The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
DIANE NACHBAUR, derivatively on )
behalf of nominal defendant BOSTON )
SCIENTIFIC CORPORATION, )
)
Plaintiff, )
) Civil Action No.
v. ) 23-10750-FDS
)
MICHAEL F. MAHONEY, NELDA J. )
CONNORS, CHARLES J. )
DOCKENDORFF, YOSHIAKI FUJIMORI, )
DONNA A. JAMES, EDWARD J. LUDWIG, )
DAVID ROUX, JOHN E. SUNUNU, ELLEN )
M. ZANE, JOSEPH M. FITZGERALD, )
DANIEL J. BRENNAN, SHAWN )
MCCARTHY, IAN MEREDITH, KEVIN )
BALLINGER, and SUSAN VISSERS LISA, )
)
Defendants, )
)
and )
)
BOSTON SCIENTIFIC CORPORATION, )
)
Nominal Defendant. )
__________________________________________)
ORDER ON MOTION TO SEAL
SAYLOR, C.J.
This is a shareholder derivative action brought on behalf of Boston Scientific Corporation
against its Board of Directors and certain of its executive officers alleging various breaches of
fiduciary duties and violations of federal law. On April 7, 2023, plaintiff filed a redacted
complaint and a motion to file the unredacted complaint under seal. On May 2, 2023, the parties
filed a joint motion and stipulation for temporary stay, which the Court granted. Plaintiff has
moved to seal the unredacted version of the complaint on the ground that it contains proprietary
or commercially sensitive information produced by Boston Scientific pursuant to a
confidentiality agreement.
Pleadings and other documents submitted to the court that are “relevant to the determination
of the litigants’ substantive rights” or for the “purpose of influencing an[] adjudicatory
proceeding” are subject to the presumption of public access. United States v. Kravetz, 706 F.3d
47, 58, 59 n.9 (1st Cir. 2013). However, certain countervailing interests can “overwhelm the
usual presumption and defeat access.” Id. at 59 (quoting Siedle v. Putnam Investments, Inc. 147
F.3d 7, 10 (1st Cir. 1998)). Among other things, “[p]rivacy rights of participants and third parties
are among those interests which, in appropriate cases, can limit the presumptive right of access
to judicial records.” Id. at 62 (quoting F.T.C. v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 411
(1st Cir. 1987).
Here, the Court must weigh the interest in public access to the entire complaint against the
asserted privacy interests in disclosing nonpublic, proprietary, or commercially sensitive
information. Among other things, courts should “consider the degree to which the subject matter
is traditionally considered private rather than public.” In re Bos. Herald, Inc., 321 F.3d 174, 190
(1st Cir. 2003). “[S]ources of business information that might harm a litigant’s competitive
standing” have been found sufficient to outweigh the common law presumption. Nixon v
Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978); see also Alchem USA Inc. v. Cage, 2022 WL
3043153 (3d Cir. 2022); Deherrera v. Decker Truck Line, Inc., 820 F.3d 1147, 1162 n.8 (10th
Cir. 2016).
Under the circumstances, and particularly in light of the confidentiality agreement, the Court
GRANTS plaintiff’s motion to file under seal. The sealing is provisional, and subject to being
modified or vacated for good cause shown if the stay is lifted and the matter proceeds to active
litigation.
So Ordered.
/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
Dated: February 6, 2024 Chief Judge, United States District Court