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Ramon Rossi Lopez - rlopez@lopezmchugh.com 

(CA Bar No. 86361; admitted pro hac vice) 

Lopez McHugh LLP 

100 Bayview Circle, Suite 5600 

Newport Beach, California 92660 

949-812-5771 

Mark Stephen O’Connor (011029) – mark.oconnor@gknet.com 

Gallagher & Kennedy, P.A. 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

602-530-8000 

Co-Lead/Liaison Counsel for Plaintiffs 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

In Re Bard IVC Filters Products Liability 

Litigation 

No. MD-15-02641-PHX-DGC 

PLAINTIFFS’ OPPOSITION TO 

DEFENDANTS’ MEMORANDUM TO 

SEAL DOCUMENTS LODGED UNDER 

SEAL IN SUPPORT OF PLAINTIFFS’ 

OMNIBUS SEPARATE STATEMENT OF 

FACTS IN SUPPORT OF PLAINTIFFS’ 

RESPONSES TO DEFENDANTS’ 

MOTIONS FOR SUMMARY 

JUDGEMENT IN THE BELLWETHER 

CASES 

I. INTRODUCTION 

C.R. Bard, Inc. and Bard Peripheral Vascular, Inc. (collectively referred to as 

“Bard” or “Defendants”) request this Court perform the “exceptional” remedy of sealing 

documents from the public filed in association with a dispositive motion in derogation of 

common law and the First Amendment right of access to judicial documents. Plaintiffs 

oppose Bard’s motion on several grounds. First, Bard failed to establish “compelling 

reasons” supported by specific factual findings that outweigh the general history of access 

and the public policies favoring disclosure, such as the public interest in understanding the 

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judicial process and in being made aware of public safety hazards. Second, Bard provides 

no specific facts showing that these documents are “trade secrets,” that it would suffer a 

serious and specific harm from disclosure of this information (other than from public 

embarrassment, incrimination, or further litigation); and third, Bard’s motion does not 

articulate a “narrowly tailored” remedy as required when contemplating suppression of the 

public’s First Amendment right of access to these documents. 

The majority of the documents Bard seeks to seal fall within two categories: (1) 

adverse events; and (2) product performance. These documents include the very 

information at the center of Plaintiffs’ Opposition to Bard’s Motions for Summary 

Judgment and these efforts appear to be a part of an ongoing effort to keep evidence from 

the public of risks and complications associated with and inherent in Bard IVC filters. 

Bard put the documents it seeks to seal at-issue by filing motions for summary 

judgment in every bellwether action. The documents Bard urges the Court to seal are not 

only relevant, but necessary for Plaintiffs to fully and properly respond to Bard’s 

dispositive motions seeking to defeat Plaintiffs’ claims.1

Further, the motions before the Court, and the documents at-issue in this motion to 

seal, are of significant import to the general public, and particularly to thousands of other 

patients who unknowingly have an unreasonably dangerous device still implanted. Bard 

communicates to patients, health care providers, and its own sales force that its IVC filters 

are safe and effective because the devices met all minimum safety specifications in all 

performance categories, and its filters have the same (or better) failure rates as its own 

permanent only filter, the SNF, and as competitor filters. The documents and deposition 

testimony Bard moves to seal, however, establish that each of these claims are false and 

part of an ongoing effort to conceal the hazards associated with the Recovery, G2, G2X, 

Eclipse, Meridian and Denali filters from the public. 

 

1 This is an important litigation with significant stakes and a national scope. The bellwether Plaintiffs 

before this Court, Booker, Jones, Hyde, Kruse and Mulkey, are the first cases to reach the dispositive 

motion stage. There are thousands of people throughout this country who have an interest in how 

Plaintiffs respond and the evidence supporting their response.

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In Bard’s brief it represents to this Court it followed FOIA (Freedom of Information 

Act) “guidelines” to mark redactions to fifty-six documents that are subject to its Motion. 

