United States District Court, D. Delaware
AMGEN INC., AMGEN MANUFACTURING, LTD, and AMGEN USA INC., Plaintiffs,
SANOFI, SANOFI-AVENTIS U.S. LLC, AVENTISUB LLC, f/d/b/a AVENTIS PHARMACEUTICALS INC., and REGENERON PHARMACEUTICALS, INC., Defendants.
have moved to unredact Defendants' opening brief in
support of its motion for a new trial. (D.I. 885; D.I. 989).
Plaintiffs oppose the motion. (D.I. 1006).
motion concerns four exhibits and the corresponding portions
of Defendants' opening brief. (D.I. 885). The four
exhibits at issue are DTX3221, DTX3210, DTX3193, and
PTX6625.Defendants, in their reply brief, state
that they are willing to "keep confidential pages that
were not displayed or described in open court," but
reiterated their request that "pages 1-2 of DTX3221 and
page 1 of DTX3210, DTX3193, and PTX6625, as well as portions
of the briefing referring to those pages, should be deemed
non-confidential and unredacted." (D.I. 1008 at 4).
consider this motion in light of the Third Circuit's
statement of relevant legal principles:
It is well established that the release of information in
open court is a publication of that information and, if no
effort is made to limit its disclosure, operates as a waiver
of any rights a party had to restrict its future use. The
references to the confidential documents made in open court
may have constituted a sufficient publication. But, in any
event, we hold that [the moving party's] failure to
object to the admission into evidence of the documents,
absent a sealing of the record, constituted a waiver of
whatever confidentiality interests might have been preserved
under the [protective order].
Littlejohn v. Bic Corp., 851 F.2d 673, 680 (3d Cir.
1988) (internal quotation marks and citations omitted).
is no dispute that none of the four exhibits were entered
into evidence during trial. (D.I. 989 (no allegation that
exhibits were admitted); D.I. 1006 at 2). The exhibits at
issue were only shown or discussed in the context of
objections to their admission. (D.I. 863 at 14:11-20,
93:10-21; D.I. 864 at 561:22-562:1, 564:23-565:1,
566:23-567:4). In other words, they were only displayed or
described during Plaintiffs' attempts to limit use (and
hence the disclosure) of these very documents. This is not a
case where Plaintiffs allowed the documents to be admitted
without objection, thus waiving their confidentiality
interest in the documents. However, to the extent the contents of
the contested exhibits were read into the public trial
record, that specific information is no longer confidential.
The extent of display and discussion varied between the
exhibits. Thus, I will address each exhibit individually.
DTX3221 was displayed at trial outside the presence of the
jury. (D.I. 863 at 93:10-16). Page two of the
exhibit was discussed and described. (Id. at
93:16-21 ("Mr. Wolf: It's on the screen. This is an
Amgen internal document from 2012. It's showing what they
characterize themselves as a missing epitope. That is that
central area. This is exactly - is the area. And on the left,
you see J16 which is the Pfizer antibody which is directly in
the center."); see also D.I. 864 at
561:22-562:1). Defendants argue that page two of Exhibit
DTX3221 should be deemed non-confidential because it was
recreated in substantial part by DDTX3.29, a demonstrative
that was displayed to the jury. (D.I. 989 at 3; D.I. 1008 at
4 n.2). However, Defendants concede that the remainder of the
document was never shown or discussed in open court. Thus, I
will grant Defendants' request to unredact page 2 of
DTX3221 and the corresponding portions of the opening brief.
DTX3210 was displayed and discussed at trial outside the
presence of the jury. The discussion of DTX3210 closely
mapped some text from the exhibit. (D.I. 864 at 566:23-567:4
("This is from two of the inventors. And we see Merck
has described an antibody that shows it binds the entire
EGFa, they call it the structural mimic. The Pfizer antibody,
J16, also binds much more directly over the EGFa tha[n] they
[Amgen] have structures [of]. If you [put] up number one,
[']can you explain what the EGFa mimic approach
means[?'] That's not my language.")). However,
the discussion shared only a small segment of the information
on page one, which is now in the public domain. Thus, I will
deny Defendants' motion as to DTX3210 as disclosure is
unnecessary in regard to what is already in the record, and
not appropriate in regard to the part that has not already
DTX3193 was also displayed and discussed at trial outside the
presence of the jury. Defendants quoted from this exhibit
during discussions regarding its admissibility. (D.I. 863 at
14:11-20 (Mr. Wilks identified DTX2193 as a 2012 email from
Chadwick King, an inventor on the patent, and then quoted the
following language from the email: "We currently do not
have an EGFa mimic antibody identified, but Pfizer does [have
one] so it should be possible [(RN316)]... It will be tricky
to find the EGFa mimic because it is in the middle of two
overlapping epitopes we currently have antibodies sitting
on.")). However, as with DTX 3210, this is a small
portion of the information contained in page one of DTX3193.
Thus, while the sentences quoted in the record are no longer
confidential, I will not deem the entirety of page one of
DTX3193 non-confidential. Thus, I will grant Defendant's
motion to unredact the last sentence of the first paragraph
on page eight and deny the remainder of the motion as to
PTX6625 does not appear to have been displayed at trial.
There has been no argument to the contrary from
Defendants. The entirety of the discussion on PTX6625
reads as follows: "The Court: Exhibit PTX 6625 dated
January 2008, the critical month, the catabolic antibody
program. So I don't know where this 2011 thing comes
from. But this is from the exact month of the patent
application." (D.I. 864 at 564:23-565:1). This describes
nothing other than the date of the exhibit and its general
subject matter. I do not think this three-sentence discussion
is enough to warrant unredacting any piece of the exhibit.
Thus, I will deny Defendants' motion astoPTX6625.
IS HEREBY ORDERED that Defendants' Motion to
Unredact Defendants' Opening Brief in Support of Motion
Under Fed.R.Civ.P. 59 for New Trial (D.I. 989) is
GRANTED as to page 2 of DTX 3221 and the
corresponding portions of D.I. 885, and the last sentence of
the first paragraph of page eight of D.I. 885. The Motion is
DENIED as to all else.
 These exhibits can be found at D.I.
989-1, Ex. B (DTX3221), Ex. C (DTX3210), Ex. D (DTX 3193),