1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSE ORLANDO CANCINO Case No. 17-cv-00491-BAS-AHG CASTELLAR, et al., 12 ORDER: Plaintiffs, 13 (1) DENYING WITHOUT v. PREJUDICE PLAINTIFF- 14 PETITIONERS’ APPLICATIONS TO KEVIN K. MCALEENAN, et al., 15 SEAL (ECF Nos. 123, 138); Defendants. 16 (2) DENYING WITHOUT 17 PREJUDICE DEFENDANT- RESPONDENTS’ APPLICATION TO 18 SEAL (ECF No. 131); 19 (3) DENYING AS MOOT 20 PLAINTIFF-PETITIONERS’ 21 APPLICATION TO SEAL (ECF No. 144); AND 22
23 (4) GRANTING IN PART AND DENYING IN PART JOINT 24 MOTION TO AMEND (ECF No. 152). 25
26 27 28 1 I. BACKGROUND 2 This is a putative class action brought by immigrants in federal custody alleging that 3 they were detained for prolonged periods without being given prompt initial hearings 4 before an immigration judge or judicial review of probable cause for detention. As relevant 5 to this Order, Plaintiff-Petitioners filed a renewed motion for class certification (Mot. for 6 Class Cert., ECF No. 125); Defendant-Respondents filed an opposition (Defs.’ Opp’n, ECF 7 No. 133); and Plaintiff-Petitioners a reply (Pls.’ Reply, ECF No. 140). In doing so, the 8 parties submitted certain exhibits and memoranda in redacted form and now move to file 9 those documents under seal. 10 Pending before the Court are Defendant-Respondents’ application to file under seal 11 the unredacted version of the opposition (ECF No. 131) and three sealing applications filed 12 by Plaintiff-Petitioners: to file under seal the unredacted versions of the documents filed in 13 support of their renewed motion for class certification (ECF No. 123); to file under seal the 14 unredacted version of their reply brief (ECF No. 138); and to file under seal the unredacted 15 versions of their notice of errata and corrected memorandum in support of their renewed 16 motion for class certification (ECF No. 144). Also pending before the Court is the parties’ 17 joint motion to amend the applications to seal. (ECF No. 152.) 18 19 II. LEGAL STANDARD 20 “[T]he courts of this country recognize a general right to inspect and copy public 21 records and documents, including judicial records and documents.” Nixon v. Warner 22 Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one 23 ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” 24 Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz v. 25 State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption 26 of access is ‘based on the need for federal courts, although independent—indeed, 27 particularly because they are independent—to have a measure of accountability and for the 28 public to have confidence in the administration of justice.’” Ctr. for Auto Safety v. Chrysler 1 Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 2 1044, 1048 (2d Cir. 1995)). 3 A party seeking to seal a judicial record bears the burden of overcoming the strong 4 presumption of access. Foltz, 331 F.3d at 1135. The showing required to meet this burden 5 depends upon whether the documents to be sealed relate to a motion that is “more than 6 tangentially related to the merits of the case.” Ctr. for Auto Safety, 809 F.3d at 1102. When 7 the underlying motion is more than tangentially related to the merits, the “compelling 8 reasons” standard applies. Id. at 1096–98. When the underlying motion does not surpass 9 the tangential relevance threshold, the lesser, “good cause” standard applies. Id.; see Pintos 10 v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010) (holding that the “good cause” 11 standard imposes a lower burden than the “compelling reasons” standard). Under either 12 standard, “an order sealing the documents must be narrowly drawn to seal only those 13 portions of the record that, upon a balancing of the relevant interests, ought to be sealed.” 14 Acad. of Motion Picture Arts & Scis. v. GoDaddy.com, Inc., No. CV 10-03738-AB (CWX), 15 2015 WL 12698301, at *1 (C.D. Cal. Jan. 22, 2015) (collecting cases). 