Opinion
Civil No. 04-4048 (DWF/FLN).
October 24, 2006
Craig S. Coleman, Esq., John H. Hinderaker, Esq., Gerard M. Nolting, Esq., and Jonathan W. Dettmann, Esq., Faegre Benson LLP, counsel for Plaintiffs.
Douglas R. Boettge, Esq., Byron E. Starns, Esq., and Lawrence J. Field, Esq., Leonard Street and Deinard; and Norman K. Beck, Esq., Monika M. Blacha, Esq., Josh Goldberg, Esq., Sheri Klintworth Rudberg, Esq., Timothy J. Rivelli, Esq., Dan K. Webb, Esq., and Kevin Banasik, Esq., Winston Strawn, counsel for Defendant.
Paul A. Levy, Esq., Public Citizen Litigation Group, and Mark R. Anfinson, Esq., Anfinson Law Office, counsel for Intervenor.
MEMORANDUM OPINION AND ORDER
Introduction
This matter is before the Court pursuant to Public Citizen's Motions to Intervene and to Unseal Summary Judgment Briefs and Supporting Papers. Cardiac Pacemakers, Inc., and Guidant Corporation (collectively, "Guidant") oppose the motions. On one hand, Aspen II Holding Company, Inc., d/b/a/ Aspen Healthcare Metrics, LLC ("Aspen") does not oppose unsealing the entire summary judgment record. However, on the other hand, because Guidant opposes the motions, Aspen requests that certain documents remain sealed. For the following reasons and consistent with the Court's remarks off the bench at oral argument on September 22, 2006, the Court grants Public Citizen's Motion to Intervene and grants in part and denies in part Public Citizen's Motion to Unseal Summary Judgment Briefs and Supporting Papers.
Guidant does not oppose unsealing the summary judgment briefs with certain redactions.
Background
Cardiac Pacemakers, Inc. ("CPI"), manufactures implantable cardiac rhythm management devices ("CRM devices"), such as pacemakers and defibrillators. Guidant Sales Corporation ("GSC"), a wholly-owned subsidiary of CPI, sells the devices. Aspen is a healthcare consulting firm. Public Citizen is a national, non-profit, consumer advocacy organization that represents consumer interests in Congress, the executive branch, and the courts. Public Citizen maintains a Health Research Group that promotes research-based, system-wide changes in healthcare policy and provides oversight concerning prescription drugs, medical devices, doctors and hospitals, and occupational health.
Guidant initiated this lawsuit against Aspen, asserting the following causes of action: (1) tortious interference with confidentiality agreements; (2) tortious interference with contracts; (3) tortious interference with prospective contractual relations; and (4) misappropriation of trade secrets. In its Answer, Aspen counterclaimed for tortious interference with prospective contractual relations and defamation. The parties stipulated to a Protective Order (the "Protective Order"), which the Court approved on November 19, 2004. In relevant part, that order states "[d]iscovery material produced in this action by any party or non-party which contains or discloses information alleged to be of a non-public nature, and commercially sensitive or proprietary may be designated by the producing party or non-party as "CONFIDENTIAL DISCOVERY MATERIAL." (Protective Order at ¶ 2.) The Protective Order further states "a subpoenaed third party who so elects may avail itself of, and agree to be bound by, the terms and conditions of this Protective Order." ( Id. at ¶ 13.) Additionally, the Protective Order provides that if a party disagrees with the "Confidential Discovery Material" designation, "the party may challenge the designation by motion to the Court" and that the party making the designation "shall have the burden to establish that its confidential designation is supported by good cause." ( Id. at ¶ 15.)
Guidant and Aspen both moved for summary judgment and submitted their briefs and supporting documents under seal, pursuant to the Protective Order. No party or non-party challenged the filing of these documents under seal. On February 2, 2006, the Court granted Guidant's Motion for Partial Summary Judgment on Count 1 and on Aspen's counterclaims, and denied Aspen's Motion for Summary Judgment on Counts 2 through 4 (the "February 2 Order"). Although the Court granted summary judgment in favor of Guidant on Count 1, the Court found that a question of fact still existed as to the amount of damages. After the Court's February 2, 2006 Order, Guidant moved to voluntarily dismiss without prejudice Counts 2 through 4, which the Court granted on February 13, 2006.
During the discovery phase of this litigation, however, Aspen did bring a Motion to Remove Plaintiff's/Counter Defendants' Confidential Designations from Selected Documents and to Clarify the Protective Order (Doc. No. 60). In particular, Aspen sought to unseal documents related to a study that Millennium Research Group ("MRG") conducted for Guidant. Magistrate Judge Franklin L. Noel denied Aspen's motion.
Trial in this case was scheduled to begin on Monday, May 15, 2006. On the eve of trial, the parties settled the lawsuit and entered into a sealed consent order. On May 31, 2006, the Court issued an Order of Dismissal with Prejudice, dismissing all remaining claims with prejudice. The parties' summary judgment briefs and corresponding documents remain under seal. Public Citizen now moves to intervene and requests that the Court unseal the summary judgment briefs and supporting documents.
Discussion
I. Motion to IntervenePublic Citizen seeks permissive intervention pursuant to Federal Rule of Civil Procedure 24(b). Rule 24(b) provides in relevant part:
Upon timely application anyone may be permitted to intervene in an action: . . . (2) when an applicant's claim or defense and the main action have a question of law or fact in common. . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
Although the Eighth Circuit has not decided whether permissive intervention is the appropriate procedural course for third-party challenges to protective orders, this district follows the majority view, which allows a party to challenge a protective order under Rule 24(b). See In re Baycol Prods. Litig., 214 F.R.D. 542, 543 (D. Minn. 2003). In deciding whether to grant permissive intervention, the Court considers three factors: (1) whether the motion to intervene is timely; (2) whether the applicant's claim shares a question of law or fact in common with the main action; and (3) whether intervention will unduly delay or prejudice adjudication of the original parties' rights. Id. at 543-44. The Court has discretion to grant or deny a motion for permissive intervention, and its decision is reviewed under an abuse of discretion standard. South Dakota v. United States Dept. of Interior, 317 F.3d 783, 787 (8th Cir. 2003).
