United States District Court, D. Nevada
DANIEL HARRINGTON, an individual, PAMELA HARRINGTON, an individual, NIGHTWATCH MARINE, LLC, a Nevada limited liability company, Plaintiffs,
DAVID TACKETT, an individual, Defendant.
ORDER RE: ECF NO. 54
William G. Cobb United States Magistrate Judge.
the court is defendant David Tackett's Motion for Leave
to File Declaration of David Tackett Under Seal. The motion,
supporting affidavit of Plaintiff's counsel, Jeffrey B.
Setness, Esq., and Tackett declaration were all filed under
seal together and docketed by the clerk as ECF No. 54.
action, Plaintiffs have sued Tackett for, inter
alia, breach of contract, stemming from an agreement the
parties entered into for the purchase and sale of 130, 000
pounds of turquoise ore. Plaintiffs allege that they agreed
to sell Tackett the turquoise ore in exchange for the
immediate payment of $300, 000 and $20 per pound for any
future sales of the turquoise ore.
on in the litigation, Tackett's former counsel, Jeremy
Clarke, Esq., represented to Plaintiffs' former counsel,
Kenneth Ching, Esq., that Tackett had an audio recording of
the conversation where the parties entered into the
agreement, and it favored his client's position.
Plaintiffs requested the recording in written discovery, and
contrary to Mr. Clarke's earlier representation, the
discovery response stated that Tackett did not have an audio
recording in his possession, custody or control. In light of
this discrepancy, Mr. Ching contacted Mr. Clarke to meet and
confer, and Mr. Clarke represented that Tackett had recently
told him the recording was either damaged or inaudible, but
he would ask him to produce it again. Plaintiffs filed a
motion for sanctions when the recording was not produced. The
motion for sanctions includes a request for default judgment
being entered against Tackett or an instruction to the jury
that the contents of the recording were unfavorable to
Tackett, as well as reasonable attorney's fees.
seeks leave to file his declaration under seal in connection
with Tackett's response to Plaintiffs' motion for
sanctions. Neither the declaration nor the motion and
Setness' supporting affidavit were served on Plaintiffs.
Tackett maintains that the declaration should be sealed and
there is good cause for not serving it on Plaintiffs because
it contains attorney-client privileged communications.
Rule 10-5 governs sealed documents and provides that papers
filed under seal must be accompanied by a motion for leave to
file them under seal, and will remain sealed until the court
either denies the motion to seal or enters an order unsealing
them. LR IA 10-5(a). A document filed under seal must also be
accompanied by a certificate of service certifying that the
sealed document was served on the opposing parties/attorneys
in accordance with LR 1C 4-1(c), or an affidavit showing good
cause why the document was not served on the opposing
parties/attorneys. LR IA 10-5(c), (d).
noted above, Tackett filed the motion for leave to file the
declaration under seal, supporting affidavit of Mr. Setness
stating that the declaration was not served on
Plaintiffs' current counsel because it contains
attorney-client privileged communications, as well as the
Tackett declaration in one document that was docketed by the
Clerk as ECF No. 54 and sealed.
parties in federal court file a motion for leave to file a
document under seal separate from the document filed under
seal such that even when the document sought to be filed
under seal is not served on the other parties/attorneys, the
motion for leave to file under seal and any supporting
documentation is served on the opposing parties/attorneys.
The court acknowledges that the Local Rule does not clearly
set out this procedure, which explains why Plaintiffs were
not served with either the motion for leave to file the
declaration under seal or the declaration. Nevertheless, the
court finds Tackett set forth good cause for not serving the
declaration on Plaintiffs' counsel under LR 1A 10-5(c) by
stating that the declaration contains attorney-client
privileged communications, and Plaintiffs were nevertheless
able to respond to the substance of the motion in their reply
court will now address whether leave should be granted to
file the declaration under seal.
courts have recognized a general right to inspect and copy
public records and documents, including judicial records and
documents." Kamakana v. City and County of
Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (internal
quotation marks and citation omitted). "'Throughout
our history, the open courtroom has been a fundamental
feature of the American judicial system. Basic principles
have emerged to guide judicial discretion respecting public
access to judicial proceedings. These principles apply as
well to the determination of whether to permit access to
information contained in court documents because court
records often provide important, sometimes the only, bases or
explanations for a court's decision.'"
Oliner v. Kontrabecki, 745 F.3d 1024, 1025 (9th Cir.
2014) (quoting Brown & Williamson Tobacco Corp. v.
F.T.C., 710 F.2d 1165, 1177 (6th Cir. 1983)).
that have been traditionally kept secret, including grand
jury transcripts and warrant materials in a pre-indictment
investigation, come within an exception to the general right
of public access. See Kamakana, 447 F.3d at 1178.
Otherwise, "a strong presumption in favor of access is
the starting point." Id. (internal quotation
marks and citation omitted). "The presumption of access
is 'based on the need for federal courts, although
independent-indeed, particularly because they are
independent-to have a measure of accountability and for the
public to have confidence in the administration of
justice.'" Center for Auto Safety v. Chrysler
Group, LLC, 809 F.3d 1092, 1096 (9th Cir. 2016),
cert. denied, 137 S.Ct. 38 (Oct. 3, 2016) (quoting
United States v. Amodeo (Amodeo II), 71 F.3d 1044,
1048 (2nd Cir. 1995); Valley Broad Co. v. U.S. Dist.
Ct., D. Nev., 798 F.2d 1289, 1294 (9th Cir.
are two possible standards a party must address when it seeks
to file a document under seal: the compelling reasons
standard or the good cause standard. Center for Auto
Safety, 809 F.3d at 1096-97. Under the compelling
reasons standard, "a court may seal records only when it
finds 'a compelling reason and articulate[s] the factual
basis for its ruling, without relying on hypothesis or
conjecture.'" Id. (quoting
Kamakana, 447 F.3d at 1179). The court must
"'conscientiously balance[ ] the competing interests
of the public and the party who seeks to keep certain
judicial records secret.'" Id. "What
constitutes a 'compelling reason' is 'best left
to the sound discretion of the trial court.'"
Id. (quoting Nixon v. Warner Comm., Inc.,
435 U.S. 589, 599 (1978)). "Examples include when a
court record might be used to 'gratify ...