1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 ALPS PROPERTY & CASUALTY INSURANCE COMPANY, 5 3:19-cv-00709-MMD-CLB Plaintiff, 6 vs. ORDER 7 KALICKI COLLIER LLP, et. al., 8 Defendants. 9
11 The parties have filed a litany of motions to seal various documents in this case. 12 These motions started with the filing of a motion for leave to file the complaint and 13 exhibits to the complaint under seal by Plaintiff Alps Property & Casualty Insurance 14 Company (“Alps”). (ECF No. 1). Based on the request to seal the complaint and its 15 exhibits, the parties then filed motions to seal subsequently filed documents that 16 referenced the complaint and/or its exhibits to comply with any subsequently entered 17 sealing order in response to Alps’s Motion. (See ECF Nos. 9, 27, 29, 33, 37 and 39). 18 Therefore, resolution of each of these motions depends on the resolution to Alps’s 19 Motion. 20 Alps’s Motion argues there are “compelling reasons” to seal the entire complaint 21 and all of its attached exhibits. (See ECF No. 1, pp. 4-5). Defendants Kolicki Collier, LLP, 22 John Collier, and James Kolicki (“KC Defendants”) filed a non-opposition to the Alps’s 23 Motion, (ECF No. 8), by stating (without explanation) that they agree “there are 24 compelling reasons to support restricting public access to Alps’s complaint and 25 responses thereto.” (Id.) Defendant Robin Rumbaugh (“Rumbaugh”) opposed. (ECF No. 26 7). After a thorough review of the filings, the court finds there are no compelling reasons 27 to seal the complaint or the attached exhibits and Alps’s Motion must be denied. (ECF 28 1 No. 1). Based on the denial of Alps’s motion, there is no need for any of the 2 subsequently filed documents to be sealed either. Therefore, the court denies all other 3 motions to seal as moot. (ECF Nos. 9, 27, 29, 33, 37 and 39). 4 I. LEGAL STANDARDS 5 The is a strong presumption of public access to judicial records that is predicated 6 on the rights embodied in the First Amendment. See Kamakana v. City & County of 7 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006); Foltz v. State Farm Mut. Auto. Ins. Co., 8 331 F.3d 1122, 1135 (9th Cir. 2003). Any party seeking to file court documents under 9 seal bears the burden of overcoming that presumption. Pintos v. Pac. Creditors Ass’n, 10 11 605 F.3d 665, 678 (9th Cir. 2010) (quoting Kamakana, 447 F.3d at 1178). 12 The standard applicable to a motion to seal turns on whether the sealed materials 13 are submitted in conjunction with a dispositive or a non-dispositive motion. Whether a 14 motion is “dispositive” turns on “whether the motion at issue is more than tangentially 15 related to the underlying cause of action.” See Center for Auto Safety v. Chrysler Group, 16 LLC, 809 F.3d 1092, 1101 (9th Cir. 2016), cert. denied, 137 S.Ct. 38 (2016). Various 17 courts within the Ninth Circuit agree that a request to seal the complaint or material 18 19 attached to the complaint is considered “dispositive” for purposes of a sealing request. 20 See, e.g., Victory Sports & Entertainment v. Pedraza, 2019 WL 2578767, at *1 (D. Nev. 21 June 24, 2019); Birch v. Delporto, 2019 WL 2298699, at *2 (D. Nev. May 30, 2019); 22 Billman Prop., LLC v. Bank of America, N.A., 2015 WL 575926, at *1 (D. Nev. Feb. 11, 23 2015) (collecting cases). 