Public Citizen seeks to intervene for the limited purpose of seeking public disclosure of the briefs and supporting documents filed by Guidant and Aspen with respect to the parties' cross-motions for summary judgment. Public Citizen alleges that Guidant is threatening third parties in the healthcare industry with liability based on the Court's summary judgment ruling and that these companies need guidance with respect to acceptable price comparisons and disclosure activities. Public Citizen contends that it, hospitals, and other health-care companies cannot fully understand the reach of the Court's February 2 Order without knowing what arguments were presented to the Court. Thus, Public Citizen seeks the information contained in the parties' summary judgment briefs and related documents so that it can more thoroughly investigate and report about this matter of public interest and so that it can effectively assist targets of Guidant's alleged threats of liability.
Guidant opposes Public Citizen's Motion to Intervene on the ground that the motion is untimely. In particular, Guidant contends that the motion is untimely because the Court has closed the lawsuit. Guidant also alleges that Public Citizen knew of the Court's decision well before the conclusion of this litigation and that Public Citizen therefore has no justification for waiting until after the litigation ended before seeking to intervene. Finally, Guidant contends that Public Citizen's delay severely prejudices Guidant. Specifically, Guidant contends that allowing Public Citizen to obtain and disseminate the confidential documents at issue in the litigation would destroy the core benefit that motivated Guidant to settle the lawsuit.
First, the Court finds that Public Citizen's motion is timely. There is a "growing consensus amount the courts of appeals that intervention to challenge confidentiality orders may take place long after a case has been terminated." E.E.O.C. v. Nat'l Children's Ctr., Inc., 146 F.3d 1042, 1047 (D.C. Cir. 1998) (citing cases). Here, it was not until after the litigation ended that Guidant allegedly threatened Public Citizen with liability based on the Court's February 2 Order. Although a presumption exists that a motion to intervene is untimely when brought after the litigation has closed, the Court finds that there is no prejudice to Guidant in permitting Public Citizen to intervene at this stage for the sole purpose of challenging the Protective Order. Public Citizen seeks to intervene for the limited purpose of requesting that the summary judgment record be unsealed so that it can see what arguments the parties made to the Court in order to fully understand the reach of the Court's February 2 Order.
Further, Public Citizen noted at oral argument that it does not seek Guidant's contracts with its hospital clients or the prices from those contracts. Thus, the Court does not find that allowing Public Citizen to intervene for this limited purpose would jeopardize the settlement agreement. Additionally, as stated at oral argument, the Court has a stake in unsealing the summary judgment record apart from Public Citizen's interest given that the Court is a public institution. Thus, the Court rejects Guidant's assertion that the Court should deny Public Citizen's Motion to Intervene on the ground that the motion is untimely.
In fact, on several occasions during the litigation, the Court questioned the extent of the sealing of documents in this case.
Next, the Court finds that Public Citizen has satisfied the requirement that its claim has a question of law or fact in common with the underlying action. Public Citizen has alleged that Guidant has threatened liability against Public Citizen based on the Court's February 2 Order. Thus, Public Citizen's request to more fully understand the Court's February 2 Order is based on the facts and law of the underlying action. Finally, as stated with regard to the Court's discussion of the issue of timeliness, the Court does not find that Guidant will be unduly prejudiced by Public Citizen's permissive intervention. Accordingly, the Court grants Public Citizen's Motion to Intervene.
II. Motion to Unseal
Next, Public Citizen moves the Court to unseal the summary judgment briefs and all related documents pertaining to that motion, except for Guidant's contracts with hospital clients or prices from those contracts. Rule 26 of the Federal Rules of Civil Procedure anticipates that, in certain cases, discovery of trade secrets or other confidential information may be sealed. That Rule provides, in part, that a court "may make any [protective] order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way." Fed.R.Civ.P. 26. "Whether trade secrets are involved or not, and whether their revelation will cause damage to someone, are questions of fact, to be decided [by the court] after receiving evidence." In re Iowa Freedom of Info. Council, 724 F.2d 658, 663 (8th Cir. 1983). Courts should not simply take representations of interested counsel on faith, but should instead conduct a limited in camera review of documents alleged to contain trade secrets and other proprietary information. Id. at 662-63.
In particular, Public Citizen requests that the Court unseal the following docket entry numbers: 158-161, 164, 167, 179, 182-185, 187, 189, 191, 193, 194, 201, and 205.
Public Citizen asserts that the Court should unseal the summary judgment record, with the exception of Guidant's contracts with hospitals and the price terms contained therein, because the public has an interest in the lawsuit and because Guidant has allegedly threatened third parties with liability based on the February 2 Order. Public Citizen seeks to enforce the public's presumptive right of access to judicial records. Public Citizen admits that the presumption may be overcome by a showing of countervailing interests but contends that Guidant has made no such showing. Additionally, Public Citizen contends that the First Amendment creates a presumptive right of public access to judicial records in civil cases and that, pursuant to this right, Public Citizen is entitled to access to the summary judgment record.
Guidant contends that the Court should reject Public Citizen's motion to unseal the summary judgment record because these documents contain trade secrets and other proprietary information. In particular, Guidant claims that the following documents contained in the summary judgment record should remain confidential: (1) contracts, complete with pricing schedules, that are governed by confidentiality agreements; (2) documents prepared by McKinsey Consulting Co. and Guidant, as well as deposition testimony explaining Guidant's pricing policies and practices; (3) internal Guidant documents and deposition transcripts discussing particular customers and contract negotiations; (4) Guidant's pricing approval guidelines; and (5) documents related to Guidant's double-blind and proprietary market survey. Guidant maintains that disclosure of these documents would undermine the confidential and trade secret status of Guidant's contract prices and pricing policies. Further, Guidant alleges that disclosure would undermine Guidant's negotiating ability in current and future contract negotiations and give its competitors an enormous competitive advantage. Finally, Guidant alleges that disclosure of documents related to particular customers may damage Guidant's relationships with these customers.
Guidant and Public Citizen agree that there is a common-law right of access to judicial records. See Webster Groves Sch. Dist. v. Pulitzer Publ'g Co., 898 F.2d 1371, 1376 (8th Cir. 1990). The Eighth Circuit has held that this right of access "is not absolute, but requires a weighing of competing interests." Id. A court has supervisory power over its own records, and the decision to seal a file is within the court's discretion. Id. The Court finds that Guidant has a heightened burden to overcome the presumptive right of the public access to the briefs and supporting documents at issue because they were filed in support of and in opposition to motions for summary judgment. See Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982) ("documents used by parties moving for, or opposing, summary judgment should not remain under seal absent the most compelling reasons."). Moreover, the Protective Order states that it applies to "discovery material" produced in the litigation and thus, arguably, does not extend to the summary judgment record. See Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252 (4th Cir. 1988) ("we question whether the [Protective] Order remained in effect over these documents once they were submitted to the court below as attachments to a summary judgment motion. It appears from the record that the Order was entered to facilitate pre-trial discovery.").
