Tevra Brands LLC v. Bayer HealthCare LLC

3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION TEVRA BRANDS LLC, Case No. 19-cv-04312-BLF 8 Plaintiff, OMNIBUS MIL SEALING ORDER 9 v.

10 BAYER HEALTHCARE LLC, et al., [Re: ECF Nos. 366, 369, 375, 377, 379, 381, 383, 385] 11 Defendants.

13 Before the court are eight administrative motions filed in connection with the parties’ motions in limine: 15 1. Administrative Motion to Consider Whether Another Party’s Material Should Be 16 Sealed. ECF No. 366.

17 2. Administrative Motion to File Under Seal. ECF No. 369.

18 3. Administrative Motion to Consider Whether Another Party’s Material Should Be 19 Sealed. ECF No. 375.

20 4. Administrative Motion to Consider Whether Another Party’s Material Should Be 21 Sealed. ECF No. 377.

22 5. Administrative Motion to Consider Whether Another Party’s Material Should Be 23 Sealed. ECF No. 379.

24 6. Administrative Motion to Consider Whether Another Party’s Material Should Be 25 Sealed. ECF No. 381.

26 7. Administrative Motion to Consider Whether Another Party’s Material Should Be 27 Sealed. ECF No. 383.

1 For the reasons described below, the Court rules as follows: the administrative motions at ECF Nos. 369, 375, 377, and 379 are GRANTED; the administrative motions at ECF Nos. 366, 381, and 383 are GRANTED IN PART AND DENIED IN PART; the administrative motion at ECF No. 385 is DENIED.

5 I. LEGAL STANDARD 6 “Historically, courts have recognized a ‘general right to inspect and copy public records and documents, including judicial records and documents.’” Kamakana v. City & Cty. Of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 9 U.S. 589, 597 & n.7 (1978)). Accordingly, when considering a sealing request, “a ‘strong presumption in favor of access’ is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto.

11 Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to motions that are “more than tangentially related to the underlying cause of action” bear the burden of overcoming the presumption with “compelling reasons” that outweigh the general history of access and the public policies favoring disclosure. Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 15 1092, 1099 (9th Cir. 2016); Kamakana, 447 F.3d at 1178–79.

16 Records attached to motions that are “not related, or only tangentially related, to the merits of a case,” however, are not subject to the strong presumption of access. Ctr. for Auto Safety, 809 F.3d at 1099; see also Kamakana, 447 F.3d at 1179 (“[T]he public has less of a need for access to court records attached only to non-dispositive motions because those documents are often unrelated, or only tangentially related, to the underlying cause of action.”). Parties moving to seal the documents attached to such motions must meet the lower “good cause” standard of Rule 26(c). Kamakana, 447 F.3d at 1179 (internal quotations and citations omitted). This standard requires a “particularized showing,” id., that “specific prejudice or harm will result” if the information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210–11 (9th Cir. 2002); see Fed. R. Civ. P. 26(c). “Broad allegations of harm, unsubstantiated by specific examples of articulated reasoning” will not suffice. Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992).

1 II. DISCUSSION 2 A. ECF No. 366 3 Tevra filed the Administrative Motion to Consider Whether Another Party’s Material Should Be Sealed on May 30, 2024. ECF No. 366. Bayer submitted a declaration. ECF No. 385- 1. Bayer seeks to seal selected portions of Motion in Limine No. 1 and its corresponding exhibits.

6 Id. ¶ 2. Bayer writes that the information should be sealed because it contains “competitively sensitive business information relating to Bayer’s internal business strategy and practices, including Bayer’s analysis of the flea and tick market and Bayer’s surveying practices and methodology” and because the information has been “designated as either ‘Highly Confidential – Attorneys’ Eyes Only’ or Confidential.’” Id. ¶ 3. Bayer argues that the portions are narrowly tailored. Id. ¶ 6.

