ImprimisRx, LLC v. OSRX, Inc.

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 IMPRIMISRX, LLC, Case No. 21-cv-01305-BAS-DDL 11 Plaintiff, ORDER: 12 v. (1) GRANTING IN PART AND 13 DENYING IN PART MOTIONS TO SEAL MOTION FOR PARTIAL 14 OSRX, INC.; OCULAR SCIENCE, INC., SUMMARY JUDGMENT AND 15 Defendants. RESPONSE (ECF Nos. 169, 202);

16 AND 17 (2) GRANTING MOTION TO SEAL 18 OPPOSITION TO MOTION FOR 19 PARTIAL SUMMARY JUDGMENT AND REPLY (ECF Nos. 205, 217) 20 24 Before the Court are four motions by the parties to file documents under seal. (ECF 25 Nos. 169, 202, 205, 217.) Plaintiff ImprimisRx, LLC seeks leave to file under seal portions 26 of its Motion for Partial Summary Judgment (ECF No. 169), its Response to Defendants’ 27 Motion for Partial Summary Judgment, (ECF No. 202), and its Reply in Support of 28 Plaintiff’s Motion for Partial Summary Judgment. (ECF No. 217.) Defendants OSRX, 1 Inc. and Ocular Science, Inc. seek leave to file under seal portions of their Opposition to 2 Plaintiff’s Motion for Partial Summary Judgment. (ECF No. 205.) All four motions to 3 seal are unopposed. For the reasons stated below, the Court GRANTS IN PART and 4 DENIES IN PART the motions to seal Plaintiff’s Motion for Partial Summary Judgment 5 and Response to Defendants’ Motion for Partial Summary Judgment (ECF Nos. 169, 202), 6 GRANTS Plaintiff’s motion to seal Plaintiff’s Reply in Support of its Motion for Partial 7 Summary Judgment (ECF No. 217), and GRANTS Defendants’ motion to seal their 8 Opposition to Plaintiff’s Motion for Partial Summary Judgment (ECF No. 205). 9 10 I. LEGAL STANDARD 11 “[T]he courts of this country recognize a general right to inspect and copy public 12 records and documents, including judicial records and documents.” Nixon v. Warner 13 Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one 14 ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” 15 Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz v. 16 State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption 17 of access is ‘based on the need for federal courts, although independent—indeed, 18 particularly because they are independent—to have a measure of accountability and for the 19 public to have confidence in the administration of justice.’” Ctr. for Auto Safety v. Chrysler 20 Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 21 1044, 1048 (2d Cir. 1995)). 22 A party seeking to seal a judicial record bears the burden of overcoming the strong 23 presumption of access. Foltz, 331 F.3d at 1135. The showing required to meet this burden 24 depends upon whether the documents to be sealed relate to a motion that is “more than 25 tangentially related to the merits of the case.” Ctr. for Auto Safety, 809 F.3d at 1102. When 26 the underlying motion is more than tangentially related to the merits, the “compelling 27 reasons” standard applies. Id. at 1096–98. When the underlying motion does not surpass 28 the tangential relevance threshold, the “good cause” standard applies. Id. Motions for 1 summary judgment are dispositive and command the “compelling reasons” standard. 2 Kamakana, 447 F.3d at 1180. 3 “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in 4 disclosure and justify sealing court records exist when such ‘court files might have become 5 a vehicle for improper purposes,’ such as the use of records to gratify private spite, promote 6 public scandal, circulate libelous statements, or release trade secrets.” Kamakana, 447 7 F.3d at 1179 (quoting Nixon, 435 U.S. at 598). As to this last category, courts have been 8 willing to seal court filings containing confidential business material, “such as marketing 9 strategies, product development plans, licensing agreements, and profit, cost, and margin 10 data,” where the parties have been able to point to concrete factual information to justify 11 sealing. See, e.g., Cohen v. Trump, No. 13-cv-2519-GPC-WVG, 2016 WL 3036302, at *5 12 (S.D. Cal. May 27, 2016). However, “[t]he mere fact that the production of records may 13 lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, 14 without more, compel the court to seal its records.” Kamakana, 447 at 1179. A blanket 15 protective order is not itself sufficient to show “good cause,” let alone compelling reasons, 16 for sealing particular documents. See Foltz, 331 F.3d at 1133; San Jose Mercury News, 17 Inc. v. U.S. District Court, N. Dist., 187 F.3d 1096, 1103 (9th Cir. 1999). The decision to 18 seal documents is “one best left to the sound discretion of the trial court” upon 19 consideration of “the relevant facts and circumstances of the particular case.” Nixon, 435 20 U.S. at 599. 21 In addition, parties moving to seal documents must comply with the procedures set 22 forth in this Court’s standing order for filing documents under seal. See Standing Order of 23 the Hon. Cynthia Bashant for Civil Cases ¶5. The rule permits sealing to “only those 24 documents, or portions thereof, necessary to protect such sensitive information.” Id. Thus, 25 although sometimes it may be appropriate to seal a document in its entirety, whenever 26 possible a party must redact. See Kamakana, 447 F.3d at 1183 (noting a preference for 27 redactions so long as they “have the virtue of being limited and clear”); Murphy v. Kavo 28 1 Am. Corp., No. 11–cv–00410–YGR, 2012 WL 1497489, at *2–3 (N.D. Cal. Apr. 27, 2012) 2 (denying motion to seal exhibits but directing parties to redact confidential information). 3 II. ANALYSIS 4 Plaintiff’s and Defendants’ motions to seal are all filed in connection with their 5 associated motions for partial summary judgment. Because a motion for partial summary 6 judgment is more than tangentially related to the merits of the underlying dispute, their 7 motions to seal are subject to the “compelling reasons” standard. Kamakana, 447 F.3d at 8 1180. The Court reviews each motion in light of this standard and for whether the motion 9 to seal is sufficiently tailored. 