Free Motion to Seal Document - District Court of California - California

Case 3:08-cv-01166-IEG-POR

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Daniel T. Pascucci, Esq. (SBN 166780) [email protected] Nathan R. Hamler, Esq. (SBN 227765) [email protected] MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO PC 3580 Carmel Mountain Road, Suite 300 San Diego, California 92130 Telephone: (858) 314-1500 Facsimile: (858) 314-1501 Mark B. Mizrahi, Esq. (SBN 179384) [email protected] BELASCO JACOBS & TOWNSLEY, LLP 6100 Center Drive, Suite 630 Los Angeles, California 90045 Telephone: (310) 743-1188 Facsimile: (310)743-1189 Attorneys for Defendant INNOVATION VENTURES, LLC dba LIVING ESSENTIALS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

HANSEN BEVERAGE COMPANY, a Delaware corporation, Plaintiff,

Case No. 08-cv-1166 IEG (POR) INNOVATION VENTURES, LLC dba LIVING ESSENTIALS' NOTICE OF MOTION TO FILE EXHIBIT C TO DECLARATION OF SCOTT HENDERSON UNDER SEAL Courtroom.: 1, Fourth Floor Judge: Irma E. Gonzalez Date Filed: 07/01/08

18 v. 19 20 21 22 23 24 25 26 27 28 INNOVATION VENTURES, LLC dba LIVING ESSENTIALS, a Michigan corporation, Defendant.

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PLEASE TAKE NOTICE that Defendant Innovation Ventures, LLC, dba Living Essentials ("Living Essentials"), will and hereby does move the court to enter an order allowing the filing under seal of Exhibit C to the declaration of Scott Henderson in support of Defendant's Opposition to Plaintiff's Motion for Preliminary Injunction. This motion is based upon this notice of motion and motion, the points and authorities, the authorities cited therein, the declaration of Scott Henderson and Exhibit C thereto (both submitted with the Opposition to Plaintiff's Motion for Preliminary Injunction), and the proposed order. As there is no protective order yet entered in this case, and Exhibit C is the report of a highly proprietary and confidential study, the Court should grant this motion to file under seal and designate it as for plaintiff's outside counsel's eyes only or other designation as this Court deems appropriate.

Dated: August 29, 2008

MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO PC By s/Nathan Hamler Nathan R. Hamler, Esq. Attorneys for Defendant INNOVATION VENTURES, LLC dba LIVING ESSENTIALS Mark A. Cantor (MI Bar No. P32661) Pro Hac Vice Application Submitted Marc Lorelli (MI Bar No. P63156) Pro Hac Vice Application Submitted Thomas W. Cunningham (MI Bar No. P57899) Pro Hac Vice Application Submitted BROOKS KUSHMAN P.C. 1000 Town Center, Twenty-Second Floor Southfield, MI 48075-1238 Telephone: (248) 358-4400 Facsimile: (248) 358-3351

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CERTIFICATE OF SERVICE I, the undersigned, certify and declare that I am over the age of 18 years, employed in the County of San Diego, State of California, and am not a party to the above-entitled action. On August 29, 2008, I filed a copy of the following document(s): INNOVAION VENTURES, LLC dba LIVING ESSENTIALS' NOTICE OF MOTION TO FILE DOCUMENT UNDER SEAL by electronically filing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Norman L. Smith, Esq. Edward J. McIntyre, Esq. Alison L. Pivonka, Esq. SOLOMON WARD SEIDENWURM & SMITH 401 B Street, Suite 1200 San Diego, CA 92101 (619) 231-0303 Attorneys for Plaintiff HANSEN BEVERAGE COMPANY [email protected] [email protected] [email protected]

Executed on August 29, 2008, at San Diego, California. I hereby certify that I am employed in the office of a member of the Bar of this Court at whose direction the service was made.

s/Nathan Hamler Nathan R. Hamler, Esq.

