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Snell & Wilmer

 L.L.P.

LAW OFFICES 

One Arizona Center, 400 E. Van Buren, Suite 1900 

Phoenix, Arizona 85004-2202 

602.382.6000 

James R. Condo (#005867)

Amanda C. Sheridan (#027360) 

SNELL & WILMER L.L.P.

One Arizona Center 

400 E. Van Buren, Suite 1900 

Phoenix, Arizona 85004-2202 

Telephone: 602.382.6000 

Facsimile: 602.382.6070 

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 

201 17th Street, NW / Suite 1700 

Atlanta, GA 30363 

Telephone: (404) 322-6000 

Telephone: (602) 382-6000 

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 AND 

INCORPORATED MEMORANDUM 

TO SEAL 

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

“Bard”) hereby respectfully move this Court for an order, pursuant to the Stipulated 

Protective Order (Doc. 268), Federal Rule of Civil Procedure 26(c)(1)(G), and Local Civil 

Rule 5.6 sealing certain documents accompanying Bard’s Notice of Supplemental 

Information Regarding FDA Inspection and Warning Letter. The exhibits that are the 

subject of Bard’s Motion to Seal constitute trade secrets or other confidential research, 

development, or commercial information thereby warranting protection from public 

disclosure for a discovery related motion. Accordingly, there is good cause to grant 

Bard’s Motion to Seal. The plaintiffs have noted during the meet and confer process that 

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LAW OFFICES 

One Arizona Center, 400 E. Van Buren, Suite 1900 

Phoenix, Arizona 85004-2202 

602.382.6000 

they reserve the right to challenge any of the confidential designations pursuant to the 

Stipulated Protective Order (Doc. 269 ¶ 2) at a later time. 

ARGUMENT AND CITATION OF AUTHORITY 

In conjunction with Bard’s Notice of Supplemental Information Regarding FDA 

Inspection and Warning Letter, Bard wishes to submit the following confidential 

documents to the Court for its consideration: FDA’s Section 483 Observation from its 

February to March 2016 inspection of Bard’s Glens Falls facility, and FDA’s Section 483 

Observations from its February 2016 inspection of Bard Peripheral Vascular (“Documents 

at Issue”).1

 The documents reflect Bard’s confidential trade secrets and/or contain highly 

competitive, confidential, or proprietary information that warrants protection under 

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

by Bard or the FDA and, if obtained by Bard’s competitors, would give an unfair 

economic advantage to those competitors. 

A. Bard Asserts that the Documents At Issue Are “Confidential Information” 

Pursuant to the Stipulation for Protective Order, and Therefore They Should 

Be Sealed 

The Court has entered a Stipulated Protective Order to protect public disclosure of 

“Confidential Information,” which includes any “‘trade secret’ or other confidential 

research, development, or commercial information’ that is suitable for protection under 

Federal Rule of Civil Procedure 26(c)(1)(G)” Stipulated Protective Order (Doc. 269 ¶¶ 1, 

2.) Bard has designated the Documents at Issue in this motion as “CONFIDENTIAL” in 

its recent production of those documents during discovery (Id. ¶ 6). Finally, the 

Stipulated Protective Order states “All Confidential Information shall be used for the 

purpose of this lawsuit only . . . except as permitted by this Order.” (Id. ¶ 12). These 

types of provisions are common in legal proceedings and are routinely enforced. See, e.g.,

Culinary Foods, Inc. v. Raychem Corp., 151 F.RD. 297, 307 (N.D. Ill. 1993) (“We hold 

that confidential information obtained by Culinary in this litigation may not be 

 

1 The documents are attached as Exhibit A to Defendants’ Notice of Supplemental 

Information Regarding FDA Inspection and Warning Letter. 

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LAW OFFICES 

One Arizona Center, 400 E. Van Buren, Suite 1900 

Phoenix, Arizona 85004-2202 

602.382.6000 

disseminated to litigants in other cases against Raychem.”); cf Smithkline Beecham Corp. 

v. Synthon Pharmaceuticals Ltd., 210 F.RD. 163, 169 (M.D.N.C. 2002) (refusing to 

modify protective order to allow plaintiffs to use confidential documents in other 

litigation). Thus, the Court should grant Bard’s Motion to Seal to maintain the 

confidentiality afforded by the Stipulated Protective Order to the Documents at Issue.

