Case 1:18-cv-00924-CFC-SRF Document 550 Filed 04/24/20 Page 1 of 27 PageID #: 34950
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`_______________________________
`GENENTECH, INC. and CITY OF
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`HOPE,
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`Plaintiffs,
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`AMGEN, INC.
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`Defendant.
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`_______________________________)
`GENENTECH, INC. and CITY OF
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`HOPE,
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`Plaintiffs,
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`AMGEN, INC.
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`Defendant.
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`_______________________________)
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`C.A. No. 17-1407- CFC-SRF
`(Consolidated)
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`C.A. No. 18-924-CFC-SRF
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`INTERIM ORDER OF SPECIAL MASTER
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`Rodney A. Smolla, Special Master
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`District Court Judge Colm Connolly assigned these consolidated matters to
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`the Special Master in a Memorandum Order entered on March 30, 2020. The District
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`Court’s order broadly instructed the Special Master to determine whether the sealed
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`and redacted filings of the parties comply with the legal principles that govern the
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`sealing of documents filed in federal judicial proceedings as established by the
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`Supreme Court of the United States, the United States Court of Appeals for the Third
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`Circuit, and the Federal Rules of Civil Procedure.
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`A preliminary hearing on the duties assigned to the Special Master was
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`conducted on the record on April 16, 2020. This Interim Order reflects the
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`agreement of the parties and the Special Master as to how to proceed going forward.
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`I. Briefing and Hearing Schedule
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`A.
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`The Parties Will Initially Self-Review
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`The parties reached agreement with the Special Master on a process through
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`which the parties themselves would engage in a self-review of the material
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`previously submitted under seal. That review would provide the parties with the
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`opportunity to voluntarily unseal, opening to public view on the docket of the Court,
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`some of the materials previously filed under seal, thereby reducing the volume of
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`remaining sealed material requiring document-by-document review by the Special
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`Master.
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`B. Written Submission Deadlines and Guidelines
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`1.
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`June 11 Deadline
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`By June 11, 2020, the parties shall each submit to the Special Master:
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`2
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`• Index of Sealed Materials. For each case, an index reflecting the docket
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`number and title of the pleadings (including exhibits) that the party requests
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`continue to be sealed in whole or in part.
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`• Appendix of Sealed Materials (Highlighted). An appendix corresponding to
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`the index for each case attaching a copy of the pleadings and materials that
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`the party wishes to be sealed, highlighted in blue1 to show the party’s
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`requested redactions (such copies to be OCR’d if possible so that the Special
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`Master can copy and paste the language in the redactions proposed by the
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`party). The Index and Appendix should encompass all materials filed under
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`seal up to and including date the materials are submitted to the Special Master,
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`on or before June 11, 2020.
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`• Legal Brief. A legal brief (not to exceed 15 pages) providing the legal basis
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`for the sealing request by the party, and any response to this Interim Order.
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`• Factual Support. For each item on the index, a party shall provide its basis
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`for the sealing request. The basis for sealing may be indicated categorically
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`in connection with the index and/or supported by a written discussion of the
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`applicable law to the facts. Declarations, affidavits, or other factual support
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`1 The parties have alerted the Special Master that the materials filed with the Court
`occasionally include yellow or orange highlighting to direct the Court’s attention to
`particular cited information. The parties will thus use blue highlighting for this
`redaction review process.
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`for the sealing requests may be included. There is no page limit for this
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`portion of the submissions.
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`• Proposed Procedure for Future Filings. The parties should submit, either
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`separately, or after meeting and conferring, jointly, a proposed procedure for
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`expeditious and efficient review by the Special Master of future filings
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`submitted under seal. (The parties should meet and confer to determine if
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`there is a process jointly agreed to that will facilitate such expeditious review.)
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`2. June 26 Deadline
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`Each party may submit (but is not required to) a paper (not to exceed 10 pages
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`for each case) indicating disagreement or comment upon any sealing requests of the
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`counterparty.
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`3.
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`Hearing Date
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`A hearing on the matters pending before the Special Master is shall be held
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`on Monday, June 29, at 1:00 p.m., unless otherwise ordered.
