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Valeant Pharmaceuticals Luxembourg S.A.R.L. v. Actavis Laboratories UT, Inc.

United States District Court, D. New Jersey

April 17, 2018

VALEANT PHARMACEUTICALS LUXEMBOURG S.A R.L. and VALEANT PHARMACEUTICALS NORTH AMERICA LLC, Plaintiffs,
v.
ACTAVIS LABORATORIES UT, INC., Defendant.

          GREGORY J. BEVELOCK BEVELOCK & FISHER LLC, AMANDA HOLLIS KIRKLAND & ELLIS LLP, SARAH K. TSOU KIRKLAND & ELLIS LLP ATTORNEYS FOR DEFENDANT ACTAVIS LABORATORIES UT, INC

          [PROPOSED] FINDINGS OF FACT, CONCLUSIONS OF LAW. AND ORDER GRANTING THE CONSOLIDATED MOTION TO SEAL TRANSCRIPT PURSUANT TO LOCAL RULE 5.3

          Hon. Joseph A. Dickson United States Magistrate Judge

         THIS MATTER having been brought before the Court by way of Defendant Actavis Laboratories UT, Inc.'s ("Defendant") and Plaintiffs Valeant Pharmaceutical Luxembourg S.a r.l. and Valeant Pharmaceuticals North America LLC (collectively "Plaintiffs") Consolidated Motion to Seal portions of transcript of the March 1, 2018 Markman hearing before the Honorable Jose L. Linares, U.S.D.J. in this matter (ECF No. 183), as well as the following documents that were submitted to the Court at the hearing: (1) Valeant's Markman Presentation slides 12, 34, 55, 63, 64, 74 and supplemental slides 7, 8, 9, 10, 12, 16; (2) the document bearing Bates number ACT-FLU-00000854; and (3) the redacted portions of the deposition transcripts of Markus Antonietti and Bozena Michniak-Kohn, pursuant to L.Civ.R. 5.3(c) and 7.1; and the Court having considered the parties' submissions and proposed sealed information, and the factors contained in Local Civil Rule 5.3. (c)(2); and Plaintiffs not objecting to the relief sought herein; and for other and good cause having been show, the Court hereby finds:

         FINDINGS OF FACT

         1. Through discovery in this case, the Parties have produced confidential information, the public disclosure of which would affect legitimate business interests. To protect the confidentiality of this information, the Parties agreed to maintain the confidentiality of any materials produced pursuant to the Stipulated Discovery Confidentiality Order ("DCO"), entered by this Court on May 3, 3017 (ECF No. 54).

         2. The DCO allows the Parties to designate information as "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY." The DCO acknowledges that the Parties will exchange documents that contain confidential information, and strictly limits access to these documents. The DCO further provides that any Party wishing to file with the Court material designated as "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY" must file an Omnibus Motion to Seal pursuant to Local Rule 5.3(c).

         3. Pursuant to the DCO, Actavis moves to seal the Confidential Materials relating to its proprietary commercial and business interests, including information relevant to its research, development, and technical information because they contain, reference, and/or discuss documents and information designated by Actavis as "ATTORNEYS' EYES ONLY" and/or as "CONFIDENTIAL" in accordance with the DCO.

         4. Defendant seeks to protect confidential and proprietary information identified in Appendix A to the Declaration of Sarah K. Tsou in Support of the Motion to Seal pursuant to Local Civil Rule 5.3 ("Defendant's Confidential Information") and Plaintiffs seek to protect confidential and proprietary information identified in Appendix A to the Declaration of William P. Deni, Jr. in Support of the Consolidated Motion to Seal Documents pursuant to Local Civil Rule 5.3 ("Plaintiffs' Confidential Information");

         5. On March 1, 2018, counsel for both parties appeared before the Honorable Jose L. Linares, U.S.D.J. for a Markman hearing, which were transcribed on the record (ECF No. 183);

         6. During the hearing Counsel for Plaintiffs submitted the following documents to the Court, which in whole or in part contain the parties' Confidential Information: (a) Valeant's Markman Presentation slides 12, 34, 55, 63, 64, 74 and supplemental slides 7, 8, 9, 10, 12, 16; (b) the document bearing Bates number ACT-FLU-00000854; and (c) the redacted portions of the deposition transcripts of Markus Antonietti and Bozena Michniak-Kohn.

         7. The redacted portions of the Transcript and other documents contain the parties' highly confidential, proprietary, and non-public information.

         Defendant's Confidential Information:

         8. Defendant's Confidential Information, all of which is identified in Appendix A to the Declaration of Sarah K. Tsou, refers to proprietary commercial and business interests, including information relevant to Defendant's research, development, and technical information on the components and formulation of its ANDA product, which is presently unavailable to the public. The DCO entered in these matters provides for the confidential treatment of this type of proprietary information.

         9. Defendant has a legitimate interest in maintaining the confidentiality of this commercially sensitive business information, including research, development, and technical information related to the components and formulation of its ANDA product. Defendant has a legitimate interest in protecting this information as confidential, because their competitors in the marketplace could utilize the information to gain an unfair competitive advantage to their detriment. Defendant has invested significant resources into the development of its ANDA product with the expectation that documents containing such competitively sensitive and proprietary information would be confidential and remain unavailable to ...


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