssssssssssssssssssssssssssssssssususetessssssscecssesessessssssssssnssssssssssnstssessssseseeseseses 1
`
`LEGAL STANDARD yiaccsccscssssssssssssssvsssssssnscscessssessesessesessessesssssssssasanssssecssssssesssseceeseeesees 2
`
`TIL.«©ARGUMENT veseeeseeseccsssscssccccccccssssssssssssssssssssusssesensusssseseccesessesssssssssssssssssssssueusssssssseceesesssen 2
`
`TV.
`
`CONCLUSION. cccsesesesessssssssssccccsccscsssssssssssssssssansnssvsvvesssssecececeesesssssssssssasasasansnsaveveersesesee 13
`
`

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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Inre Avandia Mktg., Sales Pracs. & Prod. Liab. Litig.,
`924 F.3d 662 (3d Cir. 2019)... ee ceecscessecsceeeeseeesecesceeecseecaeeaeessceseecseeecessesaessseeaeseeeeaeenes2, 3,8
`
`In re Cendant Corp.,
`260 F.3d 183 (3d Cir. 2001)... eee cccccsesceseesseeeeseeseeecseessceseeeseesaeseeeaesseeeeeseeeeaeeeaeeeeeaessaeees2
`
`Guardant Health, Inc. v. Foundation Med., Inc.,
`C.A. Nos. 17-1616-LPS-CJB, D.I. 447 (D. Del. Jun. 16, 2020)... eee ec eeeeeseeeeeeeeeeeeeeeeeneeees 6
`
`Kaleo, Inc. v. Adamis Pharms. Corp.,
`No. CR 19-917-RGA, 2019 WL 11680196 (D. Del. July 16, 2019) 0... eeeeee eter 8, 11
`
`Leucadia, Inc. v. Applied Extrusion Tech., Inc.,
`998 F.2d 157 (3d Cir. 1993)... eee esesecsseeseeseeesecesesesceeaeeeecenecseesaeeseecseeesesseeeaessaeaaeseaesseeeaseeneeaes 7
`
`Littlejohn v. Bic Corp.,
`851 F.2d 673 (3d Cir. 1988)... eee cecssceseeeeceseeeeeeccscescecseeeseeesceseecseeecessessaecseeeaeseaeeseeeasennseaes2
`
`Mosaid Techs. Inc. v. LSI Corp.,
`878 F. Supp. 2d 503 (D. Del. 2012)... eceeseesscesceeeecseeseeeseeeseeeaceeeessesaesseseaeseaeeaeeseseneeease2
`
`Nitto Denko Corp. v. Hutchinson Tech. Inc.,
`No. CV 16-3595 (CCC/MF), 2017 WL 2782639 (D.N.J. Mar. 3, 2017) ......eeeeeeeeeeeeeeeeees 6, 11
`
`Nixon v. Warner Commc’ns, Inc.,
`A435 U.S. 589 (1978)... ecceccssccscesecesecesceesceecceeessecseesseceeeseeeaseseeeseescessaseaessaeeaeeeaeeaeenseeaeeaessaeees 7
`
`Pansy v. Borough ofStroudsburg,
`23 F.3d 772 (3d Cir. 1994)... ee ceececcsecesceseceseeeseseaeseecseecseeeaceseeeseeeseecesaeessesaeeeaesaneeaeeues 7,9, 11
`
`Techfields Pharma Co. v. Covance Inc.,
`No. 3:16-CV-1148-MAS-LHG,2019 WL 2478109 (D.N.J. June 13, 2019) oe eeeeeeeeees 8
`
`United States v. Dentsply Int'l, Inc.,
`187 F.R.D. 152 (D. Del. 1999) ooo cccscsscesceseseseeeessaecaeeseeeseeeseeeaeeaeseesaesaeeeaeeaeeeseeteeeaeees 9
`
`Valeant Pharm. Int'l, Inc. v. Mylan Pharm., Inc.,
`Case No. 15-8180, D.I. 320 (D.N.J. May 22, 2018)... eeeeeecssseseccseceseeeseeeeceeeseaceeseeeseseeeaeeaees 11
`
`il
`
`

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`I.