16 Under this Court’s Standing Order, the parties seeking a sealing order must provide 17 the Court with “(1) a specific description of particular documents or categories of 18 documents they need to protect; and (2) declarations showing a compelling reason or good 19 cause to protect those documents from disclosure.” Hon. Cynthia Bashant’s Standing 20 Order for Civil Cases (“Standing Order”) § 5. “The standard for filing documents under 21 seal will be strictly applied.” Id. “Any protective order must be narrowly drawn” to reflect 22 the balance between the moving party’s interests and the public’s right to access the court 23 files, and “[a]ny member of the public may challenge the sealing of any particular 24 document.” Id. “The fact that both side[s] agree to seal or that a protective order was 25 issued at the onset of the case alone is insufficient cause for sealing.” Id. 26 // 27 // 28 // 1 III. ANALYSIS 2 A. The Sealing Applications Do Not Satisfy the Compelling Reasons 3 Standard 4 A motion for class certification is central to the merits of a case and thus is “more 5 than tangentially related to the underlying cause of action.” Krommenhock v. Post Foods, 6 LLC, 334 F.R.D. 552, 586 (N.D. Cal. 2020) (citing Ctr. for Auto Safety, 809 F.3d at 1099). 7 Therefore, the parties applying to seal documents in support of, or opposition to, the class 8 certification motion must bear the heavy burden of showing “‘compelling reasons 9 supported by specific factual findings’ that outweigh the general history of access and the 10 public policies favoring disclosure.” See id. (citing Kamakana, 447 F.3d at 1178–79). 11 Generally, “compelling reasons sufficient to outweigh the public’s interest in disclosure 12 and justify sealing court records exist when such court files might have become a vehicle 13 for improper purposes, such as the use of records to gratify private spite, promote public 14 scandal, circulate libelous statements, or release trade secrets.” Kamakana, 447 F.3d at 15 1179 (citing Nixon, 435 U.S. at 598). 16 Here, the parties’ sealing applications are about the documents designated as 17 confidential pursuant to the Protective Order entered in this case. (See Pls.’ App. Seal, 18 ECF No. 123 (providing as justifications for sealing requests Defendant-Respondents’ 19 designation of documents as confidential); Defs.’ App. Seal, ECF No. 131 (same); Pls.’ 20 App. Seal, ECF No. 138 (same); Pls.’ App. Seal, ECF No. 144 (same).) The parties’ joint 21 motion to revise the scope of the sealing applications are also based on the parties’ lifting 22 of certain confidentiality designations. (Joint Mot. to Amend, ECF No. 152.) The mere 23 fact that the parties have designated certain materials as confidential, regardless of whether 24 the parties agree to the scope of such designations, does not supply a legal basis to curtail 25 the public’s access to judicial records. See Standing Order § 5 (“The fact that both side[s] 26 agree to seal or that a protective order was issued at the onset of the case alone is 27 insufficient cause for sealing.”); see also In re Ferrero Litig., No. 11–CV–205 H(CAB), 28 1 2011 WL 3360443, *2 (S.D. Cal. Aug. 3, 2011) (holding that a protective order itself does 2 not satisfy the standard required of a sealing order).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSE ORLANDO CANCINO Case No. 17-cv-00491-BAS-AHG CASTELLAR, et al., 12 ORDER: Plaintiffs, 13 (1) DENYING WITHOUT v. PREJUDICE PLAINTIFF- 14 PETITIONERS’ APPLICATIONS TO KEVIN K. MCALEENAN, et al., 15 SEAL (ECF Nos. 123, 138); Defendants. 16 (2) DENYING WITHOUT 17 PREJUDICE DEFENDANT- RESPONDENTS’ APPLICATION TO 18 SEAL (ECF No. 131); 19 (3) DENYING AS MOOT 20 PLAINTIFF-PETITIONERS’ 21 APPLICATION TO SEAL (ECF No. 144); AND 22
23 (4) GRANTING IN PART AND DENYING IN PART JOINT 24 MOTION TO AMEND (ECF No. 152). 25
