Blain v. Liberty Mutual Fire Insurance Company

Opinion

1 2 3 4 5 6 7 8 9 12 13 SARAH BLAIN, individually and on Case No.: 22-cv-00970-AJB-MMP behalf of all others similarly situated, 14 Plaintiff, ORDER REGARDING MOTIONS TO 15 FILE DOCUMENTS UNDER SEAL v.

16 LIBERTY MUTUAL FIRE INSURANCE (Doc. Nos. 81; 91; 100; 112; 116; 124) Defendant. 18 19 20 Before the Court are six motions to file documents under seal related to briefing of 21 Plaintiff Sarah Blain’s (“Plaintiff”) motion for class certification (Doc. No. 84) and 22 Defendant Liberty Mutual Fire Insurance Company’s (“Liberty Mutual”) motion to 23 exclude testimony of Allan I. Schwartz (Doc. No. 102). (See Doc. Nos. 81; 91; 100; 112; 24 116; 124.) Pursuant to Civil Local Rule 7.1.d.1, the Court finds the instant matters suitable 25 for determination on the papers without oral argument. Accordingly, the Court VACATES 26 the hearings related to these motions. For the reasons set forth below, the Court GRANTS 27 IN PART AND DENIES IN PART without prejudice Document Numbers 81 and 91, 28 and DENIES without prejudice Document Numbers 100, 112, 116, and 124. 2 Plaintiff brings this putative class action, alleging Liberty Mutual unfairly profited 3 from the customers it insured during the global COVID-19 pandemic. (See generally Doc. 4 No. 31.) After Liberty Mutual filed an answer (Doc. No. 39), the parties engaged in 5 discovery regarding class certification. Early in the discovery window, Magistrate Judge 6 Michelle M. Pettit entered a stipulated protective order at the request of the parties, which 7 provided, inter alia, that any request to file a document under seal “must be narrowly 8 tailored to seek sealing only of the confidential or privileged material.” (Doc. No. 77 ¶ 14.) 9 The instant motions to file documents under seal correspond to the comprehensive briefing 10 of Plaintiff’s motion for class certification and Liberty Mutual’s responsive motion to 11 exclude. 12 II. LEGAL STANDARD1 13 “Historically, courts have recognized a ‘general right to inspect and copy public 14 records and documents, including judicial records and documents,’” which is “justified by 15 the interest of citizens in ‘keep[ing] a watchful eye on the workings of public agencies.’” 16 Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting 17 Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597, 598 (1978)). “Unless a particular 18 court record is one ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is 19 the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 20 1135 (9th Cir. 2003)). In order to overcome this strong presumption, the party seeking to 21 seal a judicial record must “articulate compelling reasons supported by specific factual 22 findings that outweigh the general history of access and the public policies favoring 23 disclosure, such as the public interest in understanding the judicial process.” Id. at 1178– 24 79 (internal citations and quotation marks omitted). In balancing the competing interests 25