10 A. Plaintiff’s Motion to Seal in Connection with Plaintiff’s Motion for 11 Summary Judgment (ECF No. 169) 12 In its motion to seal, Plaintiff seek leave to file under seal portions of its Motion for 13 Partial Summary Judgment. (ECF No. 170.) Specifically, Plaintiff seek leave to file under 14 seal: redactions from Plaintiff’s Motion for Partial Summary Judgment; Exhibits 10–12, 15 14–15, and 21–55 attached to the Motion; portions of the deposition of Dr. Damien 16 Goldberg (“Goldberg Deposition”); portions of the deposition of Traci Inman (“Inman 17 Deposition”); portions of the deposition of France Vaccari (“Vaccari Deposition”); 18 portions of the deposition of Eric Garner (“Garner Deposition”); portions of the deposition 19 of Amy Frost (“Frost Deposition”); portions of the deposition of Andreas Groehn (“Groehn 20 Deposition”); portions of the deposition of Matthew Gee (“Gee Deposition”); and portions 21 of the deposition of Anthony Sampietro (“Sampietro Deposition”). (ECF No. 169-2.) 22 Plaintiff does not offer a reason in support of its motion to seal apart from the fact 23 the documents were designated “Confidential” and “Confidential – Attorney Eyes Only” 24 under the protective order. (ECF No. 169.) This justification alone is insufficient. 25 Kamakana, 447 F.3d at 1183. 26 In support of Plaintiff’s motion to seal, Defendants contend portions of Plaintiff’s 27 Motion for Partial Summary Judgment contain confidential business information and 28 private medical information. (ECF No. 184.) Courts have repeatedly held the need to keep 1 personal health information confidential outweighs the presumption in favor of public 2 access. See, e.g., San Ramon Reg’l Med. Ctr., Inc. v. Principal Life Ins. Co., No. C 10- 3 02258 SBA, 2011 WL 89931, at *1 n.1 (N.D. Cal. Jan. 10, 2011); Stafford v. Rite Aid 4 Corp., No. 17-CV-1340-AJB-JLB, 2019 WL 3818015, at *1 (S.D. Cal. Aug. 14, 2019). 5 Other courts have previously held that “confidential business information” in the form of 6 “license agreements, financial terms, details of confidential licensing negotiations, and 7 business strategies” satisfies the compelling reasons standard. See In re Qualcomm Litig., 8 No. 3:17-cv-0108-GPC-MDD, 2017 WL 5176922, at *2 (S.D. Cal. Nov. 8, 2017); Jam 9 Cellars, Inc. v. Wine Group, LLC, No. 19-cv-01878-HSG, 2020 WL 5576346, at *2 (N.D. 10 Cal. Sept. 17, 2020). The Court reviews Plaintiff’s Motion in light of the reasons offered 11 and for whether the Motion is adequately tailored to the interests represented. 12 1. Plaintiff’s Motion for Partial Summary Judgment 13 Plaintiff seeks to file under seal redactions from its Motion for Partial Summary 14 Judgment (ECF No. 170.) These redactions fall into a few categories each meriting being 15 filed under seal. First, Plaintiff seeks to redact quotes from exhibits related to how OSRX 16 viewed its market competition and future business planning. (ECF No. 170 at 10, 11, 23, 17 27, 29.) Future business planning and competitive strategy are quintessential business 18 information that may harm a firm’s competitive standing if disclosed to the public. See, 19 e.g., Microsoft Corp. v. Motorola, Inc., No. C10-1823JLR, 2012 WL 5476846, at *4 (W.D. 20 Wash. Nov. 12, 2012); BBK Tobacco & Foods LLP v. Cent. Coast Agric. Inc., No. CV-19- 21 05216-PHX-MTL, 2021 WL 5578864, at *4 (D. Ariz. Nov. 29, 2021). Second, Plaintiff 22 seeks to redact internal discussions related to how OSRX pitches potential customers and 23 engages in contract negotiations. (ECF No. 170 at 11–12, 16–20.) A firm’s confidential 24 contract negotiations meet the standard for compelling reasons. See, e.g., Microsoft Corp., 25 2012 WL 5476846, at *5. Finally, Plaintiff seeks to redact portions of its Motion that 26 discuss OSRX’s dosing schedule. (ECF No. 170 at 12–16, 19–20.) OSRX’s dosing 27 schedule provides insight into the annual number of OSRX prescriptions, pricing, and 28 quantity dispensed which may harm OSRX’s ability to compete. Courts have previously 1 held this sort of sensitive business information meets the compelling reasons standard. See, 2 e.g., Cohen, 2016 WL 3036302, at *5. 3 Accordingly, the Court grants Plaintiff’s motion with respect to this document. 4 2. Plaintiff’s Exhibits in Support of Motion for Partial Summary 5 Judgment 6 Plaintiff seeks to file certain exhibits attached to its Motion for Partial Summary 7 Judgment under seal. Specifically, Plaintiff seeks to file Exhibits 10–12, 14–15, 21–55 8 under seal. 9 i. Discussions of Dosing Schedules: Exhibits 10, 26, 28, 35, and 38 10 Plaintiff seeks to file under seal exhibits related to Defendants’ dosing schedules for 11 various ophthalmological products. Exhibit 10 is an email with attachments that discuss 12 the dosing schedule for various OSRX products. (ECF No. 170-1 at 257.) Exhibits 26, 28, 13 35, and 38 are emails that discuss the purchase process and dose amounts per patient. (ECF 14 No. 170-2 at 105, 113, 146; ECF No. 170-3 at 20.) As discussed, the Court agrees that 15 documents discussing Defendants’ dosing schedule present a compelling reason to be filed 16 under seal. 17 Accordingly, the Court grants Plaintiff’s motion to seal these documents. 