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Daniel T. Pascucci, Esq. (SBN 166780) [email protected] Nathan R. Hamler, Esq. (SBN 227765) [email protected] MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO PC 3580 Carmel Mountain Road, Suite 300 San Diego, California 92130 Telephone: (858) 314-1500 Facsimile: (858) 314-1501 Mark B. Mizrahi, Esq. (SBN 179384) [email protected] BELASCO JACOBS & TOWNSLEY, LLP 6100 Center Drive, Suite 630 Los Angeles, California 90045 Telephone: (310) 743-1188 Facsimile: (310)743-1189 Attorneys for Defendant INNOVATION VENTURES, LLC dba LIVING ESSENTIALS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

HANSEN BEVERAGE COMPANY, a Delaware corporation, Plaintiff,

Case No. 08-cv-1166 IEG (POR) INNOVATION VENTURES, LLC dba LIVING ESSENTIALS' POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO FILE EXHIBIT "C" TO DECLARATION OF SCOTT HENDERSON UNDER SEAL Courtroom.: 1, Fourth Floor Judge: Irma E. Gonzalez Date Filed: 07/01/08

18 v. 19 20 21 22 23 24 25 26 27 28 INNOVATION VENTURES, LLC dba LIVING ESSENTIALS, a Michigan corporation, Defendant.

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Exhibit C to the declaration of Scott Henderson is a highly proprietary and confidential report of a clinical study conducted by Defendant Innovation Ventures, LLC, dba Living Essentials ("Living Essentials"). The clinical study contains confidential and highly sensitive business information that is closely protected and maintained by Living Essentials. Declaration of Scott Henderson, ¶ 21; see also Exhibit C (not electronically filed; submitted to chambers). It has not been publicly disclosed, and if this information is disclosed to others, in particular to competitors or potential competitors of Living Essentials, this could cause significant harm to Living Essentials and its business. Id. A confidential document may be filed under seal and restrictions on its disclosure imposed if good cause is shown. Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006) (no presumption of public access attaches to such documents); FRCP 26. "Good cause" is demonstrated where disclosure of "confidential research, development, or commercial information" may cause harm. FRCP 26(c)(7). As a result, courts routinely authorize the filing of unpublished clinical studies under seal, recognizing their confidential and sensitive nature. See, e.g. Bracco Diagnostics, Inc. v. Amersham Health Inc., 2007 WL 2085350 **9-10 (D.N.J. July 18, 2007) (sealing clinical study and "wholly disagree[ing]" with competitors' argument that it would be improper to protect clinical results of the product's effectiveness); Grundberg v. Upjohn Co., 140 F.R.D. 459, 465 (D. Utah 1991) (cases cited therein). In the present case, good cause exists. Plaintiff has not formerly made the entirety of Exhibit C publicly available, and has kept it under strict confidentiality. The Five Hour Diet product is an energy supplement in an energy shot form, and as such the complete study contained in Exhibit C detailing its clinical properties goes to the heart of its competitive advantage. A competitor looking to enter the energy shot market (aka Plaintiff Hansen Beverage) will gain tremendous advantage by learning the clinical properties of the market leader, and should not gain such advantage simply by surreptiously filing a lawsuit against it. Asch/Grossbardt Inc. v. Asher Jewelry Co., Inc., 2003 WL 660833 *3 (S.D.N.Y. Feb. 28, 2003) (courts should enter orders limiting distribution of confidential competitor information lest a lawsuit unwittingly be used as a "predatory" practice to gain competitive intelligence). Conversely, disclosure to a competitor 1