Further, the Protective Order extended broad protection to all documents produced by both parties during discovery. Because the parties did not object to each other's confidential designations, with one exception, the parties were never required to make a showing of good cause for confidentiality as to any individual documents. Thus, the Court must review the documents that Public Citizen seeks for good cause under Fed.R.Civ.P. 26 and must weigh the competing interests regarding the common-law right of access to judicial records.
Following the Eighth Circuit's approach in Webster Groves, the Court does not reach Public Citizen's argument that the First Amendment creates a presumptive right of public access to judicial records in civil cases. In Webster Groves, the Eighth Circuit noted that the Supreme Court has never found a First Amendment right of access to civil proceedings or to the court file in a civil proceeding. 898 F.2d at 1377. The Eighth Circuit in Webster Groves found it unnecessary to decide this question, holding that whether it applied a constitutional standard or a common-law standard, the result would have been the same after weighing the interests involved. Id. Likewise, here, whether applying a constitutional standard or the common-law standard, the Court finds that Public Citizen's interest in access to the records is generally outweighed by Guidant's interest in keeping trade secrets and proprietary business information confidential.
The Court has carefully reviewed in camera every supporting document that Guidant or Aspen contend should remain sealed. The Court determined which documents contain trade secrets or proprietary information and then weighed Public Citizen's need for disclosure against the potential harm that unsealing may cause Guidant or Aspen. For the documents that contain trade secrets and other proprietary information, the Court finds that there is no reasonable alternative to sealing most of these documents. Indeed, trade secrets "only value consists in their being kept private." Iowa Freedom, 724 F.2d at 662. "If they are disclosed or revealed, they are destroyed." Id. Based on the foregoing, the Court has created a list of documents that it finds should remain sealed and noted the basis for the seal. The Court orders that all other supporting documents relating to the summary judgment record be unsealed.
Additionally, the Court orders that the summary judgment briefs be unsealed in their entirety. The Court has carefully reviewed Guidant's proposed redactions to the briefs and notes that most of the redactions, which total approximately five pages, relate to MRG. The Court rejects Guidant's contention that these portions of the briefs should remain sealed because, during discovery, Magistrate Judge Noel rejected Aspen's request to unseal certain materials regarding MRG. The Court finds that there is a stronger presumption against sealing briefs and supporting documents at the summary judgment stage than at the discovery stage. Summary judgment briefs are on a different plane than the supporting documents, especially when subsequent documents based on arguments made in the summary judgment briefs — namely the hearing transcript and February 2 Order — are unsealed. Therefore, the Court finds that the summary judgment briefs should be unsealed.
The following charts address Guidant's requests to keep sealed or redact certain supporting documents. Where Guidant objects solely on the basis that documents originated from a third-party, Guidant has no objection to unsealing the document pending the Court's decision regarding third-party materials. The Court has indicated its ruling to Guidant's requests by marking a "yes," "no," or "yes, in part" in the column titled "Ruling." A "yes" ruling means that the Court finds that the exhibit in question should remain sealed or redacted; a "no" ruling means that the Court finds that the exhibit should be unsealed. On four exhibits, the Court ruled "yes, in part" because the Court finds that certain material within an exhibit should be redacted, but declines to seal the entire document. The Court has not yet ruled on certain exhibits containing third-party material and therefore leaves the space blank. The Court will rule on these exhibits once the time for affected third parties to object has passed, as directed below. The Court has listed Guidant's proposed bases for sealing each exhibit and then indicated whether the Court agrees or disagrees with each asserted basis. The Court has indicated whether it agrees, disagrees, or finds a proposed basis moot, by including an "(A)," "(D)," or "(M)," respectively, after each proposed basis.
Exhibit Description Ruling Basis for Sealing Number 1 Contract between Yes • Contract with confidentiality clause (A) Guidant and Hospital • Trade secret pricing information (A) • Commercial harm if disseminated (A) • Third-party material (M) 2 Contract between Yes • Contract with confidentiality clause (A) Guidant and Hospital • Trade secret pricing information (A) • Commercial harm if disseminated (M) • Third-party material (M) 3 Contract between Yes • Contract with confidentiality clause (A) Guidant and Hospital • Trade secret pricing information (A) • Commercial harm if disseminated (M) • Third-party material (M) 4 Contract between Yes • Contract with confidentiality clause (A) Guidant and Hospital • Trade secret pricing information (A) • Commercial harm if disseminated (M) • Third-party material (M) 5 Contract between Yes • Contract with confidentiality clause (A) Guidant and Hospital • Trade secret pricing information (A) • Commercial harm if disseminated (M) • Third-party material (M) 7 Deposition testimony No • Trade secret pricing policies (D) of Gary Cardoza • Proprietary and commercially sensitive (Guidant) and Jay (D Ethridge (Guidant) • Commercial harm if disseminated (D) 8 Internal Guidant Yes • Trade secret pricing policies (A) presentation re • Proprietary and commercially sensitive pricing analysis (A) • Commercial harm if disseminated (M) 9 McKinsey Yes • Trade secret pricing policies (A) presentation to • Proprietary and commercially sensitive Guidant re pricing (A) strategy • Commercial harm if disseminated (M) • Third-party material (M) 10 Guidant pricing Yes • Trade secret pricing policies (A) template • Proprietary and commercially sensitive (A) • Commercial harm if disseminated (M) • Third-party material (M) 11 Deposition testimony Yes • Trade secret pricing policies (A) of Gary Cardoza • Proprietary and commercially sensitive (Guidant) and Jay (A) Ethridge (Guidant) • Commercial harm if disseminated (M) 12 Guidant pricing Yes • Trade secret pricing policies (A) approval guidelines • Proprietary and commercially sensitive (A) • Commercial harm if disseminated (M) 21 Deposition testimony • Third-party material of John Armstrong (Scripps Hospital), Joel Lankford (St. Patrick Hospital), Mark McDermott (Christiana Care), Gerry Slingsby (St. Patrick Hospital) 28 Request for Proposal Yes • Pricing information (A) • Commercial harm if disseminated (M) 29 Request for Proposal Yes • Pricing information (A) • Commercial harm if disseminated (M) 52 Updated Preliminary Yes, • Pricing information (A) Expert Report of in part • Commercial harm if disseminated (D) Donald Nicholson 54 Customer list Yes • Proprietary and commercially sensitive (A) 62 Hospital Cost Yes • Trade secret pricing information (A) Savings Report • Commercial harm if disseminated (M) 64 Preliminary Expert Yes, • Pricing information (A) Report of Donald in part • Commercial harm if disseminated (D) Nicholson 65 Report of Cobb Yes, • Pricing information (A) Associates in part • Commercial harm if disseminated (D) 66 Deposition testimony No • Third-party material (D) of John Armstrong • Commercial harm if disseminated (D) (Scripps) 68 Report of Cobb Yes, • Pricing information (A) Associates in part • Commercial harm if disseminated (D) Docket No. 161: Affidavit of Jay Ethridge (filed 11/01/2005)The Court rules that this affidavit remain sealed.