12 Except as noted below, the Court finds that good cause exists to seal the highlighted portions of the document. Kamakana, 447 F.3d at 1179; see Finjan, Inc. v. Proofpoint, Inc., No. 13-CV-05808-HSG, 2016 WL 7911651, at *1 (N.D. Cal. Apr. 6, 2016) (finding “technical operation of [defendant’s] products” sealable under “compelling reasons” standard); Exeltis USA Inc. v. First Databank, Inc., No. 17-CV-04810-HSG, 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020) (noting that courts have found “confidential business information” in the form of “business strategies” sealable under the compelling reasons standard.). The Court finds that the request is narrowly tailored. Civ. L.R. 79-5(c)(3).

20 The Court’s ruling is summarized below: ECF or Document Portion(s) to Ruling Exhibit No. Seal ECF 366-1 Tevra’s Motion in Highlighted DENIED as to p. 5, line 8 as it is already 23 Limine No. 1 to portions at p. publicly disclosed. ECF No. 360 at 5:9.

Exclude the Bayer- 5, lines 8, 13.

24 Commissioned GRANTED, as to p. 5, line 13 as it Consumer Study contains competitively sensitive (“Tevra’s Motion in information relating to Bayer’s internal 26 Limine No. 1”) business strategy and practices. See ECF No. 385-1 ¶¶ 4-5.

ECF 366-3 McNally Decl. Ex. A Entire exhibit GRANTED as the cited document (BAH000277771) contains competitively sensitive 2 information relating to Bayer’s internal business strategy and practices. See ECF 3 No. 385-1. ¶¶ 4-5.

ECF 366-4 McNally Decl. Ex. B Entire exhibit GRANTED as the cited document 4 (BAH000225558) contains competitively sensitive information relating to Bayer’s internal business strategy and practices. See ECF 6 No. 385-1¶¶ 4-5.

ECF 366-5 McNally Decl. Ex. C Entire exhibit GRANTED as the cited document 7 (BAH000257273) contains competitively sensitive information relating to Bayer’s internal 8 business strategy and practices. See ECF No. 385-1 ¶¶ 4-5.

10 B. ECF No. 369 11 Bayer filed the Administrative Motion to File Under Seal on May 30, 2024. ECF No. 369.

12 Bayer seeks to seal selected portions of Bayer’s Motion in Limine No. 4 and Motion in Limine No. 5. ECF No. 369-1 ¶ 2. Bayer writes that the information should be sealed because, “if this information were made public, competitors and counterparts would have insight into how Elanco, as successor to Bayer HealthCare LLC, structures its business arrangements, allowing them to modify their own business strategy.” Id. ¶ 5. Bayer argues that the portions are narrowly tailored.

17 Id. ¶ 7.

18 The Court finds that good cause exists to seal the highlighted portions of the documents.

19 Kamakana, 447 F.3d at 1179; see Finjan, Inc. v. Proofpoint, Inc., No. 13-CV-05808-HSG, 2016 20 WL 7911651, at *1 (N.D. Cal. Apr. 6, 2016) (finding “technical operation of [defendant’s] products” sealable under “compelling reasons” standard); Exeltis USA Inc. v. First Databank, Inc., No. 17-CV-04810-HSG, 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020) (noting that courts have found “confidential business information” in the form of “business strategies” sealable under the compelling reasons standard.). The Court finds that the request is narrowly tailored. Civ. L.R. 79-5(c)(3).

26 \\ \\ 1 The Court’s ruling is summarized below: ECF or Document Portion(s) to Seal Ruling Exhibit No. ECF 369-3 Bayer’s Motion Highlighted portions at p. 1, GRANTED as the highlighted 4 in Limine No .4 lines 2, 3, 4, 6, 8, 9, 23, 26; p. portions contain confidential to Exclude 2, lines 1, 7, 8, 9, 10, 18, 19, information relating to 5 Evidence 25; p. 3, lines 1, 2, 3, 16, 18; agreements with retailers and Regarding p. 4, lines 7, 8. customer information. See ECF Retailer Product No. 369-1 ¶¶ 5-6.

7 Removal ECF 369-4 Bayer’s Motion Highlighted portions at p. 4, GRANTED as the highlighted 8 in Limine No. 5 lines 25, 26. portions contain confidential to Preclude Use information relating to 9 of the Word agreements with retailers and “Conspiracy” customer information. See ECF and Exclude No. 369-1 ¶¶ 5-6.