26 27 28 1 I. BACKGROUND 2 This is a putative class action brought by immigrants in federal custody alleging that 3 they were detained for prolonged periods without being given prompt initial hearings 4 before an immigration judge or judicial review of probable cause for detention. As relevant 5 to this Order, Plaintiff-Petitioners filed a renewed motion for class certification (Mot. for 6 Class Cert., ECF No. 125); Defendant-Respondents filed an opposition (Defs.’ Opp’n, ECF 7 No. 133); and Plaintiff-Petitioners a reply (Pls.’ Reply, ECF No. 140). In doing so, the 8 parties submitted certain exhibits and memoranda in redacted form and now move to file 9 those documents under seal. 10 Pending before the Court are Defendant-Respondents’ application to file under seal 11 the unredacted version of the opposition (ECF No. 131) and three sealing applications filed 12 by Plaintiff-Petitioners: to file under seal the unredacted versions of the documents filed in 13 support of their renewed motion for class certification (ECF No. 123); to file under seal the 14 unredacted version of their reply brief (ECF No. 138); and to file under seal the unredacted 15 versions of their notice of errata and corrected memorandum in support of their renewed 16 motion for class certification (ECF No. 144). Also pending before the Court is the parties’ 17 joint motion to amend the applications to seal. (ECF No. 152.) 18 19 II. LEGAL STANDARD 20 “[T]he courts of this country recognize a general right to inspect and copy public 21 records and documents, including judicial records and documents.” Nixon v. Warner 22 Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one 23 ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” 24 Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz v. 25 State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption 26 of access is ‘based on the need for federal courts, although independent—indeed, 27 particularly because they are independent—to have a measure of accountability and for the 28 public to have confidence in the administration of justice.’” Ctr. for Auto Safety v. Chrysler 1 Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 2 1044, 1048 (2d Cir. 1995)). 3 A party seeking to seal a judicial record bears the burden of overcoming the strong 4 presumption of access. Foltz, 331 F.3d at 1135. The showing required to meet this burden 5 depends upon whether the documents to be sealed relate to a motion that is “more than 6 tangentially related to the merits of the case.” Ctr. for Auto Safety, 809 F.3d at 1102. When 7 the underlying motion is more than tangentially related to the merits, the “compelling 8 reasons” standard applies. Id. at 1096–98. When the underlying motion does not surpass 9 the tangential relevance threshold, the lesser, “good cause” standard applies. Id.; see Pintos 10 v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010) (holding that the “good cause” 11 standard imposes a lower burden than the “compelling reasons” standard). Under either 12 standard, “an order sealing the documents must be narrowly drawn to seal only those 13 portions of the record that, upon a balancing of the relevant interests, ought to be sealed.” 14 Acad. of Motion Picture Arts & Scis. v. GoDaddy.com, Inc., No. CV 10-03738-AB (CWX), 15 2015 WL 12698301, at *1 (C.D. Cal. Jan. 22, 2015) (collecting cases). 16 Under this Court’s Standing Order, the parties seeking a sealing order must provide 17 the Court with “(1) a specific description of particular documents or categories of 18 documents they need to protect; and (2) declarations showing a compelling reason or good 19 cause to protect those documents from disclosure.” Hon. Cynthia Bashant’s Standing 20 Order for Civil Cases (“Standing Order”) § 5. “The standard for filing documents under 21 seal will be strictly applied.” Id. “Any protective order must be narrowly drawn” to reflect 22 the balance between the moving party’s interests and the public’s right to access the court 23 files, and “[a]ny member of the public may challenge the sealing of any particular 24 document.” Id. “The fact that both side[s] agree to seal or that a protective order was 25 issued at the onset of the case alone is insufficient cause for sealing.” Id. 26 // 27 // 28 // 1 III. ANALYSIS 2 A. The Sealing Applications Do Not Satisfy the Compelling Reasons 3 Standard 4 A motion for class certification is central to the merits of a case and thus is “more 5 than tangentially related to the underlying cause of action.” Krommenhock v. Post Foods, 6 LLC, 334 F.R.D. 552, 586 (N.D. Cal. 2020) (citing Ctr. for Auto Safety, 809 F.3d at 1099). 