Case 1:18-cv-00924-CFC-SRF Document 542 Filed 03/30/20 Page 1 of 13 PageID #: 34926
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELA WARE
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`GENENTECH, INC. and CITY OF
`HOPE,
`
`P laintifls,
`
`Civ. No. 17-1407- CFC, Consol.
`
`V.
`
`AMGEN INC.,
`
`Defendant.
`
`GENENTECH, INC. and CITY OF
`HOPE,
`
`Plaintiffs,
`
`V.
`
`AMGEN INC.,
`
`Defendant.
`
`Civ. No. 18-924-CFC
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`MEMORANDUM ORDER
`
`Recent sealed and redacted filings in these related cases make clear that the
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`parties are not giving due regard to the public's right of access to judicial records
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`or the "good cause" standard that governs protective orders under Federal Rule of
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`Civil Procedure 26( c ).
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`In the 18-924 action, for example, Defendant Amgen Inc. filed on March 3,
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`2020 a sealed stipulated proposed order allowing it to delay the filing of its trial
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELA WARE
`
`GENENTECH, INC. and CITY OF
`HOPE,
`
`P laintifls,
`
`Civ. No. 17-1407- CFC, Consol.
`
`V.
`
`AMGEN INC.,
`
`Defendant.
`
`GENENTECH, INC. and CITY OF
`HOPE,
`
`Plaintiffs,
`
`V.
`
`AMGEN INC.,
`
`Defendant.
`
`Civ. No. 18-924-CFC
`
`MEMORANDUM ORDER
`
`Recent sealed and redacted filings in these related cases make clear that the
`
`parties are not giving due regard to the public's right of access to judicial records
`
`or the "good cause" standard that governs protective orders under Federal Rule of
`
`Civil Procedure 26( c ).
`
`In the 18-924 action, for example, Defendant Amgen Inc. filed on March 3,
`
`2020 a sealed stipulated proposed order allowing it to delay the filing of its trial
`
`
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`Case 1:18-cv-00924-CFC-SRF Document 542 Filed 03/30/20 Page 2 of 13 PageID #: 34927
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`exhibit list, which had been due that day. Amgen had good reason to request a
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`delay. Its electronic discovery platform for these cases was hosted by Epiq
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`Systems, Inc.; and, as Epiq had publicly announced on March 2nd, Epiq's systems
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`were compromised by a ransomware attack on February 29th, causing Epiq to take
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`its systems offline. 1 Without access to the discovery housed on Epiq's systems,
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`Amgen understandably could not meet the March 3rd deadline. Because of the
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`urgency of the matter, I signed the stipulated order that day without giving thought
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`to its sealed status.
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`On March 10th, Amgen filed a redacted public version of the stipulated
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`order. That redacted version reads in relevant part:
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`WHEREAS, Epiq experienced a complete and total
`system-wide interruption of all services (the "Epiq
`outage") beginning the morning of S a~
`~h ed Declaration of -
`- ) ;
`
`WHEREAS, as a result of the E
`
`WHEREAS Amgen's Initial Exhibit List (L.R. 16 (3)(6))
`is currently due Tuesday, March 3, 3030;
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`1 https://www.globenewswire.com/news-release/2020/03/02/1993 83 7 /0/en/Epiq(cid:173)
`Issues-Statement-on-Unauthorized-System-Activity.htm.
`
`2
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`
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`Case 1:18-cv-00924-CFC-SRF Document 542 Filed 03/30/20 Page 3 of 13 PageID #: 34928
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`NOW THEREFORE, it is hereby stipulated and agreed by
`the Parties subject to the approval of the Court, that:
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`Genentech, Inc. and Amgen Inc. hereby stipulate and
`agree, subject to the approval of the Court, to extend
`Amgen' s deadline for service of its Initial Exhibit List for
`four full da s, measured from the time that
`
`* * * *
`Genentech, Inc. and Amgen Inc. hereby further stipulate
`and agree, subject to the approval of the Court, to meet and
`confer and seek approval from the Court for further
`modifications to the Schedule for Pretrial Exchange as
`needed to address any impact to the other deadlines caused
`by the Epiq outage.
`
`DJ. 532 at 1-2.2 Three days later, Amgen filed under seal a stipulated order to
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`delay the trial that had been scheduled for April in the 18-924 case. D.I. 537. That
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`order largely min-ors the first stipulated order. I signed and docketed the second
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`stipulated order but did not seal it. D.I. 539.
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`It doesn't take a genius to figure out what Amgen redacted in its public
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`version of the first stipulated order-i.e., that Amgen housed its discovery on
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`2 All citations are to the docket in C.A. No. 18-924 unless otherwise noted.