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would result in Living Essentials' loss of a competitive edge it has heretofore closely guarded. It would take the hard efforts made by Living Essentials and simply hand them to a competitor to benefit its own product development without having to itself incur the cost of such a study. Id. As such, this information falls within the class of information recognized in this District to constitute outside attorney's eyes only material that should only be submitted under seal. S.D. Cal. L.R. Appendix A "Approved Form of Protective Order" at ¶¶ 3, 4(b), 12. Thus, without an order sealing, Living Essentials will be placed in the untenable position of having to choose between effectively opposing an overbearing attempt to enjoin sales of the Five Hour Diet product (to which this clinical study is crucial) and handing away highly confidential and competitively valuable information to a major competitor. It is for these reasons that good cause more than exists to allow Living Essentials to file Exhibit A under seal and have it designated as for outside attorney's eyes only. Bracco Diagnostics, Inc., 2007 WL 2085350 at **9-10. Given these concerns, Living Essentials requests narrow relief. First, the Court should enter an order accepting the filing of Exhibit C under seal. Second, the Court should order that, while a copy be provided to plaintiff's litigation counsel, disclosure of the study or its contents be restricted to plaintiff's outside counsel only. As the Southern District has already accepted, this properly balances plaintiff's need to use the information in formulating a reply, and the unacceptable risk of utilization or inadvertent disclosure from highly sensitive commercial information to any employee of Hansen Beverage. S.D. Cal. L.R. 3, 4(b); Appendix A "Approved Form of Protective Order" (documents should be designated outside attorney's eyes only and only filed under seal when they contain information "considered to be most sensitive by the party, including but not limited to trade secret or other confidential research, development, financial or other commercial information"); Asch/Grossbardt, Inc. v. Asher Jewelry Co., Inc., 2003 WL 660833 at * 2 ("Ample precedent exists for limiting disclosure of highly sensitive, confidential or proprietary information to outside attorneys and experts, particularly when there is some risk that a party might use the information or disseminate it to others who might employ it to gain a competitive advantage over the producing party."); Blanchard and Co., Inc. v. Barrick Gold Corp., 2004 WL 737485 *9 (E.D. La. Apr. 5, 2004). 2

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As stated in the declaration of Nathan Hamler in support of motion to seal, submitted herewith, prior to filing this motion, Plaintiff's counsel was informed of Living Essentials' intent to pursue this motion. In addition, Living Essentials offered to provide Plaintiff's counsel a copy of Exhibit C to the Henderson declaration in advance of a ruling on this motion, provided that Plaintiff's counsel agreed to treat the document as confidential -- attorneys' eyes (outside counsel) only pending the resolution of this motion. (See Hamler Decl., ¶ 2, Ex. A.) Plaintiff's counsel responded that they would agree to treat the document as confidential -- attorneys' eyes and experts' eyes only, provided that Living Essentials agree that Dr. Davis, an employee of Hansen Beverage Company who submitted an "expert" declaration with Hansen's motion for preliminary injunction, be allowed to review it. (Id. ¶ 3). Because Dr. Davis is not an outside expert but is a Hansen employee Living Essentials has not provided a copy of Exhibit C to opposing counsel as of the filing of this motion. For the foregoing reasons, the proposed order submitted herewith should be entered.

Dated: August 29, 2008

MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO PC By s/Nathan Hamler Nathan R. Hamler, Esq. Attorneys for Defendant INNOVATION VENTURES, LLC dba LIVING ESSENTIALS Mark A. Cantor (MI Bar No. P32661) Pro Hac Vice Application Submitted Marc Lorelli (MI Bar No. P63156) Pro Hac Vice Application Submitted Thomas W. Cunningham (MI Bar No. P57899) Pro Hac Vice Application Submitted BROOKS KUSHMAN P.C. 1000 Town Center, Twenty-Second Floor Southfield, MI 48075-1238 Telephone: (248) 358-4400 Facsimile: (248) 358-3351

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CERTIFICATE OF SERVICE I, the undersigned, certify and declare that I am over the age of 18 years, employed in the County of San Diego, State of California, and am not a party to the above-entitled action. On August 29, 2008, I filed a copy of the following document(s): INNOVATION VENTURES, LLC dba LIVING ESSENTIALS' POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO FILE EXHIBIT "C" TO DECLARATION OF SCOTT HENDERSON UNDER SEAL by electronically filing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Norman L. Smith, Esq. Edward J. McIntyre, Esq. Alison L. Pivonka, Esq. SOLOMON WARD SEIDENWURM & SMITH 401 B Street, Suite 1200 San Diego, CA 92101 (619) 231-0303 Attorneys for Plaintiff HANSEN BEVERAGE COMPANY [email protected] [email protected] [email protected]

Executed on August 29, 2008, at San Diego, California. I hereby certify that I am employed in the office of a member of the Bar of this Court at whose direction the service was made.

s/Nathan Hamler Nathan R. Hamler, Esq.

