Case 2:23-cv-01997-MCA-JSA Document 91 Filed 09/27/23 Page 1 of 6 PageID: 2209
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`UNITED STATES DISTRICT COURT
`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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`ILLUMINA, INC., et al.,
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`Defendants.
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` Civil Action No. 23-1997 (MCA) (JSA)
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`FINDINGS OF FACT,
`CONCLUSIONS OF LAW, AND
`ORDER ON MOTION TO SEAL
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`THIS MATTER having come before the Court by way of Defendant Thermo Fisher Scientific’s
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`(“Thermo”) motion, (ECF No. 13), for an order to seal Exhibits 6, 7, and 8 attached to Plaintiff Monib
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`Zirvi’s (“Plaintiff”) Complaint at ECF No. 1-1 (sometimes the “Materials”); and the Court having
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`carefully considered the parties’ respective submissions in support of and in opposition thereto, (ECF
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`Nos. 13 & 17, respectively); and no oral argument having been heard pursuant to Fed. R. Civ. P. 78(b);
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`and for the reasons set forth below; and for good cause shown; the following shall constitute the
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`findings of fact and conclusions of law and Order of the Court:
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`FINDINGS OF FACT
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`1.
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`On April 8, 2023, Plaintiff filed the instant action and Complaint against Thermo and
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`several other defendants in connection with disputed patents. (ECF No. 1).
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`2.
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`3.
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`Plaintiff attached several exhibits to the Complaint, including Exhibits 6, 7, and 8. (Id.)
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`On April 13, 2023, Thermo submitted a letter, seeking a temporary order sealing the
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`Materials based on assertions of privilege and directing Plaintiff to seek removal of these Materials
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`from publicly available databases. (ECF No. 10-1).
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`4.
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`On the same date, Plaintiff submitted a letter, opposing Thermo’s request. (ECF No. 11).
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`5.
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`On the same date, this Court issued a Temporary Order to Seal the Materials, pursuant to
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`Local Civil Rule 5.3(c)(9), given the nature of the parties’ purported privilege dispute over the
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`Materials and to provide the parties with an opportunity to formally brief whether there are grounds to
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`seal the Materials under Local Civil Rule 5.3(c). (ECF No. 12).
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`6.
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` On April 27, 2023, Thermo filed its motion to permanently seal the Materials, which they
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`assert contain confidential business information and attorney-client privileged case assessments and
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`communications prepared by outside counsel for a co-Plaintiff in a separate civil action, Cornell/Life
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`Tech. v. Illumnia. (ECF Nos. 13-1 & 13-2 - Walsh Decl. ¶ 3 and Ex. 1).
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`7.
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`Plaintiff opposes the motion, contending Thermo has failed to meet its burden of
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`demonstrating the common interest privilege shields the Materials or that they are protected by the
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`attorney-client privilege. (ECF No. 17). Plaintiff further argues that Thermo has not identified the
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`public interest at stake, the clearly defined injury that would result if the relief was not granted, or why
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`a less restrictive alternative to sealing is not available. (Id.).
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`8.
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`Exhibits 6 and 7 are case assessments prepared by outside counsel for an entity named
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`Life Tech. They contain Defendant’s commercially sensitive, proprietary, and confidential business
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`information. They also
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`reflect
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`internal strategies and are marked “PRIVILEGED &
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`CONFIDENTIAL.” Exhibit 8 contains correspondence to and from outside counsel for Life Tech that
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`likewise reflects Defendant’s confidential business information and internal strategies. (ECF No. 13-2
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`at ¶¶3-6 and Ex. 1).
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`9.
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`In short, the Materials reveal, contain, and reflect commercially sensitive business
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`information about the patents at issue and internal strategies.
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`10.
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`Thermo has a legitimate interest in maintaining the confidentiality of the Materials, as
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`Thermo has stated that the information sought to be sealed is unavailable to the public and Thermo has
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`2
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`Case 2:23-cv-01997-MCA-JSA Document 91 Filed 09/27/23 Page 3 of 6 PageID: 2211
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`taken substantial efforts to ensure that the Materials remain secret. The disclosure of this information
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`would provide the public insight into the private business strategies and give competitors an unfair
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`advantage. (ECF Nos. 13-1 & 13-2).
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`11.
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`The clearly defined and serious injuries that would result if the Materials were not sealed
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`include allowing competitors to undercut or harm Thermo’s commercial performance. (Id.).
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`12.
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`Disclosure of the confidential Materials to the public is irreversible and thus such
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`information can no longer be confidential once revealed to the public.
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`CONCLUSIONS OF LAW
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`13.
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`The common law right of public access to judicial proceedings and records is well settled.
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`In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001) (citing Littlejohn v. BIC Corporation, 851 F.2d
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`673, 677-78 (3d Cir. 1988)); Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 161
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`(3d Cir. 1993). The presumption of public access has been applied “to a wide variety of civil records
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`and documents,” including “pleadings, orders, notices, exhibits and transcripts filed.” Leucadia, Inc.,
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`998 F.2d at 162 (citations and internal quotation marks omitted). A narrow exception has been carved
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`out for discovery materials as well as “discovery motions and their supporting documents.” Id. at 165.
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`14.
