Case 2:23-cv-01997-MCA-JSA Document 17 Filed 05/04/23 Page 1 of 10 PageID: 1250
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
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`MONIB ZIRVI, M.D., Ph.D.
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`Plaintiff,
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`v.
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` Case No.: 2:23-CV-01997-MCA-JSA
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`ILLUMINA, INC., THERMO FISHER
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`SCIENTIFIC, AKIN GUMP STRAUSS
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`HAUER & FELD LLP,
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`LATHAM & WATKINS,
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`RIP FINST, SEAN BOYLE,
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`MATTHEW A. PEARSON,
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`ANGELA VERRECCHIO,
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`ROGER CHIN, and
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`DOUGLAS LUMISH
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`Defendants.
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`____________________________________)
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`OPPOSITION TO THERMO FISHER SCIENTIFIC’S MOTION TO SEAL
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`COMES NOW, the Plaintiff, by and through its undersigned counsel and files this
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`Opposition to Defendant, Thermo Fisher Scientific’s (“Thermo Fisher”), Motion to Seal Exhibits
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`6, 7, and 8 of Plaintiff’s Complaint [D.E. 1] and as grounds therefore would state:
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`I.
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`INTRODUCTION
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` The matter is before the Court is Thermo Fisher’s Motion to Seal Exhibits 6, 7, and 8. For
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`the reasons stated herein below, the Court should deny the request to seal where Thermo Fisher
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`has failed to carry its burden that it is entitled to such relief regarding the exhibits at issue.
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`II.
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`LEGAL STANDARD ON MOTION TO SEAL.
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`Local Civil Rule 5.3 “was adopted to govern all requests by a party to seal or otherwise restrict
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`public access to materials filed with or used by the Court, and judicial proceedings themselves.”
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`Emmanouil v. Roggio, No. 06-1068, 2007 WL 1174876, at *1 (D.N.J. April 19, 2007). Under this
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`1
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`Case 2:23-cv-01997-MCA-JSA Document 17 Filed 05/04/23 Page 2 of 10 PageID: 1251
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`rule, a motion to seal "shall describe (a) the nature of the materials or proceedings at issue, (b) the
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`legitimate private or public interests which warrant the relief sought, (c) the clearly defined and
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`serious injury that would result if the relief sought is not granted, and (d) why a less restrictive
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`alternative to the relief sought is not available." L. Civ. R. 5.3(c).
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`L. Civ. R. 5.3(c)(3) further requires:
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`Contents of Motion. Any motion papers shall include as part of an affidavit, declaration,
`certification or other documents of the type referenced in 28 U.S.C. § 1746, which shall be
`based on personal knowledge as required by Local Civil Rule 7.2 (a), an index,
`substantially in form suggested by Appendix U, describing with particularity:
`(a) the nature of the materials or 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;
`(d) why a less restrictive alternative to the relief sought is not available;
`(e) any prior order sealing the same materials in the pending action; and
`(f) the identity of any party or nonparty known to be objecting to the sealing request.
`Such index shall also include, as to each objection to seal any material:
`(g) the materials to which there is an objection;
`(h) the basis for the objection; and
`(i) if the material or information was previously sealed by the Court in the pending
`action, why the materials should not be maintained under seal.
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`Proposed Findings of Fact and Conclusions of Law shall be submitted with the motion
`papers in the proposed order required by (c)(6) below. Any party opposing the sealing
`request shall submit an alternative proposed order including the party's Proposed
`Findings of Fact and Conclusions of Law.
`III. LEGAL ARGUMENT
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`On April 12, 2023, Thermo Fisher’s Counsel wrote the Court alleging:
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`“The Privileged Exhibits were shared between Thermo Fisher’ s in-
`house counsel, Thermo Fisher’s outside counsel (Latham Watkins),
`two Cornell legal professionals (its in-house counsel and Director of
`Technology Licensing), and two inventors (Drs. Zirvi and Barany)
`of the Cornell v. Illumina litigation patents, who received the
`Exhibits at Cornell’s in-house counsel’s request. Thermo Fisher and
`Cornell shared a common legal interest in the enforcement of the
`licensed intellectual property. See In re Regents of the University of
`California, 101 F.3d 1386 (Fed. Cir. 1996). That common legal
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`interest was expressly memorialized in two written common
`legal interest agreements. Communications between Thermo
`Fisher, its counsel, Cornell, Cornell’s counsel, and the Cornell
`inventors were subject to that common interest privilege. The
`privilege belongs to Thermo Fisher and Cornell, not Dr. Zirvi or any
`other individual who received those communications pursuant to
`that agreement. Neither Thermo Fisher nor Cornell has waived that
`privilege.”
