XpandOrtho, Inc. v. Zimmer Biomet Holdings, Inc.

Opinion

7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9

10 XPANDORTHO, INC., a Delaware ) Case No.: 3:21-cv-00105-BEN-KSC 11 corporation; EXACTECH, INC., a Florida ) 12 corporation, ) ORDER: ) 13 Plaintiffs, ) (1) DENYING AS MOOT 14 v. ) DEFEDANTS’ MOTION TO 15 ZIMMER BIOMET HOLDINGS, INC., a ) DISMISS; ) 16 Delaware corporation; ZIMMER, INC., a ) (2) DENYING AS MOOT Delaware corporation; ZIMMER U.S., DEFENDANTS’ REQUEST FOR 17 INC., a Delaware corporation doing ) JUDICIAL NOTICE; ) 18 business as ZIMMER BIOMET ) (3) DENYING AS MOOT SOUTHERN CALIFORNIA; 19 ORTHOSOFT ULC, a Canadian ) DEFENDANTS’ MOTION FOR ) LEAVE TO FILE VIDEO 20 corporation doing business as ZIMMER ) EXHIBIT; CAS, 21 ) (4) DENYING DEFENDANTS’ Defendants. ) MOTION FOR LEAVE TO FILE 22 ) DOCUMENTS UNDER SEAL; 23 ) and ) 24 ) (5) GRANTING-IN-PART 25 ) PLAINTIFFS’ MOTION TO ) SEAL 26 ) 27 ) [ECF Nos. 20, 21, 22, and 30]

28 1 I. INTRODUCTION 2 Plaintiffs XpandOrtho, Inc., a Delaware corporation (“XPandOrtho”), and 3 Exactech, Inc., a Florida corporation (“Exactech”) (collectively, “Plaintiffs”) bring this 4 action against Defendants Zimmer Biomet Holdings, Inc., a Delaware corporation; 5 Zimmer, Inc., a Delaware corporation; Zimmer US, Inc., a Delaware corporation doing 6 business as Zimmer Biomet Southern California; and ORTHOsoft ULC, a Canadian 7 corporation doing business as Zimmer CAS (collectively, “Defendants”) for alleged 8 misuse of confidential information, unfair competition, breach of contract, and copyright 9 infringement. Complaint, ECF No. 1 (“Compl.”) at 2. 10 Before the Court are the following motions: (1) Defendants’ Motion to Dismiss for 11 Failure to State a Claim Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, 12 ECF No. 20; (2) Defendants’ Motion for Leave to File a Video Exhibit in Support of the 13 Motion to Dismiss, pursuant to Section 2(k) of the Electronic Case Filing Administrative 14 Policies & Procedures Manual, ECF No. 21; (3) Defendants’ Motion for Leave to File 15 Documents Under Seal, ECF No. 22; and (4) Plaintiff’s Motion to File Documents Under 16 Seal, ECF No. 30. 17 After considering the papers submitted, supporting documentation, and applicable 18 law, the Court DENIES Defendants’ Motions as either moot, or in the case of Defendants’ 19 Motion to File Documents Under Seal, unsubstantiated, while also GRANTING-IN- 20 PART Plaintiffs’ Motions to File Documents Under Seal. 21 II. BACKGROUND 22 A. Statement of Facts 23 Plaintiffs allege that in 2012, two orthopedic surgeons founded XpandOrtho to 24 develop new technology to address the problem of inaccurate soft tissue balancing during 25 total knee arthroplasty. Compl. at 2, ¶ 2. Plaintiffs also allege that in 2018, Defendants 26 used the guise of a potential acquisition of XpandOrtho to convince XpandOrtho to 27 provide extensive information about its technology and business, but only after ensuring 28 a Non-Disclosure Agreement was in place between the parties. Id. at 2, ¶ 3. Afterwards, 1 Defendants stated they were not interested in acquiring XpandOrtho but began misusing 2 XpandOrtho’s proprietary information for their own benefit. Id. at 2, ¶ 4. Plaintiffs allege 3 that in March 2019, Exactech acquired XpandOrtho, but neither Plaintiff knew 4 Defendants had misappropriated XpandOrtho’s information, and as such, have been 5 harmed by Defendants’ conduct. Id. at 3, ¶ 5. 6 B. Procedural History 7 On January 20, 2021, Plaintiffs filed the complaint against Defendants, alleging 8 fifteen (15) claims for relief for (1) misappropriation of trade secrets under the Federal 9 Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836 (“DTSA”); (2) aiding and abetting 10 misappropriation of trade secrets in violation of the DTSA; (3) misappropriation under 11 the California Uniform Trade Secrets Act, Cal. Civ. Code, § 3426, et seq. (the “CUTSA”); 12 (4) aiding and abetting misappropriation of trade secrets in violation of the CUTSA; (5) 13 breach of contract; (6) tortious interference with contractual relations; (7) breach of the 14 implied covenant of good faith and fair dealing; (8) fraud; (9) conversion; (10) unjust 15 enrichment; (11) intentional interference with prospective economic advantage; (12) 16 negligent interference with prospective economic advance; (13) breach of confidence; 17 (14) copyright infringement; and (15) violation of California’s Unfair Business Practices 18 Law, Cal. Bus. & Prof. § 17200, et seq. See Compl. 