United States District Court, D. Nevada
ORDER [DOCKET NO. 13]
J. KOPPE UNITED STATES MAGISTRATE JUDGE.
before the Court is Plaintiff's second attempt to seal
its complaint that it filed on the public docket. Docket No.
13. The first motion was denied as “woefully
deficient.” Docket No. 9. The second motion does not
fare much better. For the reasons discussed below, the motion
to seal is DENIED and the Clerk's Office
is INSTRUCTED to unseal the complaint.
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). Courts
within the Ninth Circuit are generally in agreement that a
request to seal the complaint or material attached to the
complaint is considered “dispositive” for
purposes of a sealing request. See, e.g., Birch
v. Delporto, 2019 WL 2298699, at *2 (D. Nev. May 30,
2019); Billman Prop., LLC v. Bank of America, N.A.,
2015 WL 575926, at *1 (D. Nev. Feb. 11, 2015) (collecting
“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. The
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.'”
Id. at 1179 (citing Nixon v. Warner Commc'ns
Inc., 435 U.S. 589, 598 (1978)). “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. (citing Foltz, 331
F.3d at 1136).
burden to show compelling reasons is not met by conclusory
assertions, but rather the movant must “articulate
compelling reasons supported by specific factual
findings.” Id. at 1178. For example, 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.
Id. at 1182. Such “conclusory offerings do not
rise to the level of ‘compelling reasons'
sufficiently specific to bar the public access to the
documents.” Id. 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.
the pending motion to seal, Plaintiff seeks to retroactively
seal the complaint that it filed on the public docket.
Plaintiff first sought to seal the complaint more than two
weeks after it was filed publicly. Compare Docket
No. 1 with Docket No. 8. The Court sealed the
complaint on an interim basis subject to the filing of a
meritorious motion to seal. See Docket No. 9. Such a
meritorious motion was not filed.
threshold matter, Plaintiff states repeatedly that the motion
should be granted because “none of the parties”
opposes the sealing request. See, e.g., Mot. at 3.
This statement misunderstands the applicable analysis. While
the parties' positions are certainly considered in
determining whether to seal a filing, the Court's
analysis is focused on determining whether the
public's right to access the material is outweighed
by the reasons advanced for sealing. E.g.,
Kamakana, 447 F.3d at 1178-79. The fact that all the
litigants may wish to keep information secret from the public
is not sufficient to seal that information.
motion seeks to seal “certain propriety
information.” That aspect of the motion is premised on
the assertion that there will be competitive disadvantage if
that information “were made available to the
public.” Mot. at 2. The fallacy in this assertion is
that Plaintiff has already made this information
available to the public by filing the complaint on the
public docket and taking no action for weeks. “Secrecy is
a one-way street: Once information is published, it cannot be
made secret again.” In re Copley Press, Inc.,
518 F.3d 1022, 1025 (9th Cir. 2008). A request to seal
information that was publicly disclosed involves “an
inherent logical dilemma” in that “information
that has already entered the public domain cannot in any
meaningful way be later removed from the public
domain.” TriQuint Semiconductor, Inc. v. Avago
Techs. Ltd., 2012 WL 1432519, *2-7 (D. Ariz. Apr. 25,
2012) (denying after-the-fact requests to seal portions of
transcript of hearing that was open to the public); see
also Constand v. Cosby, 833 F.3d 405, 410 (3d Cir. 2016)
(“[p]ublic disclosure cannot be undone”);
Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827,
834 (9th Cir. 2014) (“once a fact is widely available
to the public, a court cannot grant ‘effective
relief' to a person seeking to keep that fact a
secret”); Doe No. 1 v. Reed, 697 F.3d 1235,
1238-40 (9th Cir. 2012) (“[t]his relief is no longer
available because the petitions are now available to the
public”); Gambale v. Deutsche Bank AG, 377
F.3d 133, 144 & n.11 (2d Cir. 2004) (“The genie is
out of the bottle . . . We have not the means to put the
genie back”). Plaintiff offers no explanation how the
Court can fashion effective relief by sealing a document that
was filed on the public record.
rate, an insufficient showing has been made that the
“proprietary information” at issue could qualify
for shielding from public view. As noted above, a request to
seal that information must meet the rigorous
“compelling reasons” standard and conclusory
assertions of competitive harm fail under that standard.
Kamakana, 447 F.3d at 1178. Plaintiff's motion
indicates that there are “contracts” and
“negotiations” the public release of which
“could damage the parties' competitive advantage in
promoting and furthering their fighters and careers due to
the sensitive financial information made between the
parties.” Mot. at 2. The motion does not identify where
in the 42-page complaint such information appears. Instead,
it vaguely references Defendant's “boxing license
status and medical conditions, ” as well as
“payment amounts and proprietary information from other
contracts which are subject to separate [sic] confidentiality
agreement.” Mot. at 2-3. Without further elaboration,
“Plaintiff requests this information be sealed.”
Id. Such a bald request fails under the compelling
also “requests the opportunity to redact”
Defendant's birthdate, which it included in the
complaint. See Mot. at 2. Counsel already had the
opportunity to redact this information. Indeed, counsel
actually had an affirmative obligation to make that redaction
before filing the complaint on the docket.
Fed.R.Civ.P. 5.2(a)(2) (“in an electronic or paper
filing with the court that contains an individual's . . .
birth date . . ., a party or nonparty making that filing may
include only . . . the year of the individual's
birth”); Local Rule IC 6-1(a) (party must
“refrain from including [an individual's birthdate]
from all documents filed with the court. . . . If an
individual's date of birth must be included, only the
year should be used.”); Local Rule IC 6-1(c)
(“The responsibility for redacting these personal
identifiers rests solely with attorneys and the
parties”). The Court wholeheartedly agrees that
Defendant's birthdate should not have been included
without redaction in the complaint. Again, however, the rules
impose a duty on counsel to address that issue before filing
a document because the Court cannot unring that bell after
personal identifying information is revealed publicly.
Moreover, Plaintiff inexplicably publicized Defendant's
birthdate yet again in the publicly-filed amended complaint.
Docket No. 11 at ¶ 9. Sealing of the amended complaint has
never been sought, and it remains on the public docket.
Sealing only one of the two instances in the record of the
improper revelation of Defendant's birthdate would be