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`II. Applicable Legal Principles
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`The parties have additionally requested guidance from the Special Master as
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`to the substantive legal principles to be applied in conducting their own “self-
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`review.” This Interim Order sets forth the legal standards to be applied. In
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`submitting their written submissions and in oral argument the parties remain free to
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`contest these legal principles, in whole or in part, and to present such legal and
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`evidentiary argumentation regarding their application as the parties deem
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`appropriate.
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`A. The Three Tiers of Review
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`Three discrete bodies of
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`law govern
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`the principles pertaining
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`to
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`confidentiality, sealing, and redactions of documents in federal court litigation.
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`They apply in ascending orders of scrutiny.
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`First, there are principles governing the issuance of protective orders in federal
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`litigation. These principles emanate from Rule 26(c) of the Federal Rules of Civil
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`Procedure, and the attendant gloss courts have applied to the application of Rule
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`26(c). See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 783-92 (3d Cir. 1994).
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`Second, federal courts recognize a common law right of access to judicial
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`records. “The existence of a common law right of access to judicial proceedings and
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`to inspect judicial records is beyond dispute.” Publicker Industries, Inc. v. Cohen,
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`733 F.2d 1059, 1066 (3d Cir. 1984). There is a “presumption in favor of access to
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`‘public records and documents, including judicial records and documents.’” Bank of
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`America National Trust & Savings Association v. Hotel Rittenhouse Associates, 800
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`F.2d at 343, quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 597
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`(1978).
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`Third, “the public and the press have a First Amendment right of access to
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`civil trials.” In re Avandia Marketing Sales Practices & Product Liability Litigation,
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`924 F.3d 662, 673 (3d Cir. 2019), citing Publicker, 733 F.2d at 1070. “[T]he First
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`Amendment, independent of the common law, protects the public’s right of access
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`to the records of civil proceedings.” Republic of Philippines v. Westinghouse
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`Electric Corporation, 949 F.2d 653, 659 (3d Cir. 1991), citing Publicker, 733 F.2d
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`at 1070. “The First Amendment right of access requires a much higher showing than
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`the common law right to access before a judicial proceeding can be sealed.” In re
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`Cendant Corp., 260 F.3d at 198 n. 13. Any restriction on the First Amendment right
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`of public access is “‘evaluated under strict scrutiny.’” Avandia, 924 F.3d at 673,
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`quoting PG Publishing Company v. Aichele, 705 F.3d 91, 104 (3d Cir. 2013).
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`B. Protective Orders
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`Rule 26 of the Federal Rules of Civil Procedure permits the District Court to
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`enter a protective order to shield a party “from annoyance, embarrassment,
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`oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). As the Third
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`Circuit’s decision in Avandia emphasized, it is worth reciting the standards
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`applicable to motions for protective orders, as a foil against which to contrast the
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`more rigorous standards imposed by the common law and the First Amendment.
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`Avandia, 924 F.3d at 673.
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`Within the Third Circuit, the principles applicable to the issuance of a
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`protective order are governed by the “good cause” factors announced in Pansy v.
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`Borough of Stroudsburg, 23 F.3d at 783-92. As Judge Connolly observed in a prior
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`Order in this matter:
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`In Pansy, the Third Circuit identified eight factors that may be considered in
`evaluating whether good cause exists: (1) whether disclosure will violate any
`privacy interests; (2) whether the information is being sought for a legitimate
`purpose; (3) whether disclosure will cause embarrassment to a party; (4)
`whether the information to be disclosed is important to public health and
`safety; (5) whether sharing the information among litigants will promote
`fairness and efficiency; (6) whether the party benefitting from the order is a
`public entity or official; (7) whether the case involves issues important to the
`public; and (8) the parties’ reliance on the order.
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`Genentech, Inc. v. Amgen Inc., No. CV 17-1407-CFC, 2019 WL 1349464, at *2 (D.
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`Del. Mar. 26, 2019) (Connolly, J.).