7 Therefore, the parties applying to seal documents in support of, or opposition to, the class 8 certification motion must bear the heavy burden of showing “‘compelling reasons 9 supported by specific factual findings’ that outweigh the general history of access and the 10 public policies favoring disclosure.” See id. (citing Kamakana, 447 F.3d at 1178–79). 11 Generally, “compelling reasons sufficient to outweigh the public’s interest in disclosure 12 and justify sealing court records exist when such court files might have become a vehicle 13 for improper purposes, such as the use of records to gratify private spite, promote public 14 scandal, circulate libelous statements, or release trade secrets.” Kamakana, 447 F.3d at 15 1179 (citing Nixon, 435 U.S. at 598). 16 Here, the parties’ sealing applications are about the documents designated as 17 confidential pursuant to the Protective Order entered in this case. (See Pls.’ App. Seal, 18 ECF No. 123 (providing as justifications for sealing requests Defendant-Respondents’ 19 designation of documents as confidential); Defs.’ App. Seal, ECF No. 131 (same); Pls.’ 20 App. Seal, ECF No. 138 (same); Pls.’ App. Seal, ECF No. 144 (same).) The parties’ joint 21 motion to revise the scope of the sealing applications are also based on the parties’ lifting 22 of certain confidentiality designations. (Joint Mot. to Amend, ECF No. 152.) The mere 23 fact that the parties have designated certain materials as confidential, regardless of whether 24 the parties agree to the scope of such designations, does not supply a legal basis to curtail 25 the public’s access to judicial records. See Standing Order § 5 (“The fact that both side[s] 26 agree to seal or that a protective order was issued at the onset of the case alone is 27 insufficient cause for sealing.”); see also In re Ferrero Litig., No. 11–CV–205 H(CAB), 28 1 2011 WL 3360443, *2 (S.D. Cal. Aug. 3, 2011) (holding that a protective order itself does 2 not satisfy the standard required of a sealing order). 3 The parties have not “articulate[d] compelling reasons supported by specific factual 4 findings ‘that outweigh the general history of access and the public policies favoring 5 disclosure.’” Kamakana, 447 F.3d 1172 (citations omitted). Plaintiff-Petitioners’ 6 counsel’s declarations provide as reasons behind the sealing applications that the 7 information requested to be filed under seal has been designated as confidential by 8 Defendant-Respondents or that the parties agree as to the designation. As explained above, 9 neither the designation of confidentiality nor the parties’ agreement that the information is 10 confidential is enough to satisfy the compelling reasons standard. At a minimum, the 11 parties must specify the specific reasons why certain documents should be maintained 12 under seal and provide factual findings that support that assertion. 13 For example, a declaration by a federal government employee with personal 14 knowledge and foundation for the impact of the release of information sought to be avoided 15 may be enough. See, e.g., United States ex rel. Kelly v. Serco, Inc., No. 11CV2975 WQH- 16 RBB, 2014 WL 12675246, at *4 (S.D. Cal. Dec. 22, 2014) (finding compelling reasons to 17 maintain under seal information about “locations, technical specifications, and operational 18 capabilities of towers along the U.S. Border” based on a government employee’s 19 declaration that “release of [the] information could significantly compromise the 20 effectiveness of these sites and thereby impair the effectiveness of Customs and Border 21 Patrol in carrying out their assigned missions and duties at those sites and in nearby areas”). 