26 1 As the instant motions relate to sealing filings in support of and in opposition to a motion for class 27 certification, the compelling reasons standard—rather than the good cause exception—applies. See, e.g., Adtrader, Inc. v. Google LLC, No. 17-CV-07082-BLF, 2020 WL 6391210, at *2 (N.D. Cal. Mar. 24, 28 1 of the public and the party who seeks to keep secret judicial records, the court must “base 2 its decision on a compelling reason and articulate the factual basis for its ruling, without 3 relying on hypothesis or conjecture.” Id. at 1179. 4 “What constitutes a ‘compelling reason’ is ‘best left to the sound discretion of the 5 trial court.’” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1097 (9th Cir. 6 2016) (quoting Nixon, 435 U.S. at 599). “In general, ‘compelling reasons’ sufficient to 7 outweigh the public’s interest in disclosure and justify sealing court records exist when 8 such ‘court files might have become a vehicle for improper purposes,’ such as the use of 9 records to gratify private spite, promote public scandal, circulate libelous statements, or 10 release trade secrets.” Kamakana, 447 F.3d at 1179 (quoting Nixon, 435 U.S. at 598). 11 Compelling reasons also may exist if sealing is required to prevent documents from being 12 used “as sources of business information that might harm a litigant’s competitive standing.” 13 Nixon, 435 U.S. at 598; see e.g., Cohen v. Trump, No. 13-cv-2519-GPC-WVG, 2016 WL 14 3036302, at *5 (S.D. Cal. May 27, 2016) (“Where parties have been able to point to 15 concrete factual information or expert testimony that the material sought to be sealed 16 contained confidential business material, such as marketing strategies, product 17 development plans, licensing agreements, and profit, cost, and margin data, courts have 18 been willing to find that information confidential.”) (collecting cases). 20 The Court has reviewed each of the parties’ motions to seal, the lodged materials, 21 and corresponding publicly filed documents. The Court will address the motions 22 chronologically as filed. 23 A. Plaintiff’s Initial Motion to Seal (Doc. No. 81) 24 Plaintiff filed this motion seeking to seal the entirety of Exhibits 1 and 11 and 25 portions of Exhibits 2 and 8 attached to the Declaration of Teresa M. Becvar filed in support 26 of Plaintiff’s motion for class certification. (Doc. Nos. 81 (motion to seal); 82 (lodgment 27 proposed for sealing); 84 (motion for class certification).) Liberty Mutual joined in 28 Plaintiff’s motion stating the exhibits at issue “contain internal and confidential financial 1 ||material related to Liberty Mutual’s operations in California,” that Liberty Mutual 2 || designated as confidential pursuant to the Protective Order. (Doc. No. 85 at 2.)

(Doc. Nos. 84-1 at 8 (public Ex. 1); 82-1 at 8-11 (lodged Ex. 1)) “Plaintiff's insurance file with Liberty Mutual The parties have provided sufficient explanation 6 ||| contains specific nonpublic information for how making public the underwriting associated with Defendant’s underwriting of information in Plaintiff's insurance file may harm 7 ||| Plaintiffs insurance, including communications | Liberty Mutual’s competitive standing. See with Plaintiff regarding changes made to Nixon, 435 U.S. at 598. GRANTED. 8 ||| Plaintiff's premium.” (Doc. No. 81 at 2.) 9 “Plaintiff remains a customer of Liberty Mutual, and if this information is allowed to be filed on 10 ||| the public docket, Defendant’s competitors could use this information in soliciting Plaintiff's 11 ||| business to Defendant’s detriment.” (/d. at 3.)

13 Doc. Nos. 84-1 at 9 (public Ex. 2); 82-1 at 12-34 (lodged Ex. 2 Plaintiff states that Liberty Mutual designated The parties fail to provide anything more than 14 ||) portions of Mr. Grove’s testimony Confidential “broad, conclusory allegations of potential harm,” pursuant to the Protective Order “because the rather than “specific demonstrations of fact, 15 ||| information disclosed has been held as supported where possible by affidavits and confidential in Liberty Mutual’s business, is not | concrete examples” as required to overcome the 16 generally known by the public, including its presumption of public access. See Foltz, 331 F.3d 17 competitors, and reasonably constitutes sensitive | at 1130-31. Additionally, the existence of a technical or proprietary business information that, | stipulated protective order itself is not sufficient. 18 ||| 1f disclosed, may result in an unfair competitive, | See In re Ferrero Litig., No. 11-CV-00205-H- financial, or commercial advantage to others or CAB, 2011 WL 3360443, at *2 (S.D. Cal. Aug. 3, 19 ||| disadvantage to Liberty Mutual.” (Doc. No. 81 at | 2011). Finally, some redactions include 3.) information left public in other places of the 20 transcript. (See, e.g., Doc. No. 84-1 at 24:7-11, 71 28:17—20.) DENIED.