Congress established nine exemptions, not “guidelines,” for federal agencies, not 

manufacturers, to facilitate protection for certain categories of information such as an 

invasion of personal privacy, or harm to law enforcement investigations.2

 Neither the FDA 

nor their FOIA department articulates “guidelines” for redactions other than the list of 

exempted material noted in Footnote 2 to this Response. Bard’s alleged adherence to FOIA 

“guidelines” is misplaced and frankly irrelevant as none of the documents at-issue were 

produced to the parties pursuant to a FOIA request. 

Bard also suggests that evidence related to the Recovery filter is not relevant to the 

other filters in its filter product line. This discussion is premature, and does not need to be 

addresses herein. Briefly, Bard historically addresses this position in pre-trial motions in 

limine. In previous cases involving the same parties here, Bard’s motions in limine

regarding the issues of predicate devices, comparative failure rates, and other incidents of 

IVC filter failures were denied. See, Exhibit C, Phillips v. C.R. Bard, Inc., 290 F.R.D. 615 

(D. Nev. 2013) and Exhibit D, Jones v. C.R. Bard, et al, No. 3:13-CV-0599-K, (N.D.T.X. 

Feb. 12, 2015). At the appropriate time, Plaintiffs will properly brief this issue. 

Bard’s request to redact fifty six (56) exhibits and seal twelve (12) exhibits3

 in their 

entirety to Plaintiffs’ Oppositions to Bard’s Motion for Summary Judgment should be 

 

2

 FOIA authorizes agencies, like the FDA, to withhold information when they reasonably foresee 

that disclosure would harm an interest protected by one of these nine exemptions. The nine 

exemptions available to federal agencies are described below: 

Exemption 1: Information that is classified to protect national security. 

Exemption 2: Information related solely to the internal personnel rules and practices of an agency. 

Exemption 3: Information that is prohibited from disclosure by another federal law. 

Exemption 4: Trade secrets or commercial or financial information that is confidential or 

privileged. 

Exemption 5: Privileged communications within or between agencies. 

Exemption 6: Information that, if disclosed, would invade another individual's personal privacy. 

Exemption 7: Information compiled for law enforcement purposes. 

Exemption 8: Information that concerns the supervision of financial institutions. 

Exemption 9: Geological information on wells. 

3

Bard’s representation in its brief about the information it seeks to seal is incorrect. Plaintiffs 

review revealed Bard seeks to seal portions of Plaintiffs’ OSOF and a total of sixty eight (68) 

exhibits cited in Plaintiffs’ OSOF; fifty six (56) redacted exhibits and twelve (12) in their entirety. 

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denied for the following reasons: (1) Defendants failed to meet the burden to show 

“compelling reasons” based on specific facts that demonstrate real and actual harm that 

result from disclosure; (2) the documents at-issue cannot be objectively characterized as 

either trade secrets or confidential information; and (3) Bard does not articulate a 

“narrowly tailored” remedy as required when contemplating suppression of the public’s 

First Amendment right of access to these documents. 

II. PROCEDURAL HISTORY 

On November 9, 2015, the Court granted a stipulated blanket protective order 

pursuant to Rule 26 of the Federal Rules of Civil Procedure. (Dkt. No. 268). The Order 

provided a broad definition of what information could meet the “good cause” standard 

under Rule 26 and allowed Bard to self-designate discovery materials as protected.4

 The 

protective order did not modify or address Bard’s burden regarding what has to be 

established (“compelling reasons”) to hold secret documents attached to a dispositive 

motions or revealed at trial. In the course of this litigation Bard claims to have produced 

millions of pages of documents in response to discovery requests. Pursuant to the blanket 

 

Only 30 exhibits are listed in the exhibit index to Defendants’ Notice of Filing Redacted 

Documents. The remaining 26 exhibits Bard seeks to redact are not identified in Bard’s Motion to 

Seal. See, Dkt. No. 8444. These additional exhibits can only be discovered by searching through 

the 712-pages attached to Bard’s Notice. (Dkt. No. 8443). 

