1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 RHODNEY HENDERSON, et al., 7 Case No. 2:21-cv-00280-JAD-NJK Plaintiff(s), 8 Order v. 9 [Docket No. 97] ARIA RESORT AND CASINO HOLDINGS, 10 LLC, et al., 11 Defendant(s). 12 Pending before the Court is Defendants’ motion to seal an exhibit filed in conjunction with 13 their motion for clarification. Docket No. 97; see also Docket No. 98. No response was filed.1 14 The Court does not require a hearing on the motion. See Local Rule 78-1. 15 I. STANDARDS 16 There is a strong presumption in favor of the public’s access to judicial filings. See, e.g., 17 Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). Documents filed in 18 relation to a non-dispositive matter may not be sealed absent a particularized showing of good 19 cause. Id. at 1180. Such a burden is met by the presentation of evidence, such as a declaration 20 from someone with personal knowledge, rather than by the argument of counsel in motion practice. 21 See, e.g., Utherverse Gaming LLC v. Marshmello Creative, LLC, 2022 WL 17801835, at *1 (W.D. 22 Wash. Dec. 16, 2022); Becerra v. City of Barstow, 2022 WL 14772757, at *1 (C.D. Cal. Oct. 25, 23 2022); Garcia v. Lincoln Life Assur. Co. of Boston, 2022 WL 20111375, at *1 (D. Nev. Sept. 7, 24 2022); Allied Trend Int’l, Ltd. v. Parcel Pending, Inc., 2019 WL 5559176, at *2 (S.D. Cal. Oct. 25 28, 2019); Evolutionary Intelligence, Inc. v. Facebook Inc., 2013 WL 12144122, at *1 (N.D. Cal. 26
27 1 The fact that a sealing request may be unopposed does not automatically result in it being granted because the Court is tasked with protecting the public’s interest in transparency. Allegiant 28 Travel Co. v. Kinzer, 2022 WL 2819734, at *1 n.1 (D. Nev. July 19, 2022). 1 Dec. 10, 2013); Vaccine Ctr. LLC v. GlaxoSmithKline LLC, 2013 U.S. Dist. Lexis 68298, at *6 2 (D. Nev. May 14, 2013). 3 A request to seal must be “narrowly tailored” to remove from the public sphere only the 4 material that warrants secrecy. Harper v. Nev. Prop. 1, LLC, 552 F. Supp. 3d 1033, 1040-41 (D. 5 Nev. 2021) (citing Ervine v. Warden, 214 F. Supp. 3d 917, 919 (E.D. Cal. 2016)). To the extent 6 confidential information can be easily redacted while leaving meaningful information available to 7 the public, the Court must order that redacted versions be filed rather than sealing entire 8 documents. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1137 (9th Cir. 2003); see also 9 in re Roman Catholic Archbishop of Portland in Ore., 661 F.3d 417, 425 (9th Cir. 2011) (the 10 district court must “keep in mind the possibility of redacting the sensitive material”). 11 II. ANALYSIS 12 Defendants’ motion to seal fails on a number of fronts. 13 A. Procedurally Improper Filing of Underlying Materials 14 The motion to seal seeks secrecy for Exhibit 1 to the underlying motion for clarification. 15 Docket No. 97 at 4. In filing that underlying motion, however, Defendants filed the entirety of the 16 motion and all exhibits under seal. See Docket No. 98. The en masse sealing stems from filing 17 the motion and exhibits as a single document. See id. In so doing, Defendants violated the local 18 rules, which require the separate filing of a motion and each of the exhibits thereto. Local Rule IC 19 2-2(a)(3)(A). By failing to comply with that local rule, Defendants have filed under seal 95 pages 20 of documents, even though their sealing request relates only to one exhibit consisting of 29 pages. 21 See Docket No. 98 at 12-40. As no showing has been made as to underlying motion and the other 22 exhibits, Defendants must file these other documents on the public docket in a manner consistent 23 with Local Rule IC 2-2(a)(3)(A). 24 B. Potential for Redaction 25 The subject exhibit consists of 29 pages. See Docket No. 98 at 12-40. Defendants seek 26 sealing on the ground that the exhibit includes proprietary security information. See Docket No. 27 97 at 3-4. Even assuming that such reasoning suffices to maintain secrecy of this information, but 28 see Section II.C., Defendants fail to explain how that reasoning suffices to seal all 29 pages of the 1 exhibit in question. As noted above, a request to seal must be “narrowly tailored” to remove from 2 the public sphere only the material that warrants secrecy. Harper, 552 F. Supp. 3d at 1040-41. 3 The Ninth Circuit requires that information be redacted from a public-facing document, rather than 4 sealing a document in its entirety, when confidential information can be easily redacted while 5 leaving meaningful information available to the public. Foltz, 331 F.3d at 1137. No showing has 6 been made here as to why redaction of the subject document is not feasible. 7 C. Good Cause Showing 8 Defendants contend that the subject exhibit warrants secrecy because it contains trade 9 secret information regarding casino security. See Docket No. 97 at 3-4. The good cause standard 10 requires a “particularized showing” of the harm that will stem from the public disclosure of the 11 information. Kamakana, 447 F.3d at 1180. Such a particularized showing is not made through 12 conclusory assertions of an attorney unsupported by a declaration or other competent evidence. 