Doc. Nos. 84-1 at 90 n.34 (public Ex. 8); 82-1 at 93 n.34 (lodged Ex. 8 23 In Paragraph 29, footnote 34, Mr. Schwartz’s Although narrowly tailored, the parties fail to report quotes “a business record produced by provide an explanation connecting the described 24 Defendant that contains internal analysis of the redaction with the legal standard, in order to 25 ||| effects of the COVID-19 pandemic on Liberty sufficiently demonstrate how the underlying Mutual’s claim frequency, claim severity, pure document cited warrants sealing. DENIED. 26 ||) premium, and loss ratios in California.” (Doc. No. 81 at 4.) “This information is generally not 27 ||| known outside of Liberty Mutual’s business and reasonably constitutes sensitive technical or 28 proprie business information that, if

1 ||) disclosed, may result in an unfair competitive, financial, or commercial advantage to others or 2 disadvantage to Liberty Mutual.” (/d.) 3 Exhibit 11 and Corresponding Line in Brief: Jnfernal Emails 4 ||| (Doc. Nos. 84-1 at 176 (public Ex. 11); 82-1 at 179-81 (lodged Ex. 11); 84 at 12 (public); 82 at 12 lodged 5 ||| This August 14, 2020 email is regarding “internal | As with Exhibits 2 and 8, the parties fail to assessments of the sufficiency of Liberty provide an explanation connecting the described 6 || Mutual’s pandemic relief program specifically in | redaction with the legal standard. DENIED. 7 relation to similar relief provided by other insurance carriers.” (Doc. No. 81 at 4.) “The 8 ||| information in this business record has been held as confidential in Liberty Mutual’s business, is 9 ||| not generally known by the public, including its competitors, and reasonably constitutes sensitive 10 technical or proprietary business information that, 11 if disclosed, may result in an unfair competitive, financial, or commercial advantage to others or 12 ||| disadvantage to Liberty Mutual.” (/d.) 13 14 Accordingly, for the reasons set forth above, the Court GRANTS in part and 15 DENIES in part Plaintiff's motion to seal (Doc. No. 81). emaining Motions to Seal (Doc. Nos. 91, 100, 112, 116, 16 B R ining Moti to Seal Nos. 91, 100, 112, 116, 124 ibe utua a motion seeking to seal documents submitted in support of its 17 Liberty Mutual filed a motion seeking to seal d ts submitted in support of it opposition to Plaintiff's motion for class certification and a single sentence in its brief. 18 || opposition to Pl if for cl ficat d gl t brief. 19 || (Doc. Nos. 91 (motion to seal); 92 (lodgment proposed for sealing); 93 (lodgment proposed 20 || for sealing); 94 (opposition to motion for class certification); 95-98 (declarations in 21 ||support of opposition).) Shortly thereafter, Liberty Mutual filed a second motion seeking 22 ||to seal the same information for the same reasons where it appears in Liberty Mutual’s 23 || motion to exclude.” (Doc. Nos. 100 (motion to seal): 101 (lodgment proposed for sealing): 24 || 102 (motion to exclude).) 25 26 || 27 Specifically, Exhibits 1 and 2 of Document Number 100 are Exhibits 12 and 13, respectively, of 28 Document Number 91. The same description, statement of harm, and reference to protective order is provided in both motions. (Compare Doc. No. 91 at 12-13 with Doc. No. 100 at 3+.)

