United States District Court, D. Nevada
ORDER (DOCKET NO. 18)
J. KOPPE UNITED STATES MAGISTRATE JUDGE.
before the Court is a motion to seal two exhibits filed in
conjunction with Plaintiff's response to Defendants'
motion to dismiss for lack of personal jurisdiction. Docket
No. 18; see also Docket No. 17 (Exhibits B and D to
Plaintiff's response). Defendants filed a response in
opposition. Docket No. 20. Plaintiff filed a reply. Docket
No. 21. For the reasons discussed below, the motion to seal
is DENIED without prejudice.
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); see also 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. See 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 seeking to maintain the secrecy of
documents attached to dispositive motions must show
compelling reasons sufficient to overcome the presumption of
public access. Id. All motions to seal must address
the applicable standard and explain why that standard has
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. See 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”).
initial matter, Plaintiff incorrectly applies the “good
cause” standard to its motion to seal. Docket Nos. 18
at 2, 21 at 2-3. Moreover, Plaintiff incorrectly assumes that
determining which Kamakana standard applies to a
motion to seal depends on the nature of the documents to be
sealed. Docket No. 18 at 2. Determining which standard
applies is dependent on the underlying motion, not the
documents to be sealed. See generally, Kamakana, 447
F.3d 1172. Plaintiff's underlying motion is its response
to Defendants' motion to dismiss for lack of personal
jurisdiction and is, therefore, a dispositive motion. Docket
No. 14. Plaintiff requests to seal Exhibits B and D, which
were submitted in conjunction with its response. Docket Nos.
16, 18. Therefore, Plaintiff must cite compelling reasons
sufficient to overcome the presumption of public access, not
merely show “good cause.” Kamakana, 447
F.3d at 1180. The Court finds that Plaintiff failed to cite
compelling reasons to seal Exhibits B and D in their
Failure to Seek Redaction and Insufficient Factual
submit Plaintiff fails to explain why the documents contained
in Exhibits B and D cannot be redacted and must be sealed in
their entirety. Docket No. 20 at 2. In reply, Plaintiff does
not explain which portions of the documents to be sealed
contain confidential or proprietary information, why those
portions cannot be redacted, nor does Plaintiff provide
compelling reasons why the documents must be sealed in their
entirety. Docket No. 21. The Court must have sufficient facts
to balance the competing interests of the public and the
party requesting to seal documents and to determine if the
documents can be redacted. See Kamakana, 447 F.3d at
1178-79; see also Foltz, 331 F.3d at 1137.
has not provided sufficient factual context of the documents
in Exhibits B and D. Plaintiff submits generally that the
documents “contain key business strategy and practices,
and information related to Plaintiff's...financial
condition.” Docket No. 18 at 3. In response, Defendants
submit they prepared the documents for Greenfence, LLC
(“Greenfence”), which are not specific to
Plaintiff's business. Docket No. 20 at 2. In reply,
Plaintiff submits that the documents include information
about project costs and salaries Plaintiff agreed to and
accepted. Docket No. 21 at 2-3.
further submits that Greenfence grants non-exclusive licenses
to third parties. Id. at 2. While the proposal
presentation in Exhibit B mentions “Mitch, ”
presumably Mitch Chait, a representative of Plaintiff, the
lack of context creates the possibility that a majority of
the information in Exhibits B and D is available or presented
to other third-parties seeking to receive non-exclusive
licenses from Greenfence. Id.; see also
Docket No. 17 at 9. The Court finds that Plaintiff has failed
to demonstrate compelling reasons that Exhibits B and D
contain confidential or propriety information specific to
Plaintiff, and, if so, the exact portions of the
documents where that information is found.