United States District Court, D. Kansas
IN RE EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation This Order Applies to Consumer Class Cases
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE
matter comes before the court on four motions to seal
documents submitted in support of defendants' memoranda
opposing class certification: (1) Mylan Defendants'
Motion for Leave to Preliminarily File Documents Under Seal
and for Approval of Sealing Process (Doc. 1503); (2) Pfizer
Defendants' Motion for Leave to File Documents
Preliminarily Under Seal and for Approval of Sealing Process
(Doc. 1507); (3) Pfizer Defendants' Renewed Motion to
File Under Seal Certain Exhibits in Support of its Opposition
to Class Certification (Doc. 1526); and (4) Mylan
Defendants' Renewed Motion for Leave to File Documents
Under Seal (Doc. 1527). The court approves the process
advanced in Documents 1503 and 1507 for presenting seal and
redaction requests. And, the court grants the Pfizer
defendants' renewed motion and grants in part and denies
in part the Mylan defendants' renewed motion.
Legal Standard Governing Seal Requests
court previously has discussed, the Supreme Court recognizes
a “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). This right stems from
“the citizen's desire to keep a watchful eye on the
workings of public agencies, ” id. at 598, and
it helps “preserv[e] the integrity of the law
enforcement and judicial process, ” United States
v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985). As a
result, “there is a ‘strong presumption in favor
of public access.'” United States v.
Pickard, 733 F.3d 1297, 1302 (10th Cir. 2013) (quoting
Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir.
2007)). That “strong presumption” is heightened
when the information subject to a seal or redaction request
(1) provides the basis for a court's adjudication of the
merits of the litigation; or (2) is disclosed in another form
or during a public proceeding. Id. at 1302, 1305;
see also Mann, 477 F.3d at 1149 (concluding
individual's privacy interest diminished where
information previously disclosed in public court proceeding).
right of public access to judicial records, however, is
‘not absolute' as ‘[e]very court has
supervisory power over its own records and files.'”
United States v. Walker, 761 Fed.Appx. 822, 835
(10th Cir. 2019) (quoting Nixon, 435 U.S. at 598).
The party seeking to deny access must shoulder the burden to
establish that a sufficiently significant interest
“heavily outweighs the public interest in
access.” Mann, 477 F.3d at 1149 (quoting
Rushford v. New Yorker Magazine, Inc., 846 F.2d 249,
253 (4th Cir. 1988)). And, “any denial of public access
to the record must be ‘narrowly tailored to
serve the interest' being protected by sealing or
restricting access to the records.” Walker,
761 Fed.Appx. at 835 (emphasis in original) (quoting
Press-Enter. Co. v. Superior Court of Cal., 478 U.S.
1, 12-13 (1986)).
a court orders documents before it sealed, the court
continues to have authority to enforce its order sealing
those documents, as well as authority to loosen or eliminate
any restrictions on the sealed documents.”
Pickard, 733 F.3d at 1300. And, even after a court
orders documents sealed, the party advocating for sealing
continues to bear the burden of justifying the decision to
seal. Id. at 1302. Thus, to the extent the court
grants the Pfizer defendants' and Mylan defendants'
renewed motions, the grant is subject to continued
reexamination, particularly if any information sealed or
redacted by this Order proves important to the court's
resolution of plaintiffs' class certification motion or
if the information is exposed to the public during the class
Application of Standard to Motions
court has reviewed each request to seal or redact an exhibit,
and announces its conclusions as follows.
The Pfizer Defendants' Renewed Motion (Doc.
their renewed motion, the Pfizer defendants seek to seal
three documents: (1) Document 1526-3; (2) Document 1526-6;
and (3) Document 1526-8. The court sealed the first two of
these documents when plaintiffs submitted them in support of
their motion for class certification. See Doc. 1477
at 2 (sealing Exhibit 36, Document 1430-2). For the same
reasons stated in Document 1477, the court grants the Pfizer
defendants' request to seal Documents 1526-3 and 1526-6.
Document 1526-8, meanwhile, is an internal sales forecast
prepared by TEVA Pharmaceuticals. And, although the forecast
is several years old, it contains information from which
competitors might determine TEVA's methods for
forecasting sales. At this juncture in the proceedings, the
court grants the request to seal Document 1526-8 and grants
the Pfizer Defendants' Renewed Motion to File Under Seal
Certain Exhibits in Support of its Opposition to Class
Certification (Doc. 1526).
The Mylan Defendants' Renewed Motion (Doc. 1527)
Mylan defendants' renewed motion seeks to seal or redact
approximately 60 documents. The seal and redaction requests
fall into three categories: (1) requests by the Mylan
defendants and by third parties; (2) requests by plaintiffs;
and (3) requests by Sanofi. The court considers each set of
requests in turn.
Requests by Mylan Defendants and Third Parties
and the third parties seek to seal 18 documents. The court
grants the requests for Exhibits 18, 19, 20, 26, 39, 43, 48,
52, 54, 55, 56, 57, and 62. These exhibits contain a
combination of internal work product and confidential and
proprietary information of a sensitive nature. Several of the
exhibits also reveal the competitive strategies employed by
the party requesting each seal. Disclosure of these documents
to the public, including the requesting parties'
competitors, may disadvantage the requesting parties'
business interests unfairly. The court thus concludes the
requesting parties have advanced a private interest that
overcomes the strong presumption favoring public access.
court also grants in part the requests to seal Exhibit 27.