19 On March 29, 2021, Plaintiff served Defendant Zimmer Biomet Holdings, Inc., 20 ECF No. 7, and Defendant Zimmer, Inc., ECF No. 8, making their responsive pleading 21 due on Monday, April 19, 2021. See FED. R. CIV. P. 12(a)(1)(A)(i). 22 On either March 31, 2021 or April 12, 2021,1 Plaintiff served Defendant Zimmer 23 US, Inc., a Delaware corporation doing business as Zimmer Biomet Southern California, 24 ECF Nos. 9, 15, making the responsive pleading due between Wednesday, April 21, 2021, 25 and Monday, May 2, 2021. 26 27 1 Plaintiff filed two separate proofs of service for Defendant Zimmer US, Inc., making 28 1 On April 1, 2021, Plaintiff served Defendant ORTHOsoft ULC, a Canadian 2 corporation doing business as Zimmer CAS, ECF No. 10, making the responsive pleading 3 due by Thursday, April 22, 2021. 4 On April 12, 2021, Plaintiffs and Defendants filed a Joint Motion, seeking to make 5 the responsive pleading for all Defendants due on the same day: May 28, 2021. ECF No. 6 12. The Court granted this request, and extended all Defendants’ deadline to respond 7 until Friday, May 28, 2021. ECF No. 16. On the extended responsive pleading deadline, 8 or May 28, 2021, Defendants collectively filed a Motion to Dismiss for Failure to State a 9 Claim Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which is set for 10 hearing on July 6, 2021 at 10:30 a.m. ECF No. 20. That same day, Defendants also filed 11 a (1) Motion for Leave to File a Video Exhibit in Support of the Motion to Dismiss, 12 pursuant to Section 2(k) of the Electronic Case Filing Administrative Policies & 13 Procedures Manual, ECF No. 21, and (2) Motion for Leave to File Documents Under 14 Seal, ECF No. 22, lodging the proposed sealed documents as ECF No. 23. 15 On June 11, 2021, both parties filed a Joint Motion for an Interim Protective Order, 16 ECF No. 24, which Magistrate Judge Karen S. Crawford granted on June 15, 2021, ECF 17 No. 25. 18 Finally, on June 15, 2021, Plaintiffs filed a Motion to File their First Amended 19 Complaint Under Seal, ECF No. 30, lodging the proposed sealed documents as ECF No. 20 31. On June 21, 2021, Plaintiffs filed the First Amended Complaint (the “FAC”). ECF 21 No. 34. 22 III. LEGAL STANDARD 23 A. Motion to Dismiss 24 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Rule 12(b)(6)”), a 25 complaint must be dismissed when a plaintiff’s allegations fail to set forth a set of facts 26 which, if true, would entitle the complainant to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 27 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (holding that a claim must be 28 facially plausible to survive a motion to dismiss). The pleadings must raise the right to 1 relief beyond the speculative level; a plaintiff must provide “more than labels and 2 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 3 Twombly, 550 U.S. at 555. On a motion to dismiss, a court accepts as true a plaintiff’s 4 well-pleaded factual allegations and construes all factual inferences in the light most 5 favorable to the plaintiff. Manzarek, 519 F.3d at 1031. However, a court is not required 6 to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. 