1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Nelson Mullins Riley & Scarborough

L.L.P.

201 17t h Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

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

Elizabeth C. Helm (admitted pro hac vice)

Georgia Bar No. 289930

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

kate.helm@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’ REPLY IN SUPPORT 

OF MOTION TO SEAL

DOCUMENTS LODGED UNDER 

SEAL BY PLAINTIFFS IN SUPPORT 

OF OMNIBUS STATEMENT OF 

FACTS IN SUPPORT OF 

RESPONSES TO DEFENDANTS’ 

MOTIONS FOR SUMMARY 

JUDGMENT IN THE BELLWETHER 

CASES

(Assigned to the Honorable David G. 

Campbell)

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

“Bard”) hereby submit this Reply in Motion to Seal relating to documents filed by 

Case 2:15-md-02641-DGC Document 9077 Filed 12/01/17 Page 1 of 6
- 2 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Nelson Mullins Riley & Scarborough

L.L.P.

201 17t h Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

Plaintiffs in support of their Omnibus Statement of Facts filed in Support of their 

Responses to the Motions for Summary Judgment in the Bellwether cases. 

In response to the documents filed under seal, Bard reviewed the voluminous 

documents and addressed all of the documents in one of three ways:

1. Bard redacted the confidential information and filed the redacted documents.

(Doc. 8443). As Plaintiffs acknowledged, this was 58 documents.

2. Bard sought to seal only 12 documents entirely.

3. After review, Bard did not seek to seal the remaining documents.1 

Plaintiffs’ challenges to those redactions and the few documents Bard sought to 

seal are without merit. First, the sealed portions and documents meet the test of the 

balance necessary between the right of public access and the right to protect materials that 

“have traditionally been kept secret for important policy reasons.” as recognized in 

Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006) (quoting 

Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 & n. 7 (1978). The redacted and 

sealed information does not prevent the Court or the public from understanding the 

motion or the Court’s ruling. For example, the Court recently ruled on Bard’s motion in 

the Booker case and cited to testimony that was not under seal. 

The documents at issue as set forth in Plaintiffs’ Exhibits A and B relate to 

Bard’s internal test methods, procedures, results and product, regulatory and marketing 

analysis. This is all information treated as confidential by the FDA and redacted when 

FOIA productions are made. Bard made these redactions consistent with those made by 

FDA/FOIA to protect its internal test methods and analysis. The other documents address 

Bard’s internal product, regulatory and marketing analysis not provided to the FDA. 

ARGUMENT AND CITATION OF AUTHORITY

 

1 Much of Plaintiffs’ argument and exhibits are focused on documents and testimony that 

Bard does not seek to seal. Further, Plaintiffs cite to the order in Phillips, but omit telling 

the Court that the documents at issue in Phillips (1) related to the filter in that case and (2) 

that Bard does not seek to seal them and redacted those exact types of documents so that 

the majority of the content is available publically. 

Case 2:15-md-02641-DGC Document 9077 Filed 12/01/17 Page 2 of 6
- 3 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Nelson Mullins Riley & Scarborough

L.L.P.

201 17t h Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

A. Bard has Established That Compelling Reasons Exist to Seal the 

Redacted Information

Plaintiffs allege in their response that Bard has failed to meet its burden to show 

compelling reasons to seal the redacted information because Bard relied on the 

Declaration of Robert Carr, but that declaration covers the very types of documents at 

issue. Further in the Declaration he specifically addresses the redacted confidential and 

trade secret information, the investment made by Bard to create the information and the 

procedures taken by Bard to protect it in the highly competitive medical device industry, 

and the harm to Bard if the information was made available to its competitors. (Doc. 

7335-1). As such, Plaintiffs’ argument that the motion is not supported by evidence and 

citation to cases in which no evidence was provided to support are motion to seal are

without merit and not applicable. To the contrary, Mr. Carr addresses the types of 

information at issue in Bard’s motion, the resources and time Bard expended to develop 

them and the measures Bard takes to protect them. 

Further, Bard has not redacted the documents to conceal broad categories of 

documents or information, and instead has made limited redactions of information 

recognized by the FDA and the Ninth Circuit as proper for sealing. See, in In re IncretinBased Therapies Products Liability Litigation, No. 13MD2453 AJB (MDD), 2015 WL 

11658712 (S.D. Cal. Nov. 18, 2015). The redactions do not impair the public interest in 

understanding the Court’s ruling or the judicial process. See, Kamakana, 447F. 3d at 

1179 

B. Bard has established that the Redacted and Sealed Information 

Contains Bard’s Trade Secrets and Other Confidential Information

In their response Plaintiffs argue, without support or and evidence, that the 

redacted information cannot characterized as trade secret. Again, Plaintiffs ignore the 

Declaration of Robert Carr in which he clearly establishes that the information is trade 

secret. Plaintiffs offer no evidence to contradict this other than speculation. 