Basis for redactions:
• Explanation of Guidant's trade secret pricing strategies (A)
• Proprietary (A) and commercially sensitive (M)
• Commercial harm if disclosed (M)
Docket No. 167: Affidavit of Douglas R. Boettge (filed 11/01/2005) Docket No. 183: Affidavit of Gerard Nolting (filed 11/28/2005)
Exhibit Description Ruling Basis for Sealing Number 3 Deposition No • Guidant customer negotiation strategy testimony of Gary (D) Cardoza (Guidant) • Commercial harm if disseminated (D) 4 Deposition Yes • Guidant customer negotiation strategy testimony of Mitch (A) McCahey (former • Testimony regarding specific customer Guidant sales negotiations (A) manager) • Commercial harm if disseminated (M) 5 Internal Guidant Yes • Guidant customer negotiation strategy correspondence (A) • Commercial harm if disseminated (M) 6 Internal Guidant Yes • Correspondence regarding specific correspondence customer negotiations (A) • Commercial harm if disseminated (M) 7 Deposition Yes • Testimony regarding customer testimony of negotiation strategy (A) William McQuown • Testimony regarding specific customer (Guidant) negotiations (A) • Commercial harm if disseminated (M) 9 Deposition Yes • Testimony regarding customer testimony of Terry negotiation strategy (A) Coutsolioutsos • Testimony regarding specific customer (Guidant) negotiations (A) • Commercial harm if disseminated (M) 11 Contract between Yes • Contract with confidentiality clause (A) Guidant and • Trade secret pricing information (A) Hospital • Commercial harm if disseminated (M) • Third-party material (M) 12 Contract between Yes • Contract with confidentiality clause (A) Guidant and • Trade secret pricing information (A) Hospital • Commercial harm if disseminated (M) • Third-party material (M) 13 Guidant proposal to Yes • Trade secret pricing information (A) Hospital 14 Deposition Yes • Testimony regarding customer Testimony of Jay negotiation strategy (A) Ethridge • Proprietary and commercially sensitive (M) 15 Contract between Yes • Contract with confidentiality clause (A) Guidant and • Trade secret pricing information (A) Hospital • Commercial harm if disseminated (M) • Third-party material (M) 16 Contract between Yes • Contract with confidentiality clause (A) Guidant and • Trade secret pricing information (A) Hospital • Commercial harm if disseminated (M) • Third-party material (M) 17 Deposition • Third-party material testimony of John Armstrong (Scripps) 18 Deposition • Third-party material testimony of Michael Zdeblick 19 Deposition • Third-party material testimony of Jeff Olson (Silver Cross) 20 Deposition • Third-party material testimony of Mark McDermott (Christiana Care) 21 Deposition • Third-party material testimony of James McManus (St. Joseph) 22 Deposition • Third-party material testimony of Louise White (Eisenhower Medical) 23 Deposition • Third-party material testimony of Michele Tarantino (Christiana) 24 Deposition Yes • Trade secret pricing policies (A) testimony of Dennis • Proprietary and commercial sensitive Antinori (former (A) Guidant Vice • Commercial harm if disseminated (M) President) 25 Deposition • Third-party material testimony of Gerry Slingsby (St. Patrick) 26 Deposition Yes • Proprietary (A) and commercially testimony of Kevin sensitive (M) Brown (Centinela • Information subject to confidentiality Hospital) provision (A) • Third-party material (M) 28 Deposition Yes • Proprietary and commercially sensitive testimony of Ronald (A) Mitchell 29 Guidant account Yes • Proprietary and commercially sensitive tracking report (A) • Internal document related to specific customers (A) • Commercial harm if disseminated (M) 34 Deposition • Third-party material testimony of James McManus (St. Joseph) 35 Guidant presentation Yes • Internal analysis of pricing strategy (A) regarding price • Proprietary and commercially sensitive proposals (A) • Commercial harm if released (M) 36 Presentation by Yes • Trade secret pricing policies (A) McKinsey to • Proprietary and commercially sensitive Guidant (A) • Commercial harm if disseminated (M) • Third-party material (M) 40 Deposition Yes • Testimony regarding negotiating testimony of strategy (A) Buckley Beranek • Testimony regarding contract negotiations with particular customers (A) • Commercial harm if disseminated (M) 41 Internal Guidant Yes • Trade secret pricing information (A) correspondence • Proprietary and commercially sensitive regarding proposal (A) to Grandview • Internal correspondence about Hospital particular customer (A) • Commercial harm if disseminated (M) 51 Internal Guidant Yes • Internal correspondence about correspondence particular customer negotiations (A) • Negotiating strategy (A) • Commercial harm if disseminated (M) 52 MRG Survey Yes • Information protected by Materials confidentiality agreement (A) • Internal proprietary market research (A) • Commercial harm if disseminated (M) • Third-party information (M) 53 Contract between Yes • Information protected by Guidant and MRG confidentiality agreement (A) • Internal proprietary market research (A) • Commercial harm if disseminated (M) • Third-party information (M) • Contract subject to confidentiality provision (A) 54 Affidavit of Rachel Yes • Information protected by Haisting confidentiality agreement (A) • Internal proprietary market research (A) • Commercial harm if disseminated (M) • Third-party information (M) 55 Deposition Yes • Information protected by testimony of confidentiality agreement (A) Timothy Wohlgemut • Internal proprietary market research (A) • Commercial harm if disseminated (M) • Third-party information (M) 56 Contract between Yes • Contract with confidentiality clause (A) Guidant and • Trade secret pricing information (A) Hospital • Commercial harm if disseminated (M) • Third-party material (M) 57 Deposition Yes • Information protected by testimony of Jeff confidentiality agreement (A) Rynbrandt (Guidant) • Internal proprietary market research (A) • Commercial harm if disseminated (M) • Third-party information (M) 58 MRG Survey Yes • Information protected by Materials confidentiality agreement (A) • Internal proprietary market research (A) • Commercial harm if disseminated (M) • Third-party information (M) 59 Deposition Yes • Information protected by testimony of Barbara confidentiality agreement (A) Marks (Elmhurst • Internal proprietary market research (A) Hospital) • Commercial harm if disseminated (M) • Third-party information (M) 60 MRG Survey Yes • Information protected by Materials confidentiality agreement (A) • Internal proprietary market research (A) • Commercial harm if disseminated (M) • Third-party information (M) 61 MRG Survey Yes • Information protected by Materials confidentiality agreement (A) • Internal proprietary market research (A) • Commercial harm if disseminated (M) • Third-party information (M) 62 MRG Survey Yes • Information protected by Materials confidentiality agreement (A) • Internal proprietary market research (A) • Commercial harm if disseminated (M) • Third-party information (M) 63 MRG Survey Yes • Information protected by Materials confidentiality agreement (A) • Internal proprietary market research (A) • Commercial harm if disseminated (M) • Third-party information (M) 64 Deposition Yes • Information protected by testimony of Mary confidentiality agreement (A) Korte • Internal proprietary market research (A) • Commercial harm if disseminated (M) • Third-party information (M) 65 Guidant's responses Yes • Information protected by to Requests to Admit confidentiality agreement (A) • Internal proprietary market research (A) • Commercial harm if disseminated (M) • Third-party information (M) 66 Guidant Yes • Internal correspondence regarding correspondence particular customer contracts (A) related to customer • Internal negotiating strategy (A) • Commercially sensitive (M) • Commercial harm if disseminated (M) 69 Contract between Yes • Contract with confidentiality clause (A) Guidant and • Trade secret pricing information (A) University of Kansas • Commercial harm if disseminated (M) • Third-party material (M) 75 Deposition • Third-party material testimony of Dan Sweeney 76 Contract between Yes • Contract with confidentiality clause (A) Guidant and • Trade secret pricing information (A) Novation • Commercial harm if disseminated (M) • Third-party material (M) 77 Correspondence Yes • Correspondence regarding customer between Guidant and relationship (A) Novation • Commercial harm if disseminated (M) 78 Correspondence Yes • Correspondence regarding customer between Guidant and relationship (A) Novation • Commercial harm if disseminated (M) 79 Correspondence Yes • Correspondence regarding customer between Guidant and relationship (A) Novation • Trade secret pricing information (A) • Commercial harm if disseminated (M) 80 Correspondence Yes • Correspondence regarding customer between Guidant and relationship (A) Novation • Commercial harm if disseminated (M) 81 Correspondence Yes • Correspondence regarding customer between Guidant and relationship (A) Novation • Commercial harm if disseminated (M) 82 Contract between Yes • Contract with confidentiality clause (A) Guidant and Premier • Trade secret pricing information (A) • Commercial harm if disseminated (M) • Third-party material (M) 83 Deposition • Third-party material testimony of Paula Mowbray 84 Internal Premier • Third-party material correspondence 85 Premier market • Third-party material research 86 Premier market • Third-party material research 87 Premier market • Third-party material research 88 Premier market • Third-party material research 91 Deposition Yes • Trade secret pricing information (A) testimony of Galen • Testimony regarding particular Christian customers (A) • Commercial harm if disseminated (M) 92 Guidant proposal to Yes • Trade secret pricing information (A) Eisenhower Medical • Proprietary (A) and commercially sensitive (M) • Commercial harm if disseminated (M) 93 Internal Guidant Yes • Trade secret pricing information (A) correspondence • Proprietary (A) and commercially regarding sensitive (M) Eisenhower Medical • Correspondence regarding particular prices customers and negotiating strategy (A) • Commercial harm if disseminated (M) 95 Deposition • Third-party material testimony of Michael Zdeblick 97 Guidant customer Yes • Proprietary (A) and commercially list sensitive (M) 98 Guidant customer Yes • Proprietary (A) and commercially list sensitive (M) 99 Internal Guidant Yes • Attorney-client privileged sales presentation (inadvertently produced) (A) • Trade secret pricing information (A) • Proprietary (A) and commercially sensitive (M) • Internal Guidant financial information and strategic analysis (A) • Commercial harm if disseminated (M) 100 Internal Guidant Yes • Guidant strategic planning document strategic planning (A) document • Proprietary and commercially sensitive (A) • Commercial harm if disseminated (M) 102 MRG Survey Yes • Information protected by Materials confidentiality agreement (A) • Internal proprietary market research (A) • Commercial harm if disseminated (M) • Third-party materials (M) 106 Scripps Request for Yes • Third-party materials (M) Proposal • Confidential pricing information (A) • Commercial harm if disseminated (M) Exhibit Description Ruling Basis for Sealing Number 1 Presentation Yes • Trade secret pricing information (A) prepared by • Commercial harm if disseminated (M) McKinsey • Proprietary (A) and commercially Company for sensitive (M) Guidant • Third-party material (M) 2 Expert Report of