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`The Pansy factors governing the grant of protective orders in the Third Circuit
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`do not constitute a “free pass” to litigants to seek and obtain protective orders on
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`their mere mutual consent or acquiescence. Protective orders require a showing of
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`“good cause,” and “good cause” requires more than the mere coalescence and
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`convenience of the parties. “Rule 26(c) places the burden of persuasion on the party
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`seeking the protective order. To overcome the presumption, the party seeking the
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`protective order must show good cause by demonstrating a particular need for
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`protection.” Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986).
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`Generalized boilerplate assertions of harm are not sufficient. See Glenmede Trust
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`Co. v. Thompson, 56 F.3d 476, 484 (3d Cir. 1995) (“Under Pansy, ‘[b]road
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`allegations of harm, unsubstantiated by specific examples or articulated reasoning’
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`do not support a good cause showing.’”), quoting Cipollone, 785 F.2d at 1121.
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`Protective orders entered pursuant to Rule 26(c) are most soundly justified
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`when the documents at issue contain trade secrets or other confidential business
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`information. See Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d
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`157, 166 (3d Cir. 1993). Yet even trade secrets are not sacrosanct. The “Rules also
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`explain that ‘courts have not given trade secrets automatic and complete immunity
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`against disclosure, but have in each case weighed their claim to privacy against the
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`need for disclosure.’” Id., quoting Fed. R. Civ. P. 26(c) Advisory Committee’s Note
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`to 1970 Amendment.
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`C.
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`The Common Law Right of Access
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`1.
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`Overview of Right
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`The United States Supreme Court recognized the common law right of access
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`to judicial records in Nixon v. Warner Communications, Inc., 435 U.S. at 597 (“It is
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`clear that the courts of this country recognize a general right to inspect and copy
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`public records and documents.”).
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`In the Third Circuit, the right is particularly robust. “The right to inspect and
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`copy, sometimes termed the right to access, antedates the Constitution.” United
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`States v. Criden, 648 F.2d 814, 819 (3d Cir. 1981). Powerful public interests
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`undergird the right. “It has been justified on the ground of the public’s right to know,
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`which encompasses public documents generally, and the public’s right to open
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`courts, which has particular applicability to judicial records.” Id. “The public’s
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`exercise of its common law access right in civil cases promotes public confidence in
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`the judicial system by enhancing testimonial trustworthiness and the quality of
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`justice dispensed by the court.” Littlejohn v. Bic Corp., 851 F.2d 673, 678 (3d Cir.
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`1988), citing 6 J. Wigmore, Evidence § 1834 (J. Chadbourne rev. 1976). “As with
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`other branches of government, the bright light cast upon the judicial process by
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`public observation diminishes possibilities for injustice, incompetence, perjury, and
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`fraud.” Littlejohn, 851 F.2d at 678. Moreover, “the very openness of the process
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`should provide the public with a more complete understanding of the judicial system
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`and a better perception of its fairness.” Id. “[A]ccess to civil proceedings and
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`records promotes ‘public respect for the judicial process’ and helps assure that
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`judges perform their duties in an honest and informed manner.” In re Cendant Corp.,
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`260 F.3d at 192, quoting Leucadia, 998 F.2d at 161.
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`2.
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`Defining “Judicial Record”
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`Given that it is firmly established that the common law presumption of access
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`applies to “judicial records and documents,” the case law in the Third Circuit has
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`focused not on the existence of the presumption, but instead on what does or does
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`not qualify as a “judicial record” or “document” within the meaning of the common
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`law right of access. The unmistakable arc of that case law has been a steady
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`expansion of the records and documents to which the right attaches.
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`“The common law right of access is not limited to evidence, but rather
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`encompasses all ‘judicial records and documents.’” United States v. Martin, 746
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`F.2d 964, 968 (3d Cir. 1984), quoting Nixon v. Warner Communications, 435 U.S.