18 ii. Contract Negotiations and Pricing: Exhibits 11, 21–23, 27, 29– 19 34, 36, 37, 39–51, and 54 20 Plaintiff seeks to file under seal exhibits that contain Defendants’ sales leads, 21 contract negotiations, or pricing information. Exhibit 11 is an email that identifies who 22 Defendants considered their largest competition and includes proposed pricing and 23 negotiations by Plaintiff. (ECF No. 170-1 at 265–66.) Exhibits 21–23, 27, 29–34, 36, 37, 24 39–51, and 54 are sales leads for potential new customers that include discussions of 25 pricing, customer business needs, purchasing requirements, shipping information, and 26 other contract details. (ECF No. 170-2 at 28, 33, 37, 109, 117, 122, 127, 130, 135, 139; 27 ECF No. 170-3 at 11, 15, 24, 34, 37, 42, 46, 50, 53, 56, 62, 70, 73, 76, 83.) As discussed, 28 other courts have previously held sales leads and contract negotiations present compelling 1 reasons to be filed under seal. See e.g., Rydman v. Champion Petfoods, USA Inc., No. 2:18- 2 CV-01578-TL, 2023 WL 2711837, at *2 (W.D. Wash. Mar. 30, 2023) and Opperman v. 3 Path, Inc., No. 13-CV-00453-JST, 2017 WL 1036652, at *5 (N.D. Cal. Mar. 17, 2017). 4 Accordingly, the Court grants Plaintiff’s motion to seal these documents. 5 iii. Prior Product Offerings and Strategy Presentations: Exhibits 12, 6 14 7 Plaintiff seeks to file under seal two exhibits that were Defendants’ prior product 8 offerings and strategy presentations. Exhibit 12 is an email that includes a strategy 9 presentation given by Defendants in 2014. (ECF No. 170-1 at 269.) While the presentation 10 may include forward-looking business planning and strategy from 2014, the information 11 does not appear to be sensitive in the present day. Much of the information from the 12 presentation has been recycled in other presentations that are able to be accessed via the 13 internet. Exhibit 14 is a copy of the ophthalmic formulations catalog offered by Defendants 14 provided as reference material to potential new customers. (ECF No. 170-1 at 294.) This 15 information is available to the public through sales channels and does not appear to be the 16 present product offerings by Defendants. Because the information in these documents is 17 not currently relevant to Defendants’ market standing or is publicly accessible, the Court 18 does not find a compelling reason to seal these exhibits. 19 Accordingly, the Court denies Plaintiff’s motion to seal these documents. 20 iv. Recent Strategy Presentation: Exhibits 15, 25 21 In contrast to the older strategy presentation from 2014, Exhibit 15 is a copy of 22 Defendant Ocular Science’s October 2019 investment overview and strategy presentation 23 (ECF No. 170 at 321.) The presentation contains forward-looking business projections 24 and business planning that may contain confidential information relevant to today. The 25 presentation is consistently marked confidential and does not appear to be publicly 26 available. Exhibit 25 is a company and investment overview for Defendant OSRX that 27 contains financial projections and identifies who OSRX considers its primary competitors 28 in the market. (ECF No. 170-2 at 93.) Courts have consistently found confidential, 1 forward-looking business strategy presents a compelling reason to seal. See, e.g., Jam 2 Cellars, Inc., 2020 WL 5576346, at *2; Microsoft Corp., 2012 WL 5476846, at *4. 3 Because the type of information in this presentation may harm Defendant’s competitive 4 standing in the market, the Court finds Plaintiff has alleged compelling reasons to seal the 5 exhibits. 6 Accordingly, the Court grants Plaintiff’s motion to seal these documents. 7 v. Expert Report of Dr. Andreas Groehn: Exhibit 24 8 Plaintiff seeks to file the Rebuttal Report of Dr. Andreas Groehn (“Groehn Report”) 9 under seal as Exhibit 24 to Plaintiff’s Motion for Partial Summary Judgment. (ECF No. 10 170-2 at 42.) While portions of the Groehn Report may contain confidential business 11 information, most of the report is in response to the expert report of Sara Butler which 12 surveyed various populations about whether the terms registered as trademarks were brand 13 names or common names. This sort of study does not present information that would harm 14 Plaintiff’s or Defendants’ competitive standing. While designated confidential, mere 15 designation as “confidential” or “for attorneys’ eyes only” a discovery protective order for 16 does not provide a compelling reason that justifies sealing. Kamakana, 447 F.3d at 1183. 17 Additionally, the blanket request to seal the entire report, rather than particular redactions, 18 is insufficiently tailored. 19 Accordingly, the Court denies Plaintiff’s motion with respect to this document. 20 vi. Patient Prescription Information: Exhibit 55 21 Plaintiff seeks to file under seal Columns E–K of Exhibit 55 attached to its Motion 22 for Partial Summary Judgment. Exhibit 55 provides prescription data for patients including 23 the drugs prescribed, the prescribing doctor, the city, and the state. Columns E–K provide 24 patients’ information including their names, dates of birth, addresses, and phone numbers. 25 Courts have consistently found private patient health information presents a compelling 26 reason to file under seal. See, e.g., Stafford, 2019 WL 3818015, at *1. Here, the patients’ 27 health information is not central to the dispute between the parties and presents a 28 compelling reason to seal the document. 1 Accordingly, the Court grants Plaintiff’s motion with respect to this document. 2 vii. Other Documents: Exhibits 52 and 53 3 Plaintiff seeks to file under seal two documents designated confidential that do not 4 present confidential business information or personal health information. Exhibit 52 is an 5 email thread that discusses a returned bottle of product. (ECF No. 170-3 at 78.) The 6 content of the email does not discuss any potential sales leads, contract negotiations, 7 pricing, dosing, or patient health information. Similarly, Exhibit 53 is an email thread 8 about missing labels on a product. (ECF No. 170-3 at 81.) From the Court’s vantage, it 9 does not contain any confidential business information or sensitive health information. 10 Accordingly, the Court does not find a compelling reason to sell these exhibits. The Court 11 denies the motion without prejudice to allow the parties to offer compelling reasons, if 12 available, for these documents to be sealed. 