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  • Writer's pictureShelly Albaum

Elysium Can Run, But Can It Hide?

Elysium has asked the Court to consolidate the process for concealing as confidential documents associated with the upcoming summary judgment motions. The effect of Elysium's request, if granted, would be to preemptively seal all six briefs and exhibits associated with both sides' summary judgment motions until the Court decided which documents could be publicly viewed. And the parties' briefs on what needs to be sealed wouldn't be due until September 16, with rulings (and potentially public access) some time after that.

ChromaDex opposes this motion.

You can read Elysium's Application here:


Elysium sounds like a Court Toady:

"This stipulation would conserve Court resources...Defendants explained again the burden on the Court, and the waste of the Court’s time and resources...It is axiomatic that parties should not seek to waste the resources of the Court...Defendants are simply seeking to consolidate the meet and confer process and the motion process in a way that is most efficient and most useful to the Court..."

However, although the stipulation mighgt do all that the court toady says, it would do one more thing, too, which Elysium does not mention:

Granting the application would hide from the public eye, at least for a little longer, the truth about what has been going on.

ChromaDex, by contrast, thinks that there is not very much that should be shielded from public view.

According to Elysium,

ChromaDex’s sole articulated reason for opposing Defendants’ proposal is that ChromaDex does not believe there is a large volume of material that will warrant being filed under seal. Respectfully, ChromaDex misses the point. Defendants are not seeking to alter the standard for filing material under seal at summary judgment.

Elysium's argues that ChromaDex has "missed the point" because the issue is only about timing, not about what or how much gets sealed.

That's technically true, but I think Elysium misrepresents the thrust of what ChromaDex is arguing.

ChromaDex's point is: If there isn't much that needs to be sealed, then there isn't a great deal of judicial economy to be had by changing the process for sealing.

That is, of course, true, so the central premise of Elysium's argument really DOES depend on there being a large quantity of confidential information that needs to be hidden.

Earlier in this litigation, Judge Carney appeared impatient when the parties were over-redacting documents. I hope that Judge Carney will continue to protect public access to documents necessary to resolve a very public dispute in a public forum involving a public company and products sold to the public.

And no doubt Judge Carney will also be on the lookout for judicial processes invoked for an improper purpose.

I confess: I will be very, very, very disappointed if we have to wait an extra two months to see these briefs, to even know what claims are being considered for summary judgment. That would be a severe and unnecessary restriction on public information about this judicial proceeding.

But it is telling, I think, that Elysium would request such a thing.

ChromaDex's apparent position, by contrast, is consistent with what ChromaDex told its investors at this week's quarterly conference call, which is that it is eager to go to trial, and presumably excited for the truth to come out.

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