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`INTRODUCTION
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`Pursuant to the Protective Order (D.I. 91) as modified by the Court’s November14, 2023
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`Order (D.I. 155), the parties’ respectfully move this Court to seal their sensitive and confidential
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`information and to grant leave to file partially redacted versions of Moderna’s Opposition to
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`Plaintiffs’ Motion to Compel (D.I. 196) (“Moderna’s Opposition”) and Exhibits C, F, G, H, K, M,
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`and N (collectively, the “Confidential Materials”). As explained in more detail below, the portions
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`marked for redaction contain the parties’ sensitive and confidential
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`technical
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`information,
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`including confidential regulatory submissionsandtrade secrets.
`
`In support of this motion, Moderna attaches as Exhibit
`
`1
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`the Declaration of Peter
`
`Wojciechowski, CMC Knowledge Management Lead at ModernaTX, Inc. and Exhibit 2 the
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`Declaration of Dan Staner, VP, & General Manager, Switzerland, Germany & Middle East at
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`Moderna Switzerland GmbH who are knowledgeable about Moderna’s confidential information
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`that Modernaseeks to seal and are familiar with its sensitivity. In further support of this motion,
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`Plaintiffs attach as Exhibit 3 the Declaration of Pete Zorn, President and Chief Legal Officer of
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`Genevant Sciences,
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`Inc. who is knowledgeable about Plaintiffs’ confidential material
`
`that
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`Plaintiffs seek to seal and is familiar with its sensitivity. The Confidential Materials contain the
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`parties’ highly confidential information, and the Court should maintain that material underseal in
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`order to prevent serious and real harm to the parties. Release of the parties’ highly confidential
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`information to the public and the parties’ competitors would create a clearly defined and serious
`
`injury to the parties, as discussed in detail below.
`
`!
`
`Plaintiffs’ proposed redactionsare in teal highlighting and Defendants’ proposed redactions
`are in green highlighting. Yellow highlighting was used for emphasis by the parties in the
`originally filed exhibits and does not indicate proposed redactions.
`
`

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`Il.
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`LEGAL STANDARD
`
`Third Circuit common law presumesa public right of access to judicial records; however
`
`it also protects business and financial information when access would cause economic harm,
`
`including competitive harm. In re Avandia Mktg., Sales Pracs. & Prod. Liab. Litig. , 924 F.3d 662,
`
`672 (3d Cir. 2019). “Although the commonlawright to public access is a recognized and venerated
`
`principle, courts have also recognized the accompanyingprinciple that the right is not absolute.”
`
`Inre Cendant Corp., 260 F.3d 183, 194 (3d Cir. 2001) (citations and quotations omitted); see also
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`Littlejohn y. Bic Corp., 851 F.2d 673, 678 (3d Cir. 1988) (“Despite the presumption, courts may
`
`deny accessto judicial records, for example, where they are sources of business information that
`
`might harmalitigant’s competitive standing.”).
`
`This presumption is overcome where a movant shows “that the interest in secrecy
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`outweighs the presumption.” Avandia Mkig., 924 F.3d at 672 (quoting Bank ofAm. Nat’l Tr. &
`
`Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986)). This showing may be
`
`made by demonstrating that disclosure will work a clearly defined and serious injury to the movant
`
`and that the material is the kind of information that courts will protect. See Avandia Mktg., 924
`
`F.3d at 672 (citing Miller v. Ind. Hosp., 16 F.3d 549, 551 (3d Cir. 1994)). The Court will apply a
`
`“good cause” standard justifying sealing or redacting judicial records, requiring a “balancing
`
`process, in which courts weigh the harm of disclosing information against the importance of
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`disclosure to the public.” Mosaid Techs. Inc. v. LSI Corp., 878 F. Supp. 2d 503, 507-08 (D. Del.
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`2012) (citing Pansy v. Borough ofStroudsburg, 23 F.3d 772, 787 (3d Cir. 1994)).
`
`I.
`
`ARGUMENT
`
`A.
`
`Moderna’s Confidential Materials
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`Modernaseeksto file redacted versions of Moderna’s Opposition and Exhibits C, G, and
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`H thereto (collectively, “Moderna’s Confidential Materials”).
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`

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`Good cause exists here to seal Moderna’s Confidential Materials because they contain
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`Moderna’s highly confidential technical and business information. Disclosure of such information
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`would cause real and serious competitive harm to the parties, and the information doesnot need to
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`be disclosed to the public to understand the filingsat issue.
