1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LORI DEW, et al., Case No. 19-cv-06009-HSG
8 Plaintiffs, ORDER DENYING PLAINTIFFS’ AND DEFENDANTS’ ADMINISTRATIVE 9 v. MOTIONS TO SEAL
10 CITY OF SEASIDE, et al., Re: Dkt. Nos. 50, 53 11 Defendants.
12 13 Pending before the Court are the parties’ motions to file under seal portions of their 14 summary judgment briefs and associated exhibits. Dkt. Nos. 50, 53. For the reasons detailed 15 below, the Court DENIES the motions to file under seal. 16 I. LEGAL STANDARD 17 Courts generally apply a “compelling reasons” standard when considering motions to seal 18 documents. Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010) (quoting Kamakana 19 v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006)). “This standard derives from the 20 common law right ‘to inspect and copy public records and documents, including judicial records 21 and documents.’” Id. (quoting Kamakana, 447 F.3d at 1178). “[A] strong presumption in favor of 22 access is the starting point.” Kamakana, 447 F.3d at 1178 (quotations omitted). To overcome this 23 strong presumption, the party seeking to seal a judicial record attached to a dispositive motion 24 must “articulate compelling reasons supported by specific factual findings that outweigh the 25 general history of access and the public policies favoring disclosure, such as the public interest in 26 understanding the judicial process” and “significant public events.” Id. at 1178–79 (quotations 27 omitted). “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in 1 vehicle for improper purposes,’ such as the use of records to gratify private spite, promote public 2 scandal, circulate libelous statements, or release trade secrets.” Id. at 1179 (quoting Nixon v. 3 Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)). “The mere fact that the production of records 4 may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, 5 without more, compel the court to seal its records.” Id. 6 The Court must “balance[] the competing interests of the public and the party who seeks to 7 keep certain judicial records secret. After considering these interests, if the court decides to seal 8 certain judicial records, it must base its decision on a compelling reason and articulate the factual 9 basis for its ruling, without relying on hypothesis or conjecture.” Id. Civil Local Rule 79-5 10 supplements the compelling reasons standard set forth in Kamakana: the party seeking to file a 11 document or portions of it under seal must “establish[] that the document, or portions thereof, are 12 privileged, protectable as a trade secret or otherwise entitled to protection under the law . . . The 13 request must be narrowly tailored to seek sealing only of sealable material.” Civil L.R. 79-5(b). 14 Records attached to nondispositive motions must meet the lower “good cause” standard of 15 Rule 26(c) of the Federal Rules of Civil Procedure, as such records “are often unrelated, or only 16 tangentially related, to the underlying cause of action.” See Kamakana, 447 F.3d at 1179–80 17 (quotations omitted). This requires a “particularized showing” that “specific prejudice or harm 18 will result” if the information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 19 307 F.3d 1206, 1210–11 (9th Cir. 2002); see also Fed. R. Civ. P. 26(c). “Broad allegations of 20 harm, unsubstantiated by specific examples of articulated reasoning” will not suffice. Beckman 21 Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (quotation omitted). 22 II. DISCUSSION 23 Because the motion for summary judgment is more than tangentially related to the 24 underlying action, the Court applies the “compelling reasons” standard in evaluating the motions 25 to seal. Plaintiffs seek to file under seal two exhibits attached to their opposition to the motion for 26 summary judgment, Exhibits H and N to the Declaration of Jeremy I. Lessem, and the portions of 27 Plaintiffs’ opposition brief that reference the provisionally sealed exhibits. Exhibit H includes 1 personnel file documents for Defendant Fernandez. Dkt. No. 50. Defendants seek to seal Exhibit 2 I to the Declaration of Shawn M. Ridley, which includes additional excerpts from the deposition 3 transcript of Deputy Chief Nick Borges. Dkt. No. 53. The only proffered justification for sealing 4 is that the information was designated as “Confidential” by Defendants. See Dkt. No. 50 at 2; Dkt. 5 No. 53 at 2. But a designation of confidentiality is not sufficient to establish that a document is 6 sealable. See Civ. L. R. 79-5(d)(1)(A). “Confidential” is merely the parties’ initial designation of 7 confidentiality to establish coverage under the stipulated protective order. See Verinata Health, 8 Inc. v. Ariosa Diagnostics, Inc., No. 12-cv-05501-SI, 2015 WL 5117083, at *5 (N.D. Cal. Aug. 9 31, 2015) (“But good cause ‘cannot be established simply by showing that the document is subject 10 to a protective order or by stating in general terms that the material is considered to be 11 confidential’”) (quoting Bain v. AstraZeneca LP, No. 09-cv-4147, 2011 WL 482767, at *1 (N.D. 12 Cal. Feb. 7, 2011)). Thus, Plaintiffs’ motion does not comply with Civil Local Rule 79- 13 5(d)(1)(A). In addition, as the designating party for the materials, Defendants did not comply with 14 Civil Local Rule 79-5(e)(1), because they did not file a declaration within four days of Plaintiffs’ 15 motion. See Civ. L.R. 79-5(e)(1). 