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Russell v. Nissan Motor Co. Ltd.

United States District Court, D. Nevada

February 2, 2017

MORGAN RUSSELL, Plaintiff,
v.
NISSAN MOTOR CO., LTD., et al., Defendants.

          BOWMAN AND BROOKE LLP Curtis J. Busby, Esq.

          ALVERSON, TAYLOR, MORTENSEN & SANDERS Leann Sanders, Esq. Attorneys for Defendant Nissan North America, Inc. and Garff-Warner Nissan of SLC, LLC dba Ken Garff Nissan of Salt Lake.

          MAINOR WIRTH, LLP Bradley S. Mainor, Esq. Matthew G. Holland, Esq. Katie E. Goldberg, Esq. Attorneys for Plaintiff Morgan Russell.

          ORDER

          CAM FERENBACH UNITED STATES MAGISTRATE JUDGE.

         Before the court is the parties' Stipulated Confidentiality Agreement and Protective Order (ECF No. 48), which the court approves with the exception of paragraph 6. This order reminds counsel that there is a presumption of public access to judicial files and records. Paragraph 6 will be changed as follows:

In the event that counsel files or lodges with the Court any Confidential Information, all documents attaching, quoting from, or otherwise revealing the content of Confidential Information shall be filed under seal in accordance with Local Rule IA 10-5 [and the Ninth Circuit decision in Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006)], or as otherwise required by the Court.

         A party seeking to file a confidential document or utilize a confidential document at trial must comply with the Ninth Circuit's directives in Kamakana:

Unless a particular court record is one “traditionally kept secret, ” a “strong presumption in favor of access” is the starting point. ... A party seeking to seal a judicial record then bears the burden of overcoming this strong presumption by meeting the “compelling reasons” standard. ... that is, the party must “articulate[ ] compelling reasons supported by specific factual findings, ” that outweigh the general history of access and the public policies favoring disclosure. ¶ In general, “compelling reasons” sufficient to outweigh the public's interest in disclosure and justify sealing court records exist when such “court files might have become a vehicle for improper purposes, ” such as the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets. ... The mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records.

Id. at 1178-79 (citations omitted).

         To justify the sealing of discovery materials attached to non-dispositive motions, a particularized showing of good cause is required. Id. at 1180. To justify the sealing of discovery materials attached to dispositive motions or used at trial, however, a higher threshold is required: a particularized showing that compelling reasons support secrecy. Id. “A ‘good cause' showing will not, without more, satisfy a ‘compelling reasons' test.” Id. When private discovery materials are attached to a dispositive motion (or response or reply) or used at trial, such materials become a part of a judicial record, and as such “are public documents almost by definition, and the public is entitled to access by default.” Id.

         ACCORDINGLY, and for good cause shown, IT IS ORDERED that:

         1. Paragraph 6 of the parties' Stipulated Confidentiality Agreement and Protective Order (ECF No. 48) is NOT APPROVED.

         2. The parties shall comply with the requirements of Local Rule IA 10-5(b) and the Ninth Circuit's decision in Kamakana, 447 F.3d 1172, with respect to any documents filed under seal or used at trial.

         3. The parties' Stipulated Confidentiality Agreement and Protective Order (ECF No. 48), as modified and signed by the court, is APPROVED.

         STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER

         Defendants Nissan North America, Inc. and Garff-Warner Nissan of SLC, LLC dba Ken Garff Nissan of Salt Lake (hereinafter "Nissan defendants") may disclose certain Confidential Information to the parties in this action pursuant to discovery. Plaintiff Morgan Russell and the Nissan defendants agree to enter into this Stipulated Protective Order for the purpose of facilitating and expediting the discovery process and to prevent the court from having to conduct separate hearings on the information sought to be protected. In order to protect their proprietary interests and trade secret information, the Nissan defendants wish to ensure that any such Confidential Information shall not be used for any purpose other than this action and shall not be made public or disseminated by any party or their counsel, except as set forth in this Stipulated Confidentiality Agreement and Protective Order (hereinafter "Stipulated Protective Order").

         The Nissan defendants represent that all documents, testimony, and/or other items to be produced pursuant to this Stipulated Protective Order contain trade secret, proprietary and/or Confidential Information. The disclosure of Confidential Information would necessarily result in serious harm to the Nissan defendants. Accordingly, the parties stipulate to the following:

         1. For the purposes of this Stipulated Protective Order, Confidential Information may include, but is not limited to, responses to discovery the content of electronically stored information, tangible thing, writing, paper, model, photograph, film, videotape, transcript of oral testimony, whether printed, recorded or produced by hand or any other mechanical process. All documents, testimony and other items designated as Confidential Information, and all copies, summaries, and reproductions of such information, are subject to this Stipulated Protective Order.

         2. Whenever the Nissan defendants produce a document or thing containing information deemed to be confidential, the Nissan defendants shall designate the document or thing with "Confidential, " "Produced Pursuant to Protective Order, " or a similar statement. If a document or thing is designated "Confidential" or "Produced Pursuant to Protective Order" on its first page, the entire document or thing shall be deemed "Confidential" or "Produced Pursuant to Protective Order." Inadvertent or unintentional production of documents or information containing Confidential Information that are not designated ...


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