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`Althoughthe public’s presumptive commonlaw right of access to judicial records attaches
`
`to materials filed in connection with a pretrial motion of a non-discovery nature, this right is “not
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`absolute” and may be overcomeby a showingthat the material sought to be sealed “is the kind of
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`information that courts will protect and will work a clearly defined and serious injury to the party
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`seeking closure.” Avandia Mktg., 924 F.3d at 673 (citation omitted). Here, Moderna’s Confidential
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`Materials are all the types of limited information of the kind that courts in the Third Circuit have
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`recognized as protectable, namely highly sensitive and confidential
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`technical
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`information
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`regarding Moderna’s proprietary and trade secret manufacturing methods for its COVID-19
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`Vaccine, including steps in the manufacturing process and parameters for those steps.
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`The harms caused by revealing Moderna’s confidential information are discussed below,
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`and further in the attached declarations of Peter Wojciechowski (Exhibit 1), CMC Knowledge
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`Management Lead at ModernaTX,Inc., and Dan Staner (Exhibit 2), VP, & General Manager,
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`Switzerland, Germany & Middle East at Moderna Switzerland GmbH, whoare familiar with this
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`information and its sensitivity. As Mr. Wojciechowski explains, there is significant competition
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`between established vaccine suppliers,
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`including suppliers with mRNA-based vaccines,
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`like
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`Moderna, and any information about one of these competitors, even seemingly minor information,
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`may prove competitively advantageous. Ex. 1, 4 7.
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`Moderna seeks only to partially seal Moderna’s Confidential Materials at issue in this
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`motion. As described briefly below, and further explained in the Declaration of Peter
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`

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`Wojciechowski (Exhibit 1) and the Declaration of Dan Staner (Exhibit 2), Moderna’s Confidential
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`Materials contain Moderna’s and third parties’ confidential information. Moderna’s Confidential
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`Materials contain highly confidential and sensitive information regarding the composition of
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`Moderna’s COVID-19 Vaccine (known as mRNA-1273 or “SpikeVax”), Moderna’s proprietary
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`and trade secret manufacturing methods for its COVID-19 Vaccine including steps in the
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`manufacturing process and parameters for those steps, and commercially sensitive third-party
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`material contained in foreign customer contracts. Ex. 1, | 6; Ex. 2, § 5. SpikeVax is comprised of
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`messenger RNA (mRNA) which is delivered using lipid nanoparticles (LNPs). Ex. 1, J 3.
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`Moderna’s proprietary LNP is comprised of four lipid components including SM-102, cholesterol,
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`phospholipid, and PEGDMG-2000. Jd. With respect to Moderna’s formulation, Moderna considers
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`its precise formulation, including the specific quantities of ingredients, a trade secret, which is not
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`public knowledge. Jd, § 8. With respect to Moderna’s manufacturing process for SpikeVax,
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`Moderna considers its process-as-a-whole a trade secret, including the steps in the process, the
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`records of each step, and the parameters or specification for each step (such as timing, sequence,
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`amount and kind of raw materials, temperatures, measurements, equipment used etc.). Id, | 9.
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`Modernahasnot publicly disclosed its proprietary manufacturing process. Jd. With respect to the
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`information contained in Moderna’s contracts with third parties, Moderna owes a duty of
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`confidentiality to these third parties which would require notice to each third party prior to public
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`disclosure. Ex. 2, | 7. Publicly revealing terms of the contracts with third parties could harm
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`Moderna’s relationship with these third parties. Jd.
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`Specifically, Modernahasnot publicly disclosed information within Moderna’s Opposition
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`and Exhibits C, G, and H which refer to, quote, summarize, or otherwise disclose Moderna’s
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`sensitive and confidential technical information. Specifically, the information on the following
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`

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`pages of Moderna’s Opposition and Exhibits disclose specific information concerning the
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`composition of Moderna’s COVID-19 Vaccine, Moderna’s proprietary and trade secret
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`manufacturing methods for its COVID-19 Vaccine including steps in the manufacturing process
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`and parameters for those steps, and commercially sensitive third-party material contained in
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`foreign customer contracts:
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`e Moderna’s Opposition at page 2, lines 27-30;
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`e Exhibit C at page 2, line 37;
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`e Exhibit G at page 3, lines 11, 18-19; page 4, lines 1-2; page 6, lines 17-20;
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`e Exhibit H at page 1, lines 1-35; page 2, lines 1-53.