Not once does Bard list or reference all the exhibits it proposes to seal. Instead, Bard states 

inaccurate totals and fails to account for all the exhibits attached to Dkt. No. 8443-2 and 8444-3. 

It is Defendants burden to complete this laborious task and identify the substance it seeks to seal 

(including page/line references for deposition transcripts) and articulate the specific reasons for 

each and every document requested. 

As stated in the Protective Order, it is Bard’s burden, not Plaintiffs, to effectively protect 

documents it deems confidential: “Nothing in this Order shall be deemed to shift the burden of 

proof to the party challenging the confidential designation with regard to whether the materials 

produced pursuant to his Order are entitled to protection under the law as Confidential 

Information.” (Dkt. No. 268). 

It is clear Bard has not met its burden and in turn, made it an arduous endeavor for Plaintiffs 

to adequately oppose this Motion. Plaintiffs elaborate on their arguments against each of Bard’s 

proposed redactions in Exhibits A and B, attached. 

4

 Courts frequently enter umbrella or blanket protective orders to govern voluminous productions 

to expedite discovery efforts rather than requiring a showing of good cause on a document-bydocument basis for all responsive documents produced at the outset of litigation. United States ex 

rel. Brown v. Celgene Corp., 2016 WL 6542729, at *4 (C.D. Cal. Mar. 14, 2016).

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protective, Bard designated all documents produced and depositions taken as protected 

under the “good cause” standard. 

On October 3, 2017, Plaintiffs filed their Omnibus Statement of Facts (here on after 

“OSOF”) for all five bellwether cases and case-specific Oppositions to Bard’s Motions for 

Summary Judgment. (Dkt. Nos. 7943, 7945, 7947, 7950, 7050, and 8163).5

 In support of 

their Omnibus Statement of Facts, five Plaintiffs collectively filed 121 exhibits (58 are 

public documents) to establish the 22-year history of six Bard IVC filters. Out of the 

hundreds of millions of pages Bard claims to have produced, these limited exhibits provide 

concise evidence that Bard is aware its IVC filters pose a severe hazard to public safety and 

act to conceal and misrepresent these risks. In accordance with paragraph 25 of the 

protective order, Plaintiffs lodged all exhibits conditionally under seal. Pursuant to 

paragraph 25 of the Protective Order, Bard had 14 days to move to seal any exhibits it 

alleged met the heightened “compelling reasons” standard; the Motion before the Court. 

Plaintiffs now file their Opposition to Bard’s Motion to Seal the following materials: 

Plaintiffs’ OSOF and exhibits 2, 6, 7, 8, 9, 10, 11, 13, 18, 21, 24, 26, 34, 36, 37, 43, 44, 45, 

48, 51, 52, 60, 62, 68, 72, 77, 78, 79, 80, 81, 84, 86, 87, 89, 90, 95, 96, 98, 99, 100, 101, 

102, 103, 104, 106, 112, 113, 114, 115, 116, 117, 121, H-G, H-H, H-K, and M-C to 

Plaintiffs’ Booker, Hyde, Jones, Kruse, and Mulkey Omnibus Statement of Facts. 

III. ARGUMENT 

A. BARD CANNOT MEET THE HEAVY “COMPELLING REASONS” 

BURDEN REQUIRED TO JUSTIFY SEALING DOCUMENTS 

WHICH FORM THE BASIS OF PLAINTIFFS’ OPPOSITION TO 

BARD’S MOTION FOR SUMMARY JUDGEMENT. 

1. Standard for Sealing Summary Judgment-related Documents 

Courts historically recognize a “general right to inspect and copy public records and 

documents, including judicial records and documents.” Nixon v. Warner Communications, 

 

5 Plaintiffs filed a Notice of Errata (Dkt. No. 8185) on October 13, 2017 to correct page numbers 

and citations to their OSOF. Converse to Bard’s assertion in its Motion, no additional exhibits 

were added or attached to the Notice. 

