Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 4WEB, INC. AND 4WEB, LLC, Case No.: 24-CV-1021 JLS (MMP)

12 Plaintiffs, ORDER REGARDING MOTIONS 13 v. TO SEAL RELATED TO DAUBERT MOTIONS 14 NUVASIVE, INC., 15 Defendant. (ECF Nos. 345, 349, 360, 363, 369, 375) 16 17 Presently before the Court are Motions to Seal related to the Parties’ Daubert 18 Motions: (1) Defendant NuVasive, Inc.’s Motion to Seal (ECF No. 345) in connection with 19 its Motion to Exclude Opinions of Plaintiffs 4WEB, Inc. and 4WEB, LLC’s Experts Troy 20 Drewry and Carrie Distler (ECF No. 347); (2) Plaintiffs 4WEB, Inc. and 4WEB, LLC’s 21 (“4WEB”) Motion to File Under Seal Portions of and Certain Exhibits to Their Motion to 22 Strike and/or Exclude Opinions and Testimony of NuVasive’s Experts Michael Sherman 23 and Philip Green (ECF No. 349); (3) NuVasive’s Motion to Seal its Response in Opposition 24 to Plaintiffs’ Motion to Strike and Related Exhibits 5–6, 8, 10, 11, 12 (ECF No. 360); (4) 25 4WEB’s Motion to File Under Seal Portions of and Certain Exhibits to Their Opposition 26 to Defendant’s Motion to Exclude Opinions of Plaintiffs’ Experts Troy Drewry and Carrie 27 Distler (ECF No. 363); (5) 4WEB’s Motion to File Under Seal Portions of and Certain 28 Exhibits to Their Reply in Support of Their Motion to Strike and/or Exclude Opinions and 1 Testimony of NuVasive’s Experts Michael Sherman and Philip Green (ECF No. 369); and 2 (6) NuVasive’s Motion to Seal (ECF No. 375) in connection with its Reply in Support of 3 its Motion to Exclude Opinions of Plaintiffs 4WEB, Inc. and 4WEB, LLC’s Experts Troy 4 Drewry and Carrie Distler (ECF No. 377). For the reasons set forth below, the Court 5 GRANTS the Motions to Seal (ECF Nos. 345, 349, 360, 363, 369, 375). 6 LEGAL STANDARD 7 “[T]he courts of this country recognize a general right to inspect and copy public 8 records and documents, including judicial records and documents.” Nixon v. Warner 9 Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one 10 ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” 11 Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz 12 v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption 13 of access is ‘based on the need for federal courts, although independent—indeed, 14 particularly because they are independent—to have a measure of accountability and for the 15 public to have confidence in the administration of justice.’” Ctr. for Auto Safety v. Chrysler 16 Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 17 1044, 1048 (2d Cir. 1995)). 18 A party seeking to seal a judicial record bears the burden of overcoming the strong 19 presumption of access. Foltz, 331 F.3d at 1135. The showing required to meet this burden 20 depends upon whether the documents to be sealed relate to a motion that is “more than 21 tangentially related to the merits of the case.” Ctr. for Auto Safety, 809 F.3d at 1102. When 22 the underlying motion is more than tangentially related to the merits, the “compelling 23 reasons” standard applies. Id. at 1096–98. When the underlying motion does not surpass 24 the tangential relevance threshold, the “good cause” standard applies. Id. 25 Under the “compelling reasons” standard, the party seeking protection must “present 26 ‘articulable facts’ identifying the interests favoring continued secrecy and . . . show that 27 these specific interests overc[o]me the presumption of access by outweighing the ‘public 28 interest in understanding the judicial process.’” Kamakana, 447 F.3d at 1181 (internal 1 citations omitted) (first quoting Foltz, 331 F.3d at 1136; and then quoting Hagestad v. 2 Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)). “The movant must make this required 3 particularized showing for each document it seeks to seal.” Avnet, Inc. v. Avana Techs. 4 Inc., No. 2:13-CV-00929-GMN, 2014 WL 4181831, at *1 (D. Nev. Aug. 20, 2014) (citing 5 San Jose Mercury News, Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1103 (9th Cir. 1999)). And 6 if the movant wishes to seal an entire document, they must show that their compelling 7 interest cannot be protected by redacting only the sensitive portions of said document. See 8 In re Roman Cath. Archbishop, 661 F.3d 417, 425 (9th Cir. 2011); Foltz, 331 F.3d at 1136– 9 37. If, by contrast, compelling reasons do not support sealing an entire document, the 10 movant must offer compelling reasons to seal each portion of the documents they believe 11 should be sealed. See Apex.AI, Inc. v. Langmead, No. 5:23-CV-02230-BLF, 2023 WL 12 4157629, at *1 (N.D. Cal. June 23, 2023); see also In re Roman Cath. Archbishop, 661 13 F.3d at 425. 