United States Court of Appeals For the First Circuit

Nos. 22-1047, 22-1182

UNITED STATES, ex rel., ANTONI NARGOL and DAVID LANGTON; STATE OF ARKANSAS, STATE OF CALIFORNIA, CITY OF CHICAGO, STATE OF COLORADO, STATE OF CONNECTICUT, STATE OF DELAWARE, DISTRICT OF COLUMBIA, STATE OF FLORIDA, STATE OF GEORGIA, STATE OF HAWAII, STATE OF ILLINOIS, STATE OF INDIANA, STATE OF IOWA, STATE OF LOUISIANNA, STATE OF MARYLAND, STATE OF MICHIGAN, STATE OF MINNESOTA, STATE OF MONTANA, STATE OF NEVADA, STATE OF NEW JERSEY, STATE OF NEW MEXICO, STATE OF NEW YORK, STATE OF NORTH CAROLINA, STATE OF OKLAHOMA, STATE OF RHODE ISLAND, STATE OF TENNESSEE, STATE OF TEXAS, COMMONWEALTH OF VIRGINIA, STATE OF WISCONSIN, COMMONWEALTH OF MASSACHUSETTS, CITY OF NEW YORK, STATE OF NEW HAMPSHIRE, STATE OF MISSOURI, STATE OF WASHINGTON, ex rel., ANTONI NARGOL and DAVID LANGTON,

Plaintiffs, Appellants,

v.

DEPUY ORTHOPAEDICS, INC.; DEPUY, INC.; JOHNSON & JOHNSON, SERVICES, INC.,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. M. Page Kelley, U.S. Magistrate Judge]

Before

Barron, Chief Judge, Lipez and Montecalvo, Circuit Judges.

Ross Eric Morrison, with whom Ross B. Brooks, Alastair Findeis, Brooks LLC, and Yankwitt LLP were on brief, for appellants. Adam R. Tarosky, with whom Mark D. Seltzer, Hannah R. Bornstein, Colin T. Missett, and Nixon Peabody LLP were on brief, for appellees.

May 18, 2023 MONTECALVO, Circuit Judge. Antoni Nargol and David

Langton (collectively, "Relators") brought this qui tam suit

against DePuy Orthopaedics, Inc., DePuy, Inc., and Johnson &

Johnson Services, Inc. (collectively, "DePuy") under the False

Claims Act ("FCA"),

, alleging a fraudulent scheme

involving hip replacement devices sold by DePuy. The district

court dismissed with prejudice Relators' case under Rule 41(b) of

the Federal Rules of Civil Procedure for repeatedly failing to

comply with applicable protective orders. Relators appeal the

dismissal, arguing that the district court misinterpreted the

protective orders and erred in finding that the operative complaint

included information subject to one of those protective orders.

For the reasons that follow, we affirm the decision of the district

court and find that the district court did not abuse its discretion

in dismissing the suit based on Relators' repeated violations of

protective orders.

I. Background

The underlying facts have been extensively discussed by

this court previously in United States ex rel. Nargol v. DePuy

Orthopaedics, Inc.,

(1st Cir. 2017)

(hereinafter, "DePuy I"). Thus, here, we examine only the relevant

factual and procedural history as to the Rule 41(b) dismissal and

summarize the necessary background.

- 3 - A. The First Amended Complaint

Relators brought this qui tam suit against DePuy under

the FCA in May 2012. The complaint centered on DePuy's

metal-on-metal hip-replacement device, marketed under DePuy's

"Pinnacle" product line. DePuy I,

. A first amended

complaint was filed under seal in November 2013 ("FAC"). In July

2014, the United States declined to intervene.

B. The MDL Matters

Prior to filing this action, Relators had been experts

for the plaintiffs in a multidistrict litigation case pending in

the Northern District of Ohio relating to "ASR" hip implants

created by DePuy (the "ASR MDL"). In re: DePuy Orthopaedics, Inc.

ASR Hip Implants Prods. Liab. Litig., No. 1:10-md-02197-DAK (N.D.

Ohio). Relators were also consulted by the plaintiffs in another

multidistrict litigation case pending in the Northern District of

Texas relating to Pinnacle hip implants (the "Pinnacle MDL"). In

re: DePuy Orthopaedics, Inc. Pinnacle Head Implant Prods. Liab.

Litig., No. 3:11-md-02244 (N.D. Tex.). Protective orders

regarding confidential DePuy product design information were

issued in both of the multidistrict litigation cases

(individually, the "ASR protective order" and the "Pinnacle

protective order"; collectively, the "Protective Orders").