11 Evidence Regarding 12 Extra- Contractual Arrangements ECF 369-5 Asimow Decl., Highlighted portions at GRANTED as the highlighted Exhibit 5 231:8-12, 17-22 portions contain confidential 15 (Deposition of information relating to Scott Bauer) agreements with retailers and 16 customer information. See Boshkoff Decl. ¶¶ 5-6.

ECF 369-6 Asimow Decl., Highlighted portions at GRANTED as the highlighted 18 Exhibit 6 41:2, 7, 11, 16, 20, portions contain confidential (Deposition of 21, 42:5, 6, 9, 11, 24, information relating to 19 Chris Diesel) 25, 43:6, 23, 25, 44:5, agreements with retailers and 7, 11, 19, 20, 25 customer information. See ECF 20 No. 369-1¶¶ 5-6.

ECF 369-7 Asimow Decl., Entire document GRANTED as the highlighted Exhibit 37 portions contain confidential 22 (BAH00004053 information relating to 3) agreements with retailers and 23 customer information. See ECF No. 369-1¶¶ 5-6.

25 C. ECF No. 375 26 Bayer filed the Administrative Motion to Consider Whether Another Party’s Material Should Be Sealed on May 30, 2024. ECF No. 375. Tevra submitted a declaration. ECF No. 404.

1 corresponding exhibits. Id. ¶ 2. Tevra writes that the information in those documents should be sealed because the “information would harm Tevra’s profitability if released publicly” and that it “would also give Tevra’s competitors information that could be used to put Tevra at a disadvantage.” Id. ¶ 3. Tevra also seeks to seal selected portions of thirty-three exhibits attached to Asimow’s declaration. Id. Tevra writes that this information should be sealed because Tevra argues that the portions are narrowly tailored. Id. ¶ 4.

7 The Court finds that good cause exists to seal the highlighted portions of the documents.

8 Kamakana, 447 F.3d at 1179; see Finjan, Inc. v. Proofpoint, Inc., No. 13-CV-05808-HSG, 2016 9 WL 7911651, at *1 (N.D. Cal. Apr. 6, 2016) (finding “technical operation of [defendant’s] products” sealable under “compelling reasons” standard); Exeltis USA Inc. v. First Databank, Inc., No. 17-CV-04810-HSG, 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020) (noting that courts have found “confidential business information” in the form of “business strategies” sealable under the compelling reasons standard.). The Court finds that the request is narrowly tailored. Civ. L.R. 79-5(c)(3).

15 The Court’s ruling is summarized below: ECF or Document Portion(s) to Seal Ruling Exhibit No. ECF No. Defendant Highlighted portions at 2:19- GRANTED as it contains 375-2 Bayer 22; 3:13 discussion of confidential loss HealthCare estimate.

19 LLC’s Motion in Limine No. 1 to Exclude 21 Tevra Damages Testimony ECF No. Defendant Highlighted portions at 2:6- GRANTED as it contains 375-3 Bayer 14, 19-26; 3:1-23; 4:1-2, 6-7 confidential communications 23 HealthCare from named retailers.

LLC’s Motion in Limine No. 2 25 to Exclude Tevra Hearsay 26 Evidence Regarding Retailer ECF No. Defendant Highlighted portions at 3:7- GRANTED as the cited portions 375-4 Bayer 13 contains exact figures offered to 2 HealthCare named retailers as part of Tevra’s LLC’s Motion offer to contract to sell generic 3 in Limine No. 4 imidacloprid topicals. to Exclude 4 Evidence Regarding Retailer Product 6 Removal ECF No. Asimow Decl. Highlighted portions GRANTED as it contains 375-6 Ex. 1 at 142:1-144:25 confidential sales information.

8 Non-highlighted lines: 160:21-23 ECF No. Asimow Decl. Highlighted portions at GRANTED as discusses 375-7 Ex. 2 132:17, 21-24; 133:4-6; communications with named 158:4, 11; 159:6-14; 162:10- retailers.