13 See Garcia, 2022 WL 20111375, at *1; see also Comstock v. Humphries, 786 F.3d 701, 709 (9th 14 Cir. 20150 (“arguments in briefs are not evidence”). The sealing request in this case is premised 15 on statements of counsel (unsupported by a declaration of someone with personal knowledge or 16 other evidence) that the security information is sensitive, not available to the public, and kept 17 confidential even from some of the casino employees, and that the public disclosure of that 18 information could pose security risks in the future. Docket No. 97 at 4. These attorney statements 19 do not constitute a particularized showing of good cause. 20 Defendants also argue that good cause exists to seal the subject exhibit because it was 21 designated as confidential pursuant to the blanket protective order and cites or discusses 22 information that was designated as confidential. Docket No. 97 at 3-4. As a threshold matter, the 23 portion of the protective order Defendants quote was struck by the Court, so it is not in effect. 24 Compare id. at 3 with Docket No. 46 at 5. The Court instead issued an order expressly rejecting 25 the argument now being advanced. Docket No. 47 at 2. To reiterate that prior order, reliance on 26 the mere fact of a confidentiality designation to justify sealing a document once filed fails as a 27 matter of law because the protective order was entered without a specific finding that any particular 28 documents warrant secrecy. See id.; see also Kamakana, 447 F.3d at 1176 (“Because the parties 1} had simply stipulated to the protective order, a particularized showing of ‘good cause’ to keep the 2|| documents under seal had never been made to the court”); id. at 1183 (discussing overinclusive 3] nature of blanket protective orders and making clear that a “confidential categorization of discovery documents under the protective order was not a guarantee of confidentiality, especially 5] in the event of a court filing”); Foltz, 331 F.3d at 1133 (discussing Beckman Indus., Inc. v. Int’] 6| Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992)). 7| TI.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 RHODNEY HENDERSON, et al., 7 Case No. 2:21-cv-00280-JAD-NJK Plaintiff(s), 8 Order v. 9 [Docket No. 97] ARIA RESORT AND CASINO HOLDINGS, 10 LLC, et al., 11 Defendant(s). 12 Pending before the Court is Defendants’ motion to seal an exhibit filed in conjunction with 13 their motion for clarification. Docket No. 97; see also Docket No. 98. No response was filed.1 14 The Court does not require a hearing on the motion. See Local Rule 78-1. 15 I. STANDARDS 16 There is a strong presumption in favor of the public’s access to judicial filings. See, e.g., 17 Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). Documents filed in 18 relation to a non-dispositive matter may not be sealed absent a particularized showing of good 19 cause. Id. at 1180. Such a burden is met by the presentation of evidence, such as a declaration 20 from someone with personal knowledge, rather than by the argument of counsel in motion practice. 21 See, e.g., Utherverse Gaming LLC v. Marshmello Creative, LLC, 2022 WL 17801835, at *1 (W.D. 22 Wash. Dec. 16, 2022); Becerra v. City of Barstow, 2022 WL 14772757, at *1 (C.D. Cal. Oct. 25, 23 2022); Garcia v. Lincoln Life Assur. Co. of Boston, 2022 WL 20111375, at *1 (D. Nev. Sept. 7, 24 2022); Allied Trend Int’l, Ltd. v. Parcel Pending, Inc., 2019 WL 5559176, at *2 (S.D. Cal. Oct. 25 28, 2019); Evolutionary Intelligence, Inc. v. Facebook Inc., 2013 WL 12144122, at *1 (N.D. Cal. 26
27 1 The fact that a sealing request may be unopposed does not automatically result in it being granted because the Court is tasked with protecting the public’s interest in transparency. Allegiant 28 Travel Co. v. Kinzer, 2022 WL 2819734, at *1 n.1 (D. Nev. July 19, 2022). 1 Dec. 10, 2013); Vaccine Ctr. LLC v. GlaxoSmithKline LLC, 2013 U.S. Dist. Lexis 68298, at *6 2 (D. Nev. May 14, 2013). 3 A request to seal must be “narrowly tailored” to remove from the public sphere only the 4 material that warrants secrecy. Harper v. Nev. Prop. 1, LLC, 552 F. Supp. 3d 1033, 1040-41 (D. 5 Nev. 2021) (citing Ervine v. Warden, 214 F. Supp. 3d 917, 919 (E.D. Cal. 2016)). To the extent 6 confidential information can be easily redacted while leaving meaningful information available to 7 the public, the Court must order that redacted versions be filed rather than sealing entire 8 documents. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1137 (9th Cir. 2003); see also 9 in re Roman Catholic Archbishop of Portland in Ore., 661 F.3d 417, 425 (9th Cir. 2011) (the 10 district court must “keep in mind the possibility of redacting the sensitive material”). 11 II. ANALYSIS 12 Defendants’ motion to seal fails on a number of fronts. 13 A. Procedurally Improper Filing of Underlying Materials 14 The motion to seal seeks secrecy for Exhibit 1 to the underlying motion for clarification. 