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Inc., 435 U.S. 589, 597 (1978). To overcome the “strong presumption in favor of access” in 

relation to a dispositive motion, the party seeking to seal bears the burden of overcoming 

this presumption by meeting the “compelling reasons” standard. Kamakana v. City & 

County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. Haw. 2006). “That is, the party must 

articulate compelling reasons supported by specific factual findings that outweigh the 

general history of access and the public policies favoring disclosure, such as the public 

interest in understanding the judicial process.” Id. at 1178-79 (internal citations and 

quotations omitted). 

“In turn the Court must conscientiously balance the competing interest of the public 

and the party who seeks to keep certain judicial records secret.” Id. at 1179. (internal 

citations and quotations omitted). After considering these interests, if the court decides to 

seal certain judicial records, it must “base its decision on a compelling reason and articulate 

the factual basis for its ruling, without relying on hypothesis or conjecture.” Hagestad, 49 

F.3d at 1434 (citing Valley Broadcasting Co. v. U.S. Dist. Ct., 798 F.2d 1289, 1295 (9th 

Cir.1986)). 

Conclusory statements concerning hypothetical harm that may result from public 

disclosure of such documents fail to carry this burden. Id. at 1182. Whenever a document 

has been filed in connection with a dispositive motion, even if the document had been 

previously sealed upon a showing of good cause, the “compelling reasons” standard 

applies. Id. at 1179-80. See also, In re Pradaxa (Diabigatran Etexilate) Products Liability 

Litigation, 2014 WL 321656, at *4 (S.D. Ill. Jan. 29, 2014) (ordering a German drug maker 

to de-designate 85 documents previously marked as confidential and ordering the court 

clerk to unseal the documents). 

The Ninth Circuit disfavors sealing broad categories of documents; particularly 

where specific details regarding the need for such protection are absent. Kamakana at 

1184. The movant party must demonstrate a genuine need and provide a detailed 

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explanation of that need and specific facts supporting the harm that may result. Id. at 1182-

84. 

Under the “compelling reasons” standard, a district court must then weigh “relevant 

factors” and base its decision “on a compelling reason,” and “articulate the factual basis for 

its ruling, without relying on hypothesis or conjecture.” Pintos v. Pac. Creditors Ass'n, 605 

F.3d 665, 679 (9th Cir. 2010)(citing Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th 

Cir.1995)). “Relevant factors” include the “public interest in understanding the judicial 

process and whether disclosure of the material could result in improper use of the material 

for scandalous or libelous purposes or infringement upon trade secrets.” Hagestad, 49 F.3d 

at 1434 (quoting EEOC v. Erection Co., Inc., 900 F.2d 168, 170 (9th Cir.1990)) (See also, 

Kamakana 447 F.3d at 1179). (“Compelling reasons sufficient to outweigh the public’s 

interest in disclosure and justify sealing court records exist when such court files have 

become a vehicle for “improper purposes, such as the use of records to gratify private spite, 

promote public scandal, circulate libelous statements, or release trade secrets.”). However, 

the mere fact that unsealing such records may lead to embarrassment, incrimination, or 

exposure to litigation is not a compelling reason to seal court records. Id. 

Judge Breyer further articulated the Kamakana “compelling reasons” standard 

providing specific instructions for Hewitt-Packard to follow. See, Exhibit E, In re HewlettPackard Co. S'holder Derivative Litig., 3:12-CV-06003-CRB (N.D. Cal. Mar. 13, 2015). 

Under the Kamakana "compelling reasons" standard, defendants must identify a “limited 

amount of exceptionally sensitive information that timely deserves protection” outlined by 

page and line number and including "specific factual findings" for each. Id. (quoting,

O'Connor v. Uber Technologies, Inc., No. c-13-3826-EMC, 2015 WL355496, at *1 (N.D. 

