United States District Court, D. Nevada
ORDER FOR SUPPLEMENTAL SUBMISSIONS (Docket Nos. 50,
J. KOPPE United States Magistrate Judge
before the Court are twelve motions to seal. Docket Nos. 50,
54, 55, 56, 78, 79, 80, 81, 100, 101, 106, 107. Through these
motions to seal, the parties seek to keep secret every
word in forty filings made in conjunction with their
pending motions for summary judgment, totaling by the
Court's calculation 10, 793 pages. See
Docket Nos. 51, 53, 57, 58, 59, 60, 61, 62, 63, 66, 67, 68,
69, 70, 71, 72, 73, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91,
92, 93, 94, 95, 96, 97, 98, 102, 103, 104, 105, 108, 109
(filed under seal pending resolution of motions to
seal). The only documents not filed under seal in
conjunction with the summary judgment motions are
certificates of service, stipulations for extensions, an
appendix with a table of exhibits, and the motions to seal.
Even some purely administrative documents were filed under
seal. See, e.g., Docket No. 98 (declaration of
Plaintiff's counsel explaining why he did not effect
paper service of Plaintiff's brief and exhibits).
Moreover, the parties acknowledge that some of the documents
they have filed under seal are not confidential. See,
e.g., Docket No. 50 at 5 (explaining that seven
“non-sensitive” exhibits were filed under seal
“out of an abundance of caution”); Docket No. 55
at 2 (similarly arguing that documents “contained in
the public record” should be sealed “out of an
abundance of caution”). This kind of blanket approach
is incompatible with the applicable standards established by
controlling Ninth Circuit authority.
time, the Court declines to rule on the twelve motions to
seal. Instead, the Court will provide guidance on two of them
and allow the parties an opportunity to supplement or revise
their positions. In particular, the parties shall file joint
supplements to Defendant Experian's motion to seal at
Docket No. 50 and to Plaintiff Regina Florence's motion
to seal at Docket No. 55. Such supplements shall be filed no
later than March 31, 2017, and must comply with the
instructions outlined below.
Ninth Circuit has held that there is a strong presumption of
public access to judicial records. See Kamakana v. City
& County of Honolulu, 447 F.3d 1172, 1178 (9th Cir.
2006); Foltz v. State Farm Mut. Auto. Ins. Co., 331
F.3d 1122, 1135 (9th Cir. 2003). A party seeking to file
documents under seal bears the burden of overcoming that
presumption. Pintos v. Pac. Creditors Ass'n, 605
F.3d 665, 678 (9th Cir. 2010) (quoting Kamakana, 447
F.3d at 1178).
standard applicable to a motion to seal turns on whether the
sealed materials are submitted in conjunction with a
dispositive or a non-dispositive motion. Whether a motion is
“dispositive” turns on “whether the motion
at issue is more than tangentially related to the underlying
cause of action.” See Center for Auto Safety v.
Chrysler Group, LLC, 809 F.3d 1092, 1101 (9th Cir.
2016), cert. denied, 137 S.Ct. 38 (2016). Parties
“who seek to maintain the secrecy of documents attached
to dispositive motions must meet the high threshold of
showing that ‘compelling reasons' support
secrecy.” Kamakana, 447 F.3d at 1180. Those
compelling reasons must outweigh the competing interests of
the public in having access to the judicial records and
understanding the judicial process. Id. at 1178-79;
see also Pintos, 605 F.3d at 679 & n.6 (court
must weigh “relevant factors, ” including the
public's interest in understanding the judicial process).
Ninth Circuit has indicated that “‘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.'”
Kamakana, 447 F.3d at 1179 (citing Nixon v.
Warner Commc'ns Inc., 435 U.S. 589, 598 (1978));
see also Apple Inc. v. Samsung Elecs. Co., 727 F.3d
1214, 1221-22 (Fed. Cir. 2013) (applying Ninth Circuit law
regarding competitive harm to business and the definition of
“trade secret”). On the other hand, “[t]he
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.” Kamakana, 447 F.3d at
1179 (citing Foltz, 331 F.3d at 1136).
burden to show compelling reasons for sealing is not met by
general assertions that the information is
“confidential” or a “trade secret, ”
but rather the movant must “articulate compelling
reasons supported by specific factual findings.”
Id. at 1178. The Ninth Circuit has rejected efforts
to seal documents under the “compelling reasons”
standard based on “conclusory statements about the
contents of the documents-that they are confidential”
and that, in general, their disclosure would be harmful to
the movant. Kamakana, 447 F.3d at 1182; see also
Vaccine Ctr. LLC v. GlaxoSmithKline LLC, 2013 U.S. Dist
Lexis 68298, *5-6 (D. Nev. May 14, 2013) (finding
insufficient general assertions regarding confidential nature
of documents). Such “conclusory offerings do not rise
to the level of ‘compelling reasons' sufficiently
specific to bar the public access to the documents.”
Kamakana, 447 F.3d at 1182. In allowing the sealing
of a document, the Court must “articulate the basis for
its ruling, without relying on hypothesis and
conjecture.” See, e.g., Pintos, 605
F.3d at 679 (quoting Hagestad v. Tragesser, 49 F.3d
1430, 1434 (9th Cir. 1995)).
any request to seal documents must be “narrowly
tailored” to remove from the public sphere only the
material that warrants secrecy. E.g., Ervine v.
Warden, __ F.Supp.3d__, 2016 WL 5870797, at *2 (E.D.
Cal. Oct. 7, 2016) (citing Press-Enterprise Co. v.
Superior Court of Cal., 464 U.S. 501 (1986)). As a
corollary, to the extent any confidential information can be
easily redacted while leaving meaningful information
available to the public, the Court must order that redacted
versions be filed rather than sealing entire documents.
Foltz, 331 F.3d at 1137; see also In re Roman
Catholic Archbishop of Portland in Oregon, 661 F.3d 417,
425 (9th Cir. 2011) (the district court must “keep in
mind the possibility of redacting the sensitive
DOCKET NO. 50
this motion, Defendant seeks to seal the entirety of its
motion for summary judgment and hundreds of pages of
exhibits. See Docket No. 50; see also
Docket No. 51 (materials for which sealing is sought).
Defendant has not established compelling reasons for sealing
and, further, has not established that redaction is not a
viable option to the extent some of the information at issue
seeks to seal information related to its business procedures,
including its internal procedures for investigating claims.
Docket No. 50 at 4. Defendant contends that such information
is “sensitive, ” “proprietary, ” and
“confidential.” Id. at 3, 4. Without
elaboration, Defendant represents that the secrecy of the
information is “incalculably valuable.”
Id. at 4. The conclusory assertions posited fail to
establish compelling reasons. See, e.g.,
Kamakana, 447 F.3d at 1182. Moreover, Defendant has
failed to provide any specific factual support, through
declaration or otherwise, on which this Court could
articulate a basis to seal documents. See Id. at
1178-79. As such, an insufficient basis has been presented to
seal the materials at issue based on Defendant's asserted
interest in confidentiality.