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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 

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’ MOTION AND 

INCORPORATED MEMORANDUM 

TO SEAL DOCUMENTS LODGED 

UNDER SEAL BY PLAINTIFFS IN 

SUPPORT OF PLAINTIFFS’ 

OMNIBUS SEPARATE STATEMENT 

OF FACTS IN SUPPORT OF THEIR 

RESPONSE TO DEFENDANTS’ 

MOTION 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” or “Defendants”) hereby submit this Motion to Seal and Memorandum relating to 

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documents lodged under seal by Plaintiffs in Opposition to Defendants’ motions for 

Summary Judgment in support of Plaintiffs’ Omnibus Separate Statement of Facts in 

Support of their Response to Defendants’ Motion for Summary Judgment in the 

Bellwether cases. Plaintiffs lodged documents under seal both in relation to Plaintiffs 

Omnibus Separate Statement of Facts in Support of Their Response to Defendants’ 

Motion[s] for Summary Judgment in Bellwether Cases (Dkt. 7950) and Plaintiffs’ Errata. 

(Dkt. 8185). 

In response to Bard’s case specific motions for summary judgment, Plaintiffs filed 

an Omnibus Statement of Facts with over 150 documents that were produced by Bard or 

are transcripts of depositions discussing documents produced by Bard attached as 

exhibits.1 The documents relate to Bard’s development and analysis of its IVC filters, 

including design and development, regulatory, marketing and product assessment strategy. 

The documents subject to this motion were all produced subject to the Stipulated 

Protective Order entered in the MDL. If the documents are available publically through 

other means (including on other dockets), Bard is not seeking to seal them. Bard seeks to 

seal as redacted 32 documents/transcripts and to seal in their entirety only 8 documents. 

The documents Bard seeks to seal as redacted are identified on Bard’s Notice of Filing 

Redacted (Dkt. 8443). 

None of the Bellwether cases involve the Bard Recovery filter, yet more than half 

of the documents and transcripts filed by Plaintiffs relate only to that filter. The majority 

of the documents Bard seeks to seal redacted relate to the Recovery filter. In an apparent 

attempt to put hundreds of Bard documents in the public forum, Plaintiffs make reference 

to some of the Recovery documents (but not all) in their specific responses. For example, 

in the Mulkey (a case involving a Bard fourth generation filter, the Eclipse) response to 

Bard’s Motion for Summary Judgment, Plaintiff cites to evidence of the migration results 

for the Recovery filter, but does not provide that information for the Eclipse. 

1

 Plaintiffs also filed an Errata adding additional documents and pages to documents 

previously lodged. Bard redacted only the complete document. 

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1. Documents Bard submitted redacted (Dkt. 8443) 

Bard has submitted redacted versions of 32 of the documents.2 These documents 

include Bard’s trade secrets regarding testing and development of its filters and internal 

analysis of the performance of its products as described in the Declarations of Rob Carr 

(Dkt 7343). For each document, Bard reviewed and redacted only the information that 

related to its trade secrets and confidential information. The majority of each document is 

available publically and thus available for the public to understand any ruling on the 

motions for summary judgment. In fact, Bard submits that none of the redacted (or 

sealed) documents are necessary for the public to understand the Court’s ruling on the 

motions for summary judgment. The issues in those motions relate, in large part, to public 

information available or pure legal arguments. Nonetheless, using the guidelines used by 

the FDA in producing documents pursuant to FOIA, Bard has redacted the documents. 

2. Documents Bard is seeking to seal entirely 

Bard seeks to seal Exhibits 26, 60, 77, 79, 95, 100, 112 and 115 in their entirety. 

Bard has reviewed those documents in an attempt to redact them, but documents are 

confidential in their entirety. Each of these exhibits is a Bard internal document 

evaluating Bard’s products. Exhibits 26, 60 and 115 address only the Recovery filter. 

These documents include Bard’s trade secrets regarding testing and development of its 

filters and internal analysis of the performance of its products as described in the 

Declarations of Rob Carr. The redacted and sealed information contained in the 

documents required years for Bard to develop and is Bard’s critical business information 

which is not made public by Bard; would be of economic value to Bard’s competitors. 