14 DISCUSSION 15 I. 4WEB’s Motions 16 4WEB seeks to file under seal portions of and exhibits submitted with its Motion to 17 Strike and/or Exclude Opinions and Testimony of NuVasive’s Experts Michael Sherman 18 and Philip Green (ECF No. 351), as well as portions of and exhibits submitted with its 19 Reply in support thereof (ECF No. 371). See ECF Nos. 349, 369. 4WEB also seeks to file 20 under seal portions of and exhibits submitted with its Opposition to NuVasive’s Motion to 21 Exclude Opinions of its Experts Troy Drewery and Carrie Distler (ECF No. 365). See ECF 22 No. 363. 23 Beginning with 4WEB’s Motion to Seal related to its Daubert Motion, 4WEB argues 24 that its Motion and certain exhibits submitted with it could provide “competitors with 25 highly sensitive and non-public business information,” including information “relating to 26 4WEB’s and NuVasive’s financials, product development, and competitive analyses.” 27 ECF No. 349 at 2. The Parties have designated this information as “Attorneys’ Eyes Only” 28 and “Confidential” pursuant to the Protective Order in this case (ECF No. 19). Id. at 2–3. 1 4WEB makes the same arguments as to its Daubert Reply and Opposition. ECF No. 363 2 at 2; ECF No. 369 at 2–3. 3 The Court notes that 4WEB has not made a particularized showing as to each 4 document it seeks to seal, nor has it advanced compelling arguments as to why the Court 5 should seal the exhibits in their entirety or cited any relevant authority. See ECF No. 349 6 at 2–3; ECF No. 363 at 2; ECF No. 369 at 2–3. However, in the interests of efficiency, 7 and because the Court has granted leave to file similar information under seal, see ECF No. 8 380 (granting NuVasive’s request to seal experts’ deposition transcripts and reports), the 9 Court GRANTS 4WEB’s motions (ECF Nos. 349, 363, 369). Having reviewed the 10 documents, see ECF Nos. 350, 364, 370, the Court finds that they contain sensitive and 11 confidential business information, and courts generally find it appropriate to seal “business 12 information that might harm a litigant’s competitive standing.” Nixon, 435 U.S. at 598. 13 The Court further finds that 4WEB’s requests to seal as to its Daubert Motion, Reply, and 14 Opposition are narrowly tailored to the portions containing confidential and sensitive 15 business information. The Court cautions 4WEB to include sufficient detail as to each 16 document it seeks to seal moving forward, as it is not the responsibility of the Court to 17 search for independent justification to seal each document on the Parties’ behalf.1 See 18 Avnet, 2014 WL 4181831, at *1 (stating that the movant must “make particularized 19 showing for each document it seeks to seal” under the compelling reasons standard) 20 (citation omitted). 21 II. NuVasive’s Motions 22 NuVasive seeks to file under seal portions of and exhibits submitted with its Motion 23 to Exclude Opinions of 4WEB’s Experts Troy Drewry and Carrie Distler (ECF No. 347), 24 as well as portions of and exhibits submitted with its Reply in support thereof (ECF No. 25 ECF No. 377). See ECF Nos. 345, 375. NuVasive also seeks to file under seal portions of 26 27 1 For example, 4WEB seeks to seal in their entirety Exhibits A–F and H–L to its Opposition, yet provides 28 no explanation as to what these exhibits are or the specific information they contain in its Motion to Seal, 1 and exhibits submitted with its Opposition to NuVasive’s Motion to Strike and/or Exclude 2 Opinions and Testimony of NuVasive’s Experts Michael Sherman and Philip Green (ECF 3 No. 362). See ECF No. 360. 