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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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