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`“[W]hen a moving party seeks an order sealing court records, it must demonstrate that
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`‘good cause’ exists to overcome the presumption in favor of public access.” China Falcon Flying Ltd.
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`v. Dassault Falcon Jet Corp., Civ. No. 15-6210, 2017 U.S. Dist. LEXIS 138651, at *4 (D.N.J. Aug.
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`29, 2017) (citing Securimetrics, Inc. v. Iridian Techs., Inc., Civ. No. 03-4394, 2006 U.S. Dist. LEXIS
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`22297 (D.N.J. Mar. 30, 2006)). The “good cause” standard requires a “particularized showing that
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`disclosure will cause a ‘clearly defined and serious injury to the party seeking closure.’” Securimetrics,
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`Inc., U.S. Dist. LEXIS 22297, at *7 (quoting Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d
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`Cir. 1994)). “This standard was incorporated into this District’s Local Civil Rule 5.3, which sets forth
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`the requirements for a motion to seal.” City of Sterling Heights Gen. Employees’ Ret. Sys. v. Prudential
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`Fin., Inc., Civ. No. 12-5275, 2016 U.S. Dist. LEXIS 5856, at *4 (D.N.J. Jan. 15, 2016).
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`15.
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`Local Civil Rule 5.3(c) requires the reviewing Court to consider the following factors: (a)
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`“the nature of the materials or proceedings at issue”; (b) “the legitimate private or public interest which
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`warrants the relief sought”; (c) “the clearly defined and serious injury that would result if the relief
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`sought is not granted”; and (d) “why a less restrictive alternative to the relief sought is not available.”
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`L. Civ. R. 5.3(c)(3).
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`16.
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`This Court has the power to seal where confidential information may be disclosed to the
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`public and harm a party’s competitive standing in the marketplace, including “trade secret[s] or other
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`confidential research, development, or commercial information.” See Zenith RadioCorp. v. Matsushita
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`Elec. Indus. Co., Ltd., 529 F. Supp. 866, 889-91 (E.D. Pa. 1981); Fed. R. Civ. P. 26(c)(1)(G); see, e.g.,
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`Littlejohn v. BIC Corp., 851 F.2d 673, 678 (3d Cir. 1988); Goldenberg v. Indel, Inc., No. 09-5202,
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`2012 U.S. Dist. LEXIS 479, at *8-12 (D.N.J. Jan. 3, 2012).
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`17.
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`Courts have recognized that the presumption of public access is not absolute and may be
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`rebutted. Leucadia v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 164 (3d Cir. 1993); Republic
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`of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 662 (3d Cir. 1991).
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`18.
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`Courts may deny public access and seal a document when it encompasses business
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`information that may harm a party’s competitive standing. See Littlejohn, 851 F.2d at 678 (citations
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`omitted). The District of New Jersey has recognized that the inclusion of trade secrets and other
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`confidential information warrants sealing of such documents. In re Gabapentin, 312 F. Supp. 2d 653,
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`664 (D.N.J. 2004) (citations omitted). As such, “[t]he presence of trade secrets or other confidential
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`information weighs against public access and, accordingly, documents containing such information
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`may be protected from disclosure.” Id. (citations omitted).
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`19.
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`This Court has discretion to balance the factors for and against access to court documents.
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`See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 781 (3d Cir. 1994).
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`20.
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`Courts have recognized that protection of a party’s interest in confidential commercial
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`information is a sufficient threat of irreparable harm. See Publicker Indus., Inc. v. Cohen, 733 F.2d
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`1059, 1071 (3d Cir. 1984).
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`21.
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`Thermo’s request to seal the Materials, which are only three exhibits to the publicly filed
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`Complaint, is narrowly tailored to the specific confidential and proprietary information. Accordingly,
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`a less restrictive alternative is not available in that redactions would be so extensive as to render the
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`documents meaningless. (Id.)
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`22.
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`23.
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`The Court finds good cause exists for protecting the Materials.
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`The Court finds that the confidential commercially sensitive informed contained in or
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`referenced by the Materials satisfy the standards set forth in Local Civil Rule 5.3.
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`24.
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`Having found the Materials contain and/or reflect confidential commercially sensitive
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`business information, which serves as an independent basis for sealing these Materials, the Court
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`declines to reach the merits of Thermo’s argument that the Materials also are privileged and/or reveal
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`privileged communications as another basis to seal.
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`THEREFORE, for the reasons stated above and for good cause shown,
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`IT IS on this 27th day of September 2023,
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`ORDERED that Thermo’s Motion to Seal (ECF No. 13), pursuant to Local Civil Rule 5.3(c), is
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`GRANTED; and it is further
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`ORDERED that the Clerk of the Court shall maintain under seal Exhibits 6, 7, and 8 attached to
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`Plaintiff’s Complaint at ECF No. 1-1; and it is further
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`Case 2:23-cv-01997-MCA-JSA Document 91 Filed 09/27/23 Page 6 of 6 PageID: 2214
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`ORDERED that the Clerk of the Court is directed to terminate the Motion filed as ECF No. 13.
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`s/Jessica S. Allen
`JESSICA S. ALLEN, U.S.M.J.
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`cc: Hon. Madeline Cox Arleo, U.S.D.J.
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