4 A. Motion to Seal Regarding Daubert Motion (ECF No. 345) 5 NuVasive asserts that compelling reasons exist to seal portions of its Daubert 6 Motion, Exhibit 2 in its entirety, and portions of Exhibit 3. ECF No. 345 at 2. Exhibits 2 7 and 3, the expert reports of the Parties’ damages experts, contain “confidential business 8 information, including marketing information, descriptions of negotiations for potential 9 financial acquisitions and licensing deals, and detailed financial data,” which, if publicly 10 disclosed, would provide competitors with “highly sensitive commercial information about 11 revenues, profits, marketing, and product development.” Id. at 3. NuVasive also seeks to 12 seal portions of its Daubert Motion that “refer to (1) the royalty rate and damages award 13 calculated by 4WEB’s damages expert,” which was “derived from confidential financial 14 data” and “(2) NuVasive’s gross profits and average sales prices.” Id. at 4. 15 Having reviewed the information, see ECF No. 346, the Court finds that the 16 compelling reasons standard is met. As NuVasive contends, its Daubert Motion and the 17 damages experts’ reports contain sensitive and confidential business information, and 18 courts generally find it appropriate to seal “business information that might harm a 19 litigant’s competitive standing.” Nixon, 435 U.S. at 598. NuVasive has made a 20 particularized showing as to the basis for sealing each document. See ECF No. 345 at 3– 21 4. Additionally, the Court finds that NuVasive’s request to seal is narrowly tailored to the 22 portions of the documents containing confidential and sensitive business information. See 23 id. at 4. The Court further finds it appropriate to seal Exhibit 2, the expert report of Carrie 24 Distler, in its entirety, as the Court has granted 4WEB’s request to do so. See supra at 4; 25 see also ECF No. 364-2. Accordingly, the Court GRANTS NuVasive’s Motion to Seal 26 (ECF No. 345). 27 / / / 28 / / / 1 B. Motion to Seal Regarding Daubert Reply (ECF No. 375) 2 NuVasive asserts that compelling reasons exist to seal portions of its Daubert Reply 3 and Exhibits 20–22 in their entirety. ECF No. 375 at 2. Exhibits 20 and 21 contain 4 “confidential financial information,” “reflect[ing] the percentage of material, labor, and 5 overhead that make up cost of goods for certain NuVasive products.” Id. at 3. Exhibit 22, 6 an exhibit to the report of NuVasive’s rebuttal damages expert, Philip Green, contains 7 “financial information for the Modulus, HEDRON, and RISE products, including total 8 units sold, total sales revenues, total costs of goods, gross profits, gross profits per unit, 9 and gross margin.” Id. Portions of NuVasive’s Daubert Reply refers to “calculations in 10 4WEB’s damages expert Carrie Distler’s analysis that are based on NuVasive’s financial 11 information.” Id. NuVasive argues that public disclosure of this information could provide 12 “competitors with highly sensitive commercial information about revenues and profits.” 13 Id. 14 Having reviewed the information, see ECF No. 376, the Court finds that the 15 compelling reasons standard is met. As with NuVasive’s Daubert Motion, NuVasive’s 16 Daubert Reply and Exhibits 20–22 contain sensitive and confidential business information. 17 NuVasive’s request to seal its Reply is narrowly tailored to the portions containing such 18 information. Accordingly, the Court GRANTS NuVasive’s Motion to Seal (ECF No. 19 375). 20 C. Motion to Seal Regarding Daubert Opposition (ECF No. 360). 21 NuVasive asserts that compelling reasons exist to seal portions of its Daubert 22 Opposition, Exhibits 5–6, 8, 10, 12 in their entirety, and portions of Exhibit 11. ECF No. 23 360 at 2. The Opposition and Exhibits contain similar sensitive business and financial 24 information as those submitted with NuVasive’s Daubert Motion and Reply, public 25 disclosure of which would provide “competitors with highly sensitive commercial 26 information about revenues, profits, marketing, and product development.” Id. at 3–4 27 (explaining the information contained in each document). Having reviewed the 28 information, see ECF No. 361, the Court finds that the compelling reasons standard is met 1 the same reasons discussed above. Accordingly, the Court GRANTS NuVasive’s 2 Motion to Seal (ECF No. 360). 3 CONCLUSION 4 In light of the foregoing, the Court GRANTS the Parties’ Motions to Seal (ECF Nos. 5 349, 360, 363, 369, 375). The Clerk of Court SHALL FILE under seal the sealed 6 || lodged proposed documents (ECF Nos. 346, 350, 361, 364, 370, 376). 7 IT IS SO ORDERED. 8 Dated: April 30, 2026 □ □□ 9 ja Janis L. Sammartino 10 United States District Judge 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28