15 Docket No. 97 at 4. In filing that underlying motion, however, Defendants filed the entirety of the 16 motion and all exhibits under seal. See Docket No. 98. The en masse sealing stems from filing 17 the motion and exhibits as a single document. See id. In so doing, Defendants violated the local 18 rules, which require the separate filing of a motion and each of the exhibits thereto. Local Rule IC 19 2-2(a)(3)(A). By failing to comply with that local rule, Defendants have filed under seal 95 pages 20 of documents, even though their sealing request relates only to one exhibit consisting of 29 pages. 21 See Docket No. 98 at 12-40. As no showing has been made as to underlying motion and the other 22 exhibits, Defendants must file these other documents on the public docket in a manner consistent 23 with Local Rule IC 2-2(a)(3)(A). 24 B. Potential for Redaction 25 The subject exhibit consists of 29 pages. See Docket No. 98 at 12-40. Defendants seek 26 sealing on the ground that the exhibit includes proprietary security information. See Docket No. 27 97 at 3-4. Even assuming that such reasoning suffices to maintain secrecy of this information, but 28 see Section II.C., Defendants fail to explain how that reasoning suffices to seal all 29 pages of the 1 exhibit in question. As noted above, a request to seal must be “narrowly tailored” to remove from 2 the public sphere only the material that warrants secrecy. Harper, 552 F. Supp. 3d at 1040-41. 3 The Ninth Circuit requires that information be redacted from a public-facing document, rather than 4 sealing a document in its entirety, when confidential information can be easily redacted while 5 leaving meaningful information available to the public. Foltz, 331 F.3d at 1137. No showing has 6 been made here as to why redaction of the subject document is not feasible. 7 C. Good Cause Showing 8 Defendants contend that the subject exhibit warrants secrecy because it contains trade 9 secret information regarding casino security. See Docket No. 97 at 3-4. The good cause standard 10 requires a “particularized showing” of the harm that will stem from the public disclosure of the 11 information. Kamakana, 447 F.3d at 1180. Such a particularized showing is not made through 12 conclusory assertions of an attorney unsupported by a declaration or other competent evidence. 13 See Garcia, 2022 WL 20111375, at *1; see also Comstock v. Humphries, 786 F.3d 701, 709 (9th 14 Cir. 20150 (“arguments in briefs are not evidence”). The sealing request in this case is premised 15 on statements of counsel (unsupported by a declaration of someone with personal knowledge or 16 other evidence) that the security information is sensitive, not available to the public, and kept 17 confidential even from some of the casino employees, and that the public disclosure of that 18 information could pose security risks in the future. Docket No. 97 at 4. These attorney statements 19 do not constitute a particularized showing of good cause. 20 Defendants also argue that good cause exists to seal the subject exhibit because it was 21 designated as confidential pursuant to the blanket protective order and cites or discusses 22 information that was designated as confidential. Docket No. 97 at 3-4. As a threshold matter, the 23 portion of the protective order Defendants quote was struck by the Court, so it is not in effect. 24 Compare id. at 3 with Docket No. 46 at 5. The Court instead issued an order expressly rejecting 25 the argument now being advanced. Docket No. 47 at 2. To reiterate that prior order, reliance on 26 the mere fact of a confidentiality designation to justify sealing a document once filed fails as a 27 matter of law because the protective order was entered without a specific finding that any particular 28 documents warrant secrecy. See id.; see also Kamakana, 447 F.3d at 1176 (“Because the parties 1} had simply stipulated to the protective order, a particularized showing of ‘good cause’ to keep the 2|| documents under seal had never been made to the court”); id. at 1183 (discussing overinclusive 3] nature of blanket protective orders and making clear that a “confidential categorization of discovery documents under the protective order was not a guarantee of confidentiality, especially 5] in the event of a court filing”); Foltz, 331 F.3d at 1133 (discussing Beckman Indus., Inc. v. Int’] 6| Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992)). 7| TI. CONCLUSION 8 For the reasons discussed above, the Court ORDERS as follows: 9 e By July 7, 2023, Defendants must file a notice of corrected image that appropriately 10 files the underlying motion and exhibits (currently at Docket No. 98) as separate files 11 in accordance with Local Rule IC 2-2(a)(3)(A); 12 e The Court DEFERS ruling on the motion to seal (Docket No. 97). To the extent 13 secrecy is still sought by Defendants, they must file a supplement supported by a 14 declaration or other appropriate evidence making a particularized showing of good 15 cause. That supplement must also either propose redactions to the subject exhibit or 16 provide meaningful argument as to why redaction is not warranted under governing 17 law. This supplement must be filed by July 7, 2023; and 18 e The Clerk’s Office is INSTRUCTED to continue maintaining the underlying papers 19 at Docket No. 98 under seal. 20 IT IS SO ORDERED. 21 Dated: June 29, 2023 22 aS 23 Sta MM agistrate Judge 24 25 26 27 28