Cooley v. C.R. Bard, Inc.

Opinion

1 2 3 4 5 6 9 10 LINDA COOLEY, Case No. 22-cv-1754-MMA-KSC

11 Plaintiff, ORDER GRANTING MOTION FOR 12 v. LEAVE TO FILE UNDER SEAL AND SETTING BRIEFING 13 C.R. BARD, INC., et al., SCHEDULE 14 Defendants. [Doc. Nos. 41, 42] 15 16 17 18 19 On March 20, 2024, Defendants C.R. Bard, Inc. and Bard Peripheral Vascular, Inc. 20 (collectively, “Defendants”) filed a motion seeking leave to file various exhibits, 21 including confidential settlement communications and agreements, under seal. See Doc. 22 No. 37. Because Defendants had not yet filed their underlying motion to enforce 23 settlement agreement, or lodged the documents that were subject to their motion to seal 24 on the docket, the Court denied the motion to seal without prejudice. See Doc. No. 40. 25 On April 4, 2024, Defendants filed two identical motions to seal, now seeking leave to 26 file both the motion to enforce settlement agreement and the supporting exhibits under 27 seal. See Doc. Nos. 41, 42. Defendants also properly lodged their motion and exhibits 28 for the Court’s review. Doc. No. 43. 1 When presented with a request to file a document under seal, the Court begins with 2 the strong presumption in favor of the “general right to inspect and copy public records 3 and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, 4 Inc., 435 U.S. 589, 597 n.7 (1978); see also Kamakana v. City and Cnty. of Honolulu, 5 447 F.3d 1172, 1178 (9th Cir. 2006). “Accordingly, ‘a party seeking to seal a judicial 6 record then bears the burden of overcoming this strong presumption by meeting the 7 compelling reasons standard.’” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 8 1092, 1096 (9th Cir. 2016) (quoting Kamakana, 447 F.3d at 1178). 9 Contrary to the good cause standard for sealing documents in support of 10 nondispositive motions, as well as motions not more than tangentially related to the 11 merits of a case, a party must demonstrate “compelling reasons,” supported by “specific 12 factual findings” to seal a document in connection with a dispositive motion. Foltz v. 13 State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003); Pintos v. Pac. 14 Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010); see also Lessin v. Ford Motor Co., 15 No. 19-cv-01082-AJB-AHG, 2024 U.S. Dist. LEXIS 47675, at *21 (S.D. Cal. Mar. 17, 16 2024). Under this standard, the Court may seal records only when it finds “a compelling 17 reason and articulate[s] the factual basis for its ruling, without relying on hypothesis or 18 conjecture.” Kamakana, 447 F.3d at 1179. The Court must then “conscientiously 19 balance[] the competing interests of the public and the party who seeks to keep certain 20 judicial records secret.” Id. What constitutes a “compelling reason” is “best left to the 21 sound discretion of the trial court.” Nixon, 435 U.S. at 599. 22 Here, Defendants explain that the documents “relate[] to highly sensitive 23 settlement negotiations and agreements,” and that the terms of the agreements “mandate 24 the agreements remain confidential and are explicitly designated privileged and 25 confidential.” Doc. No. 41 at 3. Further, Defendants maintain that “the information has 26 potential implications for other lawsuits given the mass tort nature of this action.” Id. 27 The Court is convinced these are compelling reasons to seal the motion and exhibits. See 28 Aya Healthcare Servs. v. Amn Healthcare, Inc., No. 17cv205-MMA (MDD), 2020 U.S. 1 Dist. LEXIS 68855, at *15-16 (S.D. Cal. Apr. 20, 2020); see also San Diego Comic 2 Convention v. Dan Farr Prods., No. 14-CV-1865 AJB (JMA), 2018 U.S. Dist. LEXIS 3 95433, 2018 WL 2717880, at *1 (S.D. Cal. June 5, 2018) (granting motion to seal 4 references to confidential settlement discussions); Brightwell v. McMillan Law Firm, No. 5 16-CV-1696 W (NLS), 2017 U.S. Dist. LEXIS 196232, 2017 WL 5885667, at *1–2 (S.D. 6 Cal. Nov. 29, 2017) (sealing communications regarding the terms of a settlement). 7 However, on balance, it is clear that Defendants do not present a sufficiently compelling 8 reason to hide from the public the fact that they have filed a motion to enforce settlement 9 agreement. Accordingly, the Court GRANTS Defendants’ motion (Doc. Nos. 41, 42) 10 and DIRECTS the Clerk of Court to file Doc. No. 43 UNDER SEAL. The Court further 11 DIRECTS Defendants to file a redacted version of their motion to enforce settlement 12 agreement as a separate entry on the docket as soon as practicable and in no event later 13 than April 10, 2024. 14 Additionally, Defendants bring their motion to enforce settlement agreement ex 15 parte. According to Defendants, they provided Plaintiff with advance notice of their 16 filing, and the parties “agreed” to ex parte motion practice. Doc. No. 41-1 ¶ 3. “The 17 term ‘ex parte’ describes motions or applications made without following the procedures 18 applicable to regularly-noticed motions.” Spirit Tea LLC v. Utopia Oriental, Inc., No. 19 CV 19-5337 DMG (FFMx), 2019 U.S. Dist. LEXIS 229030, at *3 n.1 (C.D. Cal. Sep. 5, 20 2019) (citing Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 490 (C.D. 21 Cal. 1995)). In order to justify ex parte relief, the moving party must at least demonstrate 22 that they will suffer irreparable harm if their motion is not heard on an expedited 23 schedule. See, e.g., Centeno v. City of Carlsbad, No. 19-cv-2098-RSH-DEB, 2023 U.S. 24 Dist. LEXIS 155884, at *5 (S.D. Cal. July 27, 2023). 25 Here, Defendants do not provide any explanation for why their motion must be 26 heard expeditiously and they do not assert they will suffer irreparable harm if their 27 motion is properly noticed. Accordingly, the Court will not consider Defendants’ motion 28 on an ex parte basis. However, in light of the parties’ apparent agreement to an expedited 1 schedule, and given that the parties are scheduled to appear before Judge Crawford on 2 || April 22, 2024 for a Mandatory Settlement Conference, the Court SETS the following 3 || briefing schedule on Defendants’ motion to enforce settlement agreement: 4 e Plaintiff must file an opposition on or before April 12, 2024; 5 e Defendants may then file their reply, if any, on April 19, 2024. 6 Upon completion of the briefing, the Court will take the motion under submission 7 the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1 and issue a 8 || written ruling in due course. 10 ||Dated: April 5, 2024 Mikel Ub Clihlr 12 HON. MICHAEL M. ANELLO 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28