B. The Documents at Issue Warrant Protection Pursuant to Fed. R. Civ. P. 

26(c)(1)(G) as Trade Secrets or Other Confidential Research, Development or 

Commercial Information, and Would Cause Bard Competitive Harm if Made 

Public 

Federal Rule of Civil Procedure 26(c)(1)(G) provides that the Court may, for good 

cause, “issue an order to protect a party or person from annoyance, embarrassment, 

oppression, or undue burden or expense, including . . . (G) requiring that a trade secret or 

other confidential research, development, or commercial information . . . be revealed only 

in a specified way.” “Good cause” exists when disclosure will result in “a clearly defined 

and serious injury to the party” seeking closure. 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)). In determining whether “good 

cause” exists, the court “must balance the requesting party’s need for information against 

the injury that might result if uncontrolled disclosure is compelled.” Id. The Court has 

wide discretion in determining the scope of an order protecting confidential research, 

development, or commercial information. See id. 

The information contained in the Documents at Issue includes confidential business 

information concerning Bard’s validation and inspection procedures at its Glen Falls 

facility, and Bard Peripheral Vascular’s complaint handling and trending procedures. The 

Documents at Issue represent highly sensitive information related to ongoing FDA 

inspections which Bard will be responding to in the future. See id. The disclosure of 

these documents would be particularly harmful to Bard because the Section 483 procedure 

related to these documents is not yet complete. 

Finally, because the documents at issue do not relate to a motion that requires 

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 L.L.P.

LAW OFFICES 

One Arizona Center, 400 E. Van Buren, Suite 1900 

Phoenix, Arizona 85004-2202 

602.382.6000 

judicial resolution of this case on the merits, there is no general First Amendment right to 

access the Documents at Issue. See, e.g., Chi. Tribune Co. v. Bridgestone/Firestone, Inc., 

263 F.3d 1304, 1312–13 (11th Cir. 2001) (finding that “material filed with discovery 

motions is not subject to the common-law right of access, whereas discovery material 

filed in connection with pretrial motions that require judicial resolution of the merits is 

subject to the common-law right”); United States v. Wolfson, 55 F.3d 58, 61 (2d Cir. 

1995) (“We are not aware . . . of any common-law principle that documents submitted to a 

court in camera for the sole purpose of confirming that the refusal to disclose them to 

another party was proper, are to be deemed judicial records open to the public.”); The 

Courier-Journal v. Marshall, 828 F.2d 361, 363 (6th Cir. 1987) (newspapers had no first 

amendment right of access to discovery materials, despite the recognition that 

“proceedings [were] of intense public concern”). 

For each of these reasons, Bard has met the good cause standard for protection of 

its documents by showing that public disclosure of the Documents at Issue will cause a 

clearly defined injury to Bard. See Shell Exploration & Prod. Co. v. Robinson, No. 

CIV.A. 01-1417, 2001 WL 1490954 (E.D. La. Nov. 20, 2001) (finding that good cause 

existed for sealing judicial record “out of an abundance of caution in order to protect trade 

secrets” even when the testimony at issue “would not be particularly illuminating,” the 

“testimony did not specify any particular trade secrets”). Accordingly, the Court should 

grant Bard’s Motion to Seal. 

CONCLUSION 

For the foregoing reasons, the Documents at Issue warrant protection as 

confidential research, development, or commercial information pursuant to Rule 

26(c)(1)(G). Accordingly, the Court should grant Bard’s Motion to Seal. 

/ / / 

/ / / 

/ / / 

/ / / 

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Snell & Wilmer

 L.L.P.

LAW OFFICES 

One Arizona Center, 400 E. Van Buren, Suite 1900 

Phoenix, Arizona 85004-2202 

602.382.6000 

DATED this 4th day of March, 2016. 

 SNELL & WILMER L.L.P.

By: s/Amanda C. Sheridan

James R. Condo 

Amanda C. Sheridan 

One Arizona Center 

400 E. Van Buren, Suite 1900 

Phoenix, Arizona 85004-2202 

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 

201 17th Street, NW / Suite 1700 

Atlanta, GA 30363 

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

Peripheral Vascular, Inc. 

CERTIFICATE OF SERVICE 

I hereby certify that on March 4, 2016, 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/Amanda C. Sheridan 

23633130.1 

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