7 B. Motion for Leave to File a Video Exhibit 8 Section 2(k) of the Electronic Case Filing Administrative Policies and Procedures 9 Manual for the United States District Court for the Southern District of California provides 10 that “[a] party may seek leave of the court to allow the non-electronic filing of exhibits 11 when they are not convertible to electronic form (e.g. videotapes, maps, etc.).” If the Court 12 grants leave, “the filing party must prepare a cover page in pleading format to be submitted 13 with the exhibits.” Id. 14 C. Motion for Leave to File Documents Under Seal 15 Except for certain documents “traditionally kept secret,” federal courts begin a 16 sealing analysis with “a strong presumption in favor of access to court records.” Foltz v. 17 State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). A party seeking to 18 seal a judicial record then must “articulate [] compelling reasons supported by specific 19 factual findings,” id., that outweigh the general history of access and the public policies 20 favoring disclosure, such as the “public interest in understanding the judicial process,” 21 Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995). The Court “conscientiously 22 balance[s] . . . the competing interests” of the public and the party who seeks to keep certain 23 judicial records secret. Foltz, 331 F.3d at 1135. After considering these interests, if the 24 Court decides to seal certain judicial records, it “base[s] its decision on a compelling reason 25 and articulate[s] the factual basis for its ruling, without relying on hypothesis or 26 conjecture.” Hagestad, 49 F.3d at 1434; see also Kamakana v. City & Cty. of Honolulu, 27 447 F.3d 1172, 1179 (9th Cir. 2006) (applying compelling reasons standard to dispositive 28 motions). 1 A party must satisfy the compelling reasons standard even if the motion, or its 2 attachments, were previously filed under seal or protective order. Foltz, 331 F.3d at 1136 3 (“[T]he presumption of access is not rebutted where . . . documents subject to a protective 4 order are filed under seal as attachments to a dispositive motion.”). A party’s failure to 5 meet the burden of articulating specific facts showing a “compelling reason” means that 6 the “default posture of public access prevails.” Kamakana, 447 F.3d at 1182. In ruling on 7 motions to seal, the Ninth Circuit has recognized that “compelling reasons sufficient to 8 outweigh the public’s interest in disclosure and justify sealing court records exist when 9 such court files might . . . become a vehicle for improper purposes, such as the use of 10 records to . . . release trade secrets.” Kamakana, 447 F.3d at 1179. Similarly, other 11 “sources of business information that might harm a litigant’s competitive standing” may 12 also constitute a compelling reason to seal, see Nixon v. Warner Communications, Inc., 435 13 U.S. 589, 598 (1978), such as a company’s confidential profit, cost, and pricing 14 information, which if publicly disclosed could put the company at a competitive 15 disadvantage, see Apple, Inc. v. Samsung Elec. Co., 727 F.3d 1214, 1225 (Fed. Cir. 2013) 16 (“[I]t seems clear that if Apple’s and Samsung’s suppliers have access to their profit, cost, 17 and margin data, it could give the suppliers an advantage in contract negotiations, which 18 they could use to extract price increases for components.”). 19 IV. DISCUSSION 20 Defendants have filed a Motion to Dismiss, ECF No. 20, along with a Request for 21 Judicial Notice, ECF No. 20-1, Motion for Leave to File a Video Exhibit, ECF No. 21, 22 and Motion to File Documents Under Seal, ECF No. 22, in support of that motion. In 23 response, Plaintiffs filed a First Amended Complaint, ECF No. 34, and Motion to File 24 Documents Under Sea, ECF No. 30. The Court addresses each motion in turn. 25 A. Motion to Dismiss 26 “It is well-established in our circuit that an ‘amended complaint supersedes the 27 original, the latter being treated thereafter as non-existent.’” Ramirez v. Cty. of San 28 Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (reversing the district court’s granting 1 of the defendants’ motion to dismiss the superseded first amended complaint and the 2 resulting dismissal of the case because the timely filed second amended complaint mooted 3 the motion to dismiss targeted at Plaintiff’s first amended complaint, which was no longer 4 in effect). “[A]n issue is moot when deciding it would have no effect within the confines 5 of the case itself.” Tur v. YouTube, Inc., 562 F.3d 1212, 1214 (9th Cir. 2009). Here, 6 Defendants’ Motion to Dismiss sought to dismiss Plaintiffs’ original complaint, which is 7 no longer operative