Case 2:13-cv-00391-ES-JAD Document 406 Filed 10/31/17 Page 1 of 4 PageID: 7844
`
`Case 2:13-cv-00391-ES-JAD Document 406 Filed 10/31/17 Page 1 of 4 PagelD: 7844
`
`James E. Cecchi (jcecchi@carellabyrne.com)
`Melissa E. Flax (mflax@carellabyrne.com)
`Michael Cross (mcross@care11abyme.com)
`CARELLA, BYRNE, CECCHI,
`OLSTEIN, BRODY & AGNELLO
`5 Becker Farm Road
`
`Roseland, NJ 07068
`
`Telephone: (973) 994-1700
`Facsimile: (973) 994—1744
`
`Attorneys for Defendants Lupin Limited,
`Lupin Pharmaceuticals, Inc. and Lupin Inc.
`
`““
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
`
`JAZZ PHARMACEUTICALS, INC. and
`JAZZ PHARMACEUTICALS IRELAND
`
`LIMITED,
`
`v.
`
`Plaintiffs,
`
`Civil Action No. 13-391 (ES)(JAD)
`(consolidated)
`
`ORDER TO SEAL
`
`
`
`
`
`
`AMNEAL PHARMACEUTICALS LLC,
`et al.,
`
`
`Defendants.
`
`
`
`THIS MATTER having been opened to the Court by Defendants Lupin Limited, Lupin
`
`Pharmaceuticals, Inc. and Lupin Inc. (collectively, “Lupin”) and Plaintiffs Jazz Pharmaceuticals,
`
`Inc. and Jazz Pharmaceuticals Ireland Limited (collectively, “Jazz”) in the above-captioned
`
`matter, by way of the parties’ joint motion to seal information pursuant to Local Civil Rule
`
`5.3(c); the Court hereby makes the following findings:
`
`1.
`
`There exists in civil cases a common law public right of access to judicial
`
`proceedings and records.
`
`In re Cendant Corp, 260 F.3d 183, 192 (3d Cir. 2001) (citing
`
`
`
`Case 2:13-cv-00391-ES-JAD Document 406 Filed 10/31/17 Page 1 of 4 PagelD: 7844
`
`James E. Cecchi (jcecchi@carellabyrne.com)
`Melissa E. Flax (mflax@carellabyrne.com)
`Michael Cross (mcross@care11abyme.com)
`CARELLA, BYRNE, CECCHI,
`OLSTEIN, BRODY & AGNELLO
`5 Becker Farm Road
`
`Roseland, NJ 07068
`
`Telephone: (973) 994-1700
`Facsimile: (973) 994—1744
`
`Attorneys for Defendants Lupin Limited,
`Lupin Pharmaceuticals, Inc. and Lupin Inc.
`
`““
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
`
`JAZZ PHARMACEUTICALS, INC. and
`JAZZ PHARMACEUTICALS IRELAND
`
`LIMITED,
`
`v.
`
`Plaintiffs,
`
`Civil Action No. 13-391 (ES)(JAD)
`(consolidated)
`
`ORDER TO SEAL
`
`
`
`
`
`
`AMNEAL PHARMACEUTICALS LLC,
`et al.,
`
`
`Defendants.
`
`
`
`THIS MATTER having been opened to the Court by Defendants Lupin Limited, Lupin
`
`Pharmaceuticals, Inc. and Lupin Inc. (collectively, “Lupin”) and Plaintiffs Jazz Pharmaceuticals,
`
`Inc. and Jazz Pharmaceuticals Ireland Limited (collectively, “Jazz”) in the above-captioned
`
`matter, by way of the parties’ joint motion to seal information pursuant to Local Civil Rule
`
`5.3(c); the Court hereby makes the following findings:
`
`1.
`
`There exists in civil cases a common law public right of access to judicial
`
`proceedings and records.
`
`In re Cendant Corp, 260 F.3d 183, 192 (3d Cir. 2001) (citing
`
`
`
`Case 2:13-cv-00391-ES-JAD Document 406 Filed 10/31/17 Page 2 of 4 PageID: 7845
`
`Case 2:13-cv-00391-ES—JAD Document 406 Filed 10/31/17 Page 2 of 4 PageID: 7845
`
`Littlejohn v. BIC Corp., 851 F.2d 673, 677—78 (3d Cir. 1988)). Courts have recognized that the
`
`presumption of public access is not absolute and may be rebutted. Republic of Philippines v.
`
`Westinghouse Elec. Corp., 949 F.2d 653, 662 (3d Cir. 1991).
`
`2.
`
`The party seeking to seal any part of a judicial record bears the burden of
`C“
`
`demonstrating tha
`
`the material is the kind of information that courts will protect.”’ Miller v.
`
`Ind. Hosp, 16 F.3d 549, 551 (3d Cir. 1994) (quoting Publicker Indus, Inc. v. Cohen, 733 F.2d
`
`1059, 1071 (3d Cir. 1984)).
`
`3.
`
`While the party seeking protection has the burden of demonstrating that it is
`
`entitled to protection, courts will find that “good cause” to protect information from exposure
`
`exists where disclosure would result in a clearly defined and serious injury to the party seeking to
`
`overcome the presumption of access. Pansy v. Borough ofStroudsburg, 23 F.3d 772, 787-91 (3d
`
`Cir. 1994).
`
`4.