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`Because of the highly competitive nature of the vaccine supplier market, Moderna has
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`spent significant effort and resources to develop these manufacturing methods and formulations,
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`and the release of such information to the public, including Moderna’s competitors, would harm
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`Moderna. Ex. 1, § 7. Because there are so few competitors in the vaccine supplier market, the
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`market is highly competitive, and any information about one of the competitors, even seemingly
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`minor information, may prove competitively advantageous. Id.; Ex. 2, § 6. Additionally, there are
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`companies considering entering the vaccine market and companies developing mRNA-based
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`vaccines and therapeutics for other diseases or developing lipid nanoparticles for mRNA-based
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`products. Ex. 1, J 7; Ex. 2, 7 6.
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`Moderna’s Confidential Materials also include highly confidential business information
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`regarding Moderna’s COVID-19 Vaccine. Ex. 1, § 6; Ex. 2, J 5. If the confidential information
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`were made public, Moderna’s competitors would be able to potentially replicate Moderna’s
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`products, features within Moderna’s products, and methods of making mRNA-LNPproducts, or
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`make decisions about where, when, and how to offer directly competitive goods with full
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`knowledge of Moderna’s technology. Ex. 1, § 11. Moderna’s competitors would gain a significant
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`advantage in creating their own business strategies, which would put Modernaat a significant
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`competitive disadvantage, causing it real and serious harm. Jd. Moderna’s competitors may also
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`seek patent claims to cover Moderna’s technology. Id.
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`Moderna has always taken extensive measures to maintain the confidentiality of its
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`technical information. Jd, { 5; Ex. 2, § 4. Moderna has been extremely concerned about the
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`protection of its confidential information duringthis litigation and has been very careful to always
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`protect this information. Ex. 1, § 5; Ex. 2, § 4. Moderna has invested significant resources to
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`develop this information as well, Ex. 1, ¥ 7, and this information is of the type that courts have
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`recognized as protectable. See, e.g., Nitto Denko Corp. v. Hutchinson Tech. Inc., No. CV 16-3595
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`(CCC/MF), 2017 WL 2782639,at *2 (D.N.J. Mar. 3, 2017) (granting motionto seal “confidential
`
`technical information” where such information “was not intended to be seen by competitors.. .
`
`for review and potential use against the parties” and parties were in “highly competitive []
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`industry”); Guardant Health, Inc. v. Foundation Med., Inc., C.A. Nos. 17-1616-LPS-CJB, D.I.
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`447 (D. Del. June 16, 2020) (granting motion to redact confidential information concerning
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`defendant’s confidential technical information).
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`Disclosure of Moderna’s confidential
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`information regarding the technical details of
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`Moderna’s precise formulation,
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`the proprietary manufacturing process for SpikeVax, or
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`commercially sensitive third-party material contained in foreign customer contracts would “work
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`a clearly defined and serious injury” to Moderna, as such disclosure would provide Moderna’s
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`competitors, customers, and potential
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`licensors or
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`licensees with otherwise confidential
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`information regarding Moderna’s products and strategies, as well as a competitive advantage in
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`both the vaccine supplier market and in negotiations with Moderna. See Pansy, 23 F.3d at 786.
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`Moreover, because this “case involvesprivate litigants” and their confidential information, there
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`is “little legitimate public interest” in the proposed redactions. Jd at 788. Under such
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`circumstances, Moderna’s interest in maintaining the confidentiality of the proposed redacted
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`information outweighs any countervailing public interest. See id. (“[I|f a case involves private
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`litigants, and concerns mattersoflittle legitimate public interest, that should be a factor weighing
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`in favor of granting or maintaining an order of confidentiality.”); Leucadia, Inc. v. Applied
`
`Extrusion Tech., Inc., 998 F.2d 157, 166 (3d Cir. 1993) (“Documents containing trade secrets or
`
`other confidential business information may be protected from disclosure” and explaining that the
`
`court has “framed the inquiry as whether the need for secrecy outweighs the presumption of access
`
`that normally attaches to such documents”); Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598
`
`(1978) (“[C]ourts have refused to permit their files to serve as .
`
`.
`
`. sources of business information
`
`that might harmalitigant’s competitive standing.”).