16 Further, upon reviewing the portions of Plaintiffs’ opposition brief that reference the 17 provisionally sealed exhibits, the Court finds that there is not a compelling reason to seal certain 18 portions that describe high-level and generic details regarding Exhibit N, the personnel file 19 documents for Defendant Fernandez. Plaintiffs’ references to these generic details are relevant to 20 Plaintiffs’ ratification theory of municipal liability. See Dkt. No. 51 at 29–30. And these 21 references do not disclose a higher level of detail than what is generally described in Defendants’ 22 briefs. See Dkt. No. 52 (“Plaintiffs offer no evidence of any disciplinary action or even negative 23 performance reviews pertaining to Officer Fernandez’s performance or tactical decision-making in 24 the field . . . .”). Accordingly, the Court finds that sealing is not warranted for page 29, lines 7-9, 25 or page 30, lines 10-14 of Plaintiffs’ opposition brief.1 A request to seal those specific portions of 26 1 The Court notes that the line numbers in Plaintiffs’ opposition brief are not aligned with the text. 27 See Dkt. No. 51. To avoid confusion, the references to line numbers in this order are made by 1 Plaintiffs’ opposition brief will not be considered in any renewed motion to seal. 2 || I. CONCLUSION 3 The Court DENIES the parties’ administrative motion to seal. The Court DIRECTS the 4 || parties to file public versions of all documents within seven days of this order. Defendants may 5 also file a new motion to seal the requested exhibits and the remaining portions of Plaintiffs’ 6 || opposition brief (on page 13 and page 29, lines 10-19) that reference the exhibits within seven 7 days of this order.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LORI DEW, et al., Case No. 19-cv-06009-HSG
8 Plaintiffs, ORDER DENYING PLAINTIFFS’ AND DEFENDANTS’ ADMINISTRATIVE 9 v. MOTIONS TO SEAL
10 CITY OF SEASIDE, et al., Re: Dkt. Nos. 50, 53 11 Defendants.
12 13 Pending before the Court are the parties’ motions to file under seal portions of their 14 summary judgment briefs and associated exhibits. Dkt. Nos. 50, 53. For the reasons detailed 15 below, the Court DENIES the motions to file under seal. 16 I. LEGAL STANDARD 17 Courts generally apply a “compelling reasons” standard when considering motions to seal 18 documents. Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010) (quoting Kamakana 19 v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006)). “This standard derives from the 20 common law right ‘to inspect and copy public records and documents, including judicial records 21 and documents.’” Id. (quoting Kamakana, 447 F.3d at 1178). “[A] strong presumption in favor of 22 access is the starting point.” Kamakana, 447 F.3d at 1178 (quotations omitted). To overcome this 23 strong presumption, the party seeking to seal a judicial record attached to a dispositive motion 24 must “articulate compelling reasons supported by specific factual findings that outweigh the 25 general history of access and the public policies favoring disclosure, such as the public interest in 26 understanding the judicial process” and “significant public events.” Id. at 1178–79 (quotations 27 omitted). “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in 1 vehicle for improper purposes,’ such as the use of records to gratify private spite, promote public 2 scandal, circulate libelous statements, or release trade secrets.” Id. at 1179 (quoting Nixon v. 3 Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)). “The mere fact that the production of records 4 may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, 5 without more, compel the court to seal its records.” Id. 6 The Court must “balance[] the competing interests of the public and the party who seeks to 7 keep certain judicial records secret. After considering these interests, if the court decides to seal 8 certain judicial records, it must base its decision on a compelling reason and articulate the factual 9 basis for its ruling, without relying on hypothesis or conjecture.” Id. Civil Local Rule 79-5 10 supplements the compelling reasons standard set forth in Kamakana: the party seeking to file a 11 document or portions of it under seal must “establish[] that the document, or portions thereof, are 12 privileged, protectable as a trade secret or otherwise entitled to protection under the law . . . The 13 request must be narrowly tailored to seek sealing only of sealable material.” Civil L.R. 79-5(b). 