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Florence v. Cenlar Federal Savings & Loan

United States District Court, D. Nevada

March 20, 2017

REGINA FLORENCE, Plaintiff(s),
CENLAR FEDERAL SAVINGS & LOAN, et al., Defendant(s).


          NANCY J. KOPPE United States Magistrate Judge

         Pending 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).[1] 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.[2]

         At this 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.

         I. STANDARDS

         The 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).

         The 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).

         The 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).

         The 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)).

         Lastly, 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 material”).

         II. DOCKET NO. 50

         Through 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 merits secrecy.

         A. Defendant's Information

         Defendant 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.

         B.Plaintiff's ...

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