finding it appropriate for materials to remain under seal
How later courts described this case
- finding it appropriate for materials to remain under seal
Written by the judges who cited it.
The opinion
so ordered.
/s/ Alvin K. Hellerstein
March 3, 2022
LAW OFFICES
WILLIAMS &® CONNOLLY LLP
725 TWELFTH STREET, N.W.
CHET OTIS WASHINGTON, D. C. 20005-5901 SSWARD SENET WILLIAMS □□□□□□□□□□
O08) BESS (202) 434-5000 ON”
rcotis@we.com
FAX (202) 434-5029
February 28, 2022
Re: Inre Novartis and Par Antitrust Litigation, 1:18-cv-04361-AKH
Dear Judge Hellerstein:
Pursuant to Rules 4.A and 4.B.11 of Your Honor’s Individual Rules of Practice, Paragraph
19 of the Amended Stipulated Protective Order (the “Protective Order”) (ECF Nos. 95, 415) and
applicable law, I write on behalf of Par Pharmaceutical, Inc. (“Par”) requesting permission to file
certain documents under seal in connection with Plaintiffs’ Motion to Compel Production of
Documents (ECF Nos. 433, 434, 437, 439). Par has conferred with Plaintiffs regarding this
motion. DPPs and EPPs take no position on the motion but reserve the right to file a response to
this letter motion; Retailer Plaintiffs do not oppose Par’s proposed redactions.
Under Rule 4.A of Your Honor’s Individual Rules of Practice, a party must obtain the
Court’s authority to file documents under seal, which is appropriate if “closure is essential to
preserve higher values and is narrowly tailored to serve that interest.” Bernstein v. Bernstein
Litowitz Berger & Grossmann LLP, 814 F.3d 132, 144 (2d Cir. 2016) (quoting In re N.Y. Times
Co., 828 F.2d 110, 116 (2d Cir.1987)). While there is a “common law presumption in favor of
permitting public access to judicial documents,” the court must consider the “the privacy
interests of those resisting disclosure.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 □□
Cir. 2006). Courts have recognized that “notwithstanding the presumption of public access to
judicial records, courts may deny access to records that are sources of business information that
might harm a litigant's competitive standing.” In re Parmalat Sec. Litig., 258 F.R.D. 236, 244
(S.D.N.Y. 2009) (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598, 98 S. Ct. 1306,
1312, 55 L. Ed. 2d 570 (1978)). For example, when documents “contain highly proprietary
material concerning the defendants’ marketing strategies, product development, costs and
budgeting, [] the privacy interests of the defendants outweigh the presumption of public access.”
GoSMILE, Inc. v. Dr. Jonathan Levine, D.M.D. P.C., 769 F. Supp. 2d 630, 649-50 (S.D.N.Y.
2011) (finding it appropriate for materials to remain under seal); see also United States v.
Ferguson, No. CRIM. 3:06CR137CFD, 2008 WL 113654, at *1 (D. Conn. Jan. 5, 2008)
(granting motion to seal confidential business information “because the disclosure of this
confidential information would cause undue harm to the businesses involved’’). Moreover,
where a public filing would reveal a party’s privileged information, it must also remain under
seal. See Utica Mutual Ins. Co. v. INA Reinsurance Co., No. 12-CV-194, 2012 WL 13028279, at
*8 (N.D.N.Y June 12, 2012).
WILLIAMS 8 CONNOLLY LLP
February 28, 2022
Page 2
Plaintiffs’ Memorandum in Support of Plaintiffs’ Motion to Compel Production of
Documents, ECF No. 433 (“Plaintiffs’ Motion’), contains discussions of a Par document
reflecting Par’s privileged information. Those discussions reveal the contents of Par’s privileged
information. As such, Par respectfully submits that Plaintiffs’ Motion should remain sealed in
part. Par has provided Plaintiffs its proposed redactions to Plaintiffs’ Motion. Par’s redactions
are limited to those necessary to protect Par’s privileged information.
Exhibit 1, ECF No. 434-1, to the Declaration of Deborah A. Elman, ECF No. 434,
includes confidential information concerning Par’s portfolio of potential new product launches;
the document relates almost exclusively to products other than generic Exforge. Much of this
information is forward-looking and sensitive, disclosure of which would harm Par’s competitive
standing. Because individualized redaction of that information is impractical, Par respectfully
submits that this document should remain sealed in its entirety.
Defendants’ Memorandum of Law in Opposition to Plaintiffs’ Motion to Compel
Production of Documents, ECF No. 437 (“Defendants’ Opposition”), contains discussions of a
Par document reflecting Par’s privileged information. Those discussions reveal the contents of
Par’s privileged information. As such, Par respectfully submits that Defendants’ Opposition
should remain sealed in part. Novartis has filed a copy of Defendants’ Opposition reflecting
Par’s proposed redactions contemporaneous with the filing of this motion (see ECF No. 457).
Par’s redactions are highlighted in green in the highlighted version. Par’s redactions are limited
to those necessary to protect Par’s privileged information.
Plaintiffs’ Reply Memorandum of Law in Further Support of Plaintiffs’ Motion to
Compel Production of Documents, ECF No. 439 (“Plaintiffs’ Reply”), contains discussions of a
Par document reflecting Par’s privileged information. Those discussions reveal the contents of
Par’s privileged information. As such, Par respectfully submits that Plaintiffs’ Reply should
remain sealed in part. Par has provided Plaintiffs its proposed redactions to Plaintiffs’ Reply.
Par’s redactions are limited to those necessary to protect Par’s privileged information.
Par is available at the Court’s convenience should Your Honor have any questions or
wish to discuss these requests.
Sincerely,
/s/ R. Chet Otis
The Honorable Alvin K. Hellerstein
United States District Court
Southern District of New York
500 Pearl Street, Room 1050
New York, New York 10007
WILLIAMS 8 CONNOLLY LLP
February 28, 2022
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BY ECF