Moreover, such value would extend not only to manufacturers of other IVC filters. Bard 

invests very substantial sums of money in medical device research, testing (including 

clinical testing), development, design, analysis, regulatory compliance, product 

2

 Bard also lodged redacted Plaintiffs’ Omnibus Separate Statement of Facts with limited 

redactions to quotes from Bard documents. 

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evaluation, and marketing. If the information Bard has developed over the years 

pertaining to the Bard IVC Filters was obtained by its competitors, it would give an unfair 

economic advantage to those competitors. (See, Carr Decl.) 

Protecting such information from public disclosure and from Bard’s competitors 

will prevent Bard from sustaining serious economic and competitive harm, thereby 

representing a compelling reason to protect the documents’ confidentiality. Further, while 

protecting Bard’s confidential information, the redactions and documents under seal do 

not impair the public’s ability to understand the ruling by the Court on Bard’s Motion for 

Summary Judgment regarding Preemption. Accordingly, the Court should grant Bard’s 

Motion to Seal. 

ARGUMENT AND CITATION OF AUTHORITY 

A. The Court should seal the redactions and the documents because the 

information is not necessary to understand any order on Bard’s Motion 

for Summary Judgment. 

In their Omnibus Statement of Facts in response to Bard’s Motion for Summary 

Judgment, Plaintiffs refer to over 100 documents at issue in this motion, but many do not 

support their arguments or opposition. In fact in many instances, they simply cite to the 

fact that the document was created or exists. As such, the majority of the documents are 

not part of the analysis as to whether there is an issue of material fact, and are likewise not 

necessary for the Court to rule or for the public to be able to understand the ruling on 

Bard’s Motion. 3 As redacted, the 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 (9th Cir. 2006). 

3

 Bard objects to Plaintiffs simply citing to documents and filing them to put them in the 

public record without relying on them to support any factual allegation or claim, but 

nonetheless has redacted them and addresses them in this Motion. 

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B. Compelling Reasons Exist to Seal the Redacted Information and the 

Sealed Documents 

Although the Ninth Circuit recognizes that the public has a “general right to inspect 

and copy public records and documents, including judicial records and documents,” see, 

Kamakana, 447 F.3d at 1179 (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 

597 & n. 7 (1978)), it also recognizes that the right of public access is not absolute and is 

overcome for materials that “have traditionally been kept secret for important policy 

reasons.” Id. (quotation omitted). 

Such compelling reasons for sealing documents exist, for example, regarding 

proprietary, trade secret, and technical information, - the same type of information that 

Bard requests that the Court seal here. For example, in In re Incretin-Based Therapies 

Products Liability Litigation, No. 13MD2453 AJB (MDD), 2015 WL 11658712 (S.D. 

Cal. Nov. 18, 2015), the Court considered motions to seal related to cross-motions for 

summary judgment on the affirmative defense of preemption. The court found that 

compelling reasons existed to grant the motions to seal because the information was 

“confidential and proprietary information specific to each drug at issue and the 

development, testing, and regulation of each drug.” Id. at *3. The court found that such 

information “is readily subject to improper use resulting in significant competitive harm if 

disclosed publicly and available to competitors.” Id. Similarly, in Spectrum 

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

(D. Nev. Aug. 21, 2014), the court considered documents submitted in support of Sandoz’s 

motion for summary judgment. The documents related to an Abbreviated New Drug 

Application to the FDA, technical information about the product, and specific efforts to 

obtain FDA approval of the Application, including actual and planned confidential 

communications with the FDA. Id. The court found that information of this nature could 

injure the parties’ business, thereby constituting a compelling reason to grant the motion 

to seal. Id. 

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C. The Redacted Information and Sealed Documents Contain Bard’s Trade 

Secrets and Other Confidential Information 

The redacted information and documents that Bard seeks to seal are the same type 

of information that the In re Incretin-Based Therapies and Spectrum Pharmaceuticals 

courts sealed at the dispositive motions stage. As with the other the redacted information 

and documents reflect confidential and proprietary information concerning the design, 

development, testing (including clinical testing), manufacture, and regulatory compliance 

activities concerning Bard IVC Filters; that detail Bard’s product development activities, 

proprietary testing, and implementation of various proprietary processes and procedures. 