Yes • Trade secret pricing information (A) George Murphy, • Commercial harm if disseminated (M) April 8, 2005 • Proprietary (A) and commercially sensitive (M) 3 Supplemental Expert Yes • Trade secret pricing information (A) Report of George • Commercial harm if disseminated (M) Murphy, • Proprietary (A) and commercially September 1, 2005 sensitive (M) 4 Guidant's Code of Yes • Proprietary (A) and commercially Business Conduct sensitive (M) 5 Form Non- Yes • Proprietary (A) and commercially Disclosure sensitive (M) Agreement between Guidant and its employees 6 Form Proprietary Yes • Proprietary (A) and commercially Information sensitive (M) Agreement between Guidant Sales Corporation and its employees 9 Excerpts from the • Third-party material depositions of John Armstrong (Scripps Health), Kevin Brown (Centinela Hospital), Paula Mowbray (Premier), Dan Sweeney (Novation), and Michael Zdeblick (Rush System for Health), James McManus (St. Joseph Health System), and Michele Tarantino (Carilion) 10 Deposition • Third-party material testimony of Paula Mowbray and Dan Sweeney 19 Deposition • Third-Party material testimony of Michael Zdeblick 22 Deposition • Third-party material testimony of Joel Lankford (St. Patrick Hospital) and Gerry Slingsby (same) 23 Email from Leslie Yes • Trade secret pricing information (A) Foy (Manager of • Commercial harm if disseminated (M) Corporate Accounts, • Proprietary (A) and commercially Guidant Sales sensitive (M) Corporation) to Guidant Sales Corporation sales staff and management 26 Excerpts from the Yes • Commercial harm if disseminated (M) depositions of Mary • Proprietary (A) and commercially Korte (Cardiac sensitive market research (M) Pacemakers, Inc.), • Third-party material (M) Jeff Rynbrandt (Guidant Sales Corporation), and Tim Wohlgemut (Millennium Research Group) 27 Deposition • Third-party material testimony of Tim Wohlgemut (MRG) 28 Market Monitor Yes • Trade secret pricing information (A) presentation • Commercial harm if disseminated (M) prepared by Cardiac • Proprietary (A) and commercially Pacemakers, Inc. for sensitive (M) Guidant • Third-party material (M) management. 29 Deposition Yes • Commercial harm if disseminated (M) testimony of Mary • Proprietary (A) and commercially Korte, Jeff sensitive (M) Rynbrandt, and Rachel Haisting (Guidant) 30 Deposition • Third-party material testimony of Tim Wohlgemut (MRG) 31 Deposition Yes • Commercial harm if disseminated (M) testimony of Jeff • Proprietary (A) and commercially Rynbrandt and Tim sensitive (M) Wohlgemut • Third-party material (M) 32 Contract between Yes • Contract with confidentiality clause (A) Cardiac Pacemakers, • Trade secret pricing information (A) Inc. and MRG • Commercial harm if disseminated (M) • Proprietary (A) and commercially sensitive (M) • Third-party material (M) 34 Contract between Yes • Contract with confidentiality clause (A) Guidant and Premier • Trade secret pricing information (A) • Commercial harm if disseminated (M) • Proprietary (A) and commercially sensitive (M) • Third-party material (M) 35 Excerpts from the • Third-party material deposition of Paula Mowbray 36 Excerpts from the • Third-party material deposition of Paula Mowbray 37 Excerpts from the • Third-party material deposition of Paula Mowbray 38 Premier's • Third-party material CardiacFocus Cardiac Rhythm Management Final Report. 39 Premier's • Third-party material CardiacFocus survey 40 Deposition • Third-party material testimony of Paula Mowbray 41 Deposition • Third-party material testimony of Dan Sweeney 42 June 1, 2005 letter • Third-party material from Jean Holloway (General Counsel, Guidant Sales Corporation) to Loren Sobel (Senior Legal Counsel, Novation) 43 Deposition • Third-party material testimony of Dan Sweeney 46 Deposition Yes • Commercial harm if disseminated (M) testimony of Mark • Proprietary (A) and commercially Bartell (Guidant) sensitive (M) and Buckley Beranek (Guidant) 49 Deposition Yes • Commercial harm if disseminated (M) testimony of Dennis • Proprietary (A) and commercially Antinori (former sensitive (M) Guidant Vice President) 51 Deposition • Third-party material testimony of Mark McDermott (Christiana Care) 52 Deposition • Third-party material testimony of John Armstrong and Michael Zdeblick 54 Deposition • Third-party material testimony of Louise White (Eisenhower Medical), John Armstrong, Joel Lankford, Mark McDermott, Gerry Slingsby, and Michele Tarantino (Carilion) 55 Deposition • Third-party material testimony of Mark McDermott 56 Deposition Yes • Trade secret pricing information (M) testimony of Alan • Commercial harm if disseminated (M) Brill (Aspen expert • Proprietary (A) and commercially witness on corporate sensitive (M) security) 57 Excerpts from the No • Trade secret pricing information (D) deposition of Alan • Commercial harm if disseminated (D) Brill • Proprietary and commercially sensitive (D) 62 Contract between Yes • Contract with confidentiality clause (A) Guidant Sales • Trade secret pricing information (A) Corporation and • Commercial harm if disseminated (M) Eisenhower Medical • Proprietary (A) and commercially Center sensitive (M) • Third-party material (M) 72 Deposition • Third-party material testimony of Gerry Slingsby 73 Email chain between • Third-party material Tom Lafferty and St. Patrick Hospital, with attached letter to St. Patrick from L. Foy of GuidantDocket No. 184: Affidavit of Jay Ethridge (filed 11/28/2005)
The Court rules that this affidavit remain sealed.
Basis for redaction:
• Trade secret pricing policies (A)
• Proprietary (A) and commercially sensitive (M)
• Commercial harm if disseminated (M)
Docket No. 185: Affidavit of Rachel Haisting (filed 11/28/2005)
The Court rules that this affidavit remain sealed.