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`District Court granted an Order temporarily sealing Exhibits 6, 7, and 8, based on a letter
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`provided by Thermo Fisher Counsel. The Court requested that Thermo Fisher file a Motion to Seal
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`within fourteen 14 days. The contents of the Motion are governed by L. Civ. R. 5.3(c).
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`Upon filing the Motion, Thermo Fisher presented no evidence of its claim that there was
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`common legal interest expressly memorialized in two agreements. Nothing was provided to the
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`Court other than a Declaration by an attorney from Walsh Pizzi O’Reilly Falanga LLP, who had
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`no involvement in the facts or circumstances regarding Exhibits 6, 7, and 8. The failure to produce
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`either a Joint Defense Agreement or Common Interest Agreement where it has been admitted that
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`two such agreements exist should be grounds to dismiss that claim.
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`The reason why the Court should dismiss the argument that there was a common interest
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`privilege is because it would be impossible to determine the alleged common legal interests
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`without the same. United States v. BDO Seidman, LLP, 492 F.3d 806, 815 (7th Cir. 2007) (stating
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`that the common interest privilege “requires that the parties have an identical (or nearly identical)
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`legal interest, as opposed to a merely similar interest”).
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`Also, in the recent case In re: Affymetrix, Inc., Life Technologies Corporation, the Federal
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`Circuit examined the threshold issue of first determine whether there exist an underlying attorney-
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`client privilege and refused to apply the Common Interest Doctrine because a party to the
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`communication was not represented by counsel. In re: Affymetrix, Inc., Life Technologies
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`Corporation, No. 2019-104 (Fed. Cir. 2018) (nonprecedential order) (applying Ninth Circuit law
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`and denying a writ of mandamus to vacate the district court’s order compelling documents because
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`all parties to the communications in the documents were not represented by counsel for the
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`common interest doctrine to apply). If Latham & Watkins LLP was not representing Dr. Zirvi at
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`the time Exhibits 6, 7, and 8 were shared with him then the doctrine should not be applied.
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`Notably, the lawyers in In re: Affymetrix, Inc., Life Technologies Corporation trying to
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`claim privilege for communications with an unrepresented party were: Roger J Chin and Douglas
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`E. Lumish, of Latham & Watkins LLP and Rip Finst of Life Technologies Corporation. The same
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`lawyers involved in Exhibits 6, 7, and 8 in the present case.
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`The Movant claims that it did not represent Dr. Zirvi through its counsel Latham & Watkins
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`LLP and there was no other attorney attached to the communication therefore the doctrine should
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`not apply. In re Teleglobe Commc'ns Corp., 493 F.3d 345, 364 (3d Cir. 2007) (emphasizing that
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`the common interest privilege is limited to situations where "the clients' separate attorneys are both
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`working together to advance the common interest of the clients").
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`In any case, there clearly was no defined interest put forth by Thermo Fisher in Motion to
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`seal. F.T.C. v. GlaxoSmithKline, 294 F.3d 141, 146-47 (D.C. Cir. 2002) (stressing the importance
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`of specificity in defining the scope of a common interest agreement); In re Leslie Fay Cos., Inc.
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`Sec. Litig., 161 F.R.D. 274, 279 (S.D.N.Y. 1995) (requiring that a common interest agreement must
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`identify the particular matter for which the common interest privilege is sought); Bank Brussels
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`Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 447 (S.D.N.Y. 1995) (holding that the
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`common interest privilege is only available where the agreement is specific and narrowly tailored).
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`The Court could not determine based on Thermo Fisher’s submissions that the doctrine applies in
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`this case. There was no evidence based on personal knowledge that the parties had aligned
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`interests.
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`However, Exhibit 8, is instructive on the issue of non-alignment. The Roger Chin writes in
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`his email in response to a request enforce the theft of the ZipCode technology, “Our current patent
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`case is not the proper vehicle to advance general allegations of IP theft. Those claims are more in
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`the nature of trade secrets misappropriation or breach of contract, which are not part of our case
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`and would have to be separately evaluated.” There is no alignment of interest with Plaintiff who
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`created the ZipCode technology.
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`Indeed, the Declaration starts out with the Declarant indicating that she is “fully familiar
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`with the facts set forth herein.” However, there is no indication that she has personal knowledge
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`of the facts contained in the Declaration. According to L. Civ. R. 5.3(c), “…motion papers shall
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`include as part of an affidavit, declaration, certification or other documents of the type referenced
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`in 28 U.S.C. § 1746, which shall be based on personal knowledge as required by Local Civil
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`Rule 7.2 (a)…” Thermo Fisher’s Motion to seal is unsupported by a Declaration made by someone
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`with personal knowledge and therefore must be denied.