This redacted information and the documents took years for Bard to develop and reflect 

Bard’s critical and confidential business information. Moreover, the information would be 

of economic value to Bard’s competitors, not just for IVC filters, but also to 

manufacturers of other medical devices, as the information contained in the documents is 

not limited to IVC filters. Id. Bard invests substantial amounts of money in medical device 

research, testing, clinical trials, development, design, analysis, regulatory compliance, 

evaluation, and marketing. Id. Thus, if Bard’s competitors obtained these documents, they 

would have an unfair economic advantage over Bard. Id. 

Further, the categories of redacted information and the sealed documents 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”); 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”). See also, Medicis Pharm. 

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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.”). 

For each category of information listed above, Bard has continually and 

successfully made efforts to protect the information from its competitors, in part because 

it could be used by competitors against Bard. (See Carr Declaration Dkt. 7355 - at 

13 &14). Additionally, Bard maintains the confidentiality of the documents and has 

always sought a Protective Order or Confidentiality Agreement during the course of civil 

lawsuits in order to protect their confidential, proprietary and trade secret information. (Id 

at 7). Therefore, Bard has taken reasonable efforts to maintain confidentiality of these 

documents and they should remain confidential. 

Finally, Bard invests substantial sums of money in medical device research, testing, 

development, design, analysis, regulatory compliance, and evaluation of its products and 

does not make such information public. Thus, there is no doubt that the proprietary 

information which Bard seeks to protect constitutes an overriding interest warranting 

protection. 

D. The Resulting Prejudice From Public Disclosure Requires This Court’s 

Protection

As stated above, the proprietary redacted and sealed information contains highly 

confidential and sensitive information about Bard’s design, product development, and 

testing about the Bard Filters, and allowing unrestricted access to this information would 

cause real and tangible harm to Bard, especially because they are not offered by Plaintiffs 

to address any material fact. See e.g., In re Eli Lilly & Co., Prozac Products Liability 

Litigation, 142 F.R.D. 454, 460 (S.D. Ind. 1992) (holding pharmaceutical company would 

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suffer harm if the manufacturing process it has expended time and money on developing 

became known to competitors); Culinary Foods, Inc. v. Raychem Corp., 151 F.R.D. 297, 

305 order clarified, 153 F.R.D. 614 (N.D. Ill. 1993) (“[D]isclosing Raychem’s product 

design modification and changes would decrease Raychem’s incentive to invest in safety 

devices. Raychem’s competitors would get free access to information which Raychem has 

spent a great deal of time and money producing and protecting”). 

Bard invests considerable sums of money in medical device research, testing, 

development, design, analysis, regulatory compliance and evaluation. (Carr Decl. 14). 

There is no valid reason for Bard’s competitors to obtain the results of Bard’s product and 

marketing development without having to incur similar expenditures in time and money, 

since it would give them an unfair economic advantage. It is well documented that the 

current market for pharmaceuticals and medical devices is highly competitive. See, e.g., In 

re Gabapentin Patent Litigation, 312 F. Supp. 2d 653, 659 (D.N.J. 2004) (noting the 

pharmaceutical industry is highly competitive and granted protective order). An 

inadvertent disclosure, through open court records, of Bard’s information to any of its 

competitors would certainly injure Bard’s interest. This heightened level of 

competitiveness in the medical device market warrants protecting Bard’s efforts in 

developing such precise and valuable medical devices, such as the Bard Filters at issue 

here. See, e.g., In re Gabapentin Patent Litigation, 312 F. Supp. 2d 653 (holding that 

evidence supported finding that good cause existed for continued secrecy of materials). 

To the contrary, because Bard has now redacted the documents, the public will not 

be impaired in its ability to understand the ruling by the Court on Bard’s Motion for 

Summary Judgment Regarding Preemption. 

CONCLUSION 

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

Court should grant Bard’s Motion to Seal for the documents filed redacted in Dkt. 7845 

and the redactions to Plaintiffs Separate Statement of Facts in Dkt. 7848. Bard also 

respectfully requests that the Court enter an Order sealing the five documents Bard seeks 

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to seal in its entirety. 

This 27th day of October, 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. 

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CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on October 27, 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 

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