Barron-Aguilar v. Najera

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 TITO BARRON-AGUILAR, Case No. 3:17-cv-00548-MMD-CLB

7 Petitioner, ORDER v. 8 KYLE OLSEN, et al., 9 Respondents. 10 11 Before the Court are Respondents’ sealed motion for leave to file exhibit under 12 seal (ECF No. 48 (“Motion to Seal”)) and motion for enlargement of time (ECF No. 50) to 13 file a reply in support of Respondents’ motion to dismiss (ECF No. 43). 14 The Motion to Seal addresses Exhibit C (ECF No. 48-1), the Nevada Department 15 of Correction’s (“NDOC”) COVID-19 Protocol and Statistics report, submitted in support 16 of Respondents’ opposition (ECF No. 47) to Petitioner Tito Barron-Aguilar’s emergency 17 motion for release (ECF No. 44). Respondents contend that NDOC’s report contains 18 confidential information regarding prison procedures and protocols and sensitive medical 19 information, which could potentially be used to compromise safety and security at NDOC 20 facilities. 21 Having reviewed and considered the matter in accordance with the Ninth Circuit 22 Court of Appeals’ directives set forth in Kamakana v. City & Cty. of Honolulu, 447 F.3d 23 1172 (9th Cir. 2006), and its progeny, the Court finds that a compelling need to protect 24 safety and security at NDOC facilities outweighs the public interest in open access to 25 court records. Respondents have met their burden of establishing compelling reasons for 26 Exhibit C to remain sealed. 27 The Court further notes, however, that the Motion to Seal was erroneously filed 28 under seal when the Motion to Seal itself does not contain any confidential information— 1 only the attached exhibit(s) presents confidential information. If a motion to seal itself 2 contains confidential information, the moving party may file a redacted motion to seal on 3 the public docket and an unredacted motion under seal with the sealed exhibits. However, 4 this practice is disfavored as litigants should attempt to meet their burden under 5 Kamakana, 447 F.3d 1172, without specific references to confidential information. Parties 6 must file confidential information separately under seal as a “Sealed Exhibit(s)” and link 7 the sealed exhibit(s) to the motion to seal. 8 In addition, no certificate of service is attached to the Motion to Seal and thus it is 9 not clear whether Barron-Aguilar’s counsel was served with a copy of the sealed 10 documents. When a filing is submitted under seal, CM/ECF does not generate a notice 11 of electronic filing for purposes of service, even though the document is filed 12 electronically. See LR IA 10-5, LR IC 4-1(c)(4) (requiring service “in paper form” when a 13 document is filed under seal, “even if the document is electronically filed”). The Local 14 Rules required Respondents’ counsel to include with the Motion “either (i) a certificate of 15 service certifying that the sealed document was served on the opposing attorneys or pro 16 se parties, or (ii) an affidavit showing good cause why the document has not been served 17 on the opposing attorneys or pro se parties.” LR IA 10-5(c). Here, counsel did neither, 18 although Respondents’ opposition relies on the sealed report to refute Barron-Aguilar’s 19 arguments. (See ECF No. 47 at 10.) Thus, counsel will be directed to comply with LR IA 20 4-1(c)(4) by December 21, 2020. 21 It is therefore ordered that Respondents’ Motion to Seal (ECF No. 48) is granted. 22 Exhibit C (ECF No. 48-1) is considered properly filed under seal. 23 It is further ordered that Respondents must serve Barron-Aguilar’s counsel with a 24 copy of Respondents’ Motion to Seal (ECF No. 48) and its sealed exhibit in accordance 25 with LR IA 4-1(c)(4) by December 23, 2020. 26 The Clerk of Court is directed to unseal Respondents’ Motion to Seal (ECF No. 48), 27 leaving the attached exhibit (ECF No. 48-1) under seal. 28 /// 1 Good cause appearing, it is further ordered that Respondents’ motion for 2 || enlargement of time (ECF No. 50) is granted. Respondents have until January 14, 2021, 3 || to file a reply in support of Respondents’ motion to dismiss (ECF No. 43). 4 DATED THIS 16'" Day of December 2020. 5 —~ AGO CHIEF UN TED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28