`
`As explained above, Moderna’s Confidential Materials contain technical details regarding
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`Moderna’s proprietary LNP formulation in SpikeVax, the related proprietary manufacturing
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`process, and commercially sensitive third-party material contained in foreign customer contracts.
`
`Moderna’s proposed redactions to Moderna’s Opposition and Exhibits C, G, and H thereto only
`
`redact the specific confidential material at issue, leaving the remainder unredacted. These proposed
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`redactions are narrow suchthat the public’s ability to understand the arguments is not impaired
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`any less than necessary to prevent the release of Moderna’s most sensitive technical information
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`to its competitors, preventing clear competitive harm. Moderna’s proposedredactions are narrow
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`in scope and refer only to Moderna’s confidential, sensitive technical or business information to
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`prevent the serious harm to Moderna which would be caused by its public release as outlined in
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`Mr. Wojciechowski’s and Mr. Staner’s declarations.
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`B.
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`Plaintiffs’ Confidential Materials
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`Plaintiffs seek to file redacted versions of Moderna’s Opposition and Exhibits F, K, M, and
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`N thereto (collectively, “Plaintiffs’ Confidential Materials”).
`
`Good cause exists here to seal Plaintiffs’ Confidential Materials because they contain
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`Plaintiffs’ highly confidential business information, and the confidential information of third
`
`parties. Disclosure of such information would cause real and serious competitive harm to Plaintiffs
`
`and the information does not need to be disclosed to the public to understandthe filings at issue.
`
`Plaintiffs’ Confidential Materials are the type of information that courts in the Third Circuit
`
`have recognized as protectable, namely highly sensitive and confidential business information
`
`regarding Plaintiffs’
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`license and business agreements with third parties, and details about
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`Plaintiffs’ ongoing work to commercialize these LNPsand secure appropriate intellectual property
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`protection for their LNP technology. Avandia Mktg., 924 F.3d at 673; Kaleo, Inc. v. Adamis
`
`Pharms. Corp., No. CR 19-917-RGA,2019 WL 11680196, at *2 (D. Del. July 16, 2019) (granting
`
`motion to seal “details of, discussion of, and/or reference surrounding licensing negotiations. . .
`
`which refer to timing of the discussions that led up to the execution of the agreement and the
`
`breadth of subject matter to be included in the license,” and finding “this information provides
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`subsequentlicensees insight into the factors beyond the financial terms that Adamis considers
`
`during licensing”); id. (good causeto seal information that “provides insight on Adamis’ legal and
`
`businessstrategy”); Techfields Pharma Co. v. Covance Inc., No. 3:16-CV-1148-MAS-LHG,2019
`
`WL 2478109, at *2 (D.N.J. June 13, 2019) (granting motion to seal discussion of contracts that
`
`are subject to confidential negotiations, where disclosure would putparty at disadvantage in future
`
`negotiations); United States v. Dentsply Int'l, Inc., 187 F.R.D. 152, 159 (D. Del. 1999) (shielding
`
`a nonparty competitors’ information from disclosure); Pansy, 23 F.3d at 786.
`
`

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`The harms caused by revealing Plaintiffs’ confidential information are discussed below,
`
`and further in the attached declaration of Pete Zorn (Exhibit 3), President and Chief Legal Officer
`
`of Genevant Sciences, Inc., who is familiar with this information andits sensitivity. As Mr. Zorn
`
`explains, there is significant competition in connection with the research, development, and sale
`
`of products related to Plaintiffs’ LNP technology, as well as the development and maintenance of
`
`appropriate intellectual property protection for Plaintiffs’ LNP technology. Ex. 3, fj 13-14. Any
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`information about one of the competitors in Plaintiffs’
`
`industry, even seemingly minor
`
`information, may prove competitively advantageous. Jd. Further, Plaintiffs continue to work with
`
`third parties regarding LNP Technology, and the disclosure of these third parties’ information
`
`would hinderPlaintiffs’ ability to enter into further confidential third-party businessrelationships.
`
`Asdescribed briefly below,and further explained in the Declaration of Mr. Zorn, Plaintiffs
`
`consider as confidential information the details of their commercial arrangements with other
`
`parties, the details of their negotiations and license agreements with collaborators regarding LNP
`
`technology, and their patent prosecution efforts. Ex. 3, J] 7, 10, 12. Plaintiffs’ development and
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`maintenanceoftheir commercial relationships regarding the development of LNP workis ongoing.