13 3. Deposition Selections in Support of Motion for Partial Summary 14 Judgment 15 Attached to its Motion for Partial Summary Judgment, Plaintiff seeks to seal portions 16 of the transcripts of a number of depositions. Plaintiff seeks only to redact portions of these 17 transcripts rather than the entirety of the transcripts. In general, Plaintiff redacted portions 18 of these depositions where the deponent was asked questions to enter into evidence an 19 exhibit that Plaintiff was already attempting to seal. (See, e.g., Dep. of Traci Inman 99:7– 20 15.) In instances where the exhibit is only referred to and the deponent is not asked to 21 quote from the material or answer any follow-up questions that may include confidential 22 business information, the Court does not find a compelling reason to seal the redacted 23 portions of the transcript. 24 At times, however, Plaintiff seeks to redact portions of the deposition transcripts that 25 either quote from confidential and potentially sensitive documents or include discussion of 26 confidential business practices like dosing or contract negotiations. (See, e.g., Dep. of Eric 27 Garner 54:20–25.) In these instances, the Court finds a compelling reason to seal these 28 1 portions of the transcript. Appendix A to the attached order lists the instances where the 2 redaction contains confidential business or health information. 3 Accordingly, the Court GRANTS IN PART and DENIES IN PART Plaintiff’s 4 motion to file the documents under seal. The Court makes this decision without prejudice. 5 B. Plaintiff’s Motion to Seal in Connection with Plaintiff’s Opposition to 6 Defendants’ Motion for Partial Summary Judgment 7 Plaintiff also seeks leave to file under seal portions of its Opposition to Defendants’ 8 Motion for Partial Summary Judgment. (ECF No. 202.) Specifically, Plaintiff seek leave 9 to file under seal: excerpts of the Deposition of Eric Garner (“Garner Deposition”); 10 excerpts of the Deposition of Amy Frost (“Frost Deposition”); excerpts of the Deposition 11 of Traci Inman (“Inman Deposition”); excerpts of the Deposition of Anthony Sampietro 12 (“Sampietro Deposition”); excerpts of the Deposition of Francine Vaccari (“Vaccari 13 Deposition”); excerpts of the Deposition of Matthew Gee (“Gee Deposition”); and Exhibits 14 2, 5, 7, 11–19 attached to Plaintiff’s Opposition. (ECF No. 202-2.) 15 As before, Plaintiff does not offer a reason in support of its motion to seal apart from 16 the fact the documents were designated “Confidential” and “Confidential – Attorney Eyes 17 Only” under the protective order for this case. (ECF No. 202.) Again, this justification is 18 insufficient. Kamakana, 447 F.3d at 1183. In response to Plaintiff’s Motion to Seal, 19 Defendants offered in support of the motion that some documents contained Defendants’ 20 confidential business information. And as stated, courts have found compelling reasons to 21 seal filings that contain confidential business material. See id. at 1179. Accordingly, the 22 Court reviews the documents to be sealed for whether (1) they contain confidential business 23 information and (2) the request to seal has been adequately tailored. 24 1. Contract Negotiations and Pricing: Exhibits 2, 5, 7, 11–19 25 Plaintiff seeks to file a handful of exhibits under seal that contain Defendants’ 26 sales leads, contract negotiations, or pricing information. Courts have previously held 27 sales leads and contract negotiations present a compelling reason to be filed under seal 28 because that information may erode a party’s competitive advantage in the market or 1 provide a leg up to competitors. See e.g., Rydman, 2023 WL 2711837, at *2; 2 Opperman, 2017 WL 1036652, at *5. 3 Exhibit 2 is a series of emails with a prospective client that shows how Defendants 4 pitch potential clients, Defendants’ understanding of the market, and the business needs of 5 a potential sales lead. (ECF No. 203-1 at 16.) Exhibit 5 is a series of emails demonstrating 6 how Defendant viewed its market standing, threats to its competitive advantage, and how 7 customers felt about certain product lines. (ECF No. 203-1 at 36.) Exhibit 7 is a series of 8 emails with a potential new customer discussing the industry, Defendants’ competitive 9 advantage, and pricing. (ECF No. 203-1 at 43.) Exhibits 11, 12, 14, 15, 16, 17, 18, and 19 10 are similarly sales pitches to potential customers and demonstrate how Defendants’ pricing, 11 distribution, and sales tactics work in practice, which may provide insight and an advantage 12 to their competitors. (ECF No. 203-1 at 66, 73, 83, 88, 97, 101, 112.) Exhibit 13 is a series 13 of emails of a customer requesting to receive the same pricing as a prior deal, which would 14 provide sensitive sales lead information and pricing to customers. (ECF No. 203-1 at 78.) 15 Because these documents contain confidential business information, the Court finds there 16 are compelling reasons to seal these exhibits. 17 Accordingly, the Court grants Plaintiff’s motion with respect to these documents. 18 2. Deposition Excerpts: Exhibits 1, 4, 6, 9, 10 19 Plaintiff seeks to seal portions of the transcripts of the Frost Deposition, Garner 20 Deposition, Inman Deposition, Sampietro Deposition, Vaccari Deposition, and Gee 21 Deposition. (ECF No. 202-2.) Plaintiff seeks only to redact portions of these transcripts 22 rather than the entirety of the transcripts. 