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Takeda Pharms. U.S.A., Inc. v. Mylan Pharms., Inc.

United States District Court for the District of Delaware

December 19, 2019, Decided; December 19, 2019, Filed

Civil Action No. 19-2216-RGA



In my experience, corporate parties in complex litigation generally prefer to litigate in secret. To that end, discovery is over-designated as being confidential, pleadings and briefs are filed under seal, redacted versions of sealed documents are over-redacted, requests are made to seal portions of transcripts of judicial proceedings, and parties want to close the courtroom during testimony. I have tried over the years to reign these tendencies in, but it is difficult because there is usually no one opposing whatever requests are made, and I do not have time to be independently monitoring any of these tendencies unless they are directly requested of me (i.e., requests to close the courtroom and to seal judicial [*2]  transcripts). I have made some efforts on the requests that are specifically directed to me. I think some of those efforts have resulted in greater exercise of discretion by the parties in asking to have judicial transcripts sealed and in seeking to close the courtroom, but I do not see any impact on any of the other areas of potential abuse.

I have a motion in front of me that illustrates the problem. Plaintiff filed an "expedited motion for confidential treatment of certain filings." (D.I. 1). It sought to have the complaint and twenty-six exhibits filed under seal. (Id.). The motion, which was not filed under seal, explained that the complaint describes "highly confidential information" relating to a settlement agreement and a license agreement arising out of prior litigation in this Court, Takeda v. Mylan, Civ. Act. No. 16-987-RGA, and a case between the same parties in the Northern District of West Virginia. (Id. at 2). I took no action, and in due course the redacted version of the complaint and the exhibits was filed. (D.I. 20). Thus, I now have the before and the after.

A recent Third Circuit case sets forth the standard for considering the issues raised by Plaintiff's motion. "[A] common [*3]  law right of access attaches 'to judicial proceedings and records.'" In re Avandia Marketing, 924 F.3d 662, 672 (3d Cir. 2019). The common law right of access clearly attaches to pleadings such as complaints. It is not an absolute right, however. When a party wants to overcome that right (such as by filing redacted versions of pleadings), it must show "that the [redacted] material is the kind of information that courts will protect and that disclosure will work a clearly defined and serious injury to the party seeking closure." Id. To overcome the "strong presumption of openness," the court is supposed to articulate "compelling, countervailing interests to be protected." Id. The court is supposed to make "specific findings on the record concerning the effects of disclosure." Id. The court is supposed to "conduct a document-by-document review of the contents of challenged documents." Id. at 673. In cases like Avandia, there is a third party that seeks access to the challenged documents, which is not the case here. The courts of appeals perhaps do not have as much opportunity to instruct on what a trial court should be doing when no party is advocating for openness. Nevertheless, it seems to me that courts should at least address access concerns when [*4]  they come to the court's attention.

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2019 U.S. Dist. LEXIS 218029 *; 2019 U.S.P.Q.2D (BNA) 486481; 2019 WL 6910264


Subsequent History: Injunction denied by, Stay denied by Takeda Pharms. U.S.A., Inc. v. Mylan Pharms., Inc., 2020 U.S. Dist. LEXIS 12753 (D. Del., Jan. 27, 2020)

Prior History: Takeda Pharms. U.S.A., Inc. v. Watson Labs. Inc., 2014 U.S. Dist. LEXIS 123082 (D. Del., Sept. 4, 2014)


redacted, confidential, seal, Generic, license agreement, settlement