United States District Court, D. Kansas
IN RE EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation (This Document Applies to Consumer Class Cases) MDL No. 2785
MEMORANDUM AND ORDER
D. CRABTREE, UNITED STATES DISTRICT JUDGE
December 7, 2018, the class plaintiffs in this Multi-District
Litigation (“MDL”) filed a Motion for Class
Certification (Doc. 1353). The same day, the class plaintiffs
filed an Unopposed Motion to File Under Seal (Doc. 1342).
This Motion asks the court to grant the class plaintiffs
leave to file, under seal, their entire Memorandum in Support
of their Motion for Class Certification and 92 separately
numbered exhibits supporting the Motion.
support their sprawling request for a sealed filing, the
class plaintiffs assert that the 92 separately numbered
exhibits are documents produced by defendants and third
parties and designated as “Confidential” or
“Highly Confidential, ” or deposition transcripts
designated as “Confidential” and “Highly
Confidential” under the Third Amended Stipulated
Protective Order (“Protective Order”) (Doc. 556).
Also, the class plaintiffs contend that the Memorandum in
Support of the Motion for Class Certification uses
information from these 92 exhibits, and thus the class
plaintiffs seek to file their entire Memorandum under seal.
After reviewing the class plaintiffs' Motion and the
corresponding documents they seek to file under seal, the
court denies their Motion to File Under Seal, but it does so
without prejudice to refiling another motion. To put it
mildly, the request here over-designates confidential
information. The request does not comport with the Supreme
Court and Tenth Circuit's governing standards for
permitting sealed filings. So, the court cannot abide the
class plaintiffs' request to seal here, even though it is
unopposed by the other parties.
Supreme Court recognizes the “general right to inspect
and copy public records and documents, including judicial
records and documents.” Nixon v. Warner
Commc'ns, Inc., 435 U.S 589, 597 (1978) (citations
omitted). But this right is not an absolute one. Id.
at 598. For example, a court has power to deny access to
“sources of business information that might harm a
litigant's competitive standing.” Id.
(citations omitted). A party may rebut the presumption of
access to judicial records by demonstrating that
“countervailing interests heavily outweigh the public
interests in access.” Mann v. Boatright, 477
F.3d 1140, 1149 (10th Cir. 2007) (citation and internal
quotation marks omitted). The party seeking to deny access
must shoulder the burden to establish a sufficiently
significant interest that outweighs the presumption of
access. Id. (citation and internal quotation marks
legal standard requires federal courts to assess competing
interests, weighing those interests that favor the general
right of public access and those that genuinely deserve some
protection. When engaging in this endeavor, the case
authority confers substantial discretion on district judges.
See, e.g., Nixon, 435 U.S. at 599; see
also Mann, 477 F.3d at 1149. They must utilize this
discretion, however, “in light of the relevant facts
and circumstances of the particular case.”
Nixon, 435 U.S. at 599. And a reviewing court
generally will not disturb a decision “to keep the case
file public” unless it holds “a definite and firm
conviction that [the district judge] made a clear error of
judgment or [one that] exceeded the bounds of permissible
choice in the circumstances.” Mann, 477 F.3d
at 1149 (citation and internal quotation marks omitted).
exercising this discretion, the court is mindful that
taxpayers fund the cost of court operations. They thus hold a
substantial stake in what happens in our courtrooms and the
decisions that judges make there. Also, the public's
faith in court rulings is important to the rule of law.
Having access to court decisions, and the reasoning and facts
that produce them, helps inspire such faith. While both of
these factors favor access and transparency, our law also
recognizes that some exceptions exist. When a piece of
information or a data point qualifies for restricted access,
the court should make that restriction no greater than
necessary to serve the interest deserving protection.
the class plaintiffs haven't presented the court with
enough information to shoulder their burden to establish that
a sufficiently significant interest outweighs the presumption
of public access to judicial records. The class
plaintiffs' blanket assertions that their Memorandum and
the supporting exhibits include information that the parties
have designated as confidential under the case's
Protective Order will not suffice. The court recognizes that
some of the exhibits might qualify for a sealed filing
because they appear to include “sources of business
information that might harm a litigant's competitive
standing.” Nixon, 435 U.S at 597. But the
class plaintiffs haven't made that showing with their
Motion. Also, the court questions how other exhibits-for
example, a press release (Ex. 5 (Doc. 1342-6)) and an SEC
filing (Ex. 8 (Doc. 1345-1))-could qualify for confidential
protection if they are, as they appear to be, publicly issued
documents. And, although the class plaintiffs assert in their
Motion that Exhibits 21, 23, 26, 44, and 83 are designated as
“Confidential” or “Highly
Confidential” under the Protective Order (Doc. 1342
¶¶ 21, 23, 26, 43, 81), the actual exhibits contain
no such confidential designations (see Docs.
1346-13, 1346-15, 1347-2, 1348-10, 1352-9).
the court will not allow the class plaintiffs to file their
Memorandum in Support of Motion for Class Certification under
seal absent a showing that the entire Memorandum is
entitled to a sealed filing. To the extent only certain
portions of the Memorandum refer to confidential information,
the court directs the class plaintiffs to redact only those
confidential portions and seek leave to file those
confidential portions under seal.
these reasons, the court denies the class plaintiffs'
Motion to File Under Seal without prejudice. The class
plaintiffs may renew their Motion seeking leave to file under
seal, but only if they provide an explicit explanation
showing why a sealed filing of the entire Memorandum
is appropriate and why each of the 92 exhibits is entitled to
IS THEREFORE ORDERED BY THE COURT THAT the class
plaintiffs' Unopposed Motion to File Under Seal (Doc.
1342) is denied without prejudice.