24 Parties “who seek to maintain the secrecy of documents attached to dispositive 25 26 motions must meet the high threshold of showing that ‘compelling reasons’ support 27 secrecy.” Kamakana, 447 F.3d at 1180. The Ninth Circuit has indicated “‘compelling 28 reasons’ sufficient to outweigh the public’s interest in disclosure and justify sealing court 1 records exist when such ‘court files might have become a vehicle for improper purposes,’ 2 such as the use of records to gratify private spite, promote public scandal, circulate 3 libelous statements, or release trade secrets.’” Id. at 1179 (citing Nixon v. Warner 4 Commc’ns Inc., 435 U.S. 589, 598 (1978)). “The mere fact that the production of records 5 may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will 6 not, without more, compel the court to seal its records.” Id. (citing Foltz, 331 F.3d at 7 8 1136). 9 The burden to show compelling reasons is not met by conclusory assertions, but 10 rather the movant must “articulate compelling reasons supported by specific factual 11 findings.” Id. at 1178. For example, the Ninth Circuit has rejected efforts to seal 12 documents under the “compelling reasons” standard based on “conclusory statements 13 about the contents of the documents – that they are confidential and that, in general,” 14 their disclosure would be harmful to the movant. Id. at 1182. Such “conclusory offerings 15 16 do not rise to the level of ‘compelling reasons’ sufficiently specific to bar the public 17 access to the documents.” Id. In allowing the sealing of a document, the Court must 18 “articulate the basis for its ruling, without relying on hypothesis and conjecture.” Pintos, 19 605 F.3d at 679 (quoting Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)). 20 Even if compelling reasons are identified, any sealing order must be narrowly 21 tailored. Press–Enterprise Co. v. Superior Ct. of Cal., 464 U.S. 501, 512 (1984). The 22 23 Supreme Court has instructed that a sealing order should have been “limited to 24 information that was actually sensitive,” that is only the parts of the material necessary to 25 protect the compelling interest. Id. Thus, even where a court determines that disclosure 26 of information may result in particularized harm, and the private interest in protecting the 27 material outweighs the public interest in disclosure, a court must still consider whether 28 1 redacting confidential portions of the material will leave meaningful information available 2 to the public. In re Roman Catholic Archbishop, 661 F.3d 417, 425 (citing Foltz, 331 F.3d 3 at 1136–37). 4 II. ANALYSIS 5 Alps argues there are two “compelling reasons” to seal the entire complaint and 6 all of its attached exhibits: (1) the documents relate to a “private dispute” between the 7 8 defendants identified in the case; and, (2) some of the statements in the complaint 9 and/or the attached exhibits contain communications, or parts of communications, 10 between the defendants that were privileged attorney/client communications and/or work 11 product “at the time [they] were communicated.” (See ECF No. 1, pp. 4-5). In opposition, 12 Rumbaugh argues that Alps fails to establish that either of these assertions constitutes a 13 sufficiently compelling reason to seal the complaint or any of the attached exhibits. (ECF 14 No. 7). The court agrees with Rumbaugh. 15 16 A. Private Dispute 17 First, Alps’s assert that revealing a “private dispute” between two parties is, in 18 itself, a compelling basis for sealing a complaint and all of the attached exhibits fails for 19 several reasons. First, Alps has not articulated any specific factual findings to meet the 20 “compelling reasons” standard. As a practical matter, the filing of virtually all civil lawsuits 21 reveals the existence of a “private dispute” between two parties that is generally not 22 23 known to the public prior to the filing of a lawsuit.