`
`Moderna’s Opposition and the exhibits at issue refer to a communication between Plaintiffs and a
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`third-party collaborator with which Genevant entered into a license agreement;
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`the details of
`
`Plaintiffs’ commercial agreements with Roivant Sciences, Inc.; and a communication with
`
`Plaintiffs’ counsel regarding the prosecution of a certain patent. Plaintiffs have not publicly
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`disclosed the information within Moderna’s Opposition and Exhibits F, K, M, and N, thereto which
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`refer to, summarize, or otherwise disclose Plaintiffs’ confidential communications and agreements
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`with third parties and Plaintiffs’ counsel for patent prosecution. Specifically, the information on
`
`the following pages of Moderna’s Opposition and Exhibits disclose information concerning
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`

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`Plaintiffs’ confidential agreements, and details about Plaintiffs’ ongoing work to develop,
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`commercialize, and secure appropriate intellectual property protection for their LNP technology:
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`e Moderna’s Opposition at Page 3, Footnote 4, lines 3-4
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`e Exhibit F, at Page 5, Lines 2-3
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`e Exhibit K, at Page 5, Lines 5-9
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`e Exhibit M,at Page 2, Lines 4-7, 16, 24-25
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`e Exhibit N, at Page 2, Lines 3-6, 9-10, 14, 17-20, 23-33, Page 3, Lines 1, 5-6, 8-44,
`Page 4, Lines 1, 3-11
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`Because of the highly competitive nature in connection with the research, development,
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`and sale of products related to Plaintiffs’ LNP technology, Plaintiffs have spent significant effort
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`and resources to develop their third-party relationships and collaborations, and to secure
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`appropriate intellectual property protection for Plaintiffs’ LNP technology. Plaintiffs have spent
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`significant resources to pursue the appropriate intellectual property to protect their inventions
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`regarding LNP technology, and to build collaborations and relationships with other third parties,
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`and the release of confidential
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`information regarding these efforts to the public,
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`including
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`Plaintiffs’ competitors, would significantly harm Plaintiffs. Ex. 3, 9§ 13-14. Any information
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`about one of these competitors, even seemingly minor information, may prove competitively
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`advantageous. Ex. 3, J 14. If Plaintiffs’ Confidential Materials were made public, Plaintiffs would
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`be competitively disadvantaged in securing appropriate intellectual property protection, and
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`entering into appropriate commercial relationships with other third parties.
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`Plaintiffs have always taken extensive measures to maintain the confidentiality of third-
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`party information, as well as their confidential business arrangements, and their efforts to secure
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`appropriate intellectual property protection. Ex. 3, § 12. Plaintiffs have invested significant
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`resources to develop this information as well, Ex. 3, §§] 10—11, 13, and this information is of the
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`type that courts have recognized as protectable. E.g., Kaleo, Inc., 2019 WL 11680196, at *2
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`(finding good cause to seal information that “provides insight on Adamis’ legal and business
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`strategy”); Valeant Pharm. Int'l, Inc. v. Mylan Pharm., Inc., Case No. 15-8180, D.I. 320 (D.N.J.
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`May22, 2018).
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`Disclosure of Plaintiffs’ confidential information regarding their business arrangements
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`and their efforts to secure appropriate intellectual property protection, as well as confidential third-
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`party information, would “work a clearly defined and serious injury” to Plaintiffs, as such
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`disclosure would provide Plaintiffs’ competitors, customers, and potential licensors or licensees
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`with otherwise confidential information regarding Plaintiffs’ strategies, as well as a competitive
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`advantage in both the market and in negotiations with Plaintiffs. See Pansy, 23 F.3d at 786; Nitto
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`Denko, 2017 WL 2782639, at *2. Furthermore,if the confidential information ofthird parties that
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`Plaintiffs’ obtained pursuant to confidentiality agreements were disclosed, then Plaintiffs would
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`be harmedin their ability to ensure potential third-party collaborators that the disclosure of third-
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`party information to Plaintiffs will remain in confidence. See Ex. 3, 79 5, 11, 13.