Cal. Jan. 27, 2015)). 6

 

6

 The district court found that in light of the "public interest in understanding the judicial 

process", the Northern District of California would not allow defendants arguments that a public 

filing would put them at a competitive or legal disadvantage. Id. (quoting Kamakana, 44 7 F .3d 

at 1178- 79). Eight motions in total were filed by Hewitt-Packard and all eight were denied. 

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As will be discussed below, Bard has not provided any “compelling reasons” to seal 

any of the documents at-issue which contain neither trade secrets nor confidential 

information. 

B. BARD FAILED TO MEET ITS BURDEN TO SHOW COMPELLING 

REASONS BASED ON SPECIFIC FACTS THAT ACTUAL 

RESULTING HARM OUTWEIGHS THE STRONG PRESUMPTION 

OF ACCESS TO COURT RECORDS. 

Bard must establish “compelling reasons” to support redactions to fifty-six (56) 

exhibits and twelve (12) exhibits in their entirety. Bard generally claims that “none of the 

redacted documents are necessary for the public to understand the Court’s ruling in the 

Motions for Summary Judgment” and the information it seeks to seal are “Bard’s trade 

secret regarding testing and development of its filters and internal analysis of the perform 

of its products as described in the Declarations of Rob Carr” (Dkt. 8444 at 3).7

 Bard once 

again offers no specific grounds or reasons why disclosure of specific documents would 

put it at any potential competitive disadvantage or provide Bard’s competitors with an 

economic advantage. Bard’s main argument is that it has spent substantial amount of time 

and money developing its products, Plaintiffs do not dispute this fact; however, this alone 

does not serve as a compelling reason or a definitive economic advantage to its 

competitors. Speculative commercial harm is insufficient to seal information. Bard fails to 

even identify the substance of the information it seeks to seal other than vague generalities. 

Nor can such a showing be made. It is clear; Bard has not met its burden. 

Bard’s reliance on case law is also misplaced. The majority of the cases Bard cites 

to support its arguments for sealing are not relevant to the issues at bar. As an alternative to 

articulating “compelling reasons” with “specific fact” to justify that its redactions/sealing 

are necessary to protect so called trade secrets (which it is required to do and clearly did 

not), Bard relies on a lengthy string cite to focus on “categories of redacted information” 

 

7 The Declaration of Rob Carr is not relevant to the documents here. Defendants attached this 

declaration to its Motion to Seal based on preemption; none of the exhibits are the same. (Dkt. 

No. 7355). 

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without differentiating or distinguishing between the Ninth Circuit’s standard for 

evaluating “good cause” (non-dispositive motions) or “compelling reasons (dispositive 

motions) to overcome the “strong presumption in favor of access”.8 See, Kamakana at 

1178-79. Critically, most of the document categories advanced by Bard are not even atissue here, such as “regulatory correspondence,” “unpublished clinical studies,” and 

“business plans.” Bard has not even provided a plausible comparison or relevance of the 

categories between the standard it cites and the exhibits it seeks to seal. 

Instead, Bard primarily relies on In re Incretin-Based Therapies Products Liability 

Litigation (“Incretins”) to overcome its burden as Bard did previously in its Second 

Amended Motion to its Motion for Summary Judgment Regarding Preemption (Dkt. No. 

7355). See, In re Incretin-Based Therapies Products Liability Litigation, No. 13MD2453 

AJB (MDD), 2015 WL 11658712, *3-2 (S.D. Cal. Nov. 18, 2015). The motion before the 

Incretins Court related to preemption and the court did not evaluate the data underlying the 

FDA’s actions or the information allegedly withheld from the FDA. Id. at 4. The primary 

reasoning was that the data could cause “confusion” to the general public; however, that 

determination is not present in the exhibits at-issue in Bard’s Motion. Id. Here the majority 

of the exhibits at-issue provides no information regarding testing or data, and the four (4) 

exhibits that include this information are presented in summary form. See, exhibits 8, 62, 

