`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`GENENTECH, INC.,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`AMGEN INC.,
`
`
`Defendant.
`
`
`
`C.A. No. 18-924-CFC
`
`
`
`
`
`
`
`PLAINTIFF GENENTECH, INC.’S UNOPPOSED MOTION TO SEAL D.I.
`190, EX. 4
`
`Pursuant to the September 2, 2020 Report and Recommendation of Special
`
`
`
`Master Rodney A. Smolla regarding the sealing and redaction of filings in this
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`action (“R&R”), D.I. 558, and the Court’s October 1, 2020 Order adopting the
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`Report and Recommendation, D.I. 560, the parties have been diligently working on
`
`preparing a final appendix that:
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`(1) identif[ies] those filings that were previously sealed
`in whole or in part that should now be entirely unsealed;
`(2) identif[ies] those documents previously sealed that
`are now to be continued to be sealed in their entirety; and
`(3) compile[s] in the one Appendix filing new versions of
`all documents previously filed entirely under seal or with
`redactions, in their new form, with the redactions
`narrowed as approved by the Special Master as listed in
`the Sealed Appendix, with the appropriate previously
`sealed or redacted material now public, and the continued
`and approved material redacted.
`
`D.I. 558 at 16.
`
`1
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`
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`Case 1:18-cv-00924-CFC-SRF Document 561 Filed 10/22/20 Page 2 of 4 PageID #: 35131
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`In preparing this appendix, Genentech learned that it had inadvertently failed
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`to address one document that was filed under seal, Exhibit 4 to D.I. 190, which is a
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`confidential Genentech PowerPoint presentation that discusses Genentech’s
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`contracting strategy. This exhibit contains information confidential and
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`competitively sensitive to Genentech, and should, applying the principles outlined
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`by the R&R, remain under seal. As the R&R explains, Genentech’s contracting
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`strategy “is at the core of that type of material that is routinely treated as
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`overcoming the common-law presumption of access” because, by its nature,
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`disclosure “would work palpable competitive harm” to Genentech. D.I. 558 at 10;
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`see also D.I. 559 at 64-67 (evaluating Genentech’s evidence supporting sealing of
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`contracting strategy documents). Indeed, Genentech submitted excerpts of this
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`same confidential Genentech PowerPoint presentation as Exhibit 36 to D.I. 279,
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`which Genentech addressed in its submissions before Special Master Smolla, and
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`which the Special Master determined should continue to remain sealed. See D.I.
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`559 at 71-72 (evaluating evidence supporting sealing of D.I. 279, Exhibit 36). The
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`Special Master also determined that Genentech had established a basis to seal other
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`documents describing Genentech’s contracting strategy. See D.I. 559 at 63-76, 80-
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`81 (addressing the sealing of Genentech’s pricing and contracting materials in D.I.
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`276, 277, 279, 280, 281, 290); see also D.I. 558 at 14-15 (describing materials to
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`be sealed, including documents reflecting “pricing and discount strategy”).
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`2
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`
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`Case 1:18-cv-00924-CFC-SRF Document 561 Filed 10/22/20 Page 3 of 4 PageID #: 35132
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`Genentech apologizes for having missed this document as part of its
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`submissions to the Special Master. Genentech’s omission of Exhibit 4 to D.I. 190
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`from its submissions to the Special Master was not intentional; rather, as the R&R
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`recognized, it was due to the fact that “this litigation has been expansive, and the
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`mechanics of executing the operational directives of this Report and
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`Recommendation are fraught with the potential for inadvertent error.” D.I. 588 at
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`15.
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`For these reasons, and for all of the same reasons articulated by the R&R,
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`Genentech requests this one additional exhibit remain under seal. Genentech has
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`consulted with Amgen, which does not oppose this motion.
`
`MCCARTER & ENGLISH LLP
`
`/s/ Daniel M. Silver____________
`Michael P. Kelly (No. 2295)
`Daniel M. Silver (No. 4758)
`Alexandra M. Joyce (No. 6423)
`Renaissance Centre
`405 N. King Street, 8th Floor
`Wilmington, DE 19801
`(302) 984-6300
`mkelly@mccarter.com
`dsilver@mccarter.com
`ajoyce@mccarter.com
`
`Attorneys for Genentech, Inc.
`
`Dated: October 22, 2020
`
`
`William F. Lee
`Kevin S. Prussia
`Andrew J. Danford
`WILMER CUTLER PICKERING
`HALE AND DORR LLP
`60 State Street
`Boston, MA 02109
`(617) 526-6000
`
`Robert J. Gunther, Jr.
`WILMER CUTLER PICKERING
`HALE AND DORR LLP
`7 World Trade Center
`250 Greenwich Street
`New York, NY 10007
`(212) 230-8800
`
`
`
`3
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`
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`Case 1:18-cv-00924-CFC-SRF Document 561 Filed 10/22/20 Page 4 of 4 PageID #: 35133
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`
`
`Daralyn J. Durie
`Adam R. Brausa
`Eric C. Wiener
`DURIE TANGRI
`217 Leidesdorff Street
`San Francisco, CA 94111
`(415) 362-6666
`
`
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`
`4
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