United States District Court, D. Nevada
JOHN E. ASHCRAFT, Plaintiffs,
WELK RESORT GROUP, CORP, et al., Defendants.
ORDER (DOCKET NO. 40)
J. KOPPE, UNITED STATES MAGISTRATE JUDGE.
before the Court is Defendant Experian's sealing motion
related to Plaintiff's reply brief to the previous motion
for leave to amend the complaint. Docket No. 40; see
also Docket No. 26 (reply to motion for leave to amend).
Plaintiff filed a response in opposition. Docket Nos. 49. No
reply was filed. Pursuant to the Court's order, Defendant
has filed a supplement. See Docket No. 56. The Court
finds the motion properly resolved without a hearing.
See Local Rule 78-1. For the reasons discussed
below, the motion to seal is hereby DENIED.
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
seeking to maintain the confidentiality of documents attached
to non-dispositive motions must make a “particularized
showing” of “good cause.” See
Kamakana, 447 F.3d at 1180 (quoting Foltz, 331
F.3d at 1137). 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, 214 F.Supp.3d 917, 919 (E.D. Cal. 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”).
pending motion seeks to redact parts of an exhibit to the
reply brief to Plaintiff's motion for leave to amend the
complaint. See Docket No. 26-1. As an initial
matter, Defendant disputes the standard applicable to its
request. Other courts have held that motions to amend the
pleadings are subject to the stringent compelling reasons
standard because they are more than tangentially related to
the underlying cause of action. See, e.g.,
Macias v. Cleaver, 2016 WL 3549257, at *3 (E.D. Cal.
June 30, 2016) (citing Whitecryption Corp. v. Arxan
Techs., Inc., 2016 U.S. Dist. Lexis 31108, *3 (N.D. Cal.
Mar. 9, 2016)). Defendant argues that such a standard does
not apply when the motion for leave to amend has been denied.
See Docket No. 56 at 3-4. As a procedural matter,
Defendant fails to explain why a Court must decide an
underlying motion before determining the applicable standard
for resolving the administrative matter regarding sealing.
Moreover, Defendant has failed to cite any legal authority
making this distinction in determining the standard
applicable to a motion to seal. At any rate, the Court would
reach the same conclusion in this case under either standard,
and therefore need not conclusively resolve the issue here.
is a basic, threshold problem with Defendant's request to
seal. While the pending motion and attached declaration
indicate that the information at issue is highly sensitive
and that Defendant believes it is very important to keep it
confidential,  Defendant's conduct in this case is
completely contrary to that assertion. In particular,
Plaintiff filed the deposition transcript at issue on the
public docket on May 30, 2017. Docket No. 26-1. While
Defendant contends that the deposition transcript was
automatically subject to the stipulated protective order
because the testimony relates to underlying documents that
were designated as confidential, Docket No. 40 at 3,
Defendant did not seek immediate relief to seal the
transcript when it was filed publicly. Instead, Defendant
made formal confidentiality designations thereafter on June
14, 2017, see Id. at 4, and waited another two weeks
to meet-and-confer on the issue on June 26, 2017, see
Id. Defendant threatened to file the instant motion to
seal on June 30, 2017, see id., but then waited
another month to actually file it on July 28, 2017. Hence,
Defendant waited two months to seek sealing of the transcript
despite it being available to the public during that period.
Moreover, when the motion to seal was finally filed, it was
not filed as an emergency matter requiring expedited
treatment. Compare Docket No. 40 with Local
Rule 7-4 (outlining procedures for seeking expedited relief).
As a result, the motion was briefed pursuant to the
weeks' long default briefing schedule, and resolved in
the ordinary course. See Local Rule 7-2. In short,
Defendant's conduct ensured that the deposition testimony
it claims is highly sensitive remained publicly available for
more than three months, allowing further dissemination and
hindering the ability of the Court to make that now-public
information secret. Such conduct is antithetical to
Defendant's protestations that secrecy of the information
is warranted, and defeats its argument that good cause or
compelling reasons exist to redact the transcript.
reasons discussed above, the motion to seal ...