14 Records attached to nondispositive motions must meet the lower “good cause” standard of 15 Rule 26(c) of the Federal Rules of Civil Procedure, as such records “are often unrelated, or only 16 tangentially related, to the underlying cause of action.” See Kamakana, 447 F.3d at 1179–80 17 (quotations omitted). This requires a “particularized showing” that “specific prejudice or harm 18 will result” if the information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 19 307 F.3d 1206, 1210–11 (9th Cir. 2002); see also Fed. R. Civ. P. 26(c). “Broad allegations of 20 harm, unsubstantiated by specific examples of articulated reasoning” will not suffice. Beckman 21 Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (quotation omitted). 22 II. DISCUSSION 23 Because the motion for summary judgment is more than tangentially related to the 24 underlying action, the Court applies the “compelling reasons” standard in evaluating the motions 25 to seal. Plaintiffs seek to file under seal two exhibits attached to their opposition to the motion for 26 summary judgment, Exhibits H and N to the Declaration of Jeremy I. Lessem, and the portions of 27 Plaintiffs’ opposition brief that reference the provisionally sealed exhibits. Exhibit H includes 1 personnel file documents for Defendant Fernandez. Dkt. No. 50. Defendants seek to seal Exhibit 2 I to the Declaration of Shawn M. Ridley, which includes additional excerpts from the deposition 3 transcript of Deputy Chief Nick Borges. Dkt. No. 53. The only proffered justification for sealing 4 is that the information was designated as “Confidential” by Defendants. See Dkt. No. 50 at 2; Dkt. 5 No. 53 at 2. But a designation of confidentiality is not sufficient to establish that a document is 6 sealable. See Civ. L. R. 79-5(d)(1)(A). “Confidential” is merely the parties’ initial designation of 7 confidentiality to establish coverage under the stipulated protective order. See Verinata Health, 8 Inc. v. Ariosa Diagnostics, Inc., No. 12-cv-05501-SI, 2015 WL 5117083, at *5 (N.D. Cal. Aug. 9 31, 2015) (“But good cause ‘cannot be established simply by showing that the document is subject 10 to a protective order or by stating in general terms that the material is considered to be 11 confidential’”) (quoting Bain v. AstraZeneca LP, No. 09-cv-4147, 2011 WL 482767, at *1 (N.D. 12 Cal. Feb. 7, 2011)). Thus, Plaintiffs’ motion does not comply with Civil Local Rule 79- 13 5(d)(1)(A). In addition, as the designating party for the materials, Defendants did not comply with 14 Civil Local Rule 79-5(e)(1), because they did not file a declaration within four days of Plaintiffs’ 15 motion. See Civ. L.R. 79-5(e)(1). 16 Further, upon reviewing the portions of Plaintiffs’ opposition brief that reference the 17 provisionally sealed exhibits, the Court finds that there is not a compelling reason to seal certain 18 portions that describe high-level and generic details regarding Exhibit N, the personnel file 19 documents for Defendant Fernandez. Plaintiffs’ references to these generic details are relevant to 20 Plaintiffs’ ratification theory of municipal liability. See Dkt. No. 51 at 29–30. And these 21 references do not disclose a higher level of detail than what is generally described in Defendants’ 22 briefs. See Dkt. No. 52 (“Plaintiffs offer no evidence of any disciplinary action or even negative 23 performance reviews pertaining to Officer Fernandez’s performance or tactical decision-making in 24 the field . . . .”). Accordingly, the Court finds that sealing is not warranted for page 29, lines 7-9, 25 or page 30, lines 10-14 of Plaintiffs’ opposition brief.1 A request to seal those specific portions of 26 1 The Court notes that the line numbers in Plaintiffs’ opposition brief are not aligned with the text. 27 See Dkt. No. 51. To avoid confusion, the references to line numbers in this order are made by 1 Plaintiffs’ opposition brief will not be considered in any renewed motion to seal. 2 || I. CONCLUSION 3 The Court DENIES the parties’ administrative motion to seal. The Court DIRECTS the 4 || parties to file public versions of all documents within seven days of this order. Defendants may 5 also file a new motion to seal the requested exhibits and the remaining portions of Plaintiffs’ 6 || opposition brief (on page 13 and page 29, lines 10-19) that reference the exhibits within seven 7 days of this order. Any proposed order must include in the table for each item sought to be sealed: 8 (1) the docket numbers of the public and provisionally sealed versions of documents sought to be 9 filed under seal; (2) the name of the document; (3) the specific portion(s) of the document sought 10 || to be filed under seal; and (4) the filer’s reasons for seeking sealing of the material, along with 11 citations to the relevant declarations and any supporting legal authority. The reasons provided 12 || must be specific and tailored to the portion(s) of the document sought to be sealed.
IT IS SO ORDERED. 3 15 Dated: 5/4/2021 16 Aspe 3 bl) 5 HAYWOOD S, GILLIAM, JR. nited States District Judge 18 19 20 21 22 23 24 25 26 27 28