due to Plaintiffs’ filing of the FACT. Thus, granting Defendants’ 8 Motion to Dismiss would have no effect within the confines of this case. Defendants’ 9 Motion to Dismiss is DENIED AS MOOT. B. Request for Judicial Notice and Motion for Leave to File a Video Exhibit 10 in Support of the Motion to Dismiss 11 Section 2(k) of the Electronic Case Filing Administrative Policies and Procedures 12 Manual for the United States District Court for the Southern District of California allows 13 parties to ask the Court to permit them to file exhibits that may not be converted to 14 electronic form, like videotapes. Defendants seek to file with the Court Exhibit “G” to the 15 Declaration of Jeffrey A. Pade in Support of Their Motion to Dismiss, which is a true and 16 correct copy of the animation titled “Video XOAir,” downloaded publicly from 17 https://vimeo.com/95477613. See ECF No. 20-6 at 3, ¶ 8. Defendants argue that the 18 website provided “indicates that the ‘Video XOAir’ animation was posted ‘7 years ago.’” 19 Id. Because the Court DENIES Defendants’ Motion to Dismiss as moot in light of the 20 filing of the FAC, the Court likewise DENIES Defendants’ Request for Judicial Notice 21 and Motion for Leave to the Video Exhibit. 22 C. Motion for Leave to File Documents Under Seal 23 On June 15, 2021, the Court entered an Interim Protective Order in this case. ECF 24 No. 25. The Protective Order sought by the Parties stated that the materials sought to be 25 protected were “trade secret or other confidential research, technical, cost, price, 26 marketing or other commercial information.” Id. at 2. It specified that “any party may 27 designate information as ‘CONFIDENTIAL’ only if, in the good faith belief of such party 28 and its counsel, [1] the unrestricted disclosure of such information could be potentially 1 prejudicial to the business or operations of such party” or “[2] the information is among 2 that considered to be most sensitive by the party, including but not limited to trade secret 3 or other confidential research, development, financial or other commercial information.” 4 Id. at 3, ¶ 4(a)-(b). 5 “It is clear that the courts of this country recognize a general right to inspect and 6 copy public records and documents, including judicial records and documents.” Nixon, 7 435 U.S. at 597 (footnotes omitted). The main reason for this general right is to 8 accommodate “the citizen’s desire to keep a watchful eye on the workings of . . . 9 government.” Id. at 598. However, “the right to inspect and copy judicial records is not 10 absolute.” Id. at 589. “Every court has supervisory power over its own records and files, 11 and access has been denied where court files might have become a vehicle for improper 12 purposes,” such as “to gratify private spite or promote public scandal,” or to serve as a 13 source of “business information that might harm a litigant’s competitive standing.” Id. 14 (internal citations omitted); see also Kamakana, 447 F.3d at 1178. 15 “[C]ompelling reasons sufficient to outweigh the public’s interest in disclosure and 16 justify sealing court records exist when such court files might . . . become a vehicle for 17 improper purposes, such as the use of records to . . . release trade secrets.” Kamakana, 18 447 F.3d at 1179. A “trade secret may consist of any formula, pattern, device or 19 compilation of information which is used in one’s business, and which gives him an 20 opportunity to obtain an advantage over competitors who do not know or use it.” Id. 21 Thus, the Court can seal proprietary information to protect a business from potential harm. 22 See Obesity Research Institute, LLC v. Fiber Research International, LLC, No. 15-CV- 23 00595-BAS-MDD, 2017 WL 6270268, at *2 (S.D. Cal. Dec. 8, 2017) (granting motion 24 to file documents containing proprietary business information under seal). Further, 25 “[e]ven where records do not include trade secrets, they may still be sealed where they 26 could be a “source[] of business information that might harm a litigant’s competitive 27 standing.” See, e.g., Monster Energy Co. v. Vital Pharm., Inc., No. EDCV181882-JGB- 28 SHKX, 2019 WL 3099711, at *2-3 (C.D. Cal. Jun. 17, 2019) (granting the plaintiff’s 1 motion for leave to file portions of an exhibit under seal where the information sought to 2 be sealed fell into two categories: “(1) non-public financial information of Monster and 3 third-parties and (2) non-public strategic and business-making information of Monster 4 and third-parties.”) (citing Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 5 1096 (9th Cir. 2016)). 