11 13; 169:6-7, 20; 170:15-17; 249:2, 5-6, 8-12, 16, 22; 250:1, 16, 18, 24; 298:1-23 ECF No. Asimow Decl. Highlighted portions at GRANTED as the cited portions 375-8 Ex. 3 58:2, 5, 8, 11; 89:6-7, 9, 18- contain names of retailers Tevra 14 19, 22-24; 178:1-2, 5-11, 14, approached or dealt with.

16; 179:11, 24 ECF No. Asimow Decl. Highlighted portions GRANTED as it discusses 375-9 Ex. 7 at 161:6-8, 11-25; confidential proposals to named 17 162:3. retailers and competitive strategy.

ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit contains 375-10 Ex. 8 confidential internal communications and business strategy regarding named retailers 21 that Tevra was attempting to contract with.

22 ECF No. Asimow Decl. Entire Exhibit GRANTED as this exhibit 375-11 Ex. 9 contains confidential internal communications and business 24 strategy regarding named retailers that Tevra was attempting to 25 contract with.

ECF No. Asimow Decl. Entire Exhibit GRANTED as this exhibit 375-12 Ex. 10 contains confidential internal 2 communications and business strategy regarding named retailers 3 that Tevra was attempting to contract with.

ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit contains 375-13 Ex. 11 confidential internal 6 communications and business strategy regarding named retailers 7 that Tevra was attempting to contract with.

8 ECF No. Asimow Decl. Entire Exhibit GRANTED as this exhibit 375-14 Ex. 12 contains confidential internal communications and business 10 strategy regarding named retailers that Tevra was attempting to 11 contract with.

ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit 375-15 Ex. 13 contains confidential internal communications and business 14 strategy regarding named retailers that Tevra was attempting to 15 contract with.

ECF No. Asimow Decl. Entire Exhibit GRANTED as this exhibit 375-16 Ex. 14 contains confidential internal 17 communications and business strategy regarding named retailers 18 that Tevra was attempting to contract with.

ECF No. Asimow Decl. Entire Exhibit GRANTED as this exhibit 375-17 Ex. 15 contains confidential internal 21 communications and business strategy regarding named retailers 22 that Tevra was attempting to contract with.

24 ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit contains 375-18 Ex. 16 confidential internal account notes 25 and business strategy regarding named retailers that Tevra was 26 attempting to contract with.

ECF No. Asimow Decl. Entire Exhibit GRANTED as this exhibit 375-19 Ex. 17 contains confidential internal 2 communications and business strategy regarding named retailers 3 that Tevra was attempting to contract with.

ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit 375-20 Ex. 18 contains confidential internal 6 communications and business strategy regarding named retailers 7 that Tevra was attempting to contract with.

8 ECF No. Asimow Decl. Entire Exhibit GRANTED as this exhibit 375-21 Ex. 19 contains confidential internal communications and business 10 strategy regarding named retailers that Tevra was attempting to 11 contract with.

ECF No. Asimow Decl. Entire Exhibit GRANTED as this exhibit 375-22 Ex. 20 contains confidential internal communications and business 14 strategy regarding named retailers that Tevra was attempting to 15 contract with.

17 ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit 375-23 Ex. 21 contains confidential internal 18 communications and business strategy regarding named retailers 19 that Tevra was attempting to contract with.

ECF No. Asimow Decl. Entire Exhibit GRANTED exhibit contains 375-24 Ex. 22 confidential internal research and development information, 22 including information on Tevra’s product formula ECF No. Asimow Decl. Entire Exhibit GRANTED as this exhibit 375-25 Ex. 23 contains confidential internal communications and business 25 strategy regarding named retailers that Tevra was attempting to 26 contract with.

ECF No. Asimow Decl. Entire Exhibit GRANTED as this exhibit 375-26 Ex. 24 contains confidential internal 2 communications and business strategy regarding named retailers 3 that Tevra was attempting to contract with.

ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit contains 375-27 Ex. 25 confidential internal 6 communications and business strategy regarding named retailers 7 that Tevra was attempting to contract with.