23 In general, the portions Plaintiff seeks to file under seal do not contain any sensitive 24 business information or personal health information. In some instances, Plaintiff sought to 25 redact portions of these depositions where the deponent was asked about an exhibit that 26 Plaintiff was already attempting to seal. In instances where the exhibit is only referred to 27 and the deponent is not asked to quote from the material or answer any follow-up questions 28 that may include confidential business information or dosage schedules, the Court does not 1 find a compelling reason to seal the redacted portions of the transcript. (See, e.g., Dep. of 2 Traci Inman 158:10–19.) In other instances, Plaintiff seeks to file deposition portions 3 where the deponent is asked broad questions about marketing or sales tactics. (See, e.g., 4 Dep. of Eric Garner 98:24–25.) The Court does not find these portions hold any sensitive 5 business information that would potentially harm Defendants’ competitive standing. 6 In two instances in the Inman Deposition, Plaintiff seeks to seal deposition excerpts 7 that name particular customers and describe the sales negotiation processes for acquiring 8 those customers. (See Dep. of Traci Inman 163:1, 190:18–191:13.) These portions of the 9 transcripts contain sensitive business information. Appendix B to this order identifies 10 which excerpts present a compelling reason to be filed under seal. 11 Accordingly, the Court GRANTS IN PART and DENIES IN PART Plaintiff’s 12 motion to file the documents under seal. The Court makes this decision without prejudice. 13 C. Defendants’ Motion to Seal in Connection with Defendants’ Opposition 14 to Plaintiff’s Motion for Partial Summary Judgment 15 In their motion to seal, Defendants seek leave to file under seal portions of their 16 Opposition to Plaintiff’s Motion for Partial Summary Judgment. (ECF No. 205.) 17 Specifically, Defendants seek leave to file under seal: portions of the Declaration of Brian 18 Holdorf (“Holdorf Declaration”); Exhibits 1 and 2 of the Holdorf Declaration; portions of 19 the Declaration of Amy Frost (“Frost Declaration”); Exhibits 30, 31, 32, 59, and 60 20 attached to the Declaration of Mikaela Burkhardt (“Burkhard Declaration”); and limited 21 portions of Defendants’ Opposition to Plaintiff’s Motion for Partial Summary Judgment. 22 1. Frost Declaration 23 Defendants seek leave to file under seal redacted portions of the Frost Declaration 24 related to the job performance of Kelsey Deschamps, a former employee of OSRX, and the 25 prescription and dispensing records of OSRX customers. With respect to the Deschamps 26 performance excerpts, Defendants argue that protecting a non-party employee’s personnel 27 records, including otherwise confidential performance evaluations, presents a compelling 28 interest to file under seal. (ECF No. 205 at 3.) Other courts have consistently found a 1 compelling reason to seal non-party personnel records given the reputational and privacy 2 interests at stake. See, e.g., Amini v. Crestbrook Insur. Co., No. 2:21-CV-01377-LK, 2023 3 WL 2913751, at *1 (W.D. Wash. Apr. 12, 2023). The Court finds this presents a 4 compelling reason to seal the portions of the Frost Declaration. A non-party employee 5 risks loss of future income and potential embarrassment if this information is made publicly 6 available. While the public has a right to access these materials, the non-party employee’s 7 interest in having these materials remain confidential is compelling enough to justify 8 sealing. 9 With respect to the OSRX prescriptions list, Defendants assert there is a business 10 interest in maintaining the confidentiality of their client list. As discussed before, the Court 11 finds this to be a compelling reason. Defendants have also narrowly tailored their 12 redactions of the Frost Declaration to only those portions regarding Deschamps’s job 13 performance and the OSRX prescriptions list. 14 2. Holdorf Declaration and Exhibits 15 As with the Frost Declaration, Defendants seek to file under seal redacted portions 16 of the Holdorf Declaration concerning the job performance of Deschamps. Defendants 17 also seek to file under seal Exhibit 1, a prior performance review of Deschamps, and 18 Exhibit 2, a job performance review of OSRX employee Cassidy Zirko, to the Holdorf 19 Declaration. As with the Frost Declaration, the Court finds the reputational and financial 20 risks to non-party employees from disclosure of these materials offer compelling reasons 21 to file the documents under seal. 22 3. Exhibits to the Burkhardt Declaration 23 Defendants move to file five exhibits to the Burkhardt Declaration under seal. 24 Exhibit 30 to the Burkhardt Declaration is an Imprimis Sales Training manual. (ECF No. 25 206-3 at 2.) This Court has previously held training manuals and material, where not the 26 subject of the dispute, present compelling reasons to seal given the business advantage their 27 disclosure would provide to competitors. See, e.g., Lucas v. Breg, Inc., No. 15-CV-00258- 28 BAS-NLS, 2016 WL 5464549, at *1 (S.D. Cal. Sept. 28, 2016). Exhibits 31 and 32 are 1 emails that discuss products ordered, business needs, and complaints by Imprimis 2 customers. (ECF No. 206-4 at 2; ECF No. 206-5 at 3.) This sort of customer information 3 presents a compelling reason to seal, as discussed before. Exhibits 59 and 60 are Imprimis- 4 conducted mock FDA audits of its New Jersey facility. Plaintiff argues, in support of 5 Defendants’ motion to seal, the audit contains competitive information because it discloses 6 descriptions of the laboratory design, contracts with laboratories, and recommendations by 7 consultants. (ECF No. 212 at 4.) The Court agrees. The manufacturing details and quality 8 assessment contained in these exhibits would pose competitive disadvantages to Plaintiff 9 if disclosed. 