Basis for redaction:
• Information protected by confidentiality agreement (A)
• Internal proprietary market research (A)
• Commercial harm if disseminated (M)
• Third-party information (M)
Docket No. 189: Affidavit of Douglas R. Boettge (filed 11/28/2005)
Docket No. 205: Corrected Affidavit of Douglas R. Boettge (filed 1/10/2005) [These affidavits contained the same information]
Exhibit Description Ruling Basis for Sealing Number 1 Contract between Yes • Contract with confidentiality clause (A) Guidant Sales • Trade secret pricing information (A) Corporation and • Commercial harm if disseminated (M) Scripps Health • Proprietary (A) and commercially sensitive (M) • Third-party material (M) 3 Contract between Yes • Contract with confidentiality clause (A) Guidant Sales • Trade secret pricing information (A) Corporation and • Commercial harm if disseminated (M) Hospital • Proprietary (A) and commercially sensitive (M) • Third-party material (M) 4 Contract between Yes • Contract with confidentiality clause (A) Guidant Sales • Trade secret pricing information (A) Corporation and • Commercial harm if disseminated (M) Hospital • Proprietary (A) and commercially sensitive (M) • Third-party material (M) 7 Deposition • Third-party material testimony of Michael Zdeblick (Rush) 8 Deposition • Third-party material testimony of Mark McDermott (Christiana Care) 9 Deposition • Third-party material testimony of Michele Tarantino (Carilion) 11 Deposition • Third-party material testimony of John Armstrong (Scripps) 12 Deposition Yes • Commercial harm if disseminated (M) testimony of Jeff • Proprietary (A) and commercially Olson (Silver Cross sensitive (M) Hospital) • Third-party material (M) 13 Deposition • Third-party material testimony of James McManus (St. Joseph) 14 Deposition • Third-party material testimony of Louise White (Eisenhower Medical) 15 Deposition Yes • Commercial harm if disseminated (M) testimony of Dennis • Proprietary (A) and commercially Antinori (former sensitive (M) Guidant Vice • Trade secret pricing policies (A) President) 16 Presentation Yes • Trade secret pricing information (A) prepared by • Commercial harm if disseminated (M) McKinsey • Proprietary (A) and commercially Company for sensitive (M) Guidant • Third-party material (M) 17 MRS Survey Yes • Commercial harm if disseminated (M) Materials • Proprietary (A) and commercially sensitive (M) • Protected by confidentiality provision (A) • Third-party material (M) 18 Contract between Yes • Contract with confidentiality clause (A) Cardiac Pacemakers • Commercial harm if disseminated (M) and MRG • Proprietary (A) and commercially sensitive (M) • Third-party material (M) 19 Deposition Yes • Commercial harm if disseminated (M) testimony of Tim • Proprietary (A) and commercially Wohlgemut (MRG) sensitive (M) • Third-party material (M) 20 Contract between Yes • Contract with confidentiality clause (A) Guidant and • Trade secret pricing information (A) Elmhurst Memorial • Commercial harm if disseminated (M) Hospital • Proprietary (A) and commercially sensitive (M) • Third-party material (M) 27 Deposition • Third-party material testimony of Michael Zdeblick (Rush) 28 Deposition • Third-party material testimony of James McManus (St. Joseph) 29 Deposition Yes • Commercial harm if disseminated (M) testimony of • Proprietary (A) and commercially Buckley Beranek sensitive (M) (Guidant) 30 Internal Guidant Yes • Trade secret pricing information (A) correspondence • Commercial harm if disseminated (M) • Proprietary (A) and commercially sensitive (M) • Third-party material (M) 31 Internal Guidant Yes • Commercial harm if disseminated (M) correspondence • Proprietary (A) and commercially about customer sensitive (M) negotiations • Third-party material (M) 32 Deposition Yes • Trade secret pricing information (A) testimony of Terry Coutsolioutsos (Guidant) 39 Presentation Yes • Trade secret pricing information (A) prepared by • Commercial harm if disseminated (M) McKinsey • Proprietary (A) and commercially Company for sensitive (M) Guidant • Third-party material (M) 41 Internal Guidant Yes • Proprietary (A) and commercially correspondence sensitive (M) about customer negotiations 42 Excerpt from Yes • Attorney-client privilege (inadvertently internal presentation produced) (A) of Guidant legal • Proprietary (A) and commercially strategy sensitive (M) 43 Internal Guidant Yes • Trade secret pricing policies (A) presentation on sales • Commercial harm if disseminated (M) contracting • Proprietary (A) and commercially sensitive (M) 44 Internal Guidant Yes • Proprietary (A) and commercially correspondence sensitive (M) about customers • Commercial harm if disseminated (M) 45 Internal Guidant Yes • Trade secret pricing information (A) presentation to • Commercial harm if disseminated (M) management • Proprietary (A) and commercially sensitive (M) 46 Guidant account Yes • Commercial harm if disseminated (M) tracking spreadsheet • Proprietary (A) and commercially sensitive (M) 47 Internal Guidant Yes • Trade secret pricing information (A) correspondence • Commercial harm if disseminated (M) • Proprietary (A) and commercially sensitive (M) 49 Spreadsheet of Yes • Trade secret pricing information (A) Guidant account • Commercial harm if disseminated (M) information • Proprietary (A) and commercially sensitive (M) 50 Internal Guidant Yes • Trade secret pricing information (A) correspondence • Commercial harm if disseminated (M) • Proprietary (A) and commercially sensitive (M) 55 Deposition • Third-party material testimony of Paula Mowbray (Premier) 57 Deposition • Third-party material testimony of Michael Zagger 73 Aspen presentation Yes • Pricing information (A) to Carilion • Commercial harm if disseminated (M) 75 Affidavit of Rachel Yes • Information protected by confidentiality Haisting agreement (A) • Internal proprietary market research (A) • Commercial harm if disseminated (M) • Third-party information (M) Docket No. 193: Affidavit of Douglas Boettge (response affidavit filed 12/05/2005) Exhibit Description Ruling Basis for Sealing Number 1 Deposition • Third-party material testimony of Joel Lankford (St. Patrick Hospital) 2 Deposition Yes • Proprietary (A) and commercially testimony of Barbara sensitive (M) Marks (Elmhurst • Information subject to confidentiality Hospital) provision (A) • Third-party material (M) 3 Deposition • Third-party material testimony of Anthony Montagnolo 5 Hospital Request for Yes • Pricing information (A) Proposal • Commercial harm if disseminated (M) 6 Correspondence Yes • Guidant contract negotiations (A) between Bob • Commercial harm if disseminated (M) Cantwell and Hospital 7 Deposition • Third-party material testimony of Joel Lankford (St. Patrick Hospital) 8 Deposition No • Proprietary and commercially sensitive testimony of George • Information subject to confidentiality Murphy (Guidant's provision (D) trade secret expert) • Commercial harm if disseminated (D) 9 Internal Guidant Yes • Attorney-client privilege (inadvertently presentation produced) (A) • Proprietary (A) and commercially sensitive (M) • Commercial harm if disseminated (M) 15 Deposition • Third-party material testimony of Mark McDermott 16 Internal Guidant Yes • Guidant contract negotiations (A) correspondence re • Commercial harm if disseminated (M) contract negotiations Aspen requests that the following exhibits remain sealed or be redacted in some way. Because most of Aspen's requests involve proposed redactions, rather than a request to seal an entire document like Guidant, the Court has added a column titled "Redactions" that specifies what portions of the document Aspen requests be redacted. The Court rules as follows.Docket No. 159: Affidavit of Craig S. Coleman (filed 11/01/2005)