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`at 597. “It includes ‘transcripts, evidence, pleadings, and other materials submitted
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`by litigants.” United States v. Martin, 746 F.2d at 968, quoting, Comment, All
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`Courts Shall Be Open: The Public’s Right to View Judicial Proceedings, 52 Temple
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`L.Q. 311, 337-38 (1979). The Third Circuit further extended the right to a settlement
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`agreement in Bank of America, holding that that the presumption in favor of public
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`access applies not only to all civil trials and records but also to “motions filed in
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`court proceedings.” Bank of America, 800 F.2d at 343. In Republic of Philippines v.
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`Westinghouse, the Third Circuit extended the right to “papers filed in connection
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`with a motion for summary judgment.” Westinghouse, 949 F.2d at 661. In Leucadia,
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`the Third Circuit summarized its extant decisions by observing that, “our earlier
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`decisions and those in other courts lead ineluctably to the conclusion that there is a
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`presumptive right of public access to pretrial motions of a nondiscovery nature,
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`whether preliminary or dispositive, and the material filed in connection therewith.”
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`Leucadia, 998 F.2d at 164.
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`The key to determining whether or not a document or record is subject to the
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`right of access is whether it is properly denominated a “judicial record.” In re
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`Cendant Corp., 260 F.3d at 192. “The status of a document as a ‘judicial record,’ in
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`turn, depends on whether a document has been filed with the court, or otherwise
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`somehow
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`incorporated or
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`integrated
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`into a district court’s adjudicatory
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`proceedings.” Id. “While filing clearly establishes such status, a document may still
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`be construed as a judicial record, absent filing, if a court interprets or enforces the
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`terms of that document, or requires that it be submitted to the court under seal.” Id.,
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`citing Enprotech Corp. v. Renda, 983 F.2d 17, 20 (3d Cir. 1993).
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`As Judge Andrews for this Court has explained, this divide is especially
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`significant. In re Application of Ewe Gasspeicher GmbH, 2020 WL 1272612, at *3
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`(“For requests to preserve the confidentiality of discovery materials pursuant to a
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`protective order, the Court applies the factors set forth in Pansy . . . See In re Avandia
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`Mktg., 924 F.3d at 670. When, however, the parties file those discovery materials on
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`the court’s docket under seal, they become “judicial records” subject to the more
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`rigorous common law right of access. Id. at 672. Finally, the First Amendment right
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`of public access attaches to civil trials. Id.”).
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`Common Law Access Contrasted with the Rule 26 Pansy Factors
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`5.
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`The Third Circuit’s 2019 decision in Avandia strongly emphasized the
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`fundamental divide between the standards that govern the issuance of protective
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`orders under Rule 26 and the standards that govern the presumption of access to
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`judicial records under the common law:
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`In short, while the Pansy factors may provide useful guidance for courts
`conducting the balancing required by the common law test, the Pansy
`factors do not displace the common law right of access standard. The
`difference is not merely semantic—the Pansy factors are not
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`11
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`sufficiently robust for assessing the public’s right to access judicial
`records.
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`Avandia, 924 F.3d at 676.
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`In both substance and procedure, the burdens that must be overcome to justify
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`the sealing of judicial records under the common law are dramatically less pliant
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`than the factors to be weighed under Pansy in deciding whether a protective order is
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`warranted. “Unlike the Rule 26 standard, the common law right of access begins
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`with a thumb on the scale in favor of openness—the strong presumption of public
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`access.” Id.
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`As to substance, Avandia instructed that in certain critical respects the Pansy
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`factors are fundamentally incompatible with the Third Circuit’s common law right
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`of access jurisprudence. Id. (“Moreover, some of the Pansy factors are incompatible
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`with our case law on the common law right of access.”).