Beginning around May 2012, plaintiffs' counsel in the

ASR MDL provided Relators with confidential DePuy documents, as

- 4 - Relators had signed the ASR protective order. On November 8, 2013,

Relators sent some of the data and drawings they had received in

an August 2013 production to their expert in this case, QA

Consulting, Inc. ("QA"). Included in those documents were DePuy

Pinnacle engineering drawings that were originally produced with

the designation "AttyEyesOnly" (the "Pinnacle Drawings").1

In 2013, while consulting in the Pinnacle MDL, Relators

sought the engineering drawings for the Pinnacle device. Relator

Langton ultimately received documents from plaintiffs' counsel

related to the Pinnacle MDL and signed the Pinnacle protective

order on the same day, November 15, 2013.2 On November 17, 2013,

Relators sent a spreadsheet to QA that included the dimensions and

tolerances for the Pinnacle liner and head.

Before filing the FAC, Relator Langton traveled to

Sweden and received a flash drive with additional documents on it

from counsel for plaintiffs in one of the MDLs. On December 18,

2013, QA wrote a report (the "QA Report") summarizing its analysis

and referencing Pinnacle design specifications; the design

At some point, the "AttyEyesOnly" label was removed from 1

the document; however, it is unclear when or by whom. Assuming Relators were not the ones to remove the label, Relators were still informed of the confidential nature of the Pinnacle Drawings soon thereafter. Relator Langton signed the Pinnacle protective order on this 2

day; however, Relator Nargol did not sign the Pinnacle protective order until May 5, 2014.

- 5 - specifications were the same as those stated in some of the

Pinnacle Drawings. Some of the analyses in the QA Report also

referenced documents Relators had received as expert witnesses in

the MDLs, particularly those documents relating to the ASR hip

implant.

On October 16, 2014, Relators filed a motion to intervene

in the ASR MDL and requested a modification of the ASR protective

order. Relators disclosed to the Ohio court that they had given

documents produced by DePuy in the ASR MDL to the government and

to QA in connection with this qui tam action. On January 5, 2015,

the Ohio court denied Relators' motions, holding that granting

intervention and modification of the ASR protective order would be

prejudicial to both parties in the ASR MDL. The Ohio court noted

that

[a]llowing . . . modification of the [ASR protective order] rewards the [Relators] for using confidential information they obtained in their roles as experts; information which would not have been available to them absent their special employment.

* * *

If the Court agreed with the [Relators'] request, these retained experts would be free to use the knowledge they obtain during this litigation for their own benefit. This result is unacceptable.

The Ohio court then prohibited documents produced in the ASR MDL

from being used in the qui tam litigation, finding that Relators

- 6 - had already used these documents in the filing of the FAC in

violation of the ASR protective order.

C. The Second Amended Complaint & DePuy I

Several months later, on March 18, 2015, the district

court here heard argument regarding Relators' motion to partially

unseal the FAC. In reviewing the order from the Ohio court, the

district court noted that it had to assume that the order there

was "valid" and, "therefore, assume that the [R]elators did, in

fact, make use of confidential documents[.]" For that reason, the

district court found that the FAC was "tainted[.]" The motion to

partially unseal was then denied, and the district court entered

an order stating that should Relators file an amended complaint,

it must

be accompanied by affidavits from [R]elators sworn to under the pains of perjury that certify that the second amended complaint does not violate any relevant court order, including the protective orders issued in the MDL proceedings in the Northern District of Ohio or the Northern District of Texas or the order issued by the court in Ohio on January 5, 2015.

On May 4, 2015, Relators filed the Second Amended

Complaint ("SAC") under seal with the necessary affidavits

attached, stating that the SAC does not violate any relevant

protective order. Although the district court ultimately allowed

the SAC, at a related hearing, the district court repeatedly stated

that should the SAC be found to violate the Protective Orders,

- 7 - then the court would draw an adverse inference against Relators.

On August 24, 2015, Relators requested that the SAC be unsealed,

which DePuy assented to. On February 2, 2016, the district court

granted the motion to unseal.