To the contrary, a review of the redacted and sealed testing information shows that 

Case 2:15-md-02641-DGC Document 9077 Filed 12/01/17 Page 3 of 6
- 4 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Nelson Mullins Riley & Scarborough

L.L.P.

201 17t h Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

the tests were developed internally at Bard or through a confidential relationship with a 

vendor. Internal test procedures, results and analysis are trade secrets and properly sealed. 

See, Jochims v. Isuzu Motors, Ltd., 151 F.R.D. 338, 341 (S.D. Iowa 1993) in which the 

court sealed trial exhibits including “internal engineering standards, confidential 

information regarding advertising expenditures, and test reports relating to the design and 

development of the Trooper. They are the kind of technical and commercial information 

commonly subject to confidentiality orders in cases of this kind. Depriving these 

documents of their confidential status would be inimical to Isuzu’s competitive interests.” 

(Emphasis added). Similarly Bard’s internal testing relating to the design and analysis of 

its filters should be sealed. 

Moreover, the other categories of redacted and sealed information at issue have 

long been recognized as containing information that requires sealing. See e.g., Spectrum 

Pharm., Inc. v. Sandoz Inc., No. 2:12-CV-00111-GMN, 2014 WL 4202540, at *2 (D. 

Nev. Aug. 21, 2014) (sealing among other “proprietary business plans” and “business 

practices,” “actual and planned confidential communications with the FDA”); Clark v.

Metro. Life Ins. Co., 2010 WL 1006823 (D. Nev. Mar. 16, 2010) (sealing “confidential 

internal business deliberations, organization, and capabilities”); Citizens Comm’n on 

Human Rights v. Food & Drug Admin., 1993 WL 1610471, *7 (C.D.Cal.1993) (A drug 

application to FDA “by definition contains trade secret information because it contains 

significant information about how a...drug product is formulated, chemically composed, 

manufactured, and quality controlled.”), aff’d in part & remanded in part on other 

grounds, 45 F.3d 1325 (9th Cir.1995). See also, Bracco Diagnostics, Inc. v. Amersham 

Health Inc., CIVA 3-6025FLW, 2007 WL 2085350 (D.N.J. July 18, 2007) (“regulatory 

correspondence” with the FDA, “cost and profit information,” “unpublished clinical 

studies,” and “internal analyses on products which are not intended for publication or 

dissemination”). This is precisely the type of information Bard has redacted and seeks to 

seal. Plaintiffs offer no evidence to contradict the Declaration of Robert Carr that the 

information still has value to Bard and should be sealed. 

Case 2:15-md-02641-DGC Document 9077 Filed 12/01/17 Page 4 of 6
- 5 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Nelson Mullins Riley & Scarborough

L.L.P.

201 17t h Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

CONCLUSION

Therefore, compelling reasons exist for protection of Bard’s documents, and the

Court should grant Bard’s Motion to Seal for the documents at issue. Further, the 

redactions and sealed documents do not impair the ability of the public to understand the 

judicial process, Bard’s motions or any ruling by the Court. As such, Bard respectfully 

requests that the Court enters an Order sealing the redactions in documents filed redacted 

in Doc. 8443 and the documents Bard seeks to seal.

This 1st day of December, 2017.

s/Elizabeth C. Helm

Richard B. North, Jr.

Georgia Bar No. 545599

Matthew B. Lerner

Georgia Bar No. 446986

Elizabeth C. Helm

Georgia Bar No. 289930

NELSON MULLINS RILEY & SCARBOROUGH, LLP

Atlantic Station

201 17th Street, NW / Suite 1700

Atlanta, GA 30363

PH: (404) 322-6000

FX: (404) 322-6050

Kate.Helm@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 Defendant C. R. Bard, Inc.

and Bard Peripheral Vascular, Inc.

Case 2:15-md-02641-DGC Document 9077 Filed 12/01/17 Page 5 of 6
- 6 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Nelson Mullins Riley & Scarborough

L.L.P.

201 17t h Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on December 1, 2017, I electronically filed the 

foregoing with the Clerk of the Court by using the CM/ECF system which will send 

notification of such filing to all counsel of record.

s/Elizabeth C. Helm

Elizabeth C. Helm

Georgia Bar No. 289930

NELSON MULLINS RILEY & SCARBOROUGH, LLP

Atlantic Station

201 17th Street, NW / Suite 1700

Atlanta, GA 30363

PH: (404) 322-6000

FX: (404) 322-6050

Kate.Helm@nelsonmullins.com

Case 2:15-md-02641-DGC Document 9077 Filed 12/01/17 Page 6 of 6