1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JEFFREY CRAIG, on behalf of himself Case No.: 22-cv-473-RSH-MSB and all others similarly situated, 12 ORDER: Plaintiff, 13 v. (1) GRANTING IN PART AND 14 DENYING IN PART PLAINTIFF’S AMERICAN TUNA, INC. and WORLD 15 MOTION TO FILE UNDER SEAL; WISE FOODS, LTD., AND 16 Defendants. 17 (2) GRANTING DEFENDANT’S MOTION TO FILE UNDER SEAL 18
19 [ECF Nos. 100, 110]
20 Plaintiff Ray Glass has filed a Motion for Class Certification in this action. See ECF 21 No. 99. Related to this Motion are Plaintiff’s Motion to File Documents Under Seal, ECF 22 No. 100, and Defendant American Tuna’s Motion to File Documents under Seal, ECF No. 23 110. The Court rules on the sealing motions as set forth below. 24 I. LEGAL STANDARD 25 Courts have historically recognized a “general right to inspect and copy public 26 records and documents, including judicial records.” Nixon v. Warner Commc’ns, Inc., 435 27 1 U.S. 589, 597 & n.7 (1978). “Unless a particular court record is one ‘traditionally kept 2 secret,’ a ‘strong presumption in favor of access’ is the starting point.” Kamakana v. City 3 & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Foltz v. State Farm 4 Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption of access is 5 ‘based on the need for federal courts, although independent—indeed, particularly because 6 they are independent—to have a measure of accountability and for the public to have 7 confidence in the administration of justice.’” Ctr. for Auto Safety v. Chrysler Grp., LLC, 8 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 1044, 1048 9 (2d Cir. 1995)). 10 To overcome this presumption of access, a party must show either “good cause” or 11 “compelling reasons” to seal a record, depending on the motion to which the record relates. 12 Id. at 1096-97. The Ninth Circuit has made it “clear that public access to filed motions and 13 their attachments does not merely depend on whether the motion is technically 14 ‘dispositive.’” Id. at 1100–01 (“[O]ur circuit looks past the literal 15 dispositive/nondispositive label.”). “Rather, public access will turn on whether the motion 16 is more than tangentially related to the merits of a case.” Id. If the motion is “more than 17 tangentially related to the merits of a case,” the movant must show “compelling reasons” 18 for overcoming the presumption in favor of public access. Id. at 1096-99. Otherwise, a 19 party need only show good cause. Id.; see, e.g., Baker v. SeaWorld Ent., Inc., No. 14-cv- 20 2129-MMA-AGS, 2017 WL 5029612, at *2 (S.D. Cal. Nov. 3, 2017). “[T]he ‘compelling 21 reasons standard applies to most judicial records.’” Ctr. for Auto Safety, 809 F.3d at 1098 22 (quoting Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677–78 (9th Cir. 2010)). 23 “[N]umerous district courts have found that the ‘compelling reasons’ standard 24 applies to motions for class certification.” Baker, 2017 WL 5029612, at *3 (collecting 25 cases). “Under this stringent standard, a court may seal records only when it finds ‘a 26 compelling reason and articulate[s] the factual basis for its ruling, without relying on 27 hypothesis or conjecture.’” Ctr. for Auto Safety, 809 F.3d at 1096-97 (alteration in original) 1 (quoting Kamakana, 447 F.3d at 1179). “The mere fact that the production of records may 2 lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, 3 without more, compel the court to seal its records.” Kamakana, 447 F.3d at 1180 4 (citing Foltz, 331 F.3d at 1136). Once a party articulates their compelling reasons, “[t]he 5 court must then ‘conscientiously balance[ ] the competing interests of the public and the 6 party who seeks to keep certain judicial records secret.’” Ctr. for Auto Safety, 809 F.3d at 7 1097 (alteration in original) (quoting Kamakana, 447 F.3d at 1179). “What constitutes a 8 ‘compelling reason’ is ‘best left to the sound discretion of the trial court.’” Id. (quoting 9 Nixon, 435 U.S. at 599). 10 Even if it may be appropriate to seal a document in its entirety, a party should still 11 redact records whenever possible. See Kamakana, 447 F.3d at 1183 (noting a preference 12 for redactions so long as they “have the virtue of being limited and clear”); Murphy v. Kavo 13 Am. Corp., No. 11-cv-00410, 2012 WL 1497489 at *2-3 (N.D. Cal. Apr. 27, 2012) 14 (denying motion to seal exhibits but directing parties to redact confidential information). 