`
`The analysis outlined by the Third Circuit has been codified in the District of New
`
`Jersey as Local Civil Rule 5.3. Local Civil Rule 5.3(c)(3) requires a showing of:
`
`(a) the nature
`
`of the materials of the proceedings at issue; (b) the legitimate private or public interest which
`
`warrants the relief sought; (c) the clearly defined and serious injury that would result if the relief
`
`sought is not granted; and (d) why a less restrictive alternative to the relief sought
`
`is not
`
`available. See L. Civ. R. 5.3(c)(3).
`
`A.
`
`Nature of the Materials at Issue
`
`5.
`
`Certain portions of Jazz’s letter dated July 31, 2017 (D.I. 374) and Exhibits 1-22
`
`to same; certain portions of Lupin’s letter dated August 18, 2017 (DJ. 381) and Exhibits 1-6 to
`
`same; certain portions of Jazz’s letter dated September 7, 2017 (DJ. 389) and Exhibits A, B, D
`
`and E to same; certain portions of Lupin’s letter dated September 18, 2017 (D.l. 393-1); and
`
`
`
`Case 2:13-cv-00391-ES-JAD Document 406 Filed 10/31/17 Page 3 of 4 PageID: 7846
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`Case 2:13-cv-00391-ES-JAD Document 406 Filed 10/31/17 Page 3 of 4 PagelD: 7846
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`certain portions of Jazz‘s letter dated September 27, 2017 (D.I. 395) and Exhibit AA to same
`
`(hereinafter, collectively,
`
`the “Confidential Materials”) contain information that has been
`
`designated as “HIGHLY CONFIDENTIAL” by Lupin and subject
`
`to the Discovery
`
`Confidentiality Order entered on December 19, 2016 (Di. 335).
`
`6.
`
`The Confidential Materials contain proprietary and confidential
`
`research,
`
`development, commercial, and technical
`
`information that has been designated as “HIGHLY
`
`CONFIDENTIAL-SUBJECT TO DISCOVERY CONFIDENTIALITY ORDER” by Lupin.
`
`7.
`
`Public disclosure of this information would provide the public insight into the
`
`business and operations of Lupin.
`
`8.
`
`The parties’ redactions are the least restrictive alternative because the redactions
`
`are narrowly tailored to include only the Confidential Materials which contain Lupin’s Highly
`
`Confidential information.
`
`9.
`
`Lupin has a legitimate interest, which warrants the sealing of this information, and
`
`a clearly defined injury if it is not sealed.
`
`B.
`
`Legitimate Private or Public Interests Which Warrant Relief Sought
`
`10.
`
`Courts may seal documents that encompass sensitive confidential and proprietary
`
`information that might harm a litigant’s competitive standing.
`
`See Zenith Radio Corp. v.
`
`Matsushz‘ta Elec. Indus. Co., 529 F. Supp. 866, 890 (ED. Pa. 1981) (citing Fed. R. Civ. P. 26).
`
`The District of New Jersey has held that the inclusion of trade secrets and other confidential
`
`information in documents warrants the sealing of such documents. See In re Gabapentin, 312 F.
`
`Supp. 2d 653, 664 (D.N.J. 2004).
`
`
`
`Case 2:13-cv-00391-ES-JAD Document 406 Filed 10/31/17 Page 4 of 4 PageID: 7847
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`Case 2:13-cv-00391-ES-JAD Document 406 Filed 10/31/17 Page 4 of 4 PagelD: 7847
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`C.
`
`Clearly Defined Serious Injury if Relief Is Not Granted
`
`11.
`
`The District Court has discretion to balance the factors for and against access to
`
`court documents. See Pansy v. Borough ofStroudsburg, 23 F.3d 772, 781 (3d Cir. 1994). Here,
`
`Lupin’s interest in secrecy outweigh any need for public access.
`
`12.
`
`If relief is not granted, Lupin’s confidential
`
`information will be available to
`
`competitors, exposing Lupin to serious competitive and financial risks.
`
`D.
`
`A Less Restrictive Alternative Is Not Available
`
`13.
`
`The sealing of the Confidential Materials is an accepted practice in the District of
`
`New Jersey. See, e.g., Gabapentin, 312 F. Supp. 2d at 669.
`
`14.
`
`No less restrictive alternative is available to ensure that this information remains
`
`confidential because the parties’ request is narrowly tailored to seek the sealing of only the
`
`Confidential Materials that contain Lupin’s Highly Confidential information. The parties have filed
`
`redacted versions of the materials in question in which only the confidential information contained therein
`
`has been redacted. (ECF Nos. 375, 383, 391, 394, 396).
`
`WHEREAS,
`
`the Court, having determined that
`
`the Confidential Materials contain
`
`confidential information, and the Court having considered the written submissions of counsel,
`
`and good cause having been shown,
`
`IT IS on this 3 lst day of October, 2017,
`
`ORDERED that the parties’ Motion to Seal pursuant to Local Civil Rule 5.3(c), (ECF No.
`
`399),
`
`is GRANTED; and
`
`IT IS FURTHER ORDERED that the Clerk of the Court shall maintain the unredacted versions
`
`of the Confidential Materials, (ECF Nos. 374, 381, 389, 393 and 395), under seal, and shall
`
`take
`
`such other steps as may be reasonably required to maintain the confidentiality of the Confidential
`
`Materials.
`
`
`
`A. DICKSON, U.S.M.J.
`
`
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