6 Here, the portions of the briefs, declarations, and exhibits sought to be sealed 7 contain, reference, or discuss confidential, nonpublic information regarding agreements 8 between the parties as well as other parties. The Court notes that authority exists for sealing 9 a majority of the records at issue, and each party’s respective motion(s) to seal are 10 unopposed. However, “[a]ny order sealing documents should be ‘narrowly tailored’ to 11 remove from public view only the material that is protected.” Ervine v. Warden, 214 F. 12 Supp. 3d 917, 919 (E.D. Cal. 2016) (citing Press-Enter. Co. v. Super. Ct., 464 U.S. 501, 13 513 (1984)). Here, the Court finds that while each exhibit the parties seek to seal contains 14 some information appropriate for sealing, most of the exhibits or paragraphs do not qualify 15 as narrowly tailored. Thus, the Court has considered each of the documents the parties 16 designated for sealing, and as articulated in the table below, determines which documents 17 may remain under seal or redacted and which documents must be unsealed. 18 1. Defendants’ Motion to Seal 19 Defendants’ First Motion to Seal (ECF No. 22), which seeks to seal the documents 20 filed under seal in ECF No. 23, is DENIED. Defendants sought to seal documents 21 attached to the Declaration of Jeffrey A. Pade in Support of Their Motion to Dismiss 22 Pursuant to Rule 12(b)(6). Although Plaintiffs’ filing of the FAC likely moots the need 23 for the sealing motion given the sealing motion seeks to seal documents in support of the 24 Motion to Dismiss, the Court addresses the sealing motion given Defendants may attempt 25 to seal the same documents later on in the case and have not met the burden for 26 withholding documents from the public record: 27 / / / 28 / / / 1 Request to Seal Portions of: Basis: Result: 2 Ex. Description DENIED. Defendants 3 have sealed the entire 4 agreement. This is 5 neither proper nor narrowly tailored. 6 7 For instance, the Motion to Seal itself, which is 8 Defendants argues that Exhibits public record, discloses 9 H and I to the Declaration of the effective date of the Jeffrey A. Pade consist of non- agreement along with 10 disclosure agreements between the parties to the 11 XpandOrtho and Defendant agreement. Thus, this Zimmer, Inc. and contain information is already 12 Defendants’ confidential public and is needlessly 13 The Mutual business information. ECF No. redacted in the first Nondisclosure 22 at 2:21-26. This information paragraph of the Mutual 14 Agreement includes strategic information Nondisclosure 15 H executed between related to the manner in which Agreement in Exhibit XpandOrtho, Inc. Defendants conduct due “H.” See ECF No. 23 at 16 and Zimmer, Inc., diligence, the particular and non- 2. As another example, 17 effective March 4, public business arrangement the second to last page 2015 between the parties, and of Exhibit “H” contains 18 descriptions of Defendants’ nothing more than 19 confidential policies and standard place contract procedures related to non-public terms contained in 20 proprietary information and nearly every contract, 21 maintaining confidentiality of such as a choice of law such information. Id. at 2:26- clause, modification 22 3:4. clause, and non-waiver 23 clause. See id. at 5. Such information is not 24 confidential information 25 appropriate for sealing. Finally, the last page of 26 Exhibit “H” merely 27 contains the signature page and signing parties 28 1 to the agreement. Id. at 6. This contains no 2 confidential business information. 