Also in early 2016, on DePuy's motion, the district court

dismissed the SAC, finding that Relators "failed to identify any

specific false claims" and "failed to identify even a single

representative false claim for payment" or cite sufficient factual

evidence regarding the possibility of fraud. Depuy I,

. On April 11, 2016, the district court addressed Relators'

motion for reconsideration and, in addressing Relators' claims

regarding new evidence, observed that the Relators were not making

the critical differentiation between confidential documents and

the "facts that underlie those documents" and so were not

representing that they had drafted the SAC without impermissibly

relying on confidential documents. The district court emphasized

that "the [R]elators could have used basic investigative tactics

to obtain those underlying facts without violating" the Protective

Orders prior to filing the SAC.

Relators appealed, and this court affirmed the district

court's dismissal of all claims that were based on a design-defect

theory of fraud. DePuy I,

. However, we vacated

the district court's dismissal as to allegations of a "fraudulent

scheme with 'reliable indicia that lead to a strong inference that

- 8 - claims were actually submitted' . . . for government reimbursement

from the United States and from the state of New York."

at 41

(quoting United States ex rel. Duxbury v. Ortho Biotech Prods.,

L.P.,

(1st Cir. 2009)). The matter was remanded

for resolution of the surviving claims -- counts 1, 2, and 27.

. On October 27, 2017, Relators filed a corrected Second

Amended Complaint ("Corrected SAC"), which was identical to the

SAC, except it only included the surviving claims.

D. The Corrected SAC & Related Orders

The Corrected SAC, like the SAC, included a statistical

analysis calculating the alleged rates at which the Pinnacle

products were defective. That statistical analysis was derived

from the QA Report, which had relied on Pinnacle product

measurements, specifically the Pinnacle head and liner's nominal

diameter and associated tolerances. That analysis also formed the

basis of the surviving falsity allegations -- allegations that the

"Pinnacle . . . devices did not materially comport with the

specifications of the FDA approval." DePuy I,

.

As discovery ensued, the district court entered a

stipulated protective order (the "qui tam protective order") in

this case. In December 2019, Relators moved for clarification of

that order and sought guidance from the district court regarding

what documents that they had received as experts in the MDL matters

could be used in this litigation; DePuy also moved to compel

- 9 - certain documents that Relators had provided to QA. In response

to Relators' clarification request, the district court emphasized

that Relators "are prohibited from using any of the information

they received in their capacities as experts in the MDL litigations

to prosecute the present case." In response to DePuy's motion to

compel, the district court also required Relators to provide DePuy

with "all materials they gave to QA in the present case, including

information they generated or received as experts in the MDL

litigation, and indicate when each piece of information was

provided to QA."

In December 2020, DePuy identified the Pinnacle Drawings

as previously produced in the Pinnacle MDL and being utilized by

Relators in the litigation at hand. DePuy claimed that the

Pinnacle Drawings contained trade secrets in the form of the

precise nominal design dimensions and associated tolerances of the

36mm Pinnacle metal liner and head to a particular decimal place.

DePuy alleged that the Pinnacle Drawings, which were subject to

the Protective Orders, were sent by Relators to QA to perform the

calculations in the QA Report. Relators subsequently requested

leave to amend the Corrected SAC to remove information related to

the Pinnacle Drawings. Relators also maintained that they were

unaware that the Pinnacle Drawings were confidential.

In February 2021, Relators identified two documents,

Exhibits D-433 and D-467, introduced into evidence years earlier

- 10 - in a Pinnacle MDL bellwether trial; DePuy later introduced those

same documents in another case in 2016. See Paoli, et al. v. DePuy

Orthopaedics, Inc., et al., No. 3:12-cv-4975-K (N.D. Tex.); Aoki

v. DePuy Orthopaedics, Inc., et al., No. 3:13-cv-1071-K (N.D.

Tex.). Exhibit D-467 contained the Pinnacle liner diameter and

tolerances as stated in the documents sent to QA and the head

diameter in inches to the fifth decimal place; this exhibit

remained public. However, Exhibit D-433 -- which contained the

Pinnacle head dimensions to the same decimal point as stated in

the information sent by Relators to QA -- along with other

documents in the Paoli trial, were later redacted to prevent public

disclosure. Based on Relators' identification of these exhibits,

Relators stated that they believed this information was public and

that their earlier motion to amend was moot.

