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Green Tree Servicing LLC v. Elkhorn Community Association
United States District Court, D. Nevada
November 8, 2019
GREEN TREE SERVICING, LLC, Plaintiff,
ELKHORN COMMUNITY ASSOCIATION, ET AL., Defendants.
J. ALBREGTS UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the parties' Stipulated
Protective Order (ECF No. 108), filed on November 7, 2019.
The parties request that the Court enter a protective order
to govern their exchange of confidential information.
However, the parties fail to state the governing standard for
filing documents under seal with the Court. This order
reminds counsel that there is a presumption of public access
to judicial files and records. A party seeking to file a
confidential document under seal must file a motion to seal
and must comply with the Ninth Circuit's directives in
Kamakana v. City and County of Honolulu, 447 F.3d
1172 (9th Cir. 2006) and Center for Auto Safety v.
Chrysler Group, LLC, 809 F.3d 1092, 1097 (9th Cir.
THEREFORE ORDERED that the parties' Stipulated Protective
Order (ECF No. 108) is granted subject to the
• The Court has adopted electronic filing procedures.
Attorneys must file documents under seal using the
Court's electronic filing procedures. See Local
Rule IA 10-5. Papers filed with the Court under seal must be
accompanied with a concurrently-filed motion for leave to
file those documents under seal. See Local Rule IA
• The Court has approved the instant protective order to
facilitate discovery exchanges, but there has been no
showing, and the Court has not found, that any specific
documents are secret or confidential. The parties have not
provided specific facts supported by declarations or concrete
examples to establish that a protective order is required to
protect any specific trade secret or other confidential
information pursuant to Rule 26(c) or that disclosure would
cause an identifiable and significant harm.
• All motions to seal shall address the standard
articulated in Ctr. for Auto Safety and explain why
that standard has been met. 809 F.3d at 1097.
• Specifically, a party seeking to seal judicial records
bears the burden of meeting the “compelling
reasons” standard, as previously articulated in
Kamakana. 447 F.3d 1172. 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.” Ctr. for Auto Safety, 809 F.3d
at 1097. (quoting Kamakana, 447 F.3d at 1179).
“The court must then ‘conscientiously balance[ ]
the competing interests of the public and the party who seeks
to keep certain judicial records secret.” Ctr. for
Auto Safety, 809 F.3d at 1097.
• There is an exception to the compelling reasons
standard where a party may satisfy the less exacting
“good cause” standard for sealed materials
attached to a discovery motion unrelated to the merits of the
case. Id. “The good cause language comes from
Rule 26(c)(1), which governs the issuance of protective
orders in the discovery process: ‘The court may, for
good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense.'” Id. (citing Fed.R.Civ.P.
26(c)). “For good cause to exist, the party seeking
protection bears the burden of showing specific prejudice or
harm will result if no protective order is granted.”
Phillips v. General Motors, 307 F.3d 1206, 1210-11
(9th Cir. 2002).
• The labels of “dispositive” and
“nondispositive” will not be the determinative
factor for deciding which test to apply because the focal
consideration is “whether the motion is more than
tangentially related to the merits of a case.” Ctr.
for Auto Safety, 809 F.3d at 1101.
• The fact that the Court has entered the instant
stipulated protective order and that a party has designated a
document as confidential pursuant to that protective order
does not, standing alone, establish sufficient grounds to
seal a filed document. See Foltz v. State Farm Mut. Auto.
Ins. Co., 331 F.3d 1122, 1133 (9th Cir. 2003); see
also Beckman Indus., Inc. v. Int'l Ins. Co., 966
F.2d 470, 476 (9th Cir. 1992). If the sole ground for a
motion to seal is that the opposing party (or non-party) has
designated a document as confidential, the designator shall
file (within seven days of the filing of the motion to seal)
either (1) a declaration establishing sufficient
justification for sealing each document at issue or (2) a
notice of withdrawal of the designation(s) and consent to
unsealing. If neither filing is made, the Court may order the
document(s) unsealed without further notice.
• To the extent any aspect of the stipulated
protective order may conflict with this order or Local Rule
IA 10-5, that aspect of the stipulated protective order ...
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