Biovant LLC v. BTI AG LLC — Entry #195: Memorandum Opinion and Order Before the Court is Plaintiff Biovant LLC (Biovant)'s two motions for leave to file under seal

Case 3:23-cv-01525-X         Document 195         Filed 04/02/25        Page 1 of 3   PageID 6113


                            UNITED STATES DISTRICT COURT
                             NORTHERN DISTRICT OF TEXAS
                                  DALLAS DIVISION

   BIOVANT LLC d/b/a BIOVANTE                          §
                                                       §
            Plaintiff,                                 §
                                                       §
   v.                                                  §   Civil Action No. 3:23-CV-1525-X
                                                       §
   BTI AG LLC, et. al,                                 §
                                                       §
            Defendants.                                §
                                                       §

                         MEMORANDUM OPINION AND ORDER

        Before the Court is Plaintiff Biovant LLC (Biovant)’s two motions for leave to

file under seal. (Docs. 187, 188). The Court DENIES WITHOUT PREJUDICE the

motions, as the motions are facially insufficient under Fifth Circuit caselaw that

governs the sealing of judicial records. The Court will allow Biovant to file an

amended motion(s) to seal within 14 days of this Order.

        The Court takes very seriously its duty to protect the public’s access to judicial

records. 1 Transparency in judicial proceedings is a fundamental element of the rule

of law—so fundamental that sealing and unsealing orders are immediately

appealable under the collateral-order doctrine. 2 The public’s right to access judicial

records is independent from—and sometimes even adverse to—the parties’ interest. 3


        1 See Binh Hoa Le v. Exeter Fin. Corp., 990 F.3d 410, 418 (5th Cir. 2021).

        2 June Med. Servs. v. Phillips, 22 F.4th 512, 519 (5th Cir. 2022).

        3 Id.


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That’s why the judge must serve as the representative of the people and, indeed, the

First Amendment, in scrutinizing requests to seal.

       Litigants may very well have a legitimate interest in confidential discovery

secured by a protective order under Federal Rule of Civil Procedure 26(c). However,

“[t]hat a document qualifies for a protective order under Rule 26(c) for discovery says

nothing about whether it should be sealed once it is placed in the judicial record.” 4

Biovant seeks to file something under seal on the judicial record. Therefore, a far

more arduous standard applies.

       “To decide whether something should be sealed, the court must undertake a

document-by-document, line-by-line balancing of the public’s common law right of

access against the interests favoring nondisclosure.” 5 If the Court seals information,

it must give sufficient reasons to allow for appellate review. 6 Finally, “[p]ublicly

available information cannot be sealed.” 7

       The moving party must: (1) identify precisely what information (pages, lines,

etc.) the party wants sealed; 8 (2) conduct a line-by-line, page-by-page analysis9

explaining and briefing why the risks of disclosure outweigh the public’s right of


       4 Id. at 521.

       5 Id. (cleaned up).

       6 Binh Hoa Le, 990 F.3d at 419.

        7 June Med. Servs., 22 F.4th at 520. (“We require information that would normally be private

to become public by entering the judicial record. How perverse it would be to say that what was once
public must become private—simply because it was placed in the courts that belong to the public. We
will abide no such absurdity.” (cleaned up)).
       8 Id. at 521.

        9 Trans Tool, LLC v. All State Gear Inc., No. SA-19-CV-1304-JKP, 2022 WL 608945, at *6 (W.D.

Tex. Mar. 1, 2022) (“[I]t is certainly within a court’s discretion to summarily deny a request to seal
when it is apparent that the submitter has not conducted its own document-by-document, line-by-line
review.”).

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access; and (3) explain why no other viable alternative to sealing exists. 10 Further,

all facts recited in any such motion must be verified by the oath or declaration of a

person or persons with personal knowledge, which will assist the Court in making

fact findings that can withstand appellate scrutiny. 11

        The Court recognizes that typically the party seeking to seal documents may

not possess personal knowledge of the facts to be included in a motion for leave to file

under seal. In these instances, the parties should either prepare joint motions for

leave to file documents under seal (and the party with personal knowledge verifies

the facts in the section on justification) or the parties should make separate filings.

        IT IS SO ORDERED this 2nd day of April, 2025.


                                               ___________________________________
                                               BRANTLEY STARR
                                               UNITED STATES DISTRICT JUDGE


        10 Planned Parenthood of Greater Tex. Family Planning & Preventative Health Servs., Inc. v.

Kaufman, No. 17-50534, Doc. 00514098372, at 2 (5th Cir. Aug. 1, 2017) (“This court disfavors the
sealing of briefs or portions of the record where the parties on appeal have not articulated a legal basis
for the sealing.”). The Fifth Circuit has “repeatedly required parties to justify keeping materials under
seal.” Id.; see, e.g., Claimant ID 100236236 v. BP Expl. & Prod’n, Inc., No. 16-30521 (5th Cir. Jan. 31,
2017) (requesting letter briefs sua sponte as to whether appeal should remain under seal and entering
order unsealing appeal); United States v. Quintanilla, No. 16-50677 (5th Cir. Nov. 16, 2016) (order
authorizing briefs and record excerpts to be filed under seal on condition that the parties filed redacted
briefs and record excerpts on the public docket).
        11 See United States v. Edwards, 823 F.2d 111, 119 (5th Cir. 1987) (if closure of a presumptively

open proceeding is to withstand a First Amendment challenge, the court must make specific fact
findings that substantial probability exists that an interest of a higher value will be prejudiced and
that no reasonable alternatives will adequately protect that interest).

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