On March 5, 2021, DePuy filed a motion to strike the

allegations related to manufacturing defect rates in the Corrected

SAC and to dismiss the Corrected SAC. DePuy argued that Relators

utilized confidential information they received as experts in the

MDL matters in drafting the Corrected SAC. Specifically, DePuy

noted that Relators had never identified the design

specifications, to the decimal place provided to QA, for the

Pinnacle head (the "Subject Information") in the public domain.3

3Although DePuy had previously claimed that the Pinnacle liner was subject to the Protective Orders, DePuy ultimately agreed

- 11 - As a result, DePuy argued that all portions of the Corrected SAC

that incorporated the Subject Information should be struck, which

would lead to dismissal based on the Corrected SAC lacking

sufficient particularity, or, alternatively, that the Corrected

SAC should be dismissed based on Relators' alleged repeated

violations of the Protective Orders or abuse of the discovery

process.

On July 6, 2021, the district court denied DePuy's

motion, stating that "DePuy has failed to establish that any

information in the [Corrected SAC] that previously may have been

restricted was not in the public domain at the time of the filing

of the [Corrected] SAC." The district court further found that

"DePuy thus has failed to demonstrate that Relators violated any

relevant court order in pleading allegations in the [Corrected]

SAC." DePuy filed a timely motion for reconsideration, arguing

that the district court applied the improper legal standard in

assessing DePuy's motion to strike and dismiss. DePuy further

argued that the burden of identifying the origin of information

contained in the Corrected SAC should have been placed on Relators

based on the district court's previous statements and orders.

On September 16, 2021, the district court ordered

Relators to submit a supplemental brief addressing "the sole issue

that the Pinnacle liner dimensions were public at the time of the filing of the SAC.

- 12 - of how they were able to determine the upper and lower tolerance

levels for the Pinnacle [h]ead to five decimal places." Relators

pointed to the Pinnacle liner drawings, which were public at the

time of the filing of the SAC and contained the nominal diameter

and tolerance of the Pinnacle liner. Relators claimed that, from

that information, they calculated the diametrical clearance from

the liner to find the Pinnacle head diameter. Relators then stated

that they repeatedly converted and rounded the number back and

forth between the metric system and the imperial system, resulting

in the value they ultimately provided to QA for the Pinnacle head

diameter. Relators also claimed that they knew the number of

decimal places to round the value to based on various DePuy

documents. On October 12, 2021, in an affidavit from Relator

Langton, Relators identified, for the first time, a 613-page

document available on an educational website that purported to

depict the Subject Information within several of its pages. This

document, however, was uploaded to that website in 2018, years

after the SAC was filed.

On November 10, 2021, the district court granted the

motion for reconsideration -- finding it had made a legal error in

its prior decision regarding the burden placed on DePuy, struck

allegations involving the Subject Information from the Corrected

SAC and dismissed the same under Rule 41(b), finding that

confidential information had been utilized within it. That

- 13 - decision was filed under seal. The district court noted that

"Relators have been warned by multiple courts that they are

required to comply with the protective and court orders that govern

their use of that confidential information" and that they "have

been chastised repeatedly for failing to comply with those orders."

The district court also found that Relators' explanation for how

they arrived at the Subject Information sent to QA was convoluted

and, ultimately, unbelievable; the district court instead accepted

DePuy's "simpler explanation" that Relators acquired the Subject

Information from the confidential Pinnacle Drawings, which would

have provided all the information Relators then supplied to QA.

As to the use of the Subject Information, the district

court found that "at best, [Relators'] actions are the result of

poor record-keeping and investigation into the source of their

allegations, while at worst, their actions could be said to

demonstrate an intentional and repeated disregard of court

orders." Lastly, the district court held that allowing Relators

to amend their complaint for a third time at this late hour "would

unfairly prejudice DePuy and reward [R]elators for their

accumulated missteps." In accordance with that opinion, the order

of dismissal entered on December 7, 2021.

The district court requested the parties confer and

propose redactions to its decision "so that an unredacted or

partially redacted version of the order may be placed on the public

- 14 - docket." DePuy provided proposed redactions to the decision to

the district court. However, Relators objected to DePuy's proposed

redactions, specifically as to the redaction of the Subject

Information, citing Rule 46 of the Federal Rules of Civil

Procedure. The district court viewed this opposition as an

"improper" motion for reconsideration, as it repeated the same

arguments presented in Relators' opposition to the motion to

dismiss. As a result, the district court accepted DePuy's proposed

redactions to its decision. The redacted decision was then placed

on the public docket.