`3
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`Case 1:18-cv-00924-CFC-SRF Document 542 Filed 03/30/20 Page 4 of 13 PageID #: 34929
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`Epiq's systems, that it no longer had access to the discovery, and that it did not
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`know when its access to the discovery would be restored. But the fact that it is
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`obvious to a reader of a redacted filing what has been redacted, does not justify the
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`redactions. And in this case, I am unable to discern a legitimate basis for hiding
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`from the public the fact that Amgen was a victim of the Epiq ransom ware attack,
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`especially when that fact is the reason behind a court order to move a trial date.
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`Amgen offered no explanation for sealing the stipulated orders or for the
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`redactions in the public version of the first order it filed. But in any event, Amgen
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`could not reasonably assert that its use of the Epiq system or its inability to access
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`that system as a result of the publicly announced ransomware attack somehow
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`constitutes a trade secret or other proprietary information. Nor could it reasonably
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`argue that public disclosure of the fact that it was a victim of the ransom ware
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`attack would cause "a clearly defined and serious injury" that would trump the
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`public's presumptive right of access to this Court's filings. In re Avandia Mktg.,
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`Sales Practices & Prod. Liab. Litig., 924 F.3d 662,672 (3d Cir. 2019).
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`The stipulated orders were not the first filings Amgen has made in these
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`cases that shielded from the public eye information that cannot fairly be
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`characterized as proprietary or a trade secret. Plaintiffs Genentech, Inc. and City
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`of Hope (collectively, Genentech) have also made unjustified sealed and redacted
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`filings.
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`4
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`Case 1:18-cv-00924-CFC-SRF Document 542 Filed 03/30/20 Page 5 of 13 PageID #: 34930
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`In another March 3rd filing, for example, Genentech redacted dozens of
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`pages of expert testimony from the transcript of a hearing held in open court last
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`October. D.I. 524. The testimony concerned the meaning of certain terms used in
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`the patents asserted in these cases. Typical of the testimony Genentech redacted is
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`the following:
`
`Q. Now, are you familiar with use of the term
`fermentation in your field of cell culture technology?
`A. I am familiar.
`Q. And what does it mean in your field?
`A. It has a plain and ordinary meaning, and mainly, if
`you apply it today, it's mainly the use of cells to produce
`a product.
`
`* * * *
`Q. In the context of this portion of the Kao patent, the
`person of ordinary skill in the art would know that the
`fermentation process referred to there is referring to a
`mammalian cell culture process; correct?
`A. Yes. As I stated, the term fermentation is very
`context dependent, so the context here would be, would
`be cell culture, that's c01Tect.
`Q. In the context of the Kao patent, the word
`fermentation is used to refer to a mammalian cell culture
`process for making antibodies; correct?
`A. With the -- if you are speaking to the whole patent
`and all of the claims, there's also some mention to
`procaryotic systems as well, but claims we're talking
`about today would be procaryotic systems, so would be
`mammalian cell.
`Q. So, correct. Within the context of the Kao patent, the
`person of ordinary skill would understand the term
`fermentation to refer to cell culture processes for making
`antibodies; correct?
`A. Yes. Cell culture process, including for procaryotic,
`yes.
`
`* * * *
`5
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`
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`Case 1:18-cv-00924-CFC-SRF Document 542 Filed 03/30/20 Page 6 of 13 PageID #: 34931
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`Q. You would agree within your industry, substituting
`the word fermentation for mammalian culture processes
`is becoming more common; correct?
`A. Yes, I think it's - it's fair that that's becoming a,
`using fermentation synonymous with mammalian cell
`culture is becoming more common, but, again, I would
`go back to my original testimony, that, you know, what
`exactly the boundaries and the scope of what exactly that
`means. Just broadly, mammalian cell culture, yes. Just
`want to say fermentation can refer to mammalian cell
`culture. Yes, I would agree with that.
`
`D.I. 514-1 at 4, 11, 13. Putting aside the fact that this testimony was adduced in
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`open court, there is no reasonable basis to hide from the public the substance of the
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`testimony-industry standards and the meaning of terms in public documents. The
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`testimony reveals nothing about Genentech or Amgen, let alone their trade secrets
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`or proprietary information.
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`The District Court is not a Star Chamber. We are a public institution in a
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`democratic republic and the public has a presumptive right of access to our filings.
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`That right is founded in the common law and "antedates the Constitution." Bank of
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`Am. Nat'! Tr. & Sav. Ass 'n v. Hotel Rittenhouse Assocs., 800 F.2d 339,343 (3d
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`Cir. 1986). The public's right of access is not absolute; but it is strongly presumed,
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`and it can be overcome only if a party demonstrates that public disclosure of a
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`filing will result in "a clearly defined and serious injury." Avandia, 924 F.3d at
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`672.