3 Amendment No. 1 4 to Mutual DENIED. Upon review, Nondisclosure there is nothing 5 Agreement discussing any 6 I executed between confidential information 7 Zimmer, Inc. and or trade secrets in XpandOrtho, Inc., Amendment No. 1 that 8 effective May 8, warrants sealing. 9 2018 2. Plaintiffs’ Motion to Seal 10 Plaintiffs’ Motion to Seal (ECF No. 30), which seeks to file the unredacted version 11 of the Proposed FAC under seal, which was lodged in ECF No. 31, is GRANTED-IN- 12 PART as follows: 13 Request to Seal 14 Portions of: Basis: Result: 15 ¶ Description Plaintiffs have 16 redacted the name GRANTED. Plaintiff 17 of another company has sealed two words in 6 Defendants were the paragraph pertaining 18 considering to another company. 19 acquiring. Plaintiffs argue these paragraphs of the FAC “include[] non-public GRANTED-IN-PART. 20 information related to business The Court finds it 21 activities such as potential unnecessary to seal this acquisitions and associated due entire paragraph. 22 diligence, and business However, the specific 23 Plaintiffs have negotiations between Defendants term at issue is 129 redacted the entirety and Plaintiff.” ECF No. 30 at appropriate for sealing. 24 of this paragraph. 5:28-6:4. Thus, only the three 25 words in Line 12 of Paragraph 129 following 26 “inclusion of a” and 27 preceding “if Zimmer” shall be sealed. 28 1 GRANTED-IN-PART. The Court finds it 2 Plaintiffs have unnecessary to seal this 130 redacted the entirety entire paragraph. Only 3 of this paragraph. the last word in 4 Paragraph 130 is appropriate for sealing. 5 GRANTED-IN-PART. 6 The Court finds it 7 unnecessary to seal this entire paragraph. Only 8 the fourth word in the 9 Plaintiffs have first sentence of this 131 redacted the entirety paragraph, sixth word of 10 of this paragraph. the second sentence of 11 this paragraph, and all words following “intent 12 due to a” in the Line 18 13 of this paragraph are appropriate for sealing. 14 GRANTED-IN-PART. 15 The Court finds it Plaintiffs have unnecessary to seal this 16 132 redacted the entirety entire paragraph. Only 17 of this paragraph. the first word in Line 23 is appropriate for sealing 18 in this paragraph. 19 Plaintiffs have DENIED. The Court redacted the finds nothing in this 20 133 entirety of this paragraph warrants 21 paragraph. sealing. GRANTED-IN-PART. 22 The Court finds only the 23 Plaintiffs have portion of the second redacted the sentence after “The new 24 second, third, LOI” is appropriate for 135 25 fourth, and fifth sealing. The third sentences of this sentence in the 26 paragraph. paragraph is appropriate 27 for sealing, but the fourth sentence is not 28 1 appropriate for sealing. As for the fifth sentence, 2 everything after “For example, the LOI stated” 3 may be sealed. 4 GRANTED-IN-PART. The Court finds it 5 appropriate to seal the Plaintiffs seek to 6 fourth, fifth, sixth, ninth seal the entire 7 137 second sentence of (a number), and nineteenth (a company 8 this paragraph. name) words of this 9 paragraph. Nothing else shall be sealed. 10 150 GRANTED. The 11 153 Plaintiffs seek to words, phrases, and/or 154 seal various words, terms Plaintiffs seek to 12 155 terms, and/or seal refer to the nature of 13 161 phrases throughout their products, which if these paragraphs. disclosed, could harm 14 168 Plaintiffs’ business. 15 Plaintiffs seek to seal the entirety of 16 this paragraph Plaintiffs argue that these 17 which describes paragraphs of the FAC contain 170 the design of “specific details for proprietary 18 Plaintiffs’ product device specifications, 19 as well as various development, and testing that features. would give competitors insight 20 GRANTED. The Plaintiffs seek to into Plaintiffs’ products and features and 21 seal the last three cause harm to Plaintiffs.” ECF characteristics of words of Paragraph No. 30 at 5:11-22. 22 171 Plaintiffs’ products are 171, which appropriate for sealing. 23 discusses a feature of the products. 24 Plaintiffs seek to 25 seal half of the first sentence and the 26 183 entirety of the 27 second sentence, which describe the 28 1 design and features of the products at 2 issue. Plaintiffs seek to 3 seal a portion of 4 only the second sentence of this 5 208 paragraph 6 describing the 7 design and features of the products at 8 issue. 