22 In contrast, a declaration by counsel as to matters of which counsel lacks personal 23 knowledge is generally not enough to satisfy the compelling reasons standard. See, e.g., 24 Pac. Marine Propellers, Inc. v. Wartsila Def., Inc., No. 17-CV-555-L-NLS, 2018 WL 25 6601671, at *2 (S.D. Cal. Dec. 14, 2018) (finding that the declaration by counsel was not 26 enough to meet the “compelling reasons” standard because counsel lacked personal 27 knowledge of or foundation for the assertions that the information at issue might harm the 28 defendant company’s competitive standing); Signal Hill Serv., Inc. v. Macquarie Bank Ltd., 1 No. CV1101539MMMJEMX, 2013 WL 12244287, at *3 (C.D. Cal. May 14, 2013) 2 (assigning “no weight” to the conclusory declaration by plaintiff’s counsel that disclosure 3 of the information at issue could harm the plaintiff’s business where the plaintiff did not 4 demonstrate that counsel had personal knowledge about the harm asserted). 5 Therefore, the compelling reasons standard has not been satisfied by the original 6 sealing applications, and the joint motion to amend the sealing applications do not cure the 7 deficiency. 8 9 B. The Parties May Replace the Documents Previously Filed in Redacted 10 Form with the Unredacted Versions. 11 Separately, the parties seek to replace the following, previously filed documents with 12 unredacted versions: 13 • Plaintiff-Petitioners’ Corrected Memorandum of Points and Authorities in 14 Support of Plaintiff-Petitioners’ Renewed Motion for Class Certification 15 (ECF No. 146-1); 16 • Declaration of Bardis Vakili in Support of Renewed Motion for Class 17 Certification (ECF No. 125-3); 18 • Excerpted Transcripts of the Sept. 16, 2020 Deposition of Judge Rico 19 Bartolomei (30(b)(6) Witness for EOIR) (ECF Nos. 125-15, 133-1); 20 • Declaration of Tom K. Wong (ECF No. 125-22); 21 • Exhibit B to the Declaration of Tom K. Wong (ECF No. 125-24); and 22 • Exhibit D to the Declaration of Tom K. Wong (ECF No. 125-26). 23
24 The parties’ request is granted. The parties shall file the unredacted versions of the 25 documents as supplemental documents to the corresponding filings on the docket. 26 Because Plaintiff-Petitioners seek to file the unredacted versions of the notice of 27 errata and corrected memorandum in support of their renewed motion for class 28 1 || certification, their previous sealing application seeking to file those documents under seal 2 || (ECF No. 144) is denied as moot. 3 4 ||IV. CONCLUSION 5 The Court DENIES WITHOUT PREJUDICE Plaintiff-Petitioners’ application to 6 || file under seal the unredacted versions of the documents filed in support of their renewed 7 || motion for class certification. (ECF No. 123.) 8 The Court DENIES WITHOUT PREJUDICE Defendant-Respondents’ 9 || application to file under seal the unredacted version of the opposition. (ECF No. 131.) 10 The Court DENIES WITHOUT PREJUDICE Plaintiff-Petitioners’ application to 11 || file under seal the unredacted version of their reply brief. (ECF No. 138). 12 The Court DENIES AS MOOT Plaintiff-Petitioners’ application to file under seal 13 unredacted versions of their notice of errata and corrected memorandum in support of 14 || their renewed motion for class certification. (ECF No. 144.) 15 The Court GRANTS IN PART AND DENIES IN PART the parties’ joint motion 16 ||to amend the applications to seal. (ECF No. 152.) 17 On or before July 30, 2021, the parties SHALL file the unredacted versions of the 18 ||documents previously filed in redacted form (ECF Nos. 125-3, 125-15, 125-22, 125-24, 19 || 133-1, 146-1) as supplemental documents to the corresponding filings on the docket. 20 Should the parties choose to reapply for a sealing order, they may do so on or before 21 August 13, 2021. Any motion for a sealing order must fully address the “compelling 22 ||reasons” supporting the sealing of each document, identifying the specific harm that would 23 || likely flow from public disclosure of that precise document, supported by factual findings. 24 || See Kamakana, 447 F.3d at 1178. 25 IT IS SO ORDERED. 26 /\ yy 27 ||DATED: July 26, 2021 (uf iw uA A (Lohan 6 28 United States District Judge