Relators subsequently filed a motion for reconsideration

and to set aside, amend, or alter the district court's final

judgment. Relators proffered "new" evidence in support of their

motion and argued that the district court applied the wrong legal

standard. The district court found that the evidence Relators

pointed to was not "new . . . but rather evidence that -- with due

diligence -- [R]elators could have brought to the court's attention

any time during the eighteen months that the parties were engaged

in contesting whether the information at issue was public." Given

the district court had recently reconsidered its dismissal

decision when considering Relators' objections to the redaction of

such, it held that a further examination of those same arguments

was "unnecessary" at that juncture. Accordingly, Relators' motion

- 15 - for reconsideration and to alter or amend was denied on January

21, 2022.

With respect to the Corrected SAC, Relators now appeal: (1)

the granting of DePuy's motion for reconsideration and (2) the

Rule 41(b) dismissal of the Corrected SAC; (3) the granting of

DePuy's motions to seal and (4) to strike; and (5) the denial of

Relators' motion for reconsideration.4

II. Discussion

A. DePuy's Motion for Reconsideration

The granting of a motion for reconsideration is reviewed

for abuse of discretion. Biltcliffe v. CitiMortgage, Inc.,

(1st Cir. 2014) (citing Int'l Strategies Grp., Ltd.

v. Greenberg Traurig, LLP,

(1st Cir. 2007)). Motions

for reconsideration are "granted sparingly, and only when 'the

original judgment evidenced a manifest error of law, if there is

newly discovered evidence, or in certain other narrow

situations.'"

(quoting Global Naps, Inc. v. Verizon New

England, Inc.,

(1st Cir. 2007)).

Relators state that they "do not accept [the] notion"

that it was Relators' burden to show that the Subject Information

4 Although Relators state that they are appealing the denial of their motion for reconsideration, they have not presented any arguments in support of such. Therefore, any arguments related to the appeal of Relators' motion for reconsideration are waived. See United States v. Zannino,

(1st Cir. 1990).

- 16 - was public when the SAC was filed. However, before this court,

they have not put forth any arguments to support that contention.

Relators give no reasoning as to why, after receiving multiple

warnings over the course of this decade-long litigation, the

district court should not do exactly as it promised and place the

burden on Relators to show that information contained in the SAC

was public at the time of its filing.

Instead of addressing the pertinent issue, Relators

argue, "[a]side from the district court's shifting of the burden

from Defendants to Relators, the district court's Dismissal Orders

failed to explain what evidence, if any, it had initially

overlooked . . . ." Relators fail to appreciate that the district

court need not identify newly discovered evidence if it has

identified an error of law. See IDS Prop. Cas. Ins. Co. v. Gov't

Emps. Ins. Co.,

(1st Cir. 2021) ("Where the

district court believes with good reason that it based its initial

decision on an error of law, or if its ruling patently

misunderstood a party or misapprehended the question before it, we

will not disturb the court's discretion to allow a motion for

reconsideration." (cleaned up)). Here, where the district court

has identified an error of law in its earlier decision -- namely

that it applied an improper burden on the moving party -- we find

no abuse of discretion in the granting of a motion for

reconsideration.

- 17 - B. Rule 41(b) Dismissal

This court reviews dismissals under Rule 41(b) for abuse

of discretion. Malot v. Dorado Beach Cottages Assocs.,

(1st Cir. 2007) (citing Angulo-Alvarez v. Aponte de la

Torre,

(1st Cir. 1999)). Within our review for

abuse of discretion, legal questions are reviewed de novo, factual

findings for clear error, and issues of judgment or legal

application are reviewed for abuse of discretion. See Victim Rts.

Law Ctr. v. Rosenfelt,

(1st Cir. 2021). The

interpretation of an order presents a question of law; however,

appellate deference is appropriate when a district court is

interpreting its own order. See Monarch Life Ins. Co. v. Ropes &

Gray,

(1st Cir. 1995).

"This standard of review is not appellant-friendly --

and a sanctioned litigant bears a weighty burden in attempting to

show that an abuse occurred." Vallejo v. Santini-Padilla,

(1st Cir. 2010) (quoting Young v. Gordon,

(1st Cir. 2003)). When a court has dismissed a case for failure

by a party to adhere to court orders, those parties "have 'not

received a sympathetic ear from us.'" Malot,

(quoting Damiani v. R.I. Hosp.,

(1st Cir. 1983));

see McKeague v. One World Techs., Inc.,

(1st

Cir. 2017) ("Even schoolchildren know that changing the rules

mid-course to benefit someone who flouted them creates subtle and

- 18 - even substantial risks of unfairness."). However, we "balance the

court's venerable authority over case management with the larger

concerns of justice, including the strong presumption in favor of

deciding cases on the merits."

(citing Torres-Vargas v.

