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In re Bard IVC Filters Products Liability Litigation

United States District Court, D. Arizona

August 3, 2018

IN RE Bard IVC Filters Products Liability Litigation,
v.
C. R. Bard, Inc., a New Jersey corporation; and Bard Peripheral Vascular, Inc., an Arizona corporation, Defendants. Sherr-Una Booker, an individual, Plaintiff,

          ORDER

          David G. Campbell, United States District Judge

         On June 25, 2018, the Court issued an order denying Defendants' motion to seal certain exhibits used in the Booker trial. Docs. 11010, 11642. Defendants have filed a motion for reconsideration of that order. Doc. 11766. Plaintiffs have filed a response. Doc. 11922. The motion will be granted in part and denied in part.

         I. Reconsideration Standard.

         Motions for reconsideration are disfavored and should be granted only in rare circumstances. See Ross v. Arpaio, No. CV-05-4177-PHX-MHM, 2008 WL 1776502, at *2 (D. Ariz. Apr. 15, 2008). A motion for reconsideration will be granted where the Court has overlooked or misapprehended matters or otherwise has committed manifest error. See LRCiv 7.2(g)(1); Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003).

         II. Discussion.

         A. Waiver of the Right to File a Motion to Seal.

         The Court found in part that Defendants had waived the right to have trial exhibits sealed because they did not file a motion to seal before trial pursuant to Local Rule 5.6. Doc. 11642 at 2. Defendants argue that this finding was in error. Doc. 11766 at 2-3. The Court agrees in part.

         The issue of sealing exhibits was raised in the final pretrial order. Doc. 10255 at 62. Defendants noted that although many of the documents listed as exhibits had been produced subject to the parties' stipulated protective order, that order does not cover the use of exhibits at trial. Id.; see Doc. 269 at 12-13. Defendants requested that trial exhibits be maintained by the courtroom clerk and “not made publicly available throughout the trial and until the Court rules on any motion to seal.” Doc. 10255 at 62. Defendants further requested that the Court set a “post-trial briefing schedule on a motion to seal.” Id. Plaintiffs took the position that unless an exhibit is sealed before trial under this Circuit's “compelling reasons” standard, the exhibit becomes a “public record at the time admitted into evidence.” Id. (citing Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006)).

         The issue was further discussed at the pretrial conference. The Court inquired about the need for sealing given that exhibits admitted at trial do not become part of the Court's docket. Doc. 11766-1 at 5. Counsel for Defendants stated that they sought “to preserve [Defendants'] right to move to seal exhibits and/or portions of the transcript after the trial[.]” Id. at 6. Defendants made clear that they “wanted to make sure that [they] weren't in some way waiving that [right] by asking to address it at the conclusion of the trial[.]” Id. The Court responded: “That issue's preserved. You have not waived it. . . . So if you decide we need to address it later, we can do that.” Id.

         Given this exchange, it is clear that Defendants preserved the right to file a post- trial motion to seal. The Court therefore reverses its ruling that Defendants waived the right to file such a motion. The motion for reconsideration is granted in this regard.

         B. Waiver of the Right to Have Trial Exhibits Sealed.

         Defendants may have preserved the right to file a post-trial motion to seal, but they have not shown that any particular trial exhibit should be sealed. As the Court explained in its prior order, “‘the release of information in open court is a publication of that information and . . . operates as a waiver of any rights a party had to restrict its future use.'” Doc. 11642 at 2 (quoting Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd., No. CIV.A. 09-290, 2013 WL 1336204, at *5 (W.D. Pa. Mar. 29, 2013)). Thus, to the extent an exhibit was not merely admitted into evidence but also was published or discussed in open court, the exhibit is no longer confidential and Defendants have waived the right to have the exhibit sealed. See In re Google Inc. Gmail Litig., No. 13-MD-02430-LHK, 2014 WL 10537440, at *6 (N.D. Cal. Aug. 6, 2014) (“[W]here, as here, the parties did not request closure of the courtroom . . . and the disclosures were not inadvertent, the Court will not permit an ex post facto redaction of statements made in open court[.]”); Fleming v. Escort, Inc., No. CV 09-105-S-BLW, 2013 WL 1290418, at *4 (D. Idaho Mar. 27, 2013) (denying motion to seal where the “matters were discussed on the record during the public trial”); Pfizer, Inc. v. Teva Pharm. USA, Inc., No. 08-1331, 2010 WL 2710566, at *4 (D.N.J. July 7, 2010) (“Once a hearing is conducted in open court, information placed on the record is just that: information that is on the record. Ex-post facto sealing should not generally be permitted.” (emphasis in original)).

         In this Circuit, there is a strong presumption in favor of public access to judicial records that are not traditionally kept secret. See Kamakana, 447 F.3d at 1178. This presumption is the starting point in deciding whether a judicial record should be sealed. Id. Where the record already has been disclosed in open court, however, “there is no longer a favorable presumption of public access; rather, there is public access.” TriQuint Semiconductor, Inc. v. Avago Techs. Ltd., No. CV-09-1531-PHX-JAT, 2012 WL 1432519, at *7 (D. Ariz. Apr. 25, 2012) (emphasis in original).

         Defendants were well aware of the presumption in favor of public access to judicial records and Plaintiffs' position that disclosure of an exhibit in open court would result in a waiver of the right to later have the exhibit sealed. See Docs. 10255 at 62, 11766-3 at 5-7; Phillips v. C.R. Bard, Inc., No. 3:12-CV-00344-RCJ, 2015 WL 3485039, at *2 (D. Nev. June 1, 2015) (finding waiver where Bard did not seek to have exhibits sealed before using them at trial). And yet Defendants sought only to ...


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