10 4. Defendants’ Opposition to Plaintiff’s Motion 11 Defendants seek to redact certain portions of their Opposition to Plaintiff’s Motion 12 for Partial Summary Judgment. The portions to be sealed, in general, either quote from 13 materials previously moved to be sealed that contain confidential and sensitive business 14 information or discuss the respective business needs of Plaintiff’s customers. Because 15 sensitive business information, such as sales leads and the business needs of customers, 16 may result in competitive disadvantage if disclosed, the Court finds there is a compelling 17 reason to file the redacted portions of Defendants’ Opposition under seal. 18 Accordingly, the Court GRANTS Defendants’ Motion to Seal. (ECF No. 205.) 19 D. Plaintiff’s Motion to Seal in Connection with Plaintiff’s Reply in Support 20 of Plaintiff’s Motion for Partial Summary Judgment 21 Plaintiff moves to file under seal certain excerpts from its Reply in Support of its 22 Motion for Partial Summary Judgment. (ECF No. 217.) Plaintiff moves to seal portions 23 of its Reply that quote from exhibits Plaintiff previously sought to file under seal, as 24 discussed in this order, that contain confidential business information or information about 25 dosing schedules that may be harmful to Defendants’ competitive standing. (ECF No. 26 218.) Plaintiff incorporates by reference its prior motion to seal with respect to these 27 materials. The Court has previously reviewed the selected materials above and found these 28 documents present a compelling reason to be filed under seal. 1 Accordingly, the Court GRANTS Plaintiff’s Motion to Seal. (ECF No. 217.) 2 3 CONCLUSION 4 Based on the foregoing, the Court: 5 (1) GRANTS IN PART and DENIES IN PART Plaintiff’s motion to file 6 documents under seal (ECF No. 169). 7 (2) GRANTS IN PART and DENIES IN PART Plaintiff’s motion to file 8 documents under seal (ECF No. 202). 9 (3) GRANTS Defendants’ Motion to file documents under seal in ECF No. 205. 10 The Clerk of the Court is directed to file the following documents under seal: 11 Opposition to Plaintiff’s Motion for Partial Summary Judgment and 12 associated attachments. (ECF Nos. 206, 206-1, 206-2, 206-3, 206-4, 206-5, 13 206-6, 206-7.) 14 (4) GRANTS Plaintiff’s Motion to file documents under seal in ECF No. 217. 15 The Clerk of the Court is directed to file the following documents under seal: 16 Plaintiff’s Reply in Support of Plaintiff’s Motion for Summary Judgment. 17 (ECF No. 218.) 18 If Plaintiff or Defendants wish to file a renewed motion to seal for the denied 19 requests, they may do so no later than October 31, 2023 after the issuance of this order. 20 Otherwise, Plaintiff and Defendants are instructed to file the unredacted versions of the 21 aforementioned documents as directed by the Court in this Order on the public docket no 22 later than November 3, 2023 after the issuance of this order. For these documents, the 23 parties shall publicly file revised versions of these documents with only those redactions 24 that the court has approved on CM/ECF as a “Notice Regarding Exhibit Attachment.” 25 When filing the documents on the public docket, the parties must strictly adhere to the 26 relevant Federal Rules of Civil Procedure, this district’s Civil Local Rules, this Court’s 27 Standing Order for Civil Cases, and this district’s Electronic Case Filing Administrative 28 1 || Policies & Procedures Manual. Non-compliance with this order or any relevant rules may 2 || result in sanctions pursuant to Civil Local Rule 83.1. 3 IT IS SO ORDERED. 4 / 5 || DATED: October 24, 2022 Uy HUA (Lyphaa 6 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 aK.

Deposition Selections in Support of Plaintiff's Motion for Partial Summary Judgment Exhibit Deponent Page Line Ruling DENIED. The transcript portion does not contain any confidential business information 1 Dr. Damien Goldberg 24 7–12 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 1 Dr. Damien Goldberg 25 3–6 and does not include any private health information. GRANTED. The transcript selection contains confidential business information about dosing schedules. Disclosure may provide competitors with an unfair 1 Dr. Damien Goldberg 33 18–25 business advantage. GRANTED. The transcript selection contains confidential business information about dosing schedules. Disclosure may provide competitors with an unfair 1 Dr. Damien Goldberg 34 1–25 business advantage. GRANTED. The transcript selection contains confidential business information about dosing schedules. Disclosure may provide competitors with an unfair 1 Dr. Damien Goldberg 35 1–8 business advantage. DENIED. The transcript portion does not contain any confidential business information 1 Dr. Damien Goldberg 66 19–25 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 1 Dr. Damien Goldberg 67 1–16 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 2 Traci Inman 59 23–25 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 2 Traci Inman 60 1–21 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 2 Traci Inman 65 23–25 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 2 Traci Inman 66 1–11 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 2 Traci Inman 99 7–15 and does not include any private health information. GRANTED. The transcript selection contains confidential business information about dosing schedules. Disclosure may provide competitors with an unfair 2 Traci Inman 99 23–25 business advantage. GRANTED. The transcript selection contains confidential business information about dosing schedules. Disclosure may provide competitors with an unfair 2 Traci Inman 100 1–10 business advantage. DENIED. The transcript portion does not contain any confidential business information 2 Traci Inman 122 1–16 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 2 Traci Inman 129 6–18 and does not include any private health information. Deposition Selections in Support of Plaintiff's Motion for Partial Summary Judgment Exhibit Deponent Page Line Ruling GRANTED. The transcript selection contains confidential business information about dosing schedules. Disclosure may provide competitors