Pereira,

(1st Cir. 2005); Batiz Chamorro v.

Puerto Rican Cars, Inc.,

(1st Cir. 2002)).

i. Violations of the Protective Orders

We first address Relators' primary argument that they

never violated any of the Protective Orders in filing the SAC. To

support this argument, Relators contend that the Subject

Information was already public at the time of the filing of the

SAC and point to the public filing of Exhibits D-433 and D-467 in

the Paoli trial in 2014. As to any discrepancy between the

allegedly publicly available numbers and the numbers utilized in

the drafting of the SAC, Relators reassert their mathematical

processes involving repeated conversions and rounding of the

numbers involved; these processes make little mathematical sense.

Relators also argue that they knew of the Subject Information

independent of any MDL discovery through the use of a machine in

Relators' laboratory. With these contradictory explanations as a

background, Relators contend that the district court

misinterpreted the Protective Orders and the district court's own

prior orders regarding the same.

- 19 - As to the interpretation of the Protective Orders, "[a]

district court speaks to the parties and the court of appeals

primarily through its orders." Negrón-Almeda v. Santiago,

(1st Cir. 2008). "[W]hen a court's order is clear and

unambiguous, neither a party nor a reviewing court can disregard

its plain language 'simply as a matter of guesswork or in an effort

to suit interpretive convenience.'"

at 23 (quoting Alstom

Caribe, Inc. v. Geo. P. Reintjes Co.,

(1st Cir.

2007)). However, when the wording is imprecise, this court "can

comb relevant parts of the record to discern the authoring court's

intention."

(internal citations omitted).

The language of the Protective Orders, the Ohio court's

January 5, 2015 order, and the prior orders of the Massachusetts

district court are clear -- Relators were not to use any of the

information they learned through their work as experts in the MDLs

in this litigation. As a starting point, Relators once again fail

to distinguish between confidential documents and the facts

underlying those documents. It is true that once any of the

information Relators learned as experts subsequently became public

knowledge, then Relators would have been free to use that

information in their qui tam suit. The district court made it

clear -- in requiring Relators to file affidavits with the

SAC -- that Relators were responsible from the get-go to have

publicly available sources backing their allegations. The

- 20 - district court also noted that Relators could use "basic

investigative tactics" prior to filing the SAC to identify public

sources of the information. However, the district court found

that Relators did not know that the Pinnacle liner dimensions were

public until January 2021, years after Relators signed the

affidavits stating that the SAC did not contain any confidential

information. Although DePuy now concedes that the Pinnacle liner

dimensions are public, that finding does not ameliorate the

troubling situation Relators have created. The district court did

not understand its own orders to allow Relators to file the SAC,

affirm in sworn affidavits the information contained therein was

not confidential, and then later go on a fishing expedition to

identify public sources for the information utilized in the SAC.

We see no error in the district court's conclusion, as the

alternative would be nonsensical and directly contrary to the

purpose of the Protective Orders.

As to the Pinnacle head dimensions, the district court

held that Relator Langton's explanation as to how he arrived at

the Subject Information sent to QA "lack[ed] credibility[.]"

Credibility findings are "obviously decisions vested firmly in the

sound discretion of the district court[.]" Applewood Landscape &

Nursery Co. v. Hollingsworth,

(1st Cir. 1989).

Relators have not pointed to an alternative public source for the

Subject Information. After a careful review of the record, it is

- 21 - evident that the district court had sufficient facts to adequately

support its finding that Relators utilized the Subject Information

in drafting the SAC in violation of the Protective Orders.

ii. Appropriateness of Dismissal

As the SAC, and in turn the Corrected SAC, violated the

Protective Orders, we now turn to the issue of whether dismissal

was the appropriate sanction, guided again by our abuse of

discretion standard. Rule 41(b) states, in relevant part, "[i]f

the plaintiff fails . . . to comply with . . . a court order, a

defendant may move to dismiss the action or any claim against it.

Unless the dismissal order states otherwise, a dismissal under

this subdivision (b) . . . operates as an adjudication on the

merits." The appropriateness of a sanction under Rule 41(b) is

dependent on the circumstances of the case at issue. Malot,

.

"In order to operate effectively and administer justice

properly, courts must have the leeway 'to establish orderly

processes and manage their own affairs.'" Vázquez-Rijos v. Anhang,

(1st Cir. 2011) (quoting Young,

).

"The authority to order sanctions in appropriate cases is a

necessary component of that capability." Young,

.

