United States District Court, D. Nevada
J. KOPPE United States Magistrate Judge
Court previously provided the parties with an opportunity to
redo their summary judgment filings and accompanying sealing
requests given numerous problems with the initial effort.
See Docket Nos. 111, 114. Pending before the Court
are roughly 45 filings in relation to four renewed motions
for summary judgment, and two renewed requests to seal.
Docket Nos. 115-159. Unfortunately, this renewed effort
continues to be plagued by several problems. See,
e.g., Docket No. 122 (emergency motion filed in relation
to motion improperly filed on the public docket). For the
reasons discussed below, and as a final courtesy to the
parties and counsel, the Court will
STRIKE Docket Nos. 115-152, 154-157, and
159, DENY without prejudice the motions for
summary judgment at Docket Nos. 115, 118, 124, 128, 134, and
151, and DENY as moot the motions to seal at
Docket Nos. 153 and 158.
FILING OF MATERIALS GENERALLY
noted above, the Court and the parties agreed that the best
course was to strike the first wave of summary judgment
filings so that they could be refiled in accordance with
applicable standards and through the coordinated efforts of
counsel. See, e.g., Docket No. 114. Unfortunately,
counsel have refiled those documents in a haphazard manner.
By way of example, the reply to Defendant's summary
judgment motion with respect to Plaintiff William Florence
was filed before the response to that motion.
Compare Docket No. 148 (reply) with Docket
No. 158 (response). Some of the filings are also incorrectly
linked to the associated filing. See, e.g., Docket
Nos. 142, 146 (two different replies that were each docketed
as related to the summary judgment motion at Docket No 115).
Counsel were also simultaneously uploading their filings,
such that they are not grouped appropriately. See
Docket Nos. 140-45 (interspersing documents related to a
response to a motion for summary judgment (and supporting
documents) with another party's reply to a different
motion for summary judgment (and supporting documents)).
Court declines to expend further resources attempting to
divine which filings accompany which motion, especially since
such an effort would be repeated by Chief Judge Navarro in
ruling on the motions for summary judgment themselves.
Instead, the Court will STRIKE these filings
so that counsel can file them in an organized manner. Counsel
shall coordinate with one another such that each motion and
accompanying briefing is filed in the proper sequence and in
one group. Hence, for each motion, counsel shall file: (1)
the underlying motion, any sealed version thereof, supporting
documents, and any sealed versions thereof; (2) then the
response, any sealed version thereof, supporting documents,
and any sealed versions thereof; and (3) then the reply, any
sealed version thereof, supporting documents, and any sealed
versions thereof. Only after all of the filings have been
made with respect to an underlying motion and subsequent
briefing shall counsel then file the next motion and repeat
this process. All of the subject refilings shall be made by
May 29, 2017.
that the Court is striking the underlying materials, the
Court will DENY without prejudice the
sealing requests. Based on the Court's preliminary review
of the motions, however, there are several issues that are
better addressed at this time.
the motions to seal relate in part to exhibits purportedly
filed by Plaintiffs in support of their motions and briefs.
See, e.g., Docket No. 153 at 8 n.3, 11. While
Plaintiffs filed placeholders for those exhibits, see,
e.g., Docket No. 145-11, it does not appear that they
ever filed any corresponding documents under seal. The Court
cannot address the sealing of documents that have not been
filed, nor can Chief Judge Navarro consider those documents
in ruling on summary judgment based on placeholders.
Experian argues that a showing of compelling reasons has been
made based on its extensive citation to the Methvin
declaration, which is purportedly attached as Exhibit A to
the motion to seal. Docket No. 153 at 2, 5-10. No declaration
was attached to the motion to seal, however.
the parties seek to keep secret references to certain of
Plaintiff's medical conditions that do not form the basis
upon which she seeks redress, but the pending motion to seal
itself was filed on the public docket and identifies those
medical conditions. Docket No. 153 at 12; see also
Docket No. 118 (previous public filing that was sealed after
the fact on an interim basis). “Secrecy is a one-way
street: Once information is published, it cannot be made
secret again.” In re Copley Press, Inc., 518
F.3d 1022, 1025 (9th Cir. 2008). “There is thus an
inherent logical dilemma underlying the parties' requests
because information that has already entered the public
domain cannot in any meaningful way be later removed from the
public domain.” TriQuint Semiconductor, Inc. v.
