United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
the Court is Respondents' Sealed Motion for Leave to File
Documents in Camera and Under Seal (ECF No. 45). No. response
was filed and the deadline for doing so has expired. For the
reasons discussed below, Respondents' motion is granted
in part and denied in part.
initial matter, the Court notes that the motion was
erroneously filed under seal when the motion itself
does not contain any confidential information-only the
attached exhibits presents confidential information. If a
motion to seal itself contains confidential information, the
moving party may file a redacted motion to seal on
the public docket and an unredacted motion under
seal with the sealed exhibits. However, this practice is
disfavored as litigants should attempt to meet their burden
under Kamakana v. City and County of Honolulu, 447
F.3d 1172 (9th Cir. 2006), without specific references to
confidential information. Parties must file confidential
information separately under seal as a “Sealed
Exhibit(s)” and link the sealed exhibit(s) to the
motion to seal.
addition, the certificate of service indicates that
Cardenas-Ornelas' counsel was served by the CM/ECF
system. (ECF No. 45 at 3.) However, when a filing is
submitted under seal, CM/ECF does not generate a notice of
electronic filing for purposes of service, even though the
document is filed electronically. See LR IA 10-5, LR
IC 4-1(c)(4). Thus, it is not clear whether
Cardenas-Ornelas' counsel was served with the motion and
its exhibits. For all future filings, Respondents must review
the Local Rules of Practice regarding sealed filings and
CM/ECF filing procedures available on the court's
website. For additional direction regarding sealed filings,
litigants may contact the CM/ECF Helpdesk at (702) 464-5555.
motion seeks leave to file under seal a total of 43 exhibits.
(ECF No. 45 at 5-7.) The exhibits include
Cardenas-Ornelas' Presentence Investigation Report
(“PSI”) (ECF No. 45-9). Under Nevada law, the PSI
is “confidential and must not be made a part of any
public record.” Nev. Rev. Stat. § 176.156(5). The
remaining exhibits were filed under seal in the state trial
court. Respondents claim these exhibits include
“financial statements and information that may have
been covered by attorney client privilege.” (ECF No. 45
at 2.) Respondents seek to comply with the actions of the
trial court and ask this Court to seal the same documents.
Compelling reasons purportedly exist for sealing the exhibits
because the trial court never made the filings public.
reviewed and considered the matter in accordance with the
Ninth Circuit's directives set forth in Kamakana
and its progeny, the Court finds that a compelling need to
protect Cardenas-Ornelas' privacy and/or personal
identifying information in his PSI outweighs the public
interest in open access to court records. Respondents have
met their burden of establishing compelling reasons for
Exhibit 60 to remain sealed. However, Respondents have not
made a particularized showing for the remaining exhibits.
general, compelling reasons for sealing exist when court
records might become a vehicle for improper purposes, such as
“to gratify private spite, promote public scandal,
circulate libelous statements, or release trade
secrets.” Demaree v. Pederson, 887 F.3d 870,
884 (9th Cir. 2018) (quoting Kamakana, 447 F.3d at
1179). Under Kamakana, a party must make a
particularized showing to overcome the presumption of public
accessibility. Parties are required to set forth compelling
reasons to seal for each exhibit. See San Jose Mercury
News v. U.S. Dist. Court, 187 F.3d 1096, 1103 (9th Cir.
claim that the remaining exhibits should be sealed because
the trial court previously sealed the same documents.
However, Respondents do not set forth the trial court's
basis for sealing. The exhibits do not display any personal
data identifiers such as social security numbers, date of
birth, financial account numbers, etc. See e.g., LR
IC 6-1(a); Fed.R.Civ.P. 5.2. The trial court's
unexplained sealing of these documents does not provide
compelling reasons for this Court to do the same.
also assert that sealing is justified because the exhibits
may have been covered by attorney client privilege.
Courts routinely grant protection orders for materials
qualifying as privileged under the doctrine of
attorney-client privilege. See e.g., Foltz v.
State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1138 (9th
Cir. 2003). However, Respondents have not shown that the
remaining exhibits are privileged or made a particularized
showing of a compelling need for sealing. The Court has
reviewed the exhibits, which include multiple motions by
Cardenas-Ornelas' trial counsel seeking payment of
attorney's fees and costs, as well as orders and notices
related to those motions. The motions provide summaries of
counsel's time and expenses and include descriptions of
typical attorney tasks such as discovery review, jail visits,
court appearances, telephone calls with the client or
district attorney, drafting motions, and preparing for trial.
Respondents do not explain how such descriptions reveal
sensitive information or confidential case strategy or
identify material protected by the attorney-client privilege
doctrine. Respondents have not asserted or shown specific
harm or prejudice that it expects will result from disclosure
of any particular document it seeks to seal. See
e.g., Avnet, Inc. v. Avana Technologies Inc.,
2:13-cv-0929-GMN-PAL, 2014 WL 4181831 (D. Nev. Aug. 20, 2014)
(denying motion to seal attorney invoices purportedly covered
by attorney-client privilege and filed in support of
dispositive motions). A one-sentence assertion that exhibits
consisting of more than two hundred pages may
contain privileged information is insufficient. As such, the
motion fails to show compelling reasons why the remaining
exhibits should be sealed on the basis of privilege.
Cardenas-Ornelas may have waived any applicable privilege by
asserting claims for ineffective assistance of counsel. It is
well established that “where a habeas petitioner raises
a claim of ineffective assistance of counsel, he waives the
attorney-client privilege as to all communications with his
allegedly ineffective lawyer.” Bittaker v.
Woodford, 331 F.3d 715, 716 (9th Cir. 2003) (en banc);
Lambright v. Ryan, 698 F.3d 808, 813 (9th Cir. 2012)
(noting that “a habeas petitioner waives his
attorney-client privilege in a proceeding raising an
ineffective assistance of counsel claim, but that such waiver
is narrow and limited to what is necessary to allow the state
to fairly defend against such claim”). The same rule
applies to the work product privilege. See Bittaker,
331 F.3d at 722 n.6 (“Although our decision is couched
in terms of the attorney-client privilege, it applies equally
to the work product privilege, a complementary rule that
protects many of the same interests.”) (citing
Upjohn Co. v. United States, 449 U.S. 383, 400
Court will allow the remaining exhibits to stay sealed
temporarily so the parties may confer about which, if any,
exhibits or portions thereof should be sealed.
it is ordered that Respondents' Motion for Leave to File
Exhibits Under Seal (ECF No. 45) is granted in part and
denied in part without prejudice as follows:
1. Exhibit 60 (ECF No. 45-9) is considered properly filed
2. The parties will have until July 12, 2019, to file a
memorandum of points and authorities and any supporting
declaration or affidavit to make a particularized showing of
compelling need why the remaining exhibits attached ...