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`L. Civ. R. 5.3(c)(3)(a) requires the Movant to identify “the nature of the materials or
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`proceedings at issue.” The Proposed Order in this case vacillates between Exhibits 6, 7, and 8
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`being Confidential, Attorney-Client Privileged, or a hybrid of both. There is no clear definition of
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`the nature of the materials and there is no assertion made by someone with personal knowledge
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`regarding the nature of the material.
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`L. Civ. R. 5.3(c)(3)(b) requires the Movant to identify the legitimate private or public
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`interest which warrants the relief sought. The Declarant states, “There is a substantial public
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`interest in ensuring that Thermo Fisher’s privileged attorney-client communications remain
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`confidential and not become public at a later date.” The Declarant never identifies the public
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`interest.
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`5
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`L. Civ. R. 5.3(c)(3) (c) requires the Movant to identify a “clearly defined and serious injury
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`that would result if the relief sought is not granted.” The Declaration filed by Thermo Fisher states,
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`“Disclosure of this information would provide litigation adversaries with access to information
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`about Thermo Fisher’s legal strategies to which they are not entitled and which they could use to
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`Thermo Fisher’s detriment.” There is no explanation regarding where in the exhibits, or what in
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`the exhibits constitutes “legal strategies.” The Declarant does not state that she has personal
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`knowledge of these “legal strategies.”
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`L. Civ. R. 5.3(c)(3) (d) requires the Movant to identify why a less restrictive alternative to
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`the relief sought is not available. The Declarant in this case merely states, “This is the least
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`restrictive alternative available to protect the nonpublic confidential information contained in the
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`documents.” There is no attempt to discuss why a less restrictive alternative is not available.
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`The Declaration and Motion fails to meet the requirements of L. Civ. R. 5.3(c)(3)(e)
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`through (f) as required by the local rule.
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`For any of the reasons stated above the Motion should be denied.
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`Plaintiff, Dr. Zirvi, files a declaration attached hereto as Exhibit 1. In that Declaration he
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`explains that he was led to believe that he was represented by Akin Gump because all the parties’
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`interest were aligned. Zirvi Dec. ¶ 6. He was provided legal advice by Matthew Pearson during the
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`litigation. That he was notified on February 2, 2017 that new attorneys were taking over the case,
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`including Roger Chin and Douglas Lumish of Latham & Watkins. Zirvi Dec. ¶ 12.
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`The Plaintiff identified, Exhibit 6 as a “…a prepared PowerPoint presentation by Roger
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`Chin… which appeared to be aimed at convincing Cornell that all was lost, and they should
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`concede for no royalties and shut down the case before going to trial.” Zirvi Dec. ¶ 14. The Plaintiff
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`states further that immediately after the meeting he contacted Roger Chin to inform him that,
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`“Illumina was using to decode their Sentrix and Infinium arrays were called “ZipCode” in their
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`own software! This is a stunning revelation, since Illumina went to great pains to hide that these
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`were ZipCodes in their various patent filings, see Exhibit 5. I emailed this finding to Roger Chin
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`and the other attorneys immediately after the February 17, 2017, meeting and they responded with
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`setting up yet another meeting on February 24, 2017, with another PowerPoint presentation
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`(Exhibit 7).” Zirvi Dec. ¶ 15. The Plaintiff went on in Zirvi Dec. ¶ 15 to explain, “…I subsequently
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`sent dozens of other emails showing additional evidence of fraud by Illumina and many of these
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`emails remained unanswered. Roger Chin eventually answered my questions with the email
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`labeled Exhibit 8 and said that none of the issues I had raised could be brought up in court.”
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`The Plaintiff’s description of the exchange of Exhibits 6, 7, and 8 is clearly laid out in Zirvi
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`Dec. ¶ 17, “There was no common interest in any of these interactions. My goal and interests were
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`to go to trial and obtain the due credit for inventorship and rightful royalties.” Moreover, Exhibits
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`6, 7, and 8 formed the basis of a settlement described in Zirvi Dec. ¶ 19 as, “ThermoFisher
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`fraudulently induced Cornell to sign a settlement agreement which denied rightful royalties and
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`credit in April 2017. This was done over my vociferous protests and there was a divergence of
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`intent.” The Declaration of Dr. Zirvi is the only Declaration from a party with personal knowledge.
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`The Plaintiff clearly states that the information contained in the Exhibit 6 and 7 are not
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`Confidential. Zirvi Dec. ¶ 18, states, “There are no trade secrets that are revealed in any of those
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`exhibits. In fact, the diagrams in Exhibits 6 and 7 are just renditions of figures in Exhibit 5 which
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`is composed of publicly available information about patents that I am an inventor on and Illumina’s
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`patent applications and patents.” Therefore, the claim that the material is confidential should be
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`dismissed by the Court as there is no substantial competent evidence offered that supports such
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`claim. Under both the First Amendment and common law, Thermo Fisher must present "competent
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`evidence" demonstrating the "specific" injury that disclosure would cause it. Littlejohn v. BIC
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`Corp., 851 F.2d 673, 678 (3d Cir. 1988); Westinghouse, 949 F.2d at 663 (common law). Thermo
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`Fisher’s offer Declaration of Liza M. Walsh, a person having no personal knowledge of events
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`surround Exhibits 6, 7, and 8, is wholly deficient.
