United States District Court, D. Nevada
ORDER RE: ECF NOS. 2, 6
WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE
the court is Defendant Twitter, Inc.'s Motion to Seal.
(ECF No. 2.) Twitter seeks an order sealing portions of its
Motion to Compel Strategic Gaming Management, LLC to Produce
Documents Pursuant to Federal Rule of Civil Procedure 45 (ECF
No.1), as well as Exhibits 2 and 3 to the Declaration of
Laura Miller filed in support of that motion.
before the court is a second Motion to Seal filed by Twitter,
where Twitter seeks an order sealing portions of its reply
brief filed in support of the motion to compel, as well as
Exhibits 13-16 of the Declaration of Laura Miller filed in
support of the reply. (ECF No. 6.)
courts have recognized a general right to inspect and copy
public records and documents, including judicial records and
documents.” See Kamakana v. City and County of
Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (internal
quotation marks and citation omitted).
“‘Throughout our history, the open courtroom has
been a fundamental feature of the American judicial system.
Basic principles have emerged to guide judicial discretion
respecting public access to judicial proceedings. These
principles apply as well to the determination of whether to
permit access to information contained in court documents
because court records often provide important, sometimes the
only, bases or explanations for a court's
decision.'” Oliner v. Kontrabecki, 745
F.3d 1024, 1025 (9th Cir. 2014) (quoting Brown &
Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1177
(6th Cir. 1983)).
that have been traditionally kept secret, including grand
jury transcripts and warrant materials in a pre-indictment
investigation, come within an exception to the general right
of public access. See Kamakana, 447 F.3d at 1178.
Otherwise, “a strong presumption in favor of access is
the starting point.” Id. (internal quotation
marks and citation omitted). “The presumption of access
is ‘based on the need for federal courts, although
independent-indeed, particularly because they are
independent-to have a measure of accountability and for the
public to have confidence in the administration of
justice.'” Center for Auto Safety v. Chrysler
Group, LLC, 809 F.3d 1092, 1096 (9th Cir. 2016),
cert. denied, 137 S.Ct. 38 (Oct. 3, 2016) (quoting
United States v. Amodeo (Amodeo II), 71 F.3d 1044,
1048 (2nd Cir. 1995); Valley Broad Co. v. U.S. Dist.
Court-D. Nev., 798 F.2d 1289, 1294 (9th Cir. 1986)).
are two possible standards a party must address when it seeks
to file a document under seal: the compelling reasons
standard or the good cause standard. See Center for Auto
Safety, 809 F.3d at 1096-97. Under the compelling
reasons standard, “a court may seal records only when
it finds ‘a compelling reason and articulate[s] the
factual basis for its ruling, without relying on hypothesis
or conjecture.” Id. (quoting
Kamakana, 447 F.3d at 1179). “The court must
then ‘conscientiously balance[ ] the competing
interests of the public and the party who seeks to keep
certain judicial records secret.” Id.
“What constitutes a ‘compelling reason' is
‘best left to the sound discretion of the trial
court.'” Id. (quoting Nixon v. Warner
Comm., Inc., 435 U.S. 589, 599 (1978)). “Examples
include when a court record might be used to ‘gratify
private spite or promote public scandal, ' to circulate
‘libelous' statements, or ‘as sources of
business information that might harm a litigant's
competitive standing.'” Id. (quoting
Nixon, 435 U.S. at 598-99).
for Auto Safety described the good cause standard, on
the other hand, as the exception to public access that had
been applied to “sealed materials attached to a
discovery motion unrelated to the merits of a case.”
Id. (citing Phillips ex rel. Estates of Byrd v.
Gen. Motors Corp., 307 F.3d 1206, 1213-14 (9th Cir.
2002)). “The ‘good cause language comes from Rule
26(c)(1), which governs the issuance of protective orders in
the discovery process: ‘The court may, for good cause,
issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.”
Id. (citing Fed.R.Civ.P. 26(c)).
Ninth Circuit has clarified that the key in determining which
standard to apply in assessing a motion for leave to file a
document under seal is whether the documents proposed for
sealing accompany a motion that is “more than
tangentially related to the merits of a case.”
Center for Auto Safety, 809 F.3d at 1101 (9th Cir.
2016). If that is the case, the compelling reasons standard
is applied. If not, the good cause standard is applied.
in its first motion, Twitter seeks to file under seal
portions of its motion to compel, as well as Exhibits 2 and 3
to a declaration filed in support of that motion because the
documents are designated confidential in a protective order
entered into in the underlying patent infringement lawsuit
pending in the Northern District of Texas, and the portions
of the motion they seek to seal describe those confidential
documents. The motion to compel does not go to the merits of
the action itself, but pertains to third-party discovery.
Therefore, the “good cause” standard applies.
second motion, Twitter again seeks to file under seal
portions of its reply brief and exhibits filed in support of
the reply that pertain to documents designated as
confidential pursuant to a protective order entered into in
the underlying patent infringement action.
protective order entered into in the underlying patent
infringement action allows the parties to designate as
confidential documents that contain trade secrets or
commercial information that are not publicly known and are of
technical or commercial advantage to the possessor, or other
information required by law or agreement to remain
confidential, including confidential research and
development, financial, technical, marketing or other
allows the court to protect “trade secret[s] or other
confidential research, development or commercial
information[.]” As such, the court finds that good
cause exists to seal the portions of the motion to compel,
Exhibits 2 and 3 filed in support of the motion, the portions
of the reply brief, and Exhibits 13-16 filed in support of
the reply. ...