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`For example, the Pansy factors invite a court to consider “‘whether disclosure
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`of the information will cause a party embarrassment.’” Id., citing Glenmede Trust
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`Company v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995). In contrast, however,
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`“concern about a company’s public image, embarrassment, or reputational injury,
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`without more, is insufficient to rebut the presumption of public access.” Avandia,
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`924 F.3d at 666, citing Westinghouse, 949 F.2d at 663. See also Littlejohn, 851 F.2d
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`at 685 (reasoning that the proponent of the seal’s “desire to preserve corporate
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`reputation” is insufficient to rebut the presumption); Publicker, 733 F.2d at 1074
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`(explaining that public disclosure of poor management is inadequate to justify
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`sealing); Brown & Williamson Tobacco Corporation v. Federal Trade Commission,
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`710 F.2d 1165, 1180 (6th Cir. 1983) (explaining that the desire to shield prejudicial
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`information from competitors and the public is understandable, but “cannot be
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`accommodated by courts without seriously undermining the tradition of an open
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`judicial system.”).
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`So too, Pansy permits consideration of “‘whether the information is being
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`sought for a legitimate purpose or for an improper purpose.’” Avandia, 924 F.3d at
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`677, quoting Glenmede, 56 F.3d at 483. In contrast, a “a person’s motive for
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`inspecting or copying judicial records is irrelevant under the common law right of
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`access.” Avandia, 924 F.3d at 677, citing Leucadia, Inc., 998 F.2d at 167-68; Bank
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`of America., 800 F.2d at 345 (“The applicability and importance of these interests
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`[served by the common law right of access] are not lessened because they are
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`asserted by a private party to advance its own interests.”).
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`The essential substantive command of Avandia is that it is error to conflate
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`“the Pansy factors with the common law right of access standard.” Avandia, 924
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`F.3d at 677. “[T]he Pansy factors are not a substitute for the common law right of
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`access standard—which begins with the presumption of access.” Id. “The scale is
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`tipped at the outset in favor of access.” Id.
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`6.
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`The Substantive Common Law Avandia Standards
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`13
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`While not purporting to articulate exhaustively what substantive showings
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`will justify sealing or redacting a judicial record and what showings will not,
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`Avandia did provide substantial guidance.
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`Avandia rejected as insufficient an eight-year-old declaration previously
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`submitted to support sealing of other documents, instructing that “[o]utdated
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`evidence such as this is insufficient to overcome the presumption of public access.”
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`Id. at 678.
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`Avandia also rejected as insufficient a second proffered declaration,
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`dismissing that declaration as deficient because it contained mere “broad, vague, and
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`conclusory allegations of harm.” Id. In rejecting that declaration, the court held that
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`the declarant’s assertion that disclosure of the company’s “old research strategies
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`‘would still aid competitors in developing research strategies and could be used to
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`harm GSK’s relationship with patients and physicians’” was not enough to rebut the
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`presumption of public access, because the declaration lacked any additional
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`explanation as to why revelation of old strategies would harm present commercial
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`relationships. Id. at 679. These were the very sort of “blanket assertions of harm”
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`that the Avandia court declared “fall short of the clearly defined and serious injury”
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`required for sealing. Id.
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`Finally, Avandia sharply disqualified “reputational
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`injury” or mere
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`“embarrassment” as interests sufficient to overcome the presumption of access. On
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`the record before it, the Court declared that it could not see how the alleged harm
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`“chalks up to anything more than mere embarrassment.” Id. But “[m]ere
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`embarrassment is insufficient to overcome the strong presumption of public access
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`inherent in the common law right.” Id., citing Publicker, 733 F.2d at 1074
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`(explaining that courts generally should not seal evidence of “bad business
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`practice[s].”). In a critical insight, the Court in Avandia noted that the values served
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`by public access may be at their apex when the motivation for sealing is
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`embarrassment at what the disclosed material might reveal. “‘Indeed, common
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`sense tells us that the greater the motivation a corporation has to shield its operations,
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`the greater the public’s need to know.’” Id., quoting Brown & Williamson Tobacco
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`Corp., 710 F.2d at 1180.