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`The right of public access to court proceedings is the cornerstone of the American justice
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`system, "antedat[ing] the Constitution." Littlejohn, 851 F.2d at 678. For centuries, judges have
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`recognized that public scrutiny of the judicial process not only “enhances the quality and
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`safeguards the integrity of the factfinding process,” but also “fosters an appearance of fairness,
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`thereby heightening public respect for the judicial process.” Globe Newspaper Co. v. Super. Ct. for
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`Norfolk Cty., 457 U.S. 596, 606 (1982). Public access “serve[s] as a check upon the judicial
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`process-an essential component in our structure of self-government” Id. and one “necessary for a
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`democracy to survive.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 588 (1980)
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`(Brennan, J., concurring). This is especially true in this case where one party has economic
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`superiority over the other and can bend the will of the Court to their desire and keep their acts
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`secret from the public.
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`Under the First Amendment, however, courts may not close judicial records absent a
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`showing that “disclosure will work a clearly defined and serious injury.” Publicker Indus., Inc. v.
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`Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984)). Only “an overriding interest based on findings that
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`closure is essential to preserve higher values and is narrowly tailored to serve that interest” can
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`overcome the public's right to access Court documents. Press-Enter. Co. v. Super. Ct. of Cal. for
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`Riverside Cty., 478 U.S. 1, 9 (1986) (quoting Press-Enter. Co. v. Super. Ct. of Cal. for Riverside
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`Cty. (Press-Enter. I), 464 U.S. 501, 510 (1984)). There has been no showing by Thermo Fisher in
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`this case.
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`To overcome this common law right, the proponent of closure [or sealing] must provide
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`“specific evidence” demonstrating its claimed injury. Republic of Phil. v. Westinghouse Elec.
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`Corp., 949 F.2d 653, 659 (3d Cir. 1991) (emphasis added). There has been no specific evidence of
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`a claimed injury to Thermo Fisher. Thermo Fisher’s arguments in support of the Motion to Seal
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`and contained in the Declaration of Liza M. Walsh amount to a tacit admission of their deficiency.
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`Thermo Fisher uses only generalized justifications which are insufficient to carry the burden of
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`the moving party on a Motion to Seal under L. Civ. R. 5.3(c), clearly defined injuries and legitimate
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`private or public interest. The same is not present in Thermo Fisher’s Motion to Seal.
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`As the 3rd Circuit Court of Appeals has held, “We have repeatedly counseled that the party
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`seeking confidentiality must bear the burden of justifying sealing. Leucadia, Inc. v. Applied
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`Extrusion Techs., Inc., 998 F.2d 157, 166 (3d Cir. 1993). Once sealing is challenged, the proponent
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`of sealing ‘must make a particularized showing of the need for continued secrecy if the documents
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`are to remain under seal.’ Id.” In re Avandia Mktg., Sales Practices & Prods. Liab. Litig., 924 F.3d
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`662, 675 n.10 (3d Cir. 2019). There has been no particular showing by Thermo Fisher.
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`IV. CONCLUSION
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`For the reasons stated herein above the Plaintiff, Dr. Zirvi, respectfully requests that the
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`Motion to Seal the Documents filed by Thermo Fisher be denied.
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing will be served along with the
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`Complaint filed in this matter the same being filed through the ECF portal on this day of May 4,
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`2023.
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`9
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`Dated: May 4, 2023
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`Respectfully submitted,
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`by: /s/ Ahmed M. Soliman
`Ahmed M. Soliman, Esq
`New Jersey Bar No. 016572010
`LAW OFFICE SOLIMAN & ASSOCIATES, PC
`923 Haddonfield Road, Ste. 300
`Cherry Hill, NJ 08002
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`Tel: 856.324.8313
`Fax: 856.324.9080
`soliman@solimanlegal.com
`by: /s/ Ahmed M. Soliman
`Ahmed M. Soliman, Esq
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`Respectfully submitted,
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`
`LORIUM LAW
`Counsel for Plaintiffs
`101 NE 3rd Ave, Suite 1800
`Fort Lauderdale, FL 33301
`Telephone: (954) 462-8000
`Facsimile: (954) 462-4300
`
`
`By: /s/ Joseph D. Garrity
`
`JOSEPH D. GARRITY, ESQ.
`Florida Bar No. 87531
`Admitted Pro Hoc
`Primary Email
`jgarrity@loriumlaw.com
`Secondary Service Email
`GLT@loriumlaw.com
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