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James R. Condo (#005867)

Amanda C. Sheridan (#027360) 

SNELL & WILMER L.L.P. 

One Arizona Center 

400 E. Van Buren, Suite 1900 

Phoenix, AZ 85004-2204 

Telephone: (602) 382-6000 

jcondo@swlaw.com 

asheridan@swlaw.com 

Richard B. North, Jr. (admitted pro hac vice) 

Georgia Bar No. 545599 

Matthew B. Lerner (admitted pro hac vice) 

Georgia Bar No. 446986 

NELSON MULLINS RILEY & SCARBOROUGH LLP 

Atlantic Station 

201 17th Street, NW, Suite 1700 

Atlanta, GA 30363 

Telephone: (404) 322-6000 

richard.north@nelsonmullins.com 

matthew.lerner@nelsonmullins.com 

Attorneys for Defendants 

C. R. Bard, Inc. and 

Bard Peripheral Vascular, Inc.

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

IN RE: Bard IVC Filters Products Liability 

Litigation 

No. 2:15-MD-02641-DGC

DEFENDANTS’ MOTION FOR 

LEAVE TO FILE UNDER SEAL 

CERTAIN EXHIBITS IN 

SUPPORT OF BARD’S REPLY IN 

SUPPORT OF MOTION TO 

EXCLUDE THE OPINIONS OF 

DAVID KESSLER, M.D. AND 

MEMORANDUM OF LAW IN 

SUPPORT 

Defendants C. R. Bard, Inc. and Bard Peripheral Vascular, Inc. (collectively 

“Bard”) hereby respectfully move this Court, pursuant to the Stipulated Protective Order 

(Doc. 269), Federal Rule of Civil Procedure 26(c)(1)(G), and Local Civil Rule 5.6 for 

leave to file under seal certain exhibits attached in support of Bard’s Reply in Support 

Motion to Exclude the Opinions of David Kessler, M.D. and Memorandum of Law in 

Support. These exhibits, contain certain trade secrets and confidential information that are 

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protected under the Stipulated Protective Order, warranting protection from public 

disclosure. Accordingly, there is good cause to grant Defendants’ Motion for Leave to 

File Under Seal Certain Exhibits in Support of Bard’s Reply in Support of Motion to 

Exclude the Opinions of David Kessler, M.D. Defendants have notified Plaintiffs of their 

intent to file this Motion. Plaintiffs have agreed to the filing of such motions in the past; 

however, to date, Plaintiffs’ have not yet responded to Defendants’ attempts to meet and 

confer on whether Plaintiffs oppose the Motion once Plaintiffs have had an opportunity to 

review the documents in issue. A list of the Exhibits sought to be sealed are attached 

hereto as Exhibit A. 

ARGUMENT AND CITATION OF AUTHORITY 

“When a court grants a protective order for information produced during discovery, 

it already has determined that ‘good cause’ exists to protect this information from being 

disclosed to the public by balancing the needs for discovery against the need for 

confidentiality.” Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 

1213 (9th Cir. 2002). See also, Medicis Pharm. Corp. v. Acella Pharm., LLC, CV 10-

1780-PHX-JAT, 2012 WL 2260928 at *2 (D. Ariz. June 15, 2012) (sealing exhibits 

related to “Medicis’ marketing strategy, Acella’s product formulation,...various e-mails 

and deposition transcripts, viscosity test data, sales and marketing information, and 

various other documents” because “[m]uch of this information has been previously sealed 

by the Court, has been designated as confidential by the parties pursuant to the protective 

order in this case, or could otherwise potentially harm the parties if released publicly 

because of its confidential and sensitive nature.”). 

Certain exhibits to Bard’s Motion to Exclude the Opinions of David Kessler, M.D., 

specifically Exhibit A, which copies verbatim portions of Dr. Kessler’s Expert Report and 

Dr. Kessler’s Schedules attached to his report (the Report and Schedules themselves were 

filed under seal as Exhibits A and D to Bard’s original motion (Dkt. No. 7309)), contain 

pieces of highly competitive, confidential, proprietary information that warrant protection 

under Federal Rule of Civil Procedure 26(c)(1)(G) because the documents are not made 

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public by Bard and, if obtained by Bard’s competitors, could give an unfair economic 

advantage to those competitors. Blanchard & Co., Inc. v. Barrick Gold Corp., No. 02-

3721, 2004 WL 737485, at *5 (E.D. La. Apr. 5, 2004) (citing Pansy v. Borough of 

Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994)). Dr. Kessler’s Reports cite and extensively 

quote dozens of confidential Bard documents, including technical and design files, testing 

documents, internal adverse event investigations and analysis, design and risk 

management documents, and numerous internal e-mails between high-level Bard 

employees. The Reports quote so extensively from confidential documents that filing the 

Reports is akin to filing the documents themselves. Except for a small number of publicly 

available documents, all of the Bard documents cited in the Reports were produced to 

Plaintiffs as “Confidential – Subject to Protective Order” on each page pursuant to 

Stipulated Protective Order (Doc. 269) ¶ 6. Exhibit A compares the Bard documents 

quoted by Dr. Kessler in his report to the Bard documents quoted in the schedules 

prepared by Plaintiffs’ counsel. So, the chart necessarily quotes Bard’s internal 

documents. 

The public disclosure of this exhibit would reveal confidential, proprietary and 

trade secret information and would create a heightened risk of irreparable harm to Bard’s 

competitive business concerns. Further, its inclusion in the public record would not only 

harm Bard because of the trade secrets and confidential information it contains, but it 

would also eviscerate the significant time and resources Bard has expended in protecting 

its business information. The potential for abuse and for competitive loss are real. 

Accordingly, Defendants request that the exhibits identified in Exhibit A be sealed. 

// 

// 

// 

// 

// 

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RESPECTFULLY SUBMITTED this 18th day of October, 2017. 

s/Richard B. North, Jr. 

Richard B. North, Jr. 

Georgia Bar No. 545599 

Matthew B. Lerner 

Georgia Bar No. 446986 

NELSON MULLINS RILEY & SCARBOROUGH, LLP 

Atlantic Station 

201 17th Street, NW / Suite 1700 

Atlanta, GA 30363 

PH: (404) 322-6000 

FX: (404) 322-6050 

richard.north@nelsonmullins.com 

matthew.lerner@nelsonmullins.com 

James R. Condo (#005867) 

Amanda Sheridan (#005867) 

SNELL & WILMER L.L.P. 

One Arizona Center 

400 E. Van Buren 

Phoenix, AZ 85004-2204 

PH: (602) 382-6000 

JCondo@swlaw.com 

ASheridan@swlaw.com 

Attorneys for Defendants C. R. Bard, Inc. and 

Bard Peripheral Vascular, Inc. 

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CERTIFICATE OF SERVICE 

I hereby certify that October 18, 2017, the foregoing was electronically filed with 

the Clerk of Court using the CM/ECF system which will automatically send email 

notification of such filing to all attorneys of record. 

s/Richard B. North, Jr. 

Richard B. North, Jr. 

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EXHIBIT A 

DOCUMENTS PROPOSED TO BE FILED UNDER SEAL 

Defendants request they be permitted to file under seal the following documents in 

support of their Reply in Support of Motion to Exclude the Opinions of David Kessler, 

M.D. 

Exhibit A. Chart Comparing Expert Report of David Kessler, M.D. to 

Schedules Attached to Expert Report of David Kessler, M.D. 

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