1 Plaintiff then filed motions seeking to seal (1) specific redactions of Schwartz’s 2 ||rebuttal declaration attached to Plaintiffs reply in support of her motion for class 3 || certification, (2) corresponding quotes in the brief, and (3) corresponding references in 4 || Plaintiff's publicly filed opposition to Liberty Mutual’s motion to exclude because all rely 5 |}on an exhibit subject to Liberty Mutual’s prior request.* (Doc. Nos. 112 (motion to seal): 6 (lodgment proposed for sealing); 114 (reply in support of motion for class 7 || certification); 115 (previously publicly filed opposition Plaintiff seeks to be sealed); 116 8 (motion to seal previously filed document).) 9 Finally, Liberty Mutual filed a motion seeking to seal narrowly tailored redactions 10 || to Nancy Watkins’ Rebuttal Report and Exhibit 1 attached thereto because both cite to and 11 || quote an exhibit subject to Liberty Mutual’s prior request.* (Doc. Nos. 124 (motion to seal): 12 || 125 (lodgment proposed for sealing); 126 (reply in support of motion to exclude).) 13 Due to the overlap in the requests, the parties jointly filed a notice of non-opposition 14 || to each other’s motions. (Doc. No. 106). 15 Because the requests and justifications provided in Document Numbers 100, 112, 16 |} 116, and 124 are subsumed by those of Document Number 91, the Court will only provide 17 detailed analysis of the latter. i 19 ||| Exhibit 1: Redactions of Exhibits A-L to Patricia Dee’s Declaration Doc. Nos. 97 (public): 92 (lodged 20 ||| “Plaintiff Sarah Blain’s policy declarations, Having reviewed Exhibit 1, the Court finds that renewal package, and changes documentation only Plaintiff's personal identifying information 21 contain specific nonpublic personal identifying and that of a third party are redacted. See, e.g., 02 information regarding Plaintiff,” that have been Bennett v. N. Am. Bancard, LLC, No. 17-CV- designated “confidential” pursuant to the 00586-AJB-KSC, 2022 WL 17972168, at *2 23 ||| Protective Order. (Doc. No. 91 at 6.) (S.D. Cal. Feb. 15, 2022) (“Such personal identifying information of non-parties has been 24 held sealable by the Ninth Circuit under the 95 ‘compelling reasons’ standard.”). GRANTED.

26 |] 27 |/3 Specifically, Exhibit 13 of Document Number 91. No additional explanation 1s provided to support 28 the request. See supra 0.3.

] Exhibits 2-10, 12-13: Various Presentations, Spreadsheets, and Proposals attached as Exhibits H, N-P to Michael Grove’s Declaration, Exhibits I, K, T, V, & W to Janine Graff's Declaration, and 2 ||| Exhibit 4 to Rachel E. K. Lowe’s Declaration (Doc. Nos. 96-8 (public Ex. H); 93-1 (lodged Ex. 2); 96-14 (public Ex. N); 93-2 (lodged Ex. 3); 96-15 3 (public Ex. O); 93-3 (lodged Ex. 4); 96-16 (public Ex. P); 93-4 (lodged Ex. 5); 98-9 (public Ex. I); 93- 4 ||| 5 Godged Ex. 6); 98-11 (public Ex. K); 93-6 (lodged Ex. 7); 98-20 (public Ex. T); 93-7 (lodged Ex. 8); 98-22 (public Ex. V); 93-8 (lodged Ex. 9); 98-23 (public Ex. W); 93-9 (lodged Ex. 10); 95-4 at 5 126 (public Attachment E); 93-11 (lodged Ex. 12); 95-4 at 206 (public Ex. 3); 93-12 (lodged Ex. 13 Liberty Mutual describes these exhibits as As with Exhibits 2, 8, and 11 of Plaintiff's 6 business records it produced that include “internal | motion (Doc. No. 81), the parties fail to provide 7 strategic assessment[s]” of COVID-19-related an explanation connecting the described redaction billing and premium relief, financial impact, with the legal standard. Moreover, applicability g ||| mflationary pressures, profitability, policyholder | of a blanket protective order is not a compelling premium endorsements, and related data and reason itself. See In re Ferrero Litig., 2011 WL 9 ||| analytics. (Doc. No. 91 at 7-12.) Liberty Mutual | 3360443, at *2. Finally, the Court has doubts that asserts these records include information that is the request to wholesale seal hundreds of pages is 10 ||| held confidential, not generally known by the na1rowly tailored as required by case law, § IV.3 public, and reasonably constitutes sensitive of the undersigned’s Civil Procedures, and the technical or proprietary business information that, | Protective Order in this case (Doc. No. 77 § 14). 12 ||| if disclosed, harm its competitive standing. Ud.) | DENIED. Moreover, Liberty Mutual asserts these exhibits 13 ||| were produced as “Confidential — For Counsel 14 Only” pursuant to the Protective Order. (/d.) 15 Exhibit 11: Redactions of 30(b)(6) Deposition Transcript Doc. Nos. 95-1 (public Ex. 1); 93-10 (lodged Ex. 11 16 ||| Liberty Mutual identified portions of Mr. Grove’s | Liberty Mutual seeks to seal the testumony of Mr. testimony as confidential pursuant to the Grove for the same reasons Plaintiff set forth with 17 ||| Protective Order “because the information regard to Exhibit 2 in Document Number 81. disclosed has been held as confidential in Liberty | DENIED for the same reasons set forth above. 18 veutual’s business, is not generally known by the 19 public, including its competitors, and reasonably constitutes sensitive technical or proprietary 20 ||| business information that, if disclosed, may result in an unfair competitive, financial, or commercial 21 ||| advantage to others or disadvantage to Liberty Mutual.” (Doc. No. 91 at 11.) ae 73 Exhibit 14: Liberty Mutual’s Opposition to Plaintiff's Motion for Class Certification Doc. Nos. 94 (public); 93-13 (lodged Ex. 14 24 ||| Liberty Mutual seeks to file under seal a single Although this redaction is narrowly tailored, the sentence on page 24 that references information __ | parties have failed to demonstrate a compelling 25 ||| from Exhibit K to Janine Graff’s Declaration, reason to seal Exhibit K. Thus, this reference to which Liberty Mutual describes as □□□ internal information derived from Exhibit K lacks a 26 assessment of the impact of the COVID-19 compelling reason to seal for the same reasons set 97 pandemic on Liberty Mutual’s finances.” (Doc. forth above. DENIED. No. 91 at 13.) “This information has been held as 28 ||| confidential in Liberty Mutual’s business, is not