72, 78. From a review of Plaintiffs’ Exhibits A and B attached to this Response, confusing 

data and testing methods is not at-issue in the documents Bard seeks to seal. Id. Last, Novo 

and Merck rely on foreign privacy laws in their business practices, Health Canada 

(Canada’s equivalent of the FDA), which has specific privacy laws that the Incretins Court 

 

8 Clark v. Metro. Life Ins. Co., 2010 WL 1006823 (D. Nev. Mar. 16, 2010) (This case involves a 

non-dispositive motion); Bracco Diagnostics, Inc. v. Amersham Health Inc., CIVA 3-6025FLW, 

2007 WL 2085350 (D.N.J. July 18, 2007) (This case involves a non-dispositive motion). Medicis 

Pharm. Corp. v. Acella Pharm., LLC, CV 10-1780- PHX-JAT, 2012 WL 2260928 at *2 (D. Ariz. 

June 15, 2012) (This case involves a non-dispositive motion). Spectrum Pharm., Inc. v. Sandoz 

Inc., No. 2:12-CV-00111-GMN, 2014 WL 4202540, at *2 (D. Nev. Aug. 21, 2014) (This is the 

one of two cases (the other is In re Incretins) Bard cites that involves a dispositive motion. To 

distinguish, Bard does not identify which documents it regards as “proprietary business plans” 

and none of the exhibits Plaintiffs cited could be categorized as “communicates to the FDA.”).

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found to be more restrictive than the Ninth Circuits laws. Id. Bard’s reliance on this case is 

misdirected and unsupported. 

Other District Courts within the Ninth Circuit have found that underlying data is not 

determinative of a trade secret, and alternatively can be critical to the public’s 

understanding. See, Apple, Inc. v. Samsung Elecs. Co., No. 11-CV-01846-LHK, (N.D. Cal. 

2012). The determining factors in Apple, Inc. for this rationale were that (1) Apple could 

not show harm was likely to result from the release of its data; and (2) the information 

played an important role in Apple’s claim for damages, making the information important 

to the public. Id. at 9. As such, the court denied requests to seal trial exhibits containing 

financial information including profit margins, profits on specific products, sales figures, 

revenue, costs, and tax accounting procedures. Id. Bard has not and could not show harm 

would likely result from the release of its documents that relate to adverse events and 

product performance. 

Bard previously made similar arguments in a multidistrict litigation relating to its 

defective transvaginal mesh device. See, In re C. R. Bard, Inc. Pelvic Repair System Prods. 

Liab. Litig. 2013 U.S. Dist. LEXIS 70189 (S.D. W. Va. May 17, 2013). A discovery 

dispute arose in those proceedings regarding whether two categories of materials were 

trade secret. Id. at *14. A set of materials involved internal memoranda that “Bard contends 

reveal the internal thought processes, testing, analysis, hypothesis and research and 

development methods both for products in development at the time the documents were 

written and for future development.” Id. at *18-19. The court rejected Bard’s claims of 

trade secret because Bard’s claims were conclusory and uncorroborated. Id. at 16-19. The 

court explained: 

Bard’s statements do not indicate the reasons why such information is 

trade secret or otherwise entitled to protection. Bard does not explain 

how such information, in the hands of a competitor, would inflict harm. 

Id. at *19. 

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Bard’s failure here to provide specific factual support for its claims of trade secret is 

strikingly similar to the factual deficiency in Biocore, Inc. v. Khosrowshahi, 96 F. Supp. 2d 

1221, 1231-32 (D. Kan. 2000) (“Biocore”). In Biocore, a company alleged that its business 

procedures for conducting clinical trial studies and obtaining FDA clearance under FDA 

regulations were trade secrets. As in the present matter, Biocore, the plaintiff, failed to 

produce evidence describing the procedures, and failed to explain how its procedures 

differed from others in the field or from the general FDA requirements. The court ruled that 

Biocore had failed to establish the documents were trade secret because “[p]laintiffs failed 

to meet their burden of proving that their method of conducting efficacy studies is different 

from methods that are matters of general knowledge in the trade.” Id. at 1231. The court 

explained its decisions as follows: 

While both of these items are marked confidential, they contain nothing but 

basic information. Plaintiffs do not show that the validation protocol and 

validation procedures are not generally known. They provide no evidence 

regarding protocols and procedures which other companies use. Neither 

document describes any procedure that appears to be out of the ordinary; 

the documents list obvious procedures which every company in the field 

would also follow with slight but obvious variations for specific equipment 

and products. 