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 ALPS PROPERTY & CASUALTY INSURANCE COMPANY, 5 3:19-cv-00709-MMD-CLB Plaintiff, 6 vs. ORDER 7 KALICKI COLLIER LLP, et. al., 8 Defendants. 9
11 The parties have filed a litany of motions to seal various documents in this case. 12 These motions started with the filing of a motion for leave to file the complaint and 13 exhibits to the complaint under seal by Plaintiff Alps Property & Casualty Insurance 14 Company (“Alps”). (ECF No. 1). Based on the request to seal the complaint and its 15 exhibits, the parties then filed motions to seal subsequently filed documents that 16 referenced the complaint and/or its exhibits to comply with any subsequently entered 17 sealing order in response to Alps’s Motion. (See ECF Nos. 9, 27, 29, 33, 37 and 39). 18 Therefore, resolution of each of these motions depends on the resolution to Alps’s 19 Motion. 20 Alps’s Motion argues there are “compelling reasons” to seal the entire complaint 21 and all of its attached exhibits. (See ECF No. 1, pp. 4-5). Defendants Kolicki Collier, LLP, 22 John Collier, and James Kolicki (“KC Defendants”) filed a non-opposition to the Alps’s 23 Motion, (ECF No. 8), by stating (without explanation) that they agree “there are 24 compelling reasons to support restricting public access to Alps’s complaint and 25 responses thereto.” (Id.) Defendant Robin Rumbaugh (“Rumbaugh”) opposed. (ECF No. 26 7). After a thorough review of the filings, the court finds there are no compelling reasons 27 to seal the complaint or the attached exhibits and Alps’s Motion must be denied. (ECF 28 1 No. 1). Based on the denial of Alps’s motion, there is no need for any of the 2 subsequently filed documents to be sealed either. Therefore, the court denies all other 3 motions to seal as moot. (ECF Nos. 9, 27, 29, 33, 37 and 39). 4 I. LEGAL STANDARDS 5 The is a strong presumption of public access to judicial records that is predicated 6 on the rights embodied in the First Amendment. See Kamakana v. City & County of 7 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006); Foltz v. State Farm Mut. Auto. Ins. Co., 8 331 F.3d 1122, 1135 (9th Cir. 2003). Any party seeking to file court documents under 9 seal bears the burden of overcoming that presumption. Pintos v. Pac. Creditors Ass’n, 10 11 605 F.3d 665, 678 (9th Cir. 2010) (quoting Kamakana, 447 F.3d at 1178). 12 The standard applicable to a motion to seal turns on whether the sealed materials 13 are submitted in conjunction with a dispositive or a non-dispositive motion. Whether a 14 motion is “dispositive” turns on “whether the motion at issue is more than tangentially 15 related to the underlying cause of action.” See Center for Auto Safety v. Chrysler Group, 16 LLC, 809 F.3d 1092, 1101 (9th Cir. 2016), cert. denied, 137 S.Ct. 38 (2016). Various 17 courts within the Ninth Circuit agree that a request to seal the complaint or material 18 19 attached to the complaint is considered “dispositive” for purposes of a sealing request. 20 See, e.g., Victory Sports & Entertainment v. Pedraza, 2019 WL 2578767, at *1 (D. Nev. 21 June 24, 2019); Birch v. Delporto, 2019 WL 2298699, at *2 (D. Nev. May 30, 2019); 22 Billman Prop., LLC v. Bank of America, N.A., 2015 WL 575926, at *1 (D. Nev. Feb. 11, 23 2015) (collecting cases). 24 Parties “who seek to maintain the secrecy of documents attached to dispositive 25 26 motions must meet the high threshold of showing that ‘compelling reasons’ support 27 secrecy.” Kamakana, 447 F.3d at 1180. The Ninth Circuit has indicated “‘compelling 28 reasons’ sufficient to outweigh the public’s interest in disclosure and justify sealing court 1 records exist when such ‘court files might have become a vehicle for improper purposes,’ 2 such as the use of records to gratify private spite, promote public scandal, circulate 3 libelous statements, or release trade secrets.’” Id. at 1179 (citing Nixon v. Warner 4 Commc’ns Inc., 435 U.S. 589, 598 (1978)). “The mere fact that the production of records 5 may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will 6 not, without more, compel the court to seal its records.” Id. (citing Foltz, 331 F.3d at 7 8 1136). 