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`Andbecausethis “case involvesprivate litigants” and their confidential information, there
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`is “little legitimate public interest” in the proposed redactions. Pansy, 23 F.3d at 788. Under such
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`circumstances, Plaintiffs’ interest in maintaining the confidentiality of the proposed redacted
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`information outweighs any countervailing public interest. See id.
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`As explained above,Plaintiffs’ Confidential Materials contain technical details regarding
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`the research, development, and sale of products related to Plaintiffs’ LNP technology. Plaintiffs
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`proposed redactions to Moderna’s Opposition and Exhibits F, K, M, and N removethe specific
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`confidential material at issue, leaving non-confidential information unredacted. These proposed
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`redactions are narrow, such that the public’s ability to understand Moderna’s Opposition is not
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`impaired any less than necessary to prevent the release of Plaintiffs’ sensitive business and
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`commercial information to its competitors, preventing clear competitive harm.Plaintiffs’ proposed
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`redactions are narrow in scope andrefer only to Plaintiffs’ confidential, sensitive technical or
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`business information to prevent the serious harm to Plaintiffs which would be causedbyits public
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`release as outlined in Mr. Zorn’s Declaration.
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`Exhibit F is a confidential letter from Genevant’s counsel to counsel for Moderna that
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`includes information about the documents that Genevant is producing in this case, the disclosure
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`of which could potentially interfere with Genevant's business and collaborations with third parties.
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`Ex. 3. § 5. Exhibit K includes Genevant’s response to Moderna’s interrogatory relating to the
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`specifics of Genevant and Arbutus’s commercial and businessrelationships with Roivant Sciences
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`Ltd., specifically regarding whether Roivant
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`is entitled to receive Litigation Proceeds in
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`connection with this litigation. Genevant’s response discloses specific information regarding the
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`commercial agreements that have been entered into between Roivant and Plaintiffs. Ex. 3, ] 6.
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`Exhibit M is a confidential communication between individuals at Genevant, Arbutus, and patent
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`counsel who haveprovided patent prosecution services, that discloses the specific individuals who
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`remain apprised of and assist with the efforts to appropriately secure intellectual property
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`protection for Plaintiffs’ inventions. Ex. 3. 7. Exhibit N is an email chain that includes details
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`concerning the confidential negotiations of a licensing agreement that was entered into between
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`Genevant and a third party, for which the negotiations were conducted pursuant to confidentiality
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`agreements. Ex. 3.9 8. In addition to disclosing the third party’s confidential information, Exhibit
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`N discloses the specific individuals who have participated in Plaintiffs’ ongoing efforts to license
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`Plaintiffs’ LNP technology, and to engage in commercial collaborations. Jd Sealing portions of
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`Exhibits F, K, M, and N does not impair the public’s ability to understand Moderna’s Opposition
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`any more than necessary to preventthe release of Plaintiffs’ and third parties’ confidential business
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`and commercial information, preventing clear competitive harm.
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`IV.
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`CONCLUSION
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`For the foregoing reasons, the parties jointly request the Court grant this Motion to Seal
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`with respect to the parties’ highly confidential information.
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`13
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`Case 1:22-cv-00252-MSG Document 211 Filed 02/02/24 Page 18 of 21 PageID #: 14398
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`SHAW KELLER LLP
`
`Morris, NICHOLS, ARSHT & TUNNELL LLP
`
`/s/Nathan R, Hoeschen
`
`/s/Travis J. Murray
`
`Jack B. Blumenfeld (#1014)
`Brian P. Egan (#6227)
`Travis J. Murray (#6882)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@morrisnichols.com
`began@morrisnichols.com
`tmurray@morrisnichols.com
`
`Attorneys for Defendants
`
`OF COUNSEL:
`
`Patricia A. Carson, Ph.D.
`Jeanna M. Wacker, P.C.
`Mark C. McLennan
`Yan-Xin Li
`Caitlin Dean
`Nancy Kaye Horstman
`Shaoyao Yu
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, NY 10022
`(212) 446-4800
`
`Alina Afinogenova
`KIRKLAND & ELLIS LLP
`200 ClarendonStreet
`Boston, MA 02116
`(617) 385-7500
`
`John W. Shaw (#3362)
`Karen E. Keller (#4489)
`Nathan R. Hoeschen (#6232)
`Emily S. DiBenedetto (#6779)
`I.M.Pei Building
`1105 North Market Street, 12th Floor
`Wilmington, DE 19801
`(