| Merck Seeks And Gets Sealing
In SDNY Case Involving Cancer Patients Citing
Cert in Schein
By Matthew
Russell Lee, Patreon
BBC
- Guardian
UK - Honduras
- The
Source
SDNY COURTHOUSE,
June 29 – Since August 2019 in
a lawsuit by Ono
Pharmaceuticals against Merck
in the U.S. District Court for
the Southern District of New
York, nearly every filing has
been sealed.
On June 29 at 4
pm SDNY Judge Katherine Polk
Failla held an oral argument,
on whether to stay and
continue to seal the case.
Inner City Press phoned in,
and identified itself to Judge
Failla's Courtroom Deputy as
it has done for months, in
bail hearings and civil
proceedings like that.
But
this one was
different.
Merck's lawyer,
Phoebe Anne Wilkinson of Hogan
Lovells, made a point of
saying that despite the Press
identifying itself as on the
call, her client was not
waiving any right to sealing.
She said Merck "bargained for
it."
Seeing how
the argument was doing, with
its citation to the Supreme
Court granting cert in
Schein, Inner City Press
paused its live tweeting (here)
and mid-argument submitted a
written opposition to Judge
Failla's chambers opposing
sealing, stating in part:
"This concerns,
in the above-captioned case,
the nearly unprecedented
sealing of the public docket.
This afternoon for Inner City
Press and in my personal
capacity I called in to the
public conference, and
identified myself to your
Courtroom Deputy.
Thereupon I heard
Merck's counsel, whom I'm
cc-ing, say Merck is not
waiving its rights to
seemingly total
confidentiality of the
litigation. We disagree.
Under Lugosch v. Pyramid Co.
of Onondaga, 435 F.3d 110 (2d
Cir., 2006) the current extent
of sealing is impermissible.
For example, Judge Woods
ordered an unspecified volume
of documents sealed in August
2019; even your order of June
18, 2020 is sealed.
From the
discussion today the
public interest in this
ligitation, impacting cancer
patients, is
clear.
As the Court is aware, the
public and the press have a
presumptive First Amendment
and common law right of
access.
Here, the
sealing(s) and withholding
here are unacceptable, and go
beyond those requested even in
the Central IntelligenceAgency
trial before Judge Crotty, US
v. Schulte, 17 Cr.
548. In that
case, Inner City Press
vindicated the public's right
to know, in the docket, see here
and here.
Inner City Press
recently got even more
sensitive filings unsealed in
a North Korea sanctions case
before Judge Castel, US v.
Griffith, 20-cr-15 (PKC),
Docket No. 33 (LETTER by EMAIL
as to Virgil Griffith
addressed to Judge P. Kevin
Castel from Matthew Russell
Lee, Inner City Press, dated
5/18/2020, re: Press Access to
documents in US v. Griffith,
20-cr-15), 40 (order to
unseal) and 41 unsealed
filings).
See also Inner
City Press' May 9, 2020,
filing for openness in
US v. Randall,
19-cr-131, No. 343. We
ask that this request to
unseal be placed in the ECF
docket and that these issues
be addressed by Your Honor as
quickly as possible, and the
documents be
unsealed."
Well, the letter
was addressed in a way.
Minutes after it was sent,
Judge Failla informed the
lawyers for Merck and Ono of
its receipt. She then cited to
the grant of cert in Schein
has changing things.
She stayed the
case, and granted sealing -
seeming to mean, nothing will
be unsealed, but what is
already up will remain up.
In an abundance
of caution, to use the type of
stock legal phrase much used
in the proceeding and one -
"with all due respect" --
panned by Judge Failla, Inner
City Press has tweeted photos
of the current docket here,
and will continue on this.
The case is
Ono Pharmaceutical Co., Ltd.
v. Merck & Co., Inc.,
19-cv-8006 (Failla).
***
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