9 Plaintiffs seek to seal a portion of 10 the second 11 sentence of this 210 paragraph 12 describing the 13 design and features of the products at 14 issue. 15 268 Plaintiffs seek to seal various 16 portions of these 17 paragraphs 270 describing various 18 features and design 19 functions of the products at issue. 20 298 Plaintiffs seek to 21 seal five words of Plaintiffs argue these GRANTED. The Paragraph 298 and paragraphs of the FAC 22 party’s name with whom two words in “include[] non-public the parties were 23 307 Paragraph 307 information related to business negotiating is discussing the activities such as potential 24 appropriate for sealing. names of other acquisitions and associated due 25 companies. diligence, and business negotiations between GRANTED-IN-PART. 26 Defendants and Plaintiff.” ECF Plaintiffs have redacted 308 27 No. 30 at 5:28-6:4. the entirety of this paragraph, but the Court 28 1 finds it appropriate to only seal the third word 2 and last word in the first sentence of the 3 paragraph; the second to 4 last word in the second sentence of the 5 paragraph; and the 6 second, twelfth, fifteenth, and twentieth 7 word of the third 8 sentence of the paragraph. 9 Plaintiffs seek to GRANTED. The 10 seal two words of party’s name with whom 11 309 this paragraph, the parties were which disclose a negotiating is 12 company’s name. appropriate for sealing. 13 V. CONCLUSION 14 The Court rules on the above motions as follows: 15 1. Defendants’ Motion to Dismiss (ECF No. 20), Request for Judicial Notice 16 (ECF No. 20-1), and Motion for Leave to File a Video Exhibit (ECF No. 21) are DENIED 17 AS MOOT due to Plaintiffs’ filing of the FAC. 18 2. Defendants’ Motion to Seal (ECF No. 22) is DENIED. Parties frequently file 19 motions to seal as an afterthought “as they wrap up a big filing.” Kivett v. Neolpharma, 20 Inc., No. 2:20-00664-JDW, 2021 WL 1209844, at *2 (E.D. Pa. Mar. 31, 2021). However, 21 “[a]ny party seeking to file material under seal must pay careful attention and make a 22 specific, detailed showing about the harm that would result from disclosure.” Id. More 23 importantly, even where a document contains some information appropriate for sealing, a 24 party may not seal the entire document and must narrowly tailor that party’s request by 25 only redacting the information appropriate for sealing. In this case, the requests at issue 26 were not narrowly tailored. Thus, because Defendants’ request here is not narrowly 27 tailored, and the documents are no longer needed to support Defendants’ Motion to 28 1 || Dismiss, the Clerk shall file the unredacted version of the documents lodged at ECF No. 2 || 23 in the public record. Defendant has five days to withdraw the unredacted version of this 3 || exhibit or it shall be filed in the public record in accordance with this Order. 4 3. Plaintiff's Motion to Seal (ECF No. 30) is GRANTED-IN-PART as follows: 5 a. A redacted version of the FAC Plaintiff seeks to seal has been filed on 6||the public docket. However, these redactions are overly broad. As such, Plaintiff is 7 || directed to lodge under seal a new version of the FAC with redactions as outlined in the 8 || Court’s order within five (5) calendar days of this Order. 9 4. Given the nature of this case, the Court anticipates additional motions to seal be filed. These motions must be narrowly tailored. Additionally, for the duration of 11 || this case, once the Court seals a document, both parties are prohibited from filing motions 12 || seeking to seal those same documents that the Court has already ordered sealed. Instead, 13 and when the Court seals a document, all future briefing, citation to, or reliance on 14 || documents the Court has previously ordered sealed shall refer back to the ECF-number and 15 || page number of the previously sealed exhibit or document rather than filing a new and 16 || duplicative motion to seal. 17 IT IS SO ORDERED. "

18|| DATED: June 28, 2021 19 ON. ROGER T. BENITE United States District Judge 20 21 22 23 24 25 26 27 28 -16-