Id. at 1232 (internal citations omitted). As in Biocore, Bard has failed to provide anything 

beyond general and unsupported claims. 

C. THE DOCUMENTS CANNOT BE CHARACTERIZED AS TRADE 

SECRETS.

Bard’s documents at-issue cannot be objectively characterized as trade secrets or 

confidential information. The information contained in these documents has no inherent or 

intrinsic actual or potential value. The majority of the information is stale, and several of 

the documents involve products which have not been sold since 2009. (See, exhibits 2, 6, 7, 

8, 9, 10, 11, 13, 18, 21, 24, 26, 34, 36, 37, 43, 44, 45, 48, 51, 52, 60, 62, 68, 72, 77, 78, 

79, 80, 81, 84, 86, 87, 89, 90, 95, 96, 98, 99, 100, 101, 102, 103, 104, 106, 112, 113, 114, 

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115, 116, 117, 121, H-G, H-H, H-K, and M-C). Secret or confidential information becomes 

"stale" over time and thus a previous confidential designation no longer applies. See,

Salomon Smith Barney, Inc. v. HBO & Co., 2001 WL 225040, at *2 (S.D.N.Y. Mar. 7, 

2001) (stating that although there may have been reasons to mark documents as 

confidential at the time they were generated, there was insufficient cause shown "for so 

treating them today"). 

Bard argues generally that the medical device industry is competitive, and that Bard 

did not disseminate these documents outside of the company. Bard appears to supplant 

“confidentiality” with “trade secret” because “[b]usiness information alleged to be 

confidential ‘is not entitled to the same level of protection from disclosure as trade secret 

information.’” Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 663 (3d 

Cir. 1991)(quoting Littlejohn v. BIC Corp., 851 F.2d 673, 685 (3d Cir. 1988). Trade secrets 

have been defined in the Ninth Circuit as “any formula, pattern, device or compilation of 

information which is used in one’s business, and which gives him an opportunity to obtain 

an advantage over competitors who do not know or use it.” In re Elec. Arts, Inc., 298 F. 

App’x 568, 569–70 (9th Cir. 2008) (applying the Restatement’s definition of trade secret in 

the record-sealing context). Bard fails to make a specific factual showing of how disclosure 

of this testimony would reveal a trade secret, put it at any potential competitive 

disadvantage or provide Bard’s competitors with an economic advantage. 

The documents Bard seeks to redact include adverse events and product 

performance which are generally known in the medical device industry through mandatory 

reports to FDA’s MAUDE (Manufacturer User Device Experience) database and medical 

literature. Bard makes no claim and provides no evidence showing differences when 

compared to other manufacturers nor describes any documents or testimony that it regards 

as either a trade secret or developed exclusively by Bard for Bard’s exclusive use. See, Dkt. 

8444. The documents discuss information about injuries caused by the filter and whether 

the product is performing as intended. See, Plaintiffs’ Exhibits A and B. Plaintiffs have 

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created a chart outlining each fact and exhibit Bard seeks to seal to show the Court that 

these documents do not include formulas, patterns, or compilations of information which 

would provide an opportunity or advantage to Bard’s competitors. 