15 See also Chambers Civ. Proc. § VIII (Protective Orders and Requests to File Under Seal). 16 II. PLAINTIFF’S MOTION 17 Plaintiff originally moved to file six exhibits to the Motion for Class Certification 18 under seal. ECF No. 100. Plaintiff’s class certification brief also contained redactions. See 19 ECF No. 99-1. Defendant filed a response joining in part Plaintiff’s motion and indicating 20 its position that only documents revealing specific information about catches and fishing 21 locations needed to be filed under seal. See ECF No. 113. 22 Plaintiff then revised its motion, seeking to file only ECF Nos. 104 and 106 under 23 seal. See ECF 115. The Court finds that compelling reasons exist to seal these two 24 documents, which appear to contain sensitive business information regarding the location 25 of fishing trips, catch volumes, and pricing which could be used “as sources of business 26 information that might harm [Defendant’s] competitive standing.” See Nixon, 435 U.S. at 27 598. The Court grants the motion to file ECF Nos. 104 and 106 under seal. 1 Given that Plaintiff has withdrawn his request as to the other documents, the Court 2 denies the remainder of the Motion as moot. Plaintiff is ordered to file public, unredacted 3 || versions of ECF Nos. 101, 102, 103, and 105 within seven (7) days of this Order. 4 DEFENDANT’S MOTION 5 Defendant also seeks to file ten exhibits to its Opposition to Class Certification under 6 ECF No. 110. Defendant has lodged these documents as ECF Nos. 111 through 111- 7 ||9. They include: 8 e Appendices of Logbooks 9 e Exhibit 3 to the Declaration of Scott Hawkins 10 e Exhibits 24, 25, and 26 to the Declaration of Sarah Eames 1 e Exhibit 28 to the Declaration of Andrew M. Baker, Ph.D. 12 e Exhibit 47 to the Declaration of Brent Bixler 13 e Exhibit 40 to the Declaration of William Keith 14 The Court considers whether Defendant has demonstrated compelling reasons to seal each 15 document. 16 A. Appendices of Logbooks [ECF Nos. 111-7, 111-8, 111-9] 7 Defendant seeks to seal a compilation of Logbooks from 36 vessels. Defendant 18 explains that these are captains’ records that indicate specific information about the fishing 19 |) vessel including “the latitude and longitude, quantity of fish caught, number of hours 20 fished, amount and type of bycatch, and other comments” as well as “the port of departure, 21 port of landing, the primary fishing gear type used on the trip, and the total pounds of fish 22 || landed on the trip.” ECF No. 110-1 at 4. Defendant represents that each of these Logbooks 23 |l is owned by the captain who wrote them, and that the detailed information contained within 24 is considered proprietary and confidential in the industry because it gives competitors 25 insight into each captain’s business. /d. at 5. 26 Here, the level of detail contained in these compiled records—reflecting each 27 captain’s precise fishing location, personal comments, and type and amount of catch— 28
1 supports sealing them as proprietary business documents.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JEFFREY CRAIG, on behalf of himself Case No.: 22-cv-473-RSH-MSB and all others similarly situated, 12 ORDER: Plaintiff, 13 v. (1) GRANTING IN PART AND 14 DENYING IN PART PLAINTIFF’S AMERICAN TUNA, INC. and WORLD 15 MOTION TO FILE UNDER SEAL; WISE FOODS, LTD., AND 16 Defendants. 17 (2) GRANTING DEFENDANT’S MOTION TO FILE UNDER SEAL 18
19 [ECF Nos. 100, 110]
20 Plaintiff Ray Glass has filed a Motion for Class Certification in this action. See ECF 21 No. 99. Related to this Motion are Plaintiff’s Motion to File Documents Under Seal, ECF 22 No. 100, and Defendant American Tuna’s Motion to File Documents under Seal, ECF No. 23 110. The Court rules on the sealing motions as set forth below. 24 I. LEGAL STANDARD 25 Courts have historically recognized a “general right to inspect and copy public 26 records and documents, including judicial records.” Nixon v. Warner Commc’ns, Inc., 435 27 1 U.S. 589, 597 & n.7 (1978). “Unless a particular court record is one ‘traditionally kept 2 secret,’ a ‘strong presumption in favor of access’ is the starting point.” Kamakana v. City 3 & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Foltz v. State Farm 4 Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption of access is 5 ‘based on the need for federal courts, although independent—indeed, particularly because 6 they are independent—to have a measure of accountability and for the public to have 7 confidence in the administration of justice.’” Ctr. for Auto Safety v. Chrysler Grp., LLC, 8 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 1044, 1048 9 (2d Cir. 1995)). 