Accordingly, the sanction of dismissal is important, and,

"[m]oreover, in the federal system the Civil Rules reinforce and

augment the inherent power of district courts to dismiss cases for

- 22 - disregard of judicial orders."

However, "dismissal with

prejudice is a harsh sanction, which should be employed only when

a plaintiff's misconduct has been extreme and only after the

district court has determined that none of the lesser sanctions

available to it would truly be appropriate." Malot,

(quoting Est. of Solís-Rivera v. United States,

(1st Cir. 1993)) (cleaned up).

We have outlined "a non-exclusive list of substantive

factors to consider when reviewing sanctions orders: 'the severity

of the violation, . . . the deliberateness vel non of the

misconduct, mitigating excuses, prejudice to the other side and to

the operations of the court, and the adequacy of lesser

sanctions.'"

(quoting Benítez-García v. González-Vega,

(1st Cir. 2006)). This court is "[m]indful that case

management is a fact-specific matter within the ken of the district

court[.]" Robson v. Hallenbeck,

(1st Cir. 1996).

"[T]he disregard of court orders qualifies as extreme

behavior, and we do not take such insolence lightly." Malot,

. This is particularly true when a plaintiff displays

a pattern of "repeatedly flouting court orders."

(quoting

Benítez-García,

). Below, the district court found

that Relators violated the Protective Orders not only by including

confidential information in the Corrected SAC, but "repeatedly

over the course of this nearly decade-long litigation, evidencing

- 23 - a pattern of disregarding orders from this and other courts." This

recurrent conduct of disregarding the orders of several courts

emphasizes the severity of Relators' behavior.

The district court also found that DePuy had been

prejudiced by Relators' actions. Beginning in 2015, Relators had

many opportunities to identify the sources of the information

contained in the SAC. Relators also certified to the district

court, through their affidavits, that the SAC did not contain

confidential information. Had Relators not acted in this manner,

DePuy could have potentially identified the Subject Information as

utilized in the SAC years earlier. Instead, DePuy had to

repeatedly file motions with the district court in an attempt to

gather this information from Relators -- expending an enormous

amount of time and energy.

When reviewing the adequacy of lesser sanctions, we look

to determine whether the district court gave an "explanation for

its conclusion that any lesser sanction would be inappropriate."

Malot,

. However, the explanation need not be

explicit in the district court's decision. See Vázquez-Rijos,

. "[T]he law is well established in this circuit that

where a noncompliant litigant has manifested a disregard for orders

of the court and been suitably forewarned of the consequences of

continued intransigence, a trial judge need not first exhaust

milder sanctions before resorting to dismissal." HMG Prop.

- 24 - Invest., Inc. v. Parque Indus. Rio Canas, Inc.,

(1st Cir. 1988).

The district court found that "[r]epeated attempts by

this court and others to hold [R]elators to their obligations have

proven futile, making dismissal the most appropriate sanction,

particularly when the court cannot trust that the remaining

allegations of the [SAC] are untainted." This conclusion was

well-supported by the record. Further, Relators had been on alert

for years that the district court was concerned with the use of

confidential information. The district court clearly believed,

and reasonably so, that given the pattern of disregarding court

orders in the face of these warnings, a lesser sanction would have

had no deterrent effect on Relators. Therefore, the district court

need not resort to a lesser, and likely inadequate, sanction.

There is also a procedural dimension to our review,

"which addresses concerns such as notice, opportunity to be heard,

and the court's explanation for its choice of sanction." Malot,

. Although prior notice is an "important

consideration[,]" such is "not a prerequisite to dismissal with

prejudice[.]"

at 45 (citing Robson,

). The notice

consideration can weigh in favor of imposing dismissal where the

"disregard of a prior warning from the court exacerbates the

offense" and can weigh against imposing dismissal where "the lack

of warning sometimes mitigates it." Vallejo,

- 25 - (quoting Robson,

). A plaintiff can also be put on

notice of the risk of dismissal by the filing of a motion to

dismiss.

.

Relators had an opportunity to respond to DePuy's

initial motion to dismiss and to strike and took that opportunity.

Further, after receiving DePuy's motion for reconsideration, the

district court specifically requested additional information from

Relators to assist the court in addressing the pending motions.

The record clearly shows that Relators had notice of the possible

dismissal, as well as an opportunity to respond.

We accordingly find that the district court did not abuse

its discretion in finding that Relators had, once again, violated

the Protective Orders and in imposing the weighty sanction of

dismissal with prejudice.