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`6
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`Case 1:18-cv-00924-CFC-SRF Document 542 Filed 03/30/20 Page 7 of 13 PageID #: 34932
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`As the conduct of the parties in these cases well illustrates, however,
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`"corporate parties in complex litigation generally prefer to litigate in secret."
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`Takeda Pharm. US.A., Inc. v. Mylan Pharm., Inc., No. CV 19-2216-RGA, 2019
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`WL 6910264, at* 1 (D. Del. Dec. 19, 2019). The filings here present the rule, not
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`the exception in my experience. Far too often, I see corporate parties over(cid:173)
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`designate discovery as confidential, file pleadings and briefs under seal without
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`good cause, and over-redact public versions of sealed filings. And because both
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`sides in the typical complex case want to litigate in secret, neither side serves as a
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`check on the other when it comes to sealed and redacted filings. That leaves it
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`solely to me to protect the public's right of access to the Court's filings.
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`The problem is that I have neither the expertise nor the time necessary to
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`perform this function in a responsible manner. I lack, for example, the industry
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`knowledge often required to determine if information is truly proprietary and if its
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`disclosure would cause serious injury to a litigant or third party. And given my
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`caseload3 and the number and size of sealed and redacted filings in those cases, it
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`would be impossible for me to conduct the "document-by-document review" and
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`make the "specific findings on the record concerning the effects of disclosure" that
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`3 My current caseload, which is typical of the four judges in this district, consists of
`563 civil cases, 282 of which are patent cases and 128 of which are Abbreviated
`New Drug Act cases. I have 43 trials and 32 Markman hearings scheduled over
`the next 12 months.
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`7
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`Case 1:18-cv-00924-CFC-SRF Document 542 Filed 03/30/20 Page 8 of 13 PageID #: 34933
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`the Third Circuit requires to justify redactions. Avandia, 924 F.3d at 673. In these
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`two cases alone, the parties have made 197 sealed filings, consisting of 1,411
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`documents and 28,619 pages.
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`The two parties in these cases, however, appear to have ample resources that
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`can be marshaled to ensure that their filings do not deprive the public of its right of
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`access. Genentech has had 45 attorneys enter their appearance on its behalf in
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`these cases ( 18 in 18-924 only; 11 in 17-1407 only; 16 in both actions). Amgen
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`has had 42 attorneys enter their appearance on its behalf (18 in 18-924 only; 11 in
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`1 7-1407 only; 13 in both actions). There have been 1,199 docket entries in the two
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`actions combined. Since the first action was filed in October 2017, the Court has
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`had to convene 27 hearings, most of which addressed multiple issues. In a
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`particularly memorable hearing, the parties presented 20 lawyers to argue 19
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`discrete discovery disputes. It is safe to say that the parties are neither lacking in
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`resources nor hesitant to deploy those resources to litigate these cases.
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`It therefore seems especially appropriate to require these parties to adhere to
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`their filing obligations under the First Amendment, common law, and the Court's
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`rules. To that end, I have decided to appoint pursuant to Federal Rule of Civil
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`Procedure 53(a)(l)(C) Rodney A. Smolla, Dean and Professor of Law at Widener
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`University, as a special master, and to ask and authorize him to determine whether
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`the sealed filings and the redactions in the redacted filings docketed in these cases
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`8
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`Case 1:18-cv-00924-CFC-SRF Document 542 Filed 03/30/20 Page 9 of 13 PageID #: 34934
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`comply with Supreme Court and Third Circuit law and the Federal Rules of Civil
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`Procedure. Each party shall be responsible for Dean Smolla's fees incurred for his
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`review of that party's sealed and redacted filings.
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`Dean Smolla is not a member of the Court's Special Masters Panel, but his
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`experience and reputation as a First Amendment scholar and lawyer make him
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`especially well-suited for this assignment.
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`To be clear, I recognize the importance of maintaining the confidentiality of
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`trade secrets and proprietary information in civil litigation, especially in patent
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`cases like these actions, where ground-breaking and life-saving drugs and vast
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`sums of money are at issue. I am confident that Dean Smolla shares that
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`perspective. That said, the recent filings discussed above call into doubt whether
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`the parties take seriously their obligation to ensure that their filings comply with
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`the Court's rules, common law, and the Constitution. For that reason, Dean
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`Smolla's appointment is necessary.
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`WHEREFORE, for the reasons stated above, on this 30th day of March
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`2020, IT IS HEREBY ORDERED that:
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`1. Rodney A. Smolla is appointed as Special Master to address whether the
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`sealed and redacted filings in these cases comply with Supreme Court
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`and Third Circuit law and the Federal Rules of Civil Procedure (the
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`"Assigned Duties").