10 To overcome this presumption of access, a party must show either “good cause” or 11 “compelling reasons” to seal a record, depending on the motion to which the record relates. 12 Id. at 1096-97. The Ninth Circuit has made it “clear that public access to filed motions and 13 their attachments does not merely depend on whether the motion is technically 14 ‘dispositive.’” Id. at 1100–01 (“[O]ur circuit looks past the literal 15 dispositive/nondispositive label.”). “Rather, public access will turn on whether the motion 16 is more than tangentially related to the merits of a case.” Id. If the motion is “more than 17 tangentially related to the merits of a case,” the movant must show “compelling reasons” 18 for overcoming the presumption in favor of public access. Id. at 1096-99. Otherwise, a 19 party need only show good cause. Id.; see, e.g., Baker v. SeaWorld Ent., Inc., No. 14-cv- 20 2129-MMA-AGS, 2017 WL 5029612, at *2 (S.D. Cal. Nov. 3, 2017). “[T]he ‘compelling 21 reasons standard applies to most judicial records.’” Ctr. for Auto Safety, 809 F.3d at 1098 22 (quoting Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677–78 (9th Cir. 2010)). 23 “[N]umerous district courts have found that the ‘compelling reasons’ standard 24 applies to motions for class certification.” Baker, 2017 WL 5029612, at *3 (collecting 25 cases). “Under this stringent standard, a court may seal records only when it finds ‘a 26 compelling reason and articulate[s] the factual basis for its ruling, without relying on 27 hypothesis or conjecture.’” Ctr. for Auto Safety, 809 F.3d at 1096-97 (alteration in original) 1 (quoting Kamakana, 447 F.3d at 1179). “The mere fact that the production of records may 2 lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, 3 without more, compel the court to seal its records.” Kamakana, 447 F.3d at 1180 4 (citing Foltz, 331 F.3d at 1136). Once a party articulates their compelling reasons, “[t]he 5 court must then ‘conscientiously balance[ ] the competing interests of the public and the 6 party who seeks to keep certain judicial records secret.’” Ctr. for Auto Safety, 809 F.3d at 7 1097 (alteration in original) (quoting Kamakana, 447 F.3d at 1179). “What constitutes a 8 ‘compelling reason’ is ‘best left to the sound discretion of the trial court.’” Id. (quoting 9 Nixon, 435 U.S. at 599). 10 Even if it may be appropriate to seal a document in its entirety, a party should still 11 redact records whenever possible. See Kamakana, 447 F.3d at 1183 (noting a preference 12 for redactions so long as they “have the virtue of being limited and clear”); Murphy v. Kavo 13 Am. Corp., No. 11-cv-00410, 2012 WL 1497489 at *2-3 (N.D. Cal. Apr. 27, 2012) 14 (denying motion to seal exhibits but directing parties to redact confidential information). 15 See also Chambers Civ. Proc. § VIII (Protective Orders and Requests to File Under Seal). 16 II. PLAINTIFF’S MOTION 17 Plaintiff originally moved to file six exhibits to the Motion for Class Certification 18 under seal. ECF No. 100. Plaintiff’s class certification brief also contained redactions. See 19 ECF No. 99-1. Defendant filed a response joining in part Plaintiff’s motion and indicating 20 its position that only documents revealing specific information about catches and fishing 21 locations needed to be filed under seal. See ECF No. 113. 22 Plaintiff then revised its motion, seeking to file only ECF Nos. 104 and 106 under 23 seal. See ECF 115. The Court finds that compelling reasons exist to seal these two 24 documents, which appear to contain sensitive business information regarding the location 25 of fishing trips, catch volumes, and pricing which could be used “as sources of business 26 information that might harm [Defendant’s] competitive standing.” See Nixon, 435 U.S. at 27 598. The Court grants the motion to file ECF Nos. 104 and 106 under seal. 1 Given that Plaintiff has withdrawn his request as to the other documents, the Court 2 denies the remainder of the Motion as moot. Plaintiff is ordered to file public, unredacted 3 || versions of ECF Nos. 101, 102, 103, and 105 within seven (7) days of this Order. 