Most of the information presented in Exhibit 27 reveals
potentially commercially sensitive information about Express
Scripts's strategy and motivations during negotiations.
But, three passages-263-64, 271:1- 272:6, and
287:1-288:2-speak in general terms or provide background
information about pharmacy benefit management that would
apply to any company operating in Express Scripts's
industry. Accordingly, while the court denies the request to
seal the entirety of Exhibit 27, it grants the request to the
extent that Mylan may submit a version of Exhibit 27 that
redacts all but the cover page of the deposition, the three
aforementioned passages, and the reporter's certificate.
the court grants in part the request to seal Exhibit 44,
which is a bid sheet distributed by CVS to pharmaceutical
manufacturers, such as Sanofi-Aventis. This bid sheet, by its
very nature, is not kept within the confines of CVS. Instead,
CVS provided the bid sheet to pharmaceutical companies with
whom CVS sought to do business. And, it is not apparent from
the record that anything prevented a pharmaceutical company
from sharing information on CVS's bid sheet when
negotiating with other pharmacy corporations. The court thus
denies the request to seal Exhibit 44. But, the court will
allow redaction of the “WAC Administrate Fee”
percentage found on page four of the exhibit since this
information represents a term of contracting with CVS.
court further grants in part the request to seal Exhibit 72.
Here, the passage at 271:1-15 contains potentially
confidential and proprietary information about Magellan's
practices and services. Magellan thus has sustained its
burden as to this portion of the exhibit. But, 271:16-272:22
contains only general information about how health insurance
companies seek the lowest price for prescription drugs. And,
the information relayed in this passage already can be found
in the public domain. Accordingly, while Mylan may redact
lines 271:1-15, the remainder of Exhibit 72 must be made
accessible to the public.
court denies the request to seal Exhibit 49. Exhibit 49
contains what amounts to speculation between a Mylan employee
and a CVS employee about drug pricing. And, the very fact
that the information was shared between separate corporations
undermines the assertion that the information is highly
sensitive. The speculative nature of the e-mail conversation
also defeats any argument that the e-mail chain reveals
negotiation strategy. This is particularly true about the top
two e-mails in the chain; neither one reveals anything of
substance about Mylan or CVS.
court also denies the Mylan defendants' request to seal
Exhibit 101. In support of the request, the Mylan defendants
assert that they received the information in this exhibit
from third parties with the understanding that the
information would remain sealed. Mylan also argues that the
document is marked “Highly Confidential.” Doc.
1527-1 at 11. But, understandings and agreements between
parties, including Mylan's promises to third parties, are
insufficient to sustain the request to seal where the court
has an independent duty to protect the public interest in
inspecting judicial documents.
Mylan and the third parties ask to redact information from
nine additional Exhibits. The court grants the redaction
requests as it applies to the highlighted portions of
Exhibits 23, 24, and 71. These passages contain contractual
and competitively sensitive information about the business
practices of third parties. The proponents of the redaction
requests could be placed at an unfair business disadvantage
in future ventures if the highlighted passages were exposed
to the public, including their competitors. Accordingly, the
proponents of these requests have sustained their burdens and
overcome the strong presumption favoring public access.
court grants in part and denies in part the requests to
redact highlighted passages in Exhibit 7. Exhibit 7 contains
excerpts of the deposition of plaintiffs' expert Meredith
B. Rosenthal, Ph.D. The exhibit largely contains Ms.
Rosenthal's opinions and general information about the
sources upon which she relied when forming her opinions. But,
some of the opinions reference sensitive information provided
by Mylan. For that reason, and in an effort to narrowly
tailor the redactions, the court grants the request to redact
(1) 133:13-25; (2) 179:1-7; and (3) 258:1-10. The request to
redact the remaining highlighted passages-50:1-9, 51:14-25,
138:3- 20, 171:6-15, and 261:14-20-is denied because these
passages either discuss Mylan's sensitive information at
a high level of generality or reveal, at most, that Mylan
performed a sales forecast without explicitly stating the
specifics of that sales forecast. That Mylan engaged in sales
forecasting is hardly surprising, and disclosing that it did
so is unlikely to harm Mylan.
court also grants in part the request to redact Exhibit 21.
Exhibit 21 contains excerpts of the deposition of Prime
Therapeutics's Federal Rule of Civil Procedure 30(b)(6)
witness. The court grants the request to redact 72:23-25 and
130:1-25 because both passages reveal specifics about
negotiations in which Prime Therapeutics engaged. The court,
however, denies the request to redact 72:10-22 as this
testimony provides general details about the negotiation
process that do not appear unique to Prime Therapeutics. The
court also denies the request to redact 20:1-6 as the record
does not establish that information identifying which one of
Prime Therapeutics's employees negotiated with particular
pharmaceutical companies is secret information.
court also grants, in part, the request to redact Exhibit 25.
Exhibit 25 contains excerpts of the deposition of
Humana's Rule 30(b)(6) witness. The court grants the
request to redact 18:1-13, 19:13-19, 217:8-24, and
284:10-285:25 as these passages reveal information unique to
Humana or discuss Humana's negotiations at a high level
of specificity. The court denies all other proposed
redactions because they discuss general practices or