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`9
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`Case 1:18-cv-00924-CFC-SRF Document 542 Filed 03/30/20 Page 10 of 13 PageID #: 34935
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`2. As required by Rule 53(b)(2) of the Federal Rules of Civil Procedure,
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`Dean Smolla shall proceed with all reasonable diligence and, as provided
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`by Rule 53( c ), he shall have the authority to regulate all proceedings and
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`take all measures necessary to address and rule on the Assigned Duties.
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`3. Dean Smolla shall, after consulting with the parties, establish procedures
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`for the handling of the Assigned Duties. He shall have the duty and
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`authority to require the submission of reports, call conferences, and hold
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`I
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`hearings in order to determine the status of issues relating to the Assigned
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`Duties.
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`4. With respect to hearings and conferences, they shall be held in the
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`Federal Courthouse at 844 King Street or other appropriate place
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`arranged by Dean Smolla or by the parties with the approval of Dean
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`Smolla. If the Courthouse is used, Dean Smolla shall· arrange for a
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`courtroom through the Clerk's Office (Beth Mason at 302.573.6170).
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`5. Absent agreement among the parties, all hearings shall be transcribed by
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`a certified court reporter. Absent an order by Dean Smolla, the parties
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`shall bear equally the costs of the court reporter and transcript.
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`6. Dean Smolla shall preserve all materials he receives or prepares in
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`connection with any dispute regarding discovery. He shall not be
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`required to file any such materials with the Court unless directed to do so
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`10
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`Case 1:18-cv-00924-CFC-SRF Document 542 Filed 03/30/20 Page 11 of 13 PageID #: 34936
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`by the Court, except that the following shall be filed: (1) any transcripts
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`that contain his rulings from the bench; (2) orders entered setting forth
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`his rulings; and (3) any opinions prepared supporting his rulings. All
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`such papers shall be filed with the Court through Dean Smolla and
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`docketed by chambers staff.
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`7. Dean Smolla shall not communicate ex parte with a party without the
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`consent of all parties. He may communicate ex parte with the Court.
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`8. Dean Smolla may have access to trade secrets, proprietary information,
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`or other confidential information in this action including, but not limited
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`to, information which may be subject to a protective order. Dean Smolla
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`and other persons assisting him shall preserve and protect the
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`confidentiality of all such information. If required to file any orders,
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`findings, opinions, or materials that contain or make reference to any
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`such information (including, but not limited to, information designated
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`"Confidential," "For Attorneys Eyes Only" and/or "Sensitive
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`Superconfidential"), he shall file the same under seal.
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`9. Dean Smola's rulings shall be subject to review by the Court, consistent
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`with Rule 53(f). In this regard, unless otherwise ordered: (a) the parties
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`may serve, file, and docket with the Court specific written objections
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`(and responses thereto) to any of Dean Smolla's rulings; (b) the
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`11
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`Case 1:18-cv-00924-CFC-SRF Document 542 Filed 03/30/20 Page 12 of 13 PageID #: 34937
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`objections shall be filed no later than 21 days after being served with a
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`copy of the ruling, and the responses thereto shall be filed within 10 days
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`after being served with a copy of the objections; (c) the objections and
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`responses to the objections are limited to 10 pages each; and ( d) the
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`parties must serve, file, and docket with the Court ( as well as provide to
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`the undersigned's chambers a courtesy copy of) any relevant portion of
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`the record made before Dean Smolla which pertains specifically to the
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`objections.
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`1 0.Dean Smolla shall be compensated for his services at his usual hourly
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`rate. Others assisting him shall be compensated at their usual hourly
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`rates. Dean Smolla shall send statements for services and expenses
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`directly to counsel for the parties on a monthly basis and shall receive
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`payment directly from counsel for the parties in a timely fashion. Each
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`party shall be responsible for Dean Smolla's fees incurred for his review
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`of that party's sealed and redacted filings; otherwise the compensation
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`and expenses of Dean Smolla shall be shared equally by the parties. In
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`this regard, if in Dean Smolla's opinion a party engages in behavior
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`which occasions the waste of his time and resources, or otherwise hinders
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`the efficient resolution of matters before him, that party may be
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`apportioned all or a larger portion of Dean Smolla's compensation, costs,
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`12
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`Case 1:18-cv-00924-CFC-SRF Document 542 Filed 03/30/20 Page 13 of 13 PageID #: 34938
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`and expenses. Any objections or disputes as to Dean Smolla's
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`compensation, costs, and/or expenses shall be presented to the Court in a
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`timely application.
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`13
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