4 DEFENDANT’S MOTION 5 Defendant also seeks to file ten exhibits to its Opposition to Class Certification under 6 ECF No. 110. Defendant has lodged these documents as ECF Nos. 111 through 111- 7 ||9. They include: 8 e Appendices of Logbooks 9 e Exhibit 3 to the Declaration of Scott Hawkins 10 e Exhibits 24, 25, and 26 to the Declaration of Sarah Eames 1 e Exhibit 28 to the Declaration of Andrew M. Baker, Ph.D. 12 e Exhibit 47 to the Declaration of Brent Bixler 13 e Exhibit 40 to the Declaration of William Keith 14 The Court considers whether Defendant has demonstrated compelling reasons to seal each 15 document. 16 A. Appendices of Logbooks [ECF Nos. 111-7, 111-8, 111-9] 7 Defendant seeks to seal a compilation of Logbooks from 36 vessels. Defendant 18 explains that these are captains’ records that indicate specific information about the fishing 19 |) vessel including “the latitude and longitude, quantity of fish caught, number of hours 20 fished, amount and type of bycatch, and other comments” as well as “the port of departure, 21 port of landing, the primary fishing gear type used on the trip, and the total pounds of fish 22 || landed on the trip.” ECF No. 110-1 at 4. Defendant represents that each of these Logbooks 23 |l is owned by the captain who wrote them, and that the detailed information contained within 24 is considered proprietary and confidential in the industry because it gives competitors 25 insight into each captain’s business. /d. at 5. 26 Here, the level of detail contained in these compiled records—reflecting each 27 captain’s precise fishing location, personal comments, and type and amount of catch— 28
1 supports sealing them as proprietary business documents. See In re Elec. Arts, Inc., 298 F. 2 App’x 568, 569 (9th Cir. 2008) (recognizing “the common-law right of inspection has 3 bowed before the power of a court to insure that its records are not used[] as sources of 4 business information that might harm a litigant’s competitive standing” (quotations 5 omitted)). Defendant has shown compelling reasons that warrant sealing these documents. 6 B. Exhibit 3 to the Declaration of Scott Hawkins [ECF No. 111] 7 Exhibit 3 is an excerpt from the Logbook of Scott Hawkins, one of American Tuna’s 8 captains, who submitted a declaration in this case. ECF No. 111. This record appears to 9 contain commercial information similar to the Logbooks compilation discussed above, this 10 time detailing fishing trips on Hawkins’s vessel, Jody H. Defendant has shown compelling 11 reasons that warrant sealing this document. 12 C. Exhibits 24 and 25 to the Declaration of Sarah Eames & Exhibit 47 to the 13 Declaration of Brent Bixler [ECF Nos. 111-1, 111-2, 111-6] 14 Exhibits 24 and 25 to the Eames declaration and Exhibit 47 to the Bixler declaration 15 contain receipts and invoices documenting the sale of American Tuna products as well as 16 information about the length and location of each vessel’s fishing trip, manner of fishing, 17 and quantity of tuna caught. Defendant describes these as “chain of custody records” that 18 trace the movement of the fish to the cannery. ECF No. 110-1 at 6. Defendant claims it 19 “derives a competitive advantage from its knowledge and the confidentiality of the prices 20 of albacore tuna each season” and “from its relationships with the vessel captains” and their 21 trade organizations. ECF No. 110-1 at 6. Defendant has shown compelling reasons that 22 warrant sealing these documents. 23 D. Exhibit 26 to the Declaration of Sarah Eames [ECF No. 111-3] 24 Exhibit 26 contains raw data and a comparative analysis of the amount of albacore 25 tuna that American Tuna fishing vessels caught inside and outside the U.S. Exclusive 26 Economic Zone. The spreadsheet also includes the vessel names and their longitude and 27 latitude at different catch locations. 1 The Court agrees with Defendant that this data contains the same confidential and 2 proprietary commercial information contained in the Logbooks. Further, as Defendant 3 states, “disclosure of the spreadsheet” would “reveal American Tuna’s analysis of how its 4 sourcing and production process work together.” ECF No. 110-1 at 7. This exhibit appears 5 to contain aggregated data and analysis that could be used “as sources of business 6 information that might harm [Defendant’s] competitive standing.” See Nixon, 435 U.S. at 7 598. Defendant has shown compelling reasons that warrant sealing this document. 