8 ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit contains 375-28 Ex. 26 confidential internal communications and business 10 strategy regarding named retailers that Tevra was attempting to 11 contract with.

ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit 375-29 Ex. 27 contains confidential internal 13 communications and business strategy regarding named retailers 14 that Tevra was attempting to contract with.

15 ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit 375-30 Ex. 28 contains confidential internal communications and business 17 strategy regarding named retailers that Tevra was attempting to 18 contract with.

ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit 375-31 Ex. 29 contains confidential internal communications and business strategy regarding named retailers 21 that Tevra was attempting to contract with.

22 ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit contains 375-32 Ex. 30 confidential internal communications and business 24 strategy regarding named retailers that Tevra was attempting to 25 contract with.

ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit 375-33 Ex. 31 contains confidential internal communications and business strategy regarding named retailers contract with.

ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit contains 375-34 Ex. 32 confidential internal communications and business strategy regarding named retailers 6 that Tevra was attempting to contract with.

7 ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit 375-35 Ex. 33 contains confidential internal 8 communications and business strategy regarding named retailers that Tevra was attempting to 10 contract with.

ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit contains 375-36 Ex. 34 confidential internal communications and business strategy regarding named 13 retailers that Tevra was attempting to contract with.

14 ECF No. Asimow Decl. Entire Exhibit GRANTED as the exhibit contains 375-37 Ex. 35 confidential internal 15 communications and business strategy regarding named retailers 16 that Tevra was attempting to contract with.

18 D. ECF No. 377 19 Tevra filed the Administrative Motion to Consider Whether Another Party’s Material Should Be Sealed on May 30, 2024. ECF No. 377. Bayer submitted a declaration. ECF No. 401.

21 Bayer seeks to seal selected portions of Tevra’s Opposition to Bayer’s Motion in Limine No. 4.

22 Id. ¶ 2. Bayer writes that the information should be sealed because it contains “competitively sensitive business information relating to Bayer’s internal business strategy and practices, including Bayer’s analysis of the flea and tick market and Bayer’s surveying practices and methodology.” Id. ¶ 4. Bayer argues that the portions are narrowly tailored. Id. ¶ 6.

26 The Court finds that good cause exists to seal the highlighted portions of the document.

27 Kamakana, 447 F.3d at 1179; see Finjan, Inc. v. Proofpoint, Inc., No. 13-CV-05808-HSG, 2016 products” sealable under “compelling reasons” standard); Exeltis USA Inc. v. First Databank, Inc., No. 17-CV-04810-HSG, 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020) (noting that courts have found “confidential business information” in the form of “business strategies” sealable under the compelling reasons standard.). The Court finds that the request is narrowly tailored. Civ. L.R. 79-5(c)(3).

6 The Court’s ruling is summarized below: ECF or Document Portion(s) to Seal Ruling Exhibit No. ECF 377-1 Plaintiff Tevra’s Highlighted portions at GRANTED, as the cited 9 Opposition to p. 1:3, 1:4, 1:7, document contains competitively Bayer’s Motion in 1:18, 1:24, 1:26, sensitive information relating to 10 Limine No. 4 to 1:28, p. 2:3, 2:12, Bayer’s internal business strategy Exclude Evidence 2:17, 2:25, p. 3:12, and practices. See ECF No. 401.

Regarding Retailer 3:19 ¶¶ 4-5.

12 Product Removal 13 E. ECF No. 379 14 Tevra filed the Administrative Motion to Consider Whether Another Party’s Material Should Be Sealed on May 30, 2024. ECF No. 379. Bayer submitted a declaration. ECF No. 401.

16 Bayer seeks to seal selected portions of Tevra’s Opposition to Bayer’s Motion in Limine No. 2.

17 Id. ¶ 2. Bayer writes that the information should be sealed because “competitively sensitive business information relating to Bayer’s internal business strategy and practices, including Bayer’s analysis of the flea and tick market and Bayer’s surveying practices and methodology.” Id. ¶ 4.