Bard’s competitors arguably have no use for information Bard seeks to seal since all 

of the documents concern Recovery, G2, Eclipse and Meridian filter lines which are no 

longer being sold in this country. (See, exhibits 2, 6, 7, 8, 9, 10, 11, 13, 18, 21, 24, 26, 34, 

36, 37, 43, 44, 45, 48, 51, 52, 60, 62, 68, 72, 77, 78, 79, 80, 81, 84, 86, 87, 89, 90, 95, 96, 

98, 99, 100, 101, 102, 103, 104, 106, 112, 113, 114, 115, 116, 117, 121, H-G, H-H, H-K, 

and M-C). There is nothing in these documents that would provide any value to any 

competitor or to Bard in keeping them a secret from its competitors. Speculative 

commercial harm is insufficient to overcome the “strong presumption in favor of public 

access.” 

Further, “the mere fact that the production of records may lead to a litigant's 

embarrassment, incrimination, or exposure to further litigation will not, without more, 

compel the court to seal its records.” Kamakana at 1179. Bard filed a motion to seal 

documents subject to the second IVC filter trial in the country.9

 A district court in the Ninth 

Circuit found "the only harm that could come to Defendants form the release of this 

information is the precipitation of further lawsuits against it. Preventing lawsuits due to the 

release of inculpating information is not a compelling reason to seal otherwise public legal 

proceedings. Indeed, the exposure of facts relevant to the material claims in a lawsuit is the 

purpose of a trial, and these facts should remain public unless the harm likely to result from 

their release is unrelated to the nature of the claims. The information does not directly 

implicate trade secrets.” See, Exhibit F, Phillips v. C.R. Bard, Inc., 290 F.R.D. 615 (D. 

Nev. 2013). 

 

9 The first IVC filter trial was Everett v. C.R. Bard, et al. No. CV2009-019232 (Ariz. Super. June 

6, 2012). The Booker bellwether case scheduled start March 13, 2017 will be the third IVC filter 

case adjudicated at a trial. 

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To meet the “compelling standard” a company must at minimum establish that the 

materials are subject to trade secret. Simply being marked as “confidential” or suggesting 

speculative commercial harm is entirely inadequate to be a compelling reason. Further, 

Bard’s motion does not articulate a “narrowly tailored” remedy as required when 

contemplating suppression of the public’s First Amendment right of access to these 

documents. 

IV. CONCLUSION 

The burden of proof to redact/seal information and documents from the public is 

necessarily a heavy one, and it lies squarely on Bard. Bard has not satisfied its burden of 

establishing “compelling reasons” for sealing or that any of the documents that are the 

subject of its motion to seal could be deemed “trade secrets,” and it certainly has not 

satisfied its heavy burden of overcoming the common law and First Amendment rights of 

access to these documents. The Court of Appeals has rejected requests to seal documents 

under the “compelling reasons” standard where the movant makes nothing more than 

“conclusory statements about the content of the documents—that they are confidential and 

that, in general,” their disclosure would harm the movant. Kamakana at 1182. This is 

exactly the approach Bard has taken in its’ motion. Bard’s motion should be denied 

RESPECTFULLY SUBMITTED this 17th day of November, 2017. 

GALLAGHER & KENNEDY, P.A. 

By: /s/ Mark S. O’Connor 

Mark S. O’Connor 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

LOPEZ McHUGH LLP 

Ramon Rossi Lopez (CA Bar No. 86361) 

(admitted pro hac vice) 

100 Bayview Circle, Suite 5600 

Newport Beach, California 92660 

Co-Lead/Liaison Counsel for Plaintiffs 

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HEAVISIDE REED ZAIC 

Julia Reed Zaic, Esq. (CA Bar No. 224671) 

(admitted pro hac vice)

Laura Smith, Esq. (CA Bar No. 313879) 

(admitted pro hac vice)

312 Broadway, Suite 203 

Laguna Beach, California 92660 

I hereby certify that on this 17th day of November, 2017, I electronically transmitted 

the attached document to the Clerk’s Office using the CM/ECF System for filing and 

transmittal of a Notice of Electronic Filing. 

/s/ Gay Mennuti 

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