with an unfair 2 Traci Inman 130 13–21 business advantage. DENIED. The transcript portion does not contain any confidential business information 2 Traci Inman 134 9–20 and does not include any private health information. GRANTED. The transcript selection contains confidential business information about dosing schedules. Disclosure may provide competitors with an unfair 2 Traci Inman 142 9–25 business advantage. DENIED. The transcript portion does not contain any confidential business information 2 Traci Inman 143 1 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 2 Traci Inman 146 8–19 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 2 Traci Inman 191 25 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 2 Traci Inman 192 1–12 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 2A Traci Inman 43 13–25 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 2A Traci Inman 44 1–5 and does not include any private health information. GRANTED. The transcript selection contains confidential business information about sales pitches to customers. Disclosure may provide competitors with an 2A Traci Inman 53 17–19 unfair business advantage. GRANTED. The transcript selection contains confidential business information about dosing schedules. Disclosure may provide competitors with an unfair 2A Traci Inman 97 1–3 business advantage. DENIED. The transcript portion does not contain any confidential business information 2A Traci Inman 174 22–25 and does not include any private health information. GRANTED. The transcript selection contains confidential business information about how competition between firms is perceived. Disclosure may provide 2A Traci Inman 175 1–8 competitors with an unfair business advantage. DENIED. The transcript portion does not contain any confidential business information 3 Francine Vaccari 68 7–25 and does not include any private health information. GRANTED. The transcript selection contains confidential business information about dosing schedules. Disclosure may provide competitors with an unfair 3 Francine Vaccari 69 1–13 business advantage. DENIED. The transcript portion does not contain any confidential business information 3 Francine Vaccari 72 15–25 and does not include any private health information. Deposition Selections in Support of Plaintiff's Motion for Partial Summary Judgment Exhibit Deponent Page Line Ruling DENIED. The transcript portion does not contain any confidential business information 3 Francine Vaccari 73 1–8 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 3 Francine Vaccari 80 25 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 3 Francine Vaccari 81 1–23 and does not include any private health information. GRANTED. The transcript selection contains confidential business information about how competition between firms is perceived. Disclosure may provide 4 Eric Garner 54 20–25 competitors with an unfair business advantage. GRANTED. The transcript selection contains confidential business information about how competition between firms is perceived. Disclosure may provide 4 Eric Garner 55 1–6 competitors with an unfair business advantage. DENIED. The transcript portion does not contain any confidential business information 4 Eric Garner 63 18–25 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 4 Eric Garner 64 1–25 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 4 Eric Garner 65 1–17 and does not include any private health information. GRANTED. The transcript selection contains confidential business information about dosing schedules. Disclosure may provide competitors with an unfair 4 Eric Garner 156 11–16 business advantage. DENIED. While potentially embarassing, the transcript portion does not contain any confidential business information and does not include any private health 4 Eric Garner 161 7–10 information. DENIED. While potentially embarassing, the transcript portion does not contain any confidential business information and does not include any private health 4 Eric Garner 166 11–20 information. GRANTED. The transcript selection contains confidential business information about dosing schedules. Disclosure may provide competitors with an unfair 4 Eric Garner 193 14–25 business advantage. GRANTED. The transcript selection contains confidential business information about dosing schedules. Disclosure may provide competitors with an unfair 4 Eric Garner 194 1–4 business advantage. DENIED. The transcript portion does not contain any confidential business information 4 Eric Garner 201 22–25 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 4 Eric Garner 202 1–7 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information Deposition Selections in Support of Plaintiff's Motion for Partial Summary Judgment Exhibit Deponent Page Line Ruling DENIED. The transcript portion does not contain any confidential business information 4 Eric Garner 224 1–3 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 4 Eric Garner 251 5–13 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 4 Eric Garner 254 19–25 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 4 Eric Garner 255 1 and does not include any private health information. GRANTED. The transcript selection contains confidential business information about future business planning. Disclosure may provide competitors with an unfair 5 Amy Frost 16 11–23 business advantage. GRANTED. The transcript selection contains confidential business information about future business planning. Disclosure may provide competitors with an unfair 5 Amy Frost 20 23–25 business advantage. GRANTED. The transcript selection contains confidential business information about future business planning. Disclosure may provide competitors with an unfair 5 Amy Frost 21 1–25 business advantage. GRANTED. The transcript selection contains confidential business