9 The burden to show compelling reasons is not met by conclusory assertions, but 10 rather the movant must “articulate compelling reasons supported by specific factual 11 findings.” Id. at 1178. For example, the Ninth Circuit has rejected efforts to seal 12 documents under the “compelling reasons” standard based on “conclusory statements 13 about the contents of the documents – that they are confidential and that, in general,” 14 their disclosure would be harmful to the movant. Id. at 1182. Such “conclusory offerings 15 16 do not rise to the level of ‘compelling reasons’ sufficiently specific to bar the public 17 access to the documents.” Id. In allowing the sealing of a document, the Court must 18 “articulate the basis for its ruling, without relying on hypothesis and conjecture.” Pintos, 19 605 F.3d at 679 (quoting Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)). 20 Even if compelling reasons are identified, any sealing order must be narrowly 21 tailored. Press–Enterprise Co. v. Superior Ct. of Cal., 464 U.S. 501, 512 (1984). The 22 23 Supreme Court has instructed that a sealing order should have been “limited to 24 information that was actually sensitive,” that is only the parts of the material necessary to 25 protect the compelling interest. Id. Thus, even where a court determines that disclosure 26 of information may result in particularized harm, and the private interest in protecting the 27 material outweighs the public interest in disclosure, a court must still consider whether 28 1 redacting confidential portions of the material will leave meaningful information available 2 to the public. In re Roman Catholic Archbishop, 661 F.3d 417, 425 (citing Foltz, 331 F.3d 3 at 1136–37). 4 II. ANALYSIS 5 Alps argues there are two “compelling reasons” to seal the entire complaint and 6 all of its attached exhibits: (1) the documents relate to a “private dispute” between the 7 8 defendants identified in the case; and, (2) some of the statements in the complaint 9 and/or the attached exhibits contain communications, or parts of communications, 10 between the defendants that were privileged attorney/client communications and/or work 11 product “at the time [they] were communicated.” (See ECF No. 1, pp. 4-5). In opposition, 12 Rumbaugh argues that Alps fails to establish that either of these assertions constitutes a 13 sufficiently compelling reason to seal the complaint or any of the attached exhibits. (ECF 14 No. 7). The court agrees with Rumbaugh. 15 16 A. Private Dispute 17 First, Alps’s assert that revealing a “private dispute” between two parties is, in 18 itself, a compelling basis for sealing a complaint and all of the attached exhibits fails for 19 several reasons. First, Alps has not articulated any specific factual findings to meet the 20 “compelling reasons” standard. As a practical matter, the filing of virtually all civil lawsuits 21 reveals the existence of a “private dispute” between two parties that is generally not 22 23 known to the public prior to the filing of a lawsuit. Alps has failed to explain how this 24 circumstance is any different or how the specific facts of this case would warrant the 25 extreme step of sealing the entire complaint and all exhibits thereto. Rather, Alps has 26 only provided a conclusory offering that these documents reveal a “private dispute,” 27 28 1 which does not raise to the level of a compelling reason to seal the complaint or the 2 attached exhibits. Kamakana, 447 F.3d at 1182. 3 Alps cites only one case for its position that a “private dispute” is sufficient to 4 support sealing a complaint and exhibits – United Rentals, Inc. v. Ahern Rentals, Inc., 5 2012 WL 5418355 (D. Nev. Nov. 12, 2012). However, as correctly pointed out by 6 Rumbaugh, United Rentals did not apply the “compelling reason” standard, which is 7 8 applicable to the current motion. Id., at *1. Rather, that case only applied the “good 9 cause” standard for sealing a court record, which is a far less stringent standard to meet. 10 Id. Moreover, the documents at issue in United Rentals involved a settlement 11 agreement, which the court noted was entered into on the condition of confidentiality. Id., 12 at *2. This is not the case here. Thus, this case does not support Alps’s position that a 13 sealing order is necessitated under the facts of this case. 14 However, even if this were a proper basis to support sealing, the facts of this case 15 16 show that there does not appear to be anything private about the relationship between 17 the KC Defendants and Rumbaugh or the possible dispute that underlies this complaint. 