Avago Techs. Ltd., 2012 WL 1432519, *2-7 (D. Ariz. Apr.
25, 2012) (denying after-the-fact requests to seal portions
of transcript of hearing that was open to the public);
see also Constand v. Cosby, 833 F.3d 405, 410 (3d
Cir. 2016) (“[p]ublic disclosure cannot be
undone”); Protectmarriage.com-Yes on 8 v.
Bowen, 752 F.3d 827, 834 (9th Cir. 2014) (“once a
fact is widely available to the public, a court cannot grant
‘effective relief' to a person seeking to keep that
fact a secret”); Doe No. 1 v. Reed, 697 F.3d
1235, 1238-40 (9th Cir. 2012) (“[t]his relief is no
longer available because the petitions are now available to
the public”); Gambale v. Deutsche Bank AG, 377
F.3d 133, 144 & n.11 (2d Cir. 2004) (“The genie is
out of the bottle . . . We have not the means to put the
genie back”). It appears that the ship has sailed here
with respect to these medical conditions that have been
publicly revealed on at least two occasions.
the parties' positions with respect to sealing excerpts
of the transcript of Dr. Rasool are not sufficiently
developed. Docket No. 153 at 11-12. On the one hand, the
parties acknowledge that they have discussed in the briefing
the pertinent contents of that transcript. Id. The
parties nonetheless argue that a proper balance to protect
Plaintiff's privacy is to seal the transcript itself.
Id. As an initial matter, the Court fails to discern
the logic in this position. There is no point in sealing
transcripts that echo the information disclosed in
publicly-filed documents. Moreover, while the parties
reference ancillary discussion in the transcript not
necessary to resolving the motions for summary judgment, they
fail to make specific citation to the information at issue
such that the Court can make a determination as to whether it
is indeed properly kept secret. Any renewed motion must
specifically cite by page and line the information the
parties contend is not relevant to the summary judgment
motions and that they believe to be sufficiently sensitive
that secrecy is appropriate.
the parties' position for sealing, rather than redaction,
is at times disconnected from the applicable standard. For
example, the parties argue that “[s]eal[ing], rather
than redaction, is appropriate here because Dr. Rasool's
deposition covers detailed analysis of Lead Plaintiff's
medical conditions, the bases for those diagnoses, and
extensive references to her HIPAA-protected records.”
Docket No. 153 at 11-12. This contention does not actually
address whether such information so pervades the underlying
document that redaction is not feasible. See Docket
No. 111 at 4. Moreover, the Court cannot determine whether
redaction should be ordered given that the parties have
failed to indicate with any specificity the testimony that
they would like to keep secret, a problem exacerbated by the
fact that they concede that some of the medical information
can be (and has been) disclosed publicly.
the sealing materials repeatedly reference Rule 5.2 of the
Federal Rules of Civil Procedure. See, e.g., Docket
No. 153 at 2. The application of this rule is not apparent on
its face, however, and the parties do not explain how is
supports sealing in this case. Compare Docket No.
147-10 (deposition testimony regarding medical conditions)
with Fed. R. Civ. P. 5.2 (concerning the redaction
of “an individual's social security number,
taxpayer-identification number, or birth date, the name of a
person known to be a minor, or a financial-account
number”). To the extent the parties are relying on this
rule, they must explain with particularity how it pertains to
any renewed sealing request.
sealing request filed with the renewed summary judgment
motion practice shall be filed in accordance with this order.
As the Court has stated before, the Ninth Circuit has made
clear that there is a strong presumption of public
access and parties seeking sealing have the burden of
overcoming that presumption. See, e.g., Docket No.
111 at 2 (citing Kamakana v. City & County of
Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) and
Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d
1122, 1135 (9th Cir. 2003)). The Court has now given the