information about future business planning. Disclosure may provide competitors with an unfair 5 Amy Frost 22 1–20 business advantage. DENIED. The transcript portion does not contain any confidential business information 5 Amy Frost 115 10–12 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 6 Andreas Groehn 125 19–25 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 6 Andreas Groehn 126 1–5 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 7 Matthew Gee 54 16–22 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 7 Matthew Gee 58 22–25 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 7 Matthew Gee 59 1–14 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 7 Matthew Gee 64 10–25 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 7 Matthew Gee 65 1–5 and does not include any private health information. GRANTED. The transcript selection contains confidential business information about Deposition Selections in Support of Plaintiff's Motion for Partial Summary Judgment Exhibit Deponent Page Line Ruling GRANTED. The transcript selection contains confidential business information about dosing schedules. Disclosure may provide competitors with an unfair 7 Matthew Gee 68 1–23 business advantage. DENIED. The transcript portion does not contain any confidential business information 7 Matthew Gee 70 20–25 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 7 Matthew Gee 71 1–2 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 7 Matthew Gee 77 21–25 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 7 Matthew Gee 78 1–9 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 7 Matthew Gee 85 7–17 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 7 Matthew Gee 86 23–25 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 7 Matthew Gee 87 1–19 and does not include any private health information. DENIED. While potentially embarassing, the transcript portion does not contain any confidential business information and does not include any private health 7 Matthew Gee 94 16–20 information. DENIED. The transcript portion does not contain any confidential business information 7 Matthew Gee 101 8–20 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 7 Matthew Gee 157 12–24 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 8 Anthony Sampietro 29 20–25 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 8 Anthony Sampietro 30 1–9 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 8 Anthony Sampietro 131 12–25 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 8 Anthony Sampietro 132 1–6 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 8 Anthony Sampietro 155 6–14 and does not include any private health information. DENIED. The transcript portion does not contain any confidential business information 8 Anthony Sampietro 156 2–25 and does not include any private health information. DENIED. Deposition Selections in Support of Plaintiff's Opposition to Defendants' Motion for Partial Summary Judgment Exhibit Deponent Page Line Ruling DENIED. Characterization of the market does not contain any business sensitive or 1 Eric Garner 84 10–18 confidential understanding of competition. DENIED. Discussion of how the product catalog is distributed does not amount to 1 Eric Garner 93 24–25 sensitive business information. DENIED. Discussion of how the product catalog is distributed does not amount to 1 Eric Garner 94 1–10 sensitive business information. DENIED. Characterization of public-facing materials, including marketing materials and the website, does not involve business sensitive information that may harm 1 Eric Garner 98 24–25 Defendants' market standing. DENIED. Characterization of public-facing materials, including marketing materials and the website, does not involve business sensitive information that may harm 1 Eric Garner 99 1–13 Defendants' market standing. DENIED. The discussion of sales tactics here does not appear to invoke confidential or 4 Traci Inman 49 22–25 business sensitive information. DENIED. The discussion of sales tactics here does not appear to invoke confidential or 4 Traci Inman 50 1 business sensitive information. DENIED. The selected material does not contain any sensitive business information or 4 Traci Inman 82 25 personal health information. DENIED. The selected material does not contain any sensitive business information or 4 Traci Inman 83 1–13 personal health information. DENIED. The selected material does not contain any sensitive business information or 4 Traci Inman 158 10–19 personal health information. DENIED. The selected material does not contain any sensitive business information or 4 Traci Inman 162 17–25 personal health information. DENIED. The selected material does not contain any sensitive business information or 4 Traci Inman 163 1 personal health information. GRANTED. The selected material discusses particular customers and their transition between providers. This material would potentially harm Defendants' market 4 Traci Inman 190 18–25 standing. GRANTED. The selected material discusses particular customers and their transition between providers. This material would potentially harm Defendants' market 4 Traci Inman 191 1–13 standing. DENIED. The selected material does not contain any sensitive business information or 6 Anthony Sampietro 39 3–10 personal health information. DENIED. The discussion of sales tactics here does not appear to invoke confidential or 9 Francine Vaccari 176 3–19 business sensitive information. DENIED. The discussion of sales tactics here does not appear to invoke confidential or Deposition Selections in Support of Plaintiff's Opposition to Defendants' Motion for Partial Summary Judgment Exhibit Deponent Page Line Ruling DENIED. The selected material does not contain any sensitive business information or 10 Matthew Gee 134 1–13 personal health information.