Special Master Appointed to Decide Requests to Seal and Redact in Genentech v. Amgen BPCIA Litigations

On March 30, in the Genentech v. Amgen trastuzumab and bevacizumab biosimilar patent litigations, Delaware District Judge Connolly ordered the appointment of a special master to handle the parties’ requests to seal various court filings.  Judge Connolly stated that “[r]ecent sealed and redacted filings in these related cases make clear that the parties are not giving due regard to the public’s right of access to judicial records or the ‘good cause’ standard that governs protective orders under Federal Rule of Civil Procedure 26(c).”

In the order, Judge Connolly stated that in the trastuzumab action, for example, Amgen filed a sealed stipulated proposed order to delay the filing of its trial exhibit list because of a ransomware attack on its electronic discovery platform vendor, Epiq Systems, on March 3.  Judge Connolly stated that he was “unable to discern a legitimate basis for hiding from the public the fact that Amgen was victim of the Epiq ransom ware attack.”  The Court stated that in another March 3 filing, Genentech redacted dozens of pages of expert testimony relating to claim terms from a transcript of a hearing held in open court in October 2019.  Judge Connolly stated there was “no reasonable basis to hide from the public the substance of the testimony-industry standards and the meaning of terms in public documents.”  In both instances, Judge Connolly contended that the redacted material revealed nothing about the parties, their trade secrets or proprietary information.

Judge Connolly stated the District Court is “a public institution in a democratic republic and the public has a presumptive right of access to our filings” and that “the public’s right … can be overcome only if a party demonstrates that public disclosure of a filing will result in “a clearly defined and serious injury.”  Judge Connolly contended that he has “neither the expertise nor the time necessary” to “protect the public’s right of access to the Court’s filings.”  In order to require the parties to adhere to their filing obligations, Judge Connolly appointed Rodney A. Smolla, Dean and Professor of Law at Widener University, as a special master to determine whether the sealed filings and the redactions in the redacted filings docketed in these cases comply with the Supreme Court and Third Circuit law and the Federal Rules of Civil Procedure.  Judge Connolly noted that “Dean Smolla is not a member of the Court’s Special Masters Panel, but his experience and reputation as a First Amendment scholar and lawyer make him especially well-suited for this assignment.”

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