18 First, the attorney/client relationship between the KC Defendants and Rumbaugh is a 19 matter of public record. Several of the exhibits attached to the complaint (which Alps 20 seeks to seal) are publicly filed court documents that clearly identify the KC Defendants 21 as legal representatives to Rumbaugh in her role as the trustee of the Edith and James 22 23 Harley Trust. (See, e.g., ECF Nos. 2-3, pp. 46-48; ECF No. 2-4, pp. 1-5 (Petition to 24 Confirm Trustee); ECF No. 2-4, p. 6 (Order Confirming Trustee); Id. at pp. 7-8 (Notice of 25 Entry of Order); Id. at pp. 13-18 (Petition to Return Trust Property); Id. at pp. 45-49 26 (California Complaint filed by Kolicki Defendants on behalf of Rumbaugh)). As such, the 27 relationship between the KC Defendants and Rumbaugh is not a private matter. 28 1 Moreover, any dispute between the defendants arising from this relationship was 2 arguably foreshadowed (at least in part) by other publicly filed court records, which are 3 also attached as exhibits to the complaint. (See ECF No. 2-5 (motion to dismiss 4 California case and order); ECF No. 2-6 (same)). These public records include motions 5 to dismiss Rumbaugh’s claims in a California lawsuit because her claims were filed 6 outside of the applicable limitations period, which the court ultimately granted. (Id.) The 7 8 KC Defendants represented Rumbaugh in the California action. Thus, neither the 9 relationship nor the possibility of a dispute between the KC Defendants and Rumbaugh 10 appear to be truly private. 11 Therefore, Alps’s Motion fails to establish that revealing the alleged “private 12 dispute” between the defendants is a compelling reason to seal the complaint or the 13 exhibits attached thereto. 14 B. Attorney/Client Privilege 15 16 Next, Alps claims that the complaint and exhibits should be sealed because the 17 documents contain communications and/or information that was covered by the 18 attorney/client privilege and/or work product doctrines “when they were made.” (ECF No. 19 1, pp. 5). This argument is equally unavailing. 20 The attorney-client privilege protects confidential disclosures made by a client to 21 an attorney to obtain legal advice and an attorney's advice in response to such 22 disclosures. United States v. Chen, 99 F.3d 1495, 1501 (9th Cir.1996) (quotation 23 omitted), cert. denied, 520 U.S. 1167 (1997). “Its purpose is to encourage full and frank 24 communication between attorneys and their clients and thereby promote broader public 25 interests in the observance of law and administration of justice.” Upjohn Co. v. United 26 States, 449 U.S. 383, 389 (1981). Federal privilege law applies where the court's 27 jurisdiction is based on a federal question. Nat'l Labor Relations Bd. v. N. Bay Plumbing, 28 1 || Inc., 102 F.3d 1005, 1009 (9th Cir. 1996) (citing Fed. R. Evid. 501); see United States v. 2 || Ormat Indus., Ltd., 2016 WL 4107682, at *2 (D. Nev. Aug. 1, 2016). The privilege is held 3 || by the client and the client can waive the privilege. Montgomery v. eTreppia 4 || Technologies, LLC, 548 F.Supp.2d 1175, 1177 (D. Nev. 2008). As a general rule, the 5 || voluntary disclosure of privileged documents or communications to third parties waives 6 || attorney-client privilege. /n re Pac. Pictures Corp., 679 F.3d 1121, 1126-27 (9th Cir. 7 || 2012). 8 Here, Rumbaugh, the client, was represented by the KC Defendants and has the 9 || right to waive the privilege in any communications between herself and the KC 10 |} Defendants, including the communications at issue in this case. In her opposition, she 11 || concedes she waived the attorney-client privilege in the alleged communications based 12 || on her desire to pursue a malpractice claim against her former attorneys. (See ECF No. 13 || 7, p. 6). Based on Rumbaugh’s waiver, there is no reason — much less a compelling 14 |) reason — to seal the complaint or the attached exhibits on this alternative basis. 15 || Ill. ©CONCLUSION 16 IT IS THEREFORE ORDERED that Alps’s motion for leave to file the complaint M7 and the exhibits to the complaint under seal, (ECF No. 1), is DENIED. 8 IT IS FURTHER ORDERED that the following motions for leave to seal various documents under seal, (ECF Nos. 9, 27, 29, 33, 37 and 39), are DENIED as moot.
1 The Clerk's Office is INSTRUCTED to unseal the following documents in this 22 || case: ECF Nos. 1, 2, 7, 8, 9, 10, 25, 26, 27, 29, 30, 33, 37, 38, 39 and 40. 23 DATED: February 11, 2020. 24 25 — UNITED STATES NAGISTRATE JUDGE
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