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`On the affirmative side of the ledger, Avandia confirmed the long-standing
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`truism that the presumption of public access is “‘not absolute.’” Avandia, 924 F.3d
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`at 672, quoting Bank of America, 800 F.2d at 344. The presumption of public access
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`may be overcome. The critical divide is the distinction between material containing
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`palpable trade secrets or proprietary business practices that will produce present
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`commercial and competitive harm, on the one hand, and vague, conclusory
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`assertions of commercial or competitive harm, or assertions that in fact appear
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`grounded in reputational interests and embarrassment, on the other. A party’s
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`“‘vague assertions that the transcript contains secretive business information, and
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`that disclosure would render [it] at a tactical disadvantage’ [are] insufficient to
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`overcome that strong presumption.” Avandia, 924 F.3d at 676, quoting LEAP Sys.,
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`Inc. v. MoneyTrax, Inc., 638 F.3d 216, 221-22 (3d Cir. 2011). The touchstone is the
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`persuasive demonstration of specific, concrete, particularized of harm.
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`7.
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`The Avandia Procedural Requirements
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`As to procedure, Avandia also contemplates a rigorous process of judicial
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`review. The right of access must not be demoted to “a mere formality.” Avandia,
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`924 F.3d at 676. To ensure that proper weight is given to “the public’s strong interest
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`in the openness of judicial records,” a District Court must engage in “a document-
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`by-document review.” Id. Casual, superficial review does not suffice. “Again, the
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`strong presumption of openness inherent in the common law right of access
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`‘disallows the routine and perfunctory closing of judicial records.’” Id., citing In re
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`Cendant Corp., 260 F.3d at 193-94.
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`The substantive and procedural standards that must be met to overcome the
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`presumption of access are onerous by definition and design. The party seeking to
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`seal judicial records must satisfy “a heavy burden.” Miller v. Indiana Hospital, 16
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`F.3d 549, 551 (3d Cir. 1994). The party seeking to have a record sealed “must show
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`that ‘the material is the kind of information that courts will protect and that
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`disclosure will work a clearly defined and serious injury to the party seeking
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`closure.’” Avandia, 924 F.3d at 677-78, quoting Miller, 16 F.3d at 55. In granting a
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`sealing order, a “District Court should articulate ‘the compelling[,] countervailing
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`interests to be protected,” make “specific findings on the record concerning the
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`effects of disclosure, and provide[ ] an opportunity for interested third parties to be
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`heard.’” Avandia, 924 F.3d at 677-78, quoting In re Cendant Corp., 260 F.3d at 194.
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`“‘In delineating the injury to be prevented, specificity is essential.’” Id. Generalized
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`incantations that secrecy is required to prevent competitive or commercial harm are
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`not enough to carry the movant’s burden. “‘Broad allegations of harm, bereft of
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`specific examples or articulated reasoning, are insufficient.’” Id.
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`The factfinding required by district courts must be careful and meticulous in
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`order to vindicate the rights of the public and the integrity of the judicial process
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`itself, notwithstanding the private interests or preferences of the litigants, even when
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`they are in agreement. “‘[C]areful factfinding and balancing of competing interests
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`is required before the strong presumption of openness can be overcome by the
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`secrecy interests of private litigants.’” Avandia, 924 F.3d at 677-78, quoting
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`Leucadia, 998 F.2d at 167.
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`
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`The Third Circuit’s Avandia opinion mandates a “document-by-document”
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`review of the claimed propriety of sealing. In conducting that review, the Court may
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`sensibly acknowledge that there may be snippets of material that satisfy the onerous
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`burden required to justify sealing. In such instances, however, only the “snippet”
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`itself may be sealed. See In re Petrobras Sec. Litigation, 393 F. Supp. 3d 376, 387
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`(S.D.N.Y. 2019) (“Nonetheless, a few of the documents—or, more likely, a few
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`sentences within a few of the documents—may still contain ‘business information
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`that might harm a litigant'’ competitive standing.’ . . . Petrobras has satisfied this
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`Court that some of the sealed documents might still contain snippets of information
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`that even the now much-reorganized Petrobras could reasonably claim were still
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`commercially sensitive.”) (internal citations omitted); Ebert v. C.R. Bard, Inc., No.
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`CV 12-01253, 2020 WL 429771, at *3 (E.D. Pa. Jan. 28, 2020) (“Although Bard
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`asks for the entirety of the expert reports to be sealed, a less restrictive alternative is
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`available. The Court will instead only permit to be redacted those pages of the expert
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`reports that Bard expressly identified as containing confidential business
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`information in its Motion.”).
