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Lama v. Nevada CVS Pharmacy, LLC

United States District Court, D. Nevada

June 11, 2019

TONY LAMA, Plaintiff,
v.
NEVADA CVS PHARMACY, LLC, et al., Defendants.

          MARI K. SCHAAN, ESQ., MARJORIE E. KRATSAS, ESQ., BRITTANY A. LEWIS, ESQ., HALL PRANGLE & SCHOONVELD, LLC, Attorneys for Defendant Nevada CVS Pharmacy, L.L.C.

          THE GAGE LAW FIRM, PLLC, DAVID O. CREASY, ESQ., Attorney for Plaintiff.

          ORDER

          CAM FERENBACH UNITED STATES MAGISTRATE JUDGE.

         Before the court is the parties' Stipulated Protective Order and Proposed Order (ECF No. 15), which the court approves with the exception of paragraph 13. This order reminds counsel that there is a presumption of public access to judicial files and records. Paragraph 13 will be changed as follows:

In the event that counsel files or lodges with the Court any Confidential Information, all documents attaching, quoting from, or otherwise revealing the content of Confidential Information shall be filed under seal in accordance with Local Rule IA 10-5 [and the Ninth Circuit decision in Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006)], or as otherwise required by the Court.

         A party seeking to file a confidential document or utilize a confidential document at trial must comply with the Ninth Circuit's directives in Kamakana:

Unless a particular court record is one “traditionally kept secret, ” a “strong presumption in favor of access” is the starting point. ... A party seeking to seal a judicial record then bears the burden of overcoming this strong presumption by meeting the “compelling reasons” standard. ... that is, the party must “articulate[ ] compelling reasons supported by specific factual findings, ” that outweigh the general history of access and the public policies favoring disclosure. ¶ In general, “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. ... The 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.

Id. at 1178-79 (citations omitted).

         To justify the sealing of discovery materials attached to non-dispositive motions, a particularized showing of good cause is required. Id. at 1180. To justify the sealing of discovery materials attached to dispositive motions or used at trial, however, a higher threshold is required: a particularized showing that compelling reasons support secrecy. Id. “A ‘good cause' showing will not, without more, satisfy a ‘compelling reasons' test.” Id. When private discovery materials are attached to a dispositive motion (or response or reply) or used at trial, such materials become a part of a judicial record, and as such “are public documents almost by definition, and the public is entitled to access by default.” Id.

         ACCORDINGLY, and for good cause shown, IT IS ORDERED that:

         1. Paragraph 13 of the parties' Stipulated Protective Order and Proposed Order (ECF No. 15) is NOT APPROVED.

         2. The parties shall comply with the requirements of Local Rule IA 10-5(b) and the Ninth Circuit's decision in Kamakana, 447 F.3d 1172, with respect to any documents filed under seal or used at trial.

         3. The parties' Stipulated Confidentiality and Protective Order (ECF No. 15), as modified and signed by the court, is APPROVED.

         NEVADA CVS PHARMACY, LLC, a Nevada Limited Liability Company, dba CVS Pharmacy #8789, DOES I - X and ROE CORPORATIONS I - X, jointly and severally, Defendants.

         STIPULATED PROTECTIVE ORDER

         The parties herein agree that the discovery sought in this Action is likely to require the production of certain confidential health care, business, commercial, personnel, and financial information, as well as other confidential information, and that the parties have a legitimate need to protect the confidentiality of such information. The parties herein, therefore, agree and request that the Court hereby ORDER, ADJUDGE, and DECREE as follows:

         1. A Party producing or propounding written discovery responses or documents that contain trade secrets or other confidential information (“Confidential Information”) shall mark such documents with the word “CONFIDENTIAL.” Documents so marked are sometimes referred to in this Order as “Protected Documents.” The parties agree ...


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