20 Bayer argues that the portions are narrowly tailored. Id. ¶ 6.

21 The Court finds that good cause exists to seal the highlighted portions of the document.

22 Kamakana, 447 F.3d at 1179; see Finjan, Inc. v. Proofpoint, Inc., No. 13-CV-05808-HSG, 2016 23 WL 7911651, at *1 (N.D. Cal. Apr. 6, 2016) (finding “technical operation of [defendant’s] products” sealable under “compelling reasons” standard); Exeltis USA Inc. v. First Databank, Inc., No. 17-CV-04810-HSG, 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020) (noting that courts have found “confidential business information” in the form of “business strategies” sealable under the compelling reasons standard.). The Court finds that the request is narrowly tailored. Civ. L.R. 1 The Court’s ruling is summarized below: ECF or Document Portion(s) to Seal Ruling Exhibit No. ECF 379-1 Plaintiff Tevra’s Highlighted portions at: GRANTED, as it contains 4 Opposition to 2:22- 28; 3:1-13, competitively sensitive Bayer’s Motion 18-27; 4:16-23; 5:1- information relating to Bayer’s 5 in Limine No. 2 3. internal business strategy and to Exclude practices. See ECF No. 401 ¶¶ 4-5.

Retailer 7 Statements 8 F. ECF No. 381 9 Tevra filed the Administrative Motion to Consider Whether Another Party’s Material Should Be Sealed on June 06, 2024. ECF No. 381. Bayer submitted a declaration. ECF No. 401.

11 Bayer seeks to seal the entirety of five exhibits, and selection portions of one exhibit, accompanying Dan Owen’s declaration in support of Tevra’s Opposition to Bayer’s Motion in Limine No. 5. Id. ¶ 2. Bayer writes that the information should be sealed because if it “were made public, competitors and counterparts would have insight into how Elanco, as successor to Bayer HealthCare LLC, structures its business arrangements, allowing them to modify their own business strategy.” Id. ¶ 4. Bayer argues that the portions are narrowly tailored. Id. ¶ 6.

17 Except as noted below, the Court finds that good cause exists to seal the highlighted portions of the document. Kamakana, 447 F.3d at 1179; see Finjan, Inc. v. Proofpoint, Inc., No. 13-CV-05808-HSG, 2016 WL 7911651, at *1 (N.D. Cal. Apr. 6, 2016) (finding “technical operation of [defendant’s] products” sealable under “compelling reasons” standard); Exeltis USA Inc. v. First Databank, Inc., No. 17-CV-04810-HSG, 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020) (noting that courts have found “confidential business information” in the form of “business strategies” sealable under the compelling reasons standard.). Except as noted below, the Court finds that the request is narrowly tailored. Civ. L.R. 79-5(c)(3).

25 The Court’s ruling is summarized below: \\ \\ ECF or Document Portion(s) to Seal Ruling Exhibit No. ECF 381-1 Owen Decl. Ex. Entire exhibit DENIED as Bayer has not 3 A in support of demonstrated that the information Tevra’s in the attachment is 4 Opposition to “competitively sensitive,” ECF Bayer’s Motion No. 401 ¶¶ 4-5, and the request is in Limine No. 5 not narrowly tailored.

6 (Email Chain) ECF 381-2 Owen Decl. Ex. Entire exhibit GRANTED as the exhibit 7 B in support of contains competitively sensitive Tevra’s information relating to Bayer’s 8 Opposition to internal business strategy and Bayer’s Motion practices. See ECF No. 401 ¶¶ 4- in Limine No. 5 5.

10 (Exhibit 1008) ECF 381-3 Owen Decl. Ex. Entire exhibit GRANTED as the exhibit 11 D in support of contains competitively sensitive Tevra’s information relating to Bayer’s Opposition to internal business strategy and 13 Bayer’s Motion practices. See ¶¶ ECF No. 401 4- in Limine No. 5 5.

14 (Exhibit 1039) ECF 381-4 Owen Decl. Ex. Entire exhibit GRANTED as the exhibit 15 E in support of contains competitively sensitive Tevra’s information relating to Bayer’s Opposition to internal business strategy and 17 Bayer’s Motion practices. See ECF No. 401 ¶¶ 4- in Limine No. 5 5.