8 E. Exhibit 28 to the Declaration of Andrew Baker [ECF No. 111-4] 9 This exhibit is the 63-page report of Andrew Baker, American Tuna’s marketing 10 expert. It contains Baker’s conclusion and opinions as to whether American Tuna’s 11 representations about catch locations played a material role in customers’ purchase 12 decisions. 13 Defendant represents that this report “contains American Tuna’s consumer surveys 14 and marketing strategies” and “shows what consumers value in American Tuna’s product 15 labeling.” ECF No. 110-1 at 7. It contends that “[t]he disclosure of this information could 16 benefit American Tuna’s competitors by providing them with valuable information about 17 American Tuna’s product labeling and marketing strategies, and could reduce any business 18 advantage that American Tuna currently possesses.” Id. 19 Defendant has not established compelling reasons to justify sealing the entirety of 20 Baker’s report. Although compelling reasons may exist to protect specific disclosures 21 about marketing strategy or American Tuna’s private consumer surveys, the report also 22 contains many pages that do not appear to disclose information that would harm American 23 Tuna’s business advantage if disclosed, such as introductory pages on Baker’s 24 qualifications. See L.A. Int’l Corp. v. Prestige Brands Holdings, Inc., No. 25 CV186809MWFMRWX, 2019 WL 13095159, at *2 (C.D. Cal. Sept. 18, 2019) (denying 26 party’s “attempt to file entire expert reports under seal, including the introductory pages 27 about an expert’s qualifications and background”); see also GPNE Corp. v. Apple, Inc., 1 No. 12-CV-02885-LHK, 2014 WL 12630065, at *2 (N.D. Cal. Apr. 9, 2014) (denying 2 motion “to seal entire expert reports spanning hundreds of pages,” because “much of the 3 information therein is not properly sealable”). Defendant fails to address whether 4 confidential information might be redacted. See United States v. Ioane, No. 1:09-CR- 5 00142-JLT-3, 2022 WL 2918231, at *1 (E.D. Cal. July 25, 2022) (If redaction can occur 6 to eliminate the need for sealing, redaction is required). 7 The Court denies without prejudice Defendant’s motion to seal the entirety of the 8 Baker report. Should Defendant wish to rely on the exhibit, it may re-file a more narrowly 9 tailored request within fourteen (14) days. 10 F. Exhibit 40 to the Declaration of William Keith [ECF No. 111-5] 11 This Exhibit contains a letter that Plaintiff’s counsel sent Defendant’s counsel after 12 the deposition of former plaintiff Michael Sizemore. Defendant submits the letter should 13 be sealed because it “contains extensive personal and medi[c]al information” and “reveals 14 attorney-client communications.” ECF No. 110-1 at 8. The Court agrees that the document 15 contains references to a former plaintiff’s health as well as descriptions of attorney-client 16 conversations, which is the type of sensitive personal and medical information that should 17 properly be filed under seal. See Weisberg v. Takeda Pharms. U.S.A., Inc., No. CV 18-784 18 PA (JCX), 2018 WL 6252458, at *3 (C.D. Cal. July 3, 2018) (sealing records that “contain 19 personal identifying information and medical records that are not put at issue by this 20 action”). These references are pervasive and cannot be adequately protected through 21 redaction. Defendant has shown compelling reasons that warrant sealing this document. 22 IV. CONCLUSION 23 For the above reasons, the Court 24 1. GRANTS IN PART AND DENIES IN PART Plaintiff’s Motion to Seal 25 Documents [ECF No. 100]. The Court grants Plaintiff’s motion to file ECF Nos. 104 and 26 106 under seal. Plaintiff’s motion as to the other exhibits is denied as moot. Plaintiff is 27 1 || ordered to file public, unredacted copies of ECF Nos. 101, 102, 103, and 105 within seven 2 ||(7) days of this Order. 3 2. GRANTS IN PART AND DENIES IN PART Defendant’s Motion to Seal 4 ||Documents [ECF No. 110]. The Court grants Defendant’s motion to file ECF Nos. 111, 5 |} 111-1, 111-2, 111-3, 111-5, 111-6, 111-7, 111-8, and 111-9 under seal. The Court denies 6 || without prejudice Defendant’s motion to file ECF No. 111-4 under seal. Defendant may 7 |\re-file a more narrowly tailored request within fourteen (14) days of this Order. If 8 || Defendant does not timely file a renewed request, 1t may not rely on the exhibit. 9 IT IS SO ORDERED. 10 Dated: November 28, 2023 Kebur S lowe Hon. Robert S. Huie United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28