1 generally known by the public, including its competitors, and reasonably constitutes sensitive 2 technical or proprietary business information that, if disclosed, may result in an unfair competitive, 3 financial, or commercial advantage to others or 4 disadvantage to Liberty Mutual.” (Id.)

5 6 Accordingly, for the reasons set forth above, the Court GRANTS in part and 7 DENIES in part Liberty Mutual’s motion to seal (Doc. No. 91). 8 As Liberty Mutual’s requests in Document Number 100 are subsumed by the 9 requests of Document Number 91, the former is DENIED for the same reasons as set forth 10 for Exhibits 12 and 13 of Document Number 91. 11 The requests set forth in Document Numbers 112, 116, and 124 all are based on 12 citation to or quotation of LMBlain0008344, which is Exhibit 13 in Document Number 91, 13 addressed above. Accordingly, Document Numbers 112, 116, and 124 are DENIED for 14 the same reasons as set forth for Exhibits 13 of Document Number 91. 16 For the foregoing reasons: 17 1. The Court GRANTS in part and DENIES in part without prejudice 18 Document Numbers 81 and 91. The Clerk of Court is DIRECTED to seal the information 19 currently lodged at Document Number 92. 20 2. The Court DENIES without prejudice Document Numbers 100, 112, 116, 21 and 124. 22 3. Any renewed motion to file under seal information for which sealing was 23 denied in the instant Order must be filed no later than December 30, 2024. Any such 24 motion must be narrowly tailored and include sufficient explanation and case law to 25 demonstrate a compelling reason to seal each piece of information the parties seek to seal. 26 If neither party timely files a renewed motion, then each party must REFILE a public 27 version of each lodged document, in compliance with the directives below, no later than 28 January 6, 2025: 1 a. Publicly file all information currently lodged at Document Number 82 2 except the limited redactions to Exhibit 1 (Doc. Nos. 84-1 at 8 (public 3 Ex. 1); 82-1 at 8-11 (lodged Ex. 1) granted by the Court supra. 4 b. Publicly file all information currently lodged at Document Numbers 93, 5 101, 113, and 125. 6 Any future motion to seal must comply with the stipulated Protective Order 7 || governing this case and the undersigned’s Civil Case Procedures. See J. Battaglia Civ. Case 8 || Proc. § IV.3. 10 Dated: December 18, 2024 © ¢ Hon. Anthony J. attaglia 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28