C. Sealing Orders

Relators also challenge the district court's orders

sealing Exhibit D-433 and redacting its dismissal order. In

support of this contention, Relators reiterate many of their prior

arguments that the Subject Information was public and, as a result,

believe it was improper for the court to seal and redact these

documents in contravention with the right to public access.

"Courts have long recognized that public monitoring of

the judicial system fosters the important values of quality,

honesty and respect for our legal system." United States v.

- 26 - Kravetz,

(1st Cir. 2013) (quoting In re Providence

J.,

, 9 (1st Cir. 2002)). Within the purview of common

law public access, when the district court, after reviewing the

facts of the case at hand, allows a motion to seal documents or a

portion thereof, this court's review is only for abuse of

discretion. See F.T.C. v. Standard Fin. Mgmt. Corp.,

(1st Cir. 1987).

In determining whether the common law right of access

applies, the court must determine whether the documents are

"judicial records." Kravetz,

. "Such records are

those 'materials on which a court relies in determining the

litigants' substantive rights.'"

(quoting In re Providence

J., 293 F.3d at 9-10). These materials are distinguishable from

documents that "'relate merely to the judge's role in management

of the trial' and therefore 'play no role in the adjudication

process.'" Id. (quoting In re Boston Herald, Inc.,

(1st Cir. 2003)) (cleaned up). Put another way, the term

"judicial record" is meant to "distinguish documents presented to

a judge in connection with a discovery dispute from the record on

which a judge actually decides the central issues in a case." In

re Boston Herald, Inc.,

.

"[R]elevant documents which are submitted to, and

accepted by, a court of competent jurisdiction in the course of

adjudicatory proceedings, become documents to which the

- 27 - presumption of public access applies." Standard Fin. Mgmt. Corp.,

. However, "we also have concluded that no right

of access attaches to civil discovery motions themselves or

materials filed with them." Kravetz,

. Once the

court determines that the presumption of public access applies, it

must then "weigh the presumptively paramount right of the public

to know against the competing private interests at stake."

Standard Fin. Mgmt. Corp.,

(citing In re Knoxville

News-Sentinel Co.,

(6th Cir. 1983)).

Relators primarily argue here that the documents or

information therein that were sealed were already public, and,

therefore, any sealing thereof was unwarranted. However, even

accepting this contention, this court has never adopted a bright

line rule banning the protection of public documents. See Poliquin

v. Garden Way, Inc.,

(1st Cir. 1993). Therefore,

we continue with our typical analysis as to the common law right

to public access.

As to Exhibit D-433, although this document may have

been filed as an exhibit in another case -- and was therefore

clearly a judicial record there -- that does not necessitate a

finding that Exhibit D-433 is a judicial record in this matter.

The district court did not examine Exhibit D-433 for its substance

in this litigation, but rather to determine whether there was a

violation of the Protective Orders.

- 28 - However, even assuming, without deciding, that both

documents are judicial records, "[t]he 'presumptive right of

access attaches to those materials which properly come before the

court . . . .'" Philibotte v. Nisource Corp. Servs. Co.,

, 162 n.2 (1st Cir. 2015) (quoting In re Providence J., 293 at

9). Here, the crux of the district court's decision was that

Relators had improperly utilized the Subject Information in the

constructing and filing of the SAC in violation of the Protective

Orders; we have now affirmed that decision. Therefore, the Subject

Information, contained in both Exhibit D-433 and the dismissal

order, was never properly before the district court. Thus, it was

clearly within the district court's discretion to seal any

reference to the Subject Information because the presumptive right

of access did not apply.

D. Amendment of the Corrected SAC

Lastly, Relators take issue with the district court's

decision to not allow Relators to amend the Corrected SAC.

Relators argue that even if the confidential Subject Information

was incorporated into the Corrected SAC, the Corrected SAC could

still have survived without the use of the Subject Information.

Relators' argument misses the mark. As discussed above, the

Corrected SAC was not dismissed based on futility or lack of

particularity, but instead was dismissed as a sanction under Rule

41(b). Allowing Relators to amend their pleading for a third time

- 29 - at this late hour and under the circumstances at hand would be in

contravention of this court's affirmance of the district court's

holding that a lesser sanction would be inadequate.

III. Conclusion

A close reading of the factual and procedural history

here leads to but one conclusion: the district court did not abuse

its discretion in dismissing Relators' Corrected SAC under Rule

41(b). For the reasons detailed above, the orders of the district

court are affirmed.

- 30 -