Exhibit Description Ruling Redactions Basis for Sealing Number 14 Excerpts from Yes 14-03 • Confidential and testimony of proprietary (A) various MedAssets, Inc. witnesses 18 Aspen client No Entire document • Confidential and request for proprietary (D) information 19 Aspen Power Yes 19-12:19- • Confidential and Point 14,19-19:19-34, proprietary (A) presentation to 19-36:19-39 • Third-party material client (M) 20 Executed Yes 20-04, • Confidential and contract 20-06:20-08, proprietary (A) between Aspen 20-11, 20-14:20-15 • Third-party material and hospital (M) client 27 Aspen Power Yes 27-05:27-06, • Confidential and Point 27-08, 27-proprietary (A) presentation to 10:27-12, • Third-party material hospital client 27-21:27-23, (M) 27-27, 27-30:27-63 28 Aspen Request Yes Entire document • Confidential and for Proposal proprietary (A) ("RFP") • Third-party material drafted on (M) behalf of client. 29 Aspen RFP Yes Entire document • Confidential and drafted on proprietary (A) behalf of client • Third-party material (M) 33 Email between Yes 33-01 • Confidential and Aspen and its proprietary (A) client • Third-part material (M) 34 Email between Yes 34-01 • Confidential and Aspen and its proprietary (A) client • Third-party material (M) 38 Email between Yes 38-01:38-02 • Confidential and Aspen and its proprietary client • Third-party material 39 Email between Yes 39-01 • Confidential and Aspen and its proprietary (A) client • Third-party material (M) 42 Email between Yes 42-01:42-02 • Confidential and Aspen and its proprietary (A) client • Third-party material (M) 43 Email between Yes 43-02 • Confidential and Aspen and its proprietary (A) client • Third-party material 45 Internal Aspen Yes 45-01 • Confidential and email proprietary (A) • Third-party material 47 Internal Aspen Yes 47-01 • Confidential and email proprietary (A) • Third-party material (M) 48 Excerpts from Yes Entire document • Confidential and testimony of proprietary (A) various MedAssets, Inc. and Aspen witnesses 49 Excerpts from Yes 49-02:49-03, 49- • Confidential and testimony of 05:49-07 proprietary (A) various MedAssets, Inc. and Aspen witnesses 52 Updated Yes 52-05, 52-14 • Confidential and Preliminary proprietary (A) Report of • Third-party material Guidant (M) Damages Expert, Donald M. Nicholson 57 Email between Yes 57-01:57-02 • Confidential and Aspen and its proprietary (A) client • Third-party material (M) 60 Email between Yes 60-01:60-2 • Confidential and Aspen and its proprietary (A) prospective • Third-party material client (M) 62 Aspen cost- Yes 62-01:62-16 • Confidential and savings proprietary (A) document prepared for its client 64 Preliminary Yes, 64-06, except for • Confidential and Expert Report in part phrase, "and its proprietary (A) of Donald guaranteed cost • Third-party material Nicholson savings," 64-08:64-09, 64-11, 64-13:64-14 68 Preliminary Yes 68-25, 68-33:68-36 • Confidential and Expert Report proprietary (A) of Cobb Associates Docket No. 167: Affidavit of Douglas R. Boettge (filed 11/01/2005) Exhibit Description Ruling Redactions Basis for Sealing Number 30 Executed Yes A000551, • Confidential and contract A000553:A000555, proprietary (A) between Aspen A000558, • Third-party material and its client A000561:A000562 (M) Docket No. 183: Affidavit of Gerard Nolting (filed 11/28/2005) Exhibit Description Ruling Redactions Basis for Sealing Number 63 Aspen Project Yes 63-01 • Confidential and Task List for Proprietary (A) its client • Third-party material (M) 68 Email between Yes 68-02:68-03 • Confidential and Aspen and its proprietary (A) client • Third-party material (M) 70 Internal Aspen Yes 70-01 • Confidential and email proprietary (A) • Third-party material (M) Docket No. 189: Affidavit of Douglas R. Boettge (filed 11/28/2005)Docket No. 205: Corrected Affidavit of Douglas R. Boettge (filed 1/10/2005)
[These affidavits contained the same information] Exhibit Description Ruling Redactions Basis for Sealing Number 23 Executed Yes A000551, • Confidential contract A000553:A000555, and proprietary between A000558, A000561:A000562 (A) Aspen and • Third-party its client material (M) 59 MedAssets, Yes Entire Document • Confidential Inc.'s and proprietary response to a (A) hospital's • Third-party Request for material (M) Proposals 60 MedAssets, Yes A-200336762, • Confidential Inc.'s Power A-200336773:A-200336775, and proprietary Point A-200336778; A-200336786, (A) presentation A-200336796:A-200336797, • Third-party and internal A-200336799:A-200336800, material (M) financial A-200336834:A-200336837, models A-200339699, A-200339713, related to A-200339715, A-200339413, prospective A-200339415, A-200336101 client (includes several pages labeled as this bates number) 61 Internal Yes A-200371791, except the • Confidential Aspen and phrase, "Our guaranteed and proprietary MedAssets, savings is" (A) Inc. emails 66 Aspen Power Yes A-200332891, A-200332895, • Confidential Point A-200332898:A-200332900 and proprietary presentation (A) to hospital • Third-party material 72 Executed Yes A-200380983, • Confidential contract A-200380988:A-2003880989, and proprietary between A-200380992:A-200380993 (A) Aspen and • Third-party its client material (M) 73 Aspen Power Yes Pages 2, 4-6 • Confidential Point and proprietary presentation (A) to its client • Third-party material (M)Conclusion
IT IS HEREBY ORDERED THAT:1. Public Citizen's Motion to Intervene (Doc. No. 385) is GRANTED.
2. Public Citizen's Motion to Unseal Summary Judgment Briefs and Supporting Papers (Doc. No. 388) is GRANTED IN PART AND DENIED IN PART as follows:
a. The Court orders that the summary judgment briefs be unsealed.
b. The Court orders that any supporting documents not identified in the above charts or otherwise objected to by Guidant or Aspen be unsealed.
c. The Court orders that the supporting documents addressed in the above charts remain sealed or be unsealed or redacted as directed in the above charts.
d. The Court grants Guidant's request to seal exhibits 52, 64, 65, and 68 of Craig S. Coleman's affidavit (Doc. No. 159) insofar as they contain pricing information. Because substantial parts of these documents do not contain pricing information, the Court directs Guidant to submit to the Court within two weeks of the date of this Order, proposed redactions to these documents that reflect the Court's decision to redact the pricing information contained therein.
e. The Court reserves the right to rule on certain documents in the above charts that contain solely third-party material. The Court directs Guidant, in conjunction with Aspen, to send a copy of this Order to those affected third parties within two weeks of the date of this Order. Affected third parties shall have thirty days from receipt of this Order to object to the Court unsealing documents that contain their own third-party material.
3. Consistent with this Order, the Court directs Guidant and Aspen to electronically file the summary judgment briefs and supporting documents that the Court is unsealing.