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`
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`In a footnote, Avandia clarified that the Third Circuit does not “require a
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`district court to provide lengthy, detailed discussion of each individual document.”
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`Avandia, 924 F.3d at 677, n.11. “Yet it must be clear from the record that the district
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`court engaged in a particularized, deliberate assessment of the standard as it applies
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`to each disputed document.” Id.
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`8.
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`The Changed Landscape After Avandia
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`Avandia was a game-changer, as District Court opinions applying it in this
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`Circuit have recognized. Avandia struck at the heart of the prevalent practice of
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`collusive secrecy in corporate litigation. It is a common practice for parties in
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`corporate cases to file reciprocal unopposed motions to seal, in what often to
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`amounts to a “I will scratch your secrecy back if you will scratch mine” bargain.
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`Applying Avandia, Judge Andrews observed:
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`In my experience, corporate parties in complex litigation generally
`prefer to litigate in secret. To that end, discovery is over-designated as
`being confidential, pleadings and briefs are filed under seal, redacted
`versions of sealed documents are over-redacted, requests are made to
`seal portions of transcripts of judicial proceedings, and parties want to
`close the courtroom during testimony. I have tried over the years to
`reign these tendencies in, but it is difficult because there is usually no
`one opposing whatever requests are made, and I do not have time to be
`independently monitoring any of these tendencies unless they are
`directly requested of me (i.e., requests to close the courtroom and to
`seal judicial transcripts). I have made some efforts on the requests that
`are specifically directed to me. I think some of those efforts have
`resulted in greater exercise of discretion by the parties in asking to have
`judicial transcripts sealed and in seeking to close the courtroom, but I
`do not see any impact on any of the other areas of potential abuse.
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`In cases like Avandia, there is a third party that seeks access to the
`challenged documents, which is not the case here. The courts of appeals
`perhaps do not have as much opportunity to instruct on what a trial court
`should be doing when no party is advocating for openness.
`Nevertheless, it seems to me that courts should at least address access
`concerns when they come to the court’s attention.
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`Takeda Pharmaceuticals U.S.A., Inc. v. Mylan Pharmaceuticals, Inc., No. CV 19-
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`2216-RGA, 2019 WL 6910264, at *1 (D. Del. Dec. 19, 2019).
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`In the wake of Avandia, District Courts “must articulate compelling and
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`countervailing interests to be protected, make specific findings on the record
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`concerning the effects of disclosure and provide an opportunity for third parties to
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`be heard.” Ebert v. C.R. Bard, Inc., 2020 WL 429771, at *2, citing Avandia, 924
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`F.3d at 672-73.
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`The District Court’s decision applying Avandia in Midwest Athletics & Sports
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`All. LLC v. Ricoh USA, Inc., 395 F. Supp. 3d 461, 462 (E.D. Pa. 2019), is instructive.
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`In Midwest, both parties had filed motions to seal. Rejecting both motions, the court
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`noted that the “parties make no showing that disclosure of the exhibits contain
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`confidential commercial or proprietary information.” Id. “Although the parties may
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`agree to shield information contained in discovery materials,” the court stated, “they
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`may not do so once those materials become part of the court record.” Id. “Sealing
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`orders may not be routinely entered without the rigorous analysis required.” Id. In
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`rejecting the sealing motions, the court held that none of the materials proffered for
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`sealing any confidential material that could cause harm within the meaning of the
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`Avandia standard. Id.
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`D.
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`The First Amendment Right of Access to Civil Judicial Proceedings
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`
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`1.
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`Overview
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`The Third Circuit has recognized a First Amendment right of access to judicial
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`proceedings in civil cases. Avandia, 924 F.3d at 673; Publicker, 733 F.2d at 1070;
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`Delaware Coalition for Open Government, Inc. v. Strine, 733 F.3d 510, 514 (3d Cir.
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`2013) (“We have found a right of public access to civil trials, as has every other
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`federal court of appeals to consider the issue.”)