18 (Exhibit 1110) ECF 381-5 Owen Decl. Ex. Entire exhibit GRANTED as the exhibit 19 F in support of contains competitively sensitive Tevra’s information relating to Bayer’s Opposition to internal business strategy and 21 Bayer’s Motion practices. See ECF No. 401 ¶¶ 4- in Limine No. 5 5.

22 (Exhibit 1055) ECF 381-6 Owen Decl. Ex. Highlighted portions at GRANTED as the exhibit 23 G in support of 28:12, 24; 29:1-4, contains competitively sensitive 24 Tevra’s 6-7, 9, 12, 16, 21-22, information relating to Bayer’s Opposition to 24-25, 42:1, 5, 6, 9, internal business strategy and 25 Bayer’s Motion 11, 24, 25, 43:6, 23, practices. See ECF No. 401 ¶¶ 4- in Limine No. 5 25, 51:2, 4, 9, 11, 12, 5.

26 (excerpts of 24, 25, 52:5-6, 10-12, Chris Diesel 17-18, 54:10-13, 24- 27 deposition) 25, 55:1-2, 4-6, 8-9, 57:4, 9, 10, 15, 18- 20, 25, 58:1, 3, 4, 6- 8, 14, 15, 18, 19, 22, 23, 61:1, 7, 8, 16, 23, 24, 3 62:4, 5, 7, 10, 11, 16-18, 22, 23, 63:1-3, 4 6, 9-11, 16, 19, 22, 23, 64:5-8, 12, 17-20, 5 25, 65:1-2, 6, 9-10, 66:1-3, 7-10, 13-14, 19-22, 25, 67:4-8, 10, 7 16-17, 20-25, 96:17- 18, 97:1, 4, 6, 11-14, 8 98:3, 4, 8, 11, 12, 15, 19-22, 99:7, 11, 9 105:3, 6, 15, 17, 20, 106:1, 2, 6, 8, 13, 15, 17-20, 24-25, 107:11, 12, 108:5, 14-15, 18- 19, 24-25, 109:1, 8-9, 12 23-24, 110:3, 6, 16- 17, 20, 24-25, 111:4- 13 8, 10, 22-23, 112:10, 16-17, 23, 113:5-9, 14 24, 114:6, 8, 25, 115:9, 20, 23, 118:4, 5, 17, 18, 119:1, 3, 6, 16 13, 16, 120:1, 2, 23, 24, 121:4, 17-19, 17 122:12-15, 18-20, 23, 25, 125:4-7, 13-19, 18 126:2-10, 137:2, 4, 24, 138:3, 13, 18-19, 139:4, 9, 10, 13-15, 20 19-21, 23-25, 140:1, 141:4, 8-9, 12-13, 24, 21 142:1-2, 20-24, 143:1-3, 5-7, 10, 13- 22 14, 18-19, 21, 23, 144:2, 12, 20-22, 23 145:8, 14-16, 18, 23- 24, 146:9, 13, 16-17, 24-25, 147:7-8, 13- 25 14, 148:3, 9-10, 14- 15, 24-25, 149:1-3, 6, 26 10-11, 16-17, 19-22, 153:4, 6-8, 12-14, 23, 27 25, 154:1, 155:16-19, 1 G. ECF No. 383 2 Tevra filed the Administrative Motion to Consider Whether Another Party’s Material Should Be Sealed on June 06, 2024. ECF No. 383. Bayer submitted a declaration. ECF No. 401.

4 Bayer seeks to seal the entirety of two exhibits attached to Tevra’s opposition to Bayer’s Motion in Limine No.3. Id. ¶ 2. Bayer writes that the information should be sealed because the documents contain “competitively sensitive business information relating to Bayer’s internal business strategy and practices, including Bayer’s analysis of the flea and tick market and Bayer’s surveying practices and methodology.” Id. ¶ 4. Bayer argues that the portions are narrowly tailored. Id. ¶ 6.