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Daniel T. Pascucci, Esq. (SBN 166780) [email protected] Nathan R. Hamler, Esq. (SBN 227765) [email protected] MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO PC 3580 Carmel Mountain Road, Suite 300 San Diego, California 92130 Telephone: (858) 314-1500 Facsimile: (858) 314-1501 Mark B. Mizrahi, Esq. (SBN 179384) [email protected] BELASCO JACOBS & TOWNSLEY, LLP 6100 Center Drive, Suite 630 Los Angeles, California 90045 Telephone: (310) 743-1188 Facsimile: (310) 743-1189 Attorneys for Defendant INNOVATION VENTURES, LLC dba LIVING ESSENTIALS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

HANSEN BEVERAGE COMPANY, a Delaware corporation, Plaintiff,

Case No. 08-cv-1166 IEG (POR) DECLARATION OF NATHAN R. HAMLER IN SUPPORT OF LIVING ESSENTIALS' MOTION TO FILE EXHIBIT C TO DECLARATION OF SCOTT HENDERSON UNDER SEAL Courtroom.: 1, Fourth Floor Judge: Irma E. Gonzalez Date Filed: 07/01/08

18 v. 19 20 21 22 23 24 25 26 27 28 INNOVATION VENTURES, LLC dba LIVING ESSENTIALS, a Michigan corporation, Defendant.

I, NATHAN R. HAMLER, DECLARE AS FOLLOWS: 1. I am an attorney at law duly licensed to practice law in the State of California, and

am an associate with the law firm of Mintz Levin Cohn Ferris Glovsky and Popeo, P.C, local counsel for Defendant Innovation Ventures, LLC dba Living Essentials. I have personal knowledge of the facts set forth in this declaration and could and would competently testify as to the same. 1 Case No. 08-cv-1166 IEG (POR)

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2.

I attempted to contact litigation counsel for Plaintiff Hansen Beverage Company

concerning the filing of Exhibit C to the declaration of Scott Henderson under seal. First, on August 29, 2008, I attempted to call Edward McIntyre but I was informed he would not be returning for the day. I also left a voicemail message Allison Pivonka. Finally, I sent an email to Mr. McIntyre, Ms. Pivonka and Mr. Smith, a true and correct copy of which is attached hereto as Exhibit A. In that email, I informed Plaintiffs' counsel that Living Essential would be filing a motion to seal an exhibit to a declaration--a clinical study. I also indicated that I would promptly provide a copy of Exhibit C to the Henderson declaration to Plaintiff's counsel provided that Plaintiff's counsel agreed to treat this document as confidential -- attorneys' eyes (outside counsel) only pending the resolution of Living Essential's motion to seal. 3. Plaintiff's counsel responded that they would agree to treat Exhibit C as confidential

outside counsel and experts' eyes only, provided that Dr. Davis be allowed to see the document. (See Exhibit A). I am informed and believe, however, that Dr. Davis is not an outside expert but is an employee of Plaintiff Hansen Beverage Company. 4. Upon receiving Plaintiff's response I emailed Plaintiff's counsel indicating that,

while the motion to seal is pending, Living Essentials could only provide a copy of Exhibit C to the Henderson Declaration if Plaintiff agreed to limit disclosure to outside counsel only, or to an outside expert who is not also an employee of Hansen (who also agrees to appropriate confidentiality restrictions). (See Exhibit A). I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct and that this declaration is executed this 29th day of August, 2008 at San Diego, California. s/Nathan Hamler Nathan R. Hamler

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CERTIFICATE OF SERVICE I, the undersigned, certify and declare that I am over the age of 18 years, employed in the County of San Diego, State of California, and am not a party to the above-entitled action. On August 29, 2008, I filed a copy of the following document(s): DECLARATION OF NATHAN R. HAMLER IN SUPPORT OF LIVING ESSENTIALS' MOTION TO FILE EXHIBIT C TO DECLARATION OF SCOTT HENDERSON UNDER SEAL by electronically filing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Norman L. Smith, Esq. Edward J. McIntyre, Esq. Alison L. Pivonka, Esq. SOLOMON WARD SEIDENWURM & SMITH 401 B Street, Suite 1200 San Diego, CA 92101 (619) 231-0303 Attorneys for Plaintiff HANSEN BEVERAGE COMPANY [email protected] [email protected] [email protected]

Executed on August 29, 2008, at San Diego, California. I hereby certify that I am employed in the office of a member of the Bar of this Court at whose direction the service was made.

s/Nathan Hamler Nathan R. Hamler, Esq.

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EXHIBIT A

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