10 Except as noted below, the Court finds that good cause exists to seal the highlighted portions of the document. Kamakana, 447 F.3d at 1179; see Finjan, Inc. v. Proofpoint, Inc., No. 13-CV-05808-HSG, 2016 WL 7911651, at *1 (N.D. Cal. Apr. 6, 2016) (finding “technical operation of [defendant’s] products” sealable under “compelling reasons” standard); Exeltis USA Inc. v. First Databank, Inc., No. 17-CV-04810-HSG, 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020) (noting that courts have found “confidential business information” in the form of “business strategies” sealable under the compelling reasons standard.). The Court finds that the request is narrowly tailored. Civ. L.R. 79-5(c)(3).

18 The Court’s ruling is summarized below: ECF or Document Portion(s) to Seal Ruling Exhibit No. ECF 383-1 Exhibit A – Entire exhibit GRANTED as the documents 21 April 30, 2024 contain competitively sensitive Motions in information relating to Bayer’s 22 Limine Email internal business strategy and practices. See ECF No. 401 ¶¶ 4- 5.

24 ECF 383-2 Exhibit B – Entire exhibit DENIED as Bayer has not May 31- June 1, demonstrated that the information 25 2024 MIL in the attachment is Filings Email “competitively sensitive,” ECF 26 No. 401 at 4, and the request is not narrowly tailored.

1 H. ECF No. 385 2 Bayer filed the Administrative Motion to File under Seal on June 06, 2024. ECF No. 385.

3 Bayer seeks to seal selected portions of their Opposition to Tevra’s Motion in Limine No. 1. ECF No. 385-1. Bayer writes that the information should be sealed because it contains “competitively sensitive business information relating to Bayer’s internal business strategy and practices, including Bayer’s analysis of the flea and tick market and Bayer’s surveying practices and methodology.” Id. ¶ 4. Bayer argues that the portions are narrowly tailored. Id. ¶ 6 8 The Court finds that good cause does not exist to seal the highlighted portions of the document. Kamakana, 447 F.3d at 1179 see Finjan, Inc. v. Proofpoint, Inc., No. 13-CV-05808- HSG, 2016 WL 7911651, at *1 (N.D. Cal. Apr. 6, 2016) (finding “technical operation of [defendant’s] products” sealable under “compelling reasons” standard); Exeltis USA Inc. v. First Databank, Inc., No. 17-CV-04810-HSG, 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020) (noting that courts have found “confidential business information” in the form of “business strategies” sealable under the compelling reasons standard.). The Court’s ruling is summarized below: ECF or Document Portion(s) to Seal Ruling Exhibit No. ECF No. Defendant Highlighted portions at p. 1, DENIED for line 3 as 385-3 Bayer lines 3, 4. as it is already publicly disclosed.

HealthCare ECF No. 360 at 5:9-10.

19 LLC’s Opposition to DENIED for line 4, as Bayer has Tevra’s Motion not demonstrated that the figure is 21 in Limine No. 1 “competitively sensitive” to Exclude the information. ECF No. 385-1 at 22 Bayer- ¶¶ 4-5.

Commissioned 23 Consumer Study (Bayer’s Opposition to 25 Tevra’s Motion in Limine No. 26 1”) I. ORDER 2 For the foregoing reasons, IT IS HEREBY ORDERED that: 3 1. ECF No. 366 is GRANTED IN PART AND DENIED IN PART.

4 2. ECF No. 369 is GRANTED.

5 3. ECF No. 375 is GRANTED.

6 4. ECF No. 377 is GRANTED.

7 5. ECF No. 379 is GRANTED.

8 6. ECF No. 381 is GRANTED IN PART AND DENIED IN PART.

9 7. ECF No. 383 is GRANTED IN PART AND DENIED IN PART.

10 8. ECF No. 385 is DENIED.

11 All denials are WITHOUT PREJUDICE. Any refiled administrative motion or declaration || SHALL be filed no later than July 17, 2024. The parties SHALL refile public versions of each 13 filing where the redactions and sealing granted by the Court are narrower than what was redacted || inthe current public versions by July 17, 2024, unless they are filing a renewed sealing motion for 15 any document in that filing.

2 16 = 17 Dated: June 26, 2024 18 hachien BETH LABSON FREEMAN 19 United States District Judge