1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HOUSTON CASUALTY COMPANY, Case No. 19-cv-00828-BAS-LL
12 Plaintiff, ORDER RE: PARTIES’ EIGHT 13 v. MOTIONS TO SEAL
14 CIBUS US LLC, (ECF Nos. 35, 41, 44, 54, 57, 64, 66, 74) 15 Defendant. 16
17 And Related Counterclaim 18 19 20 This case is an insurance coverage dispute between Houston Casualty Company 21 (“HCC”) and Cibus US LLC (“Cibus”). Cibus is a company that develops seeds for crops, 22 including hybrid canola plants. Cibus developed its canola hybrids to be tolerant of a 23 specific herbicide. It then sold seeds to commercial growers. But after some of those 24 growers applied herbicide, their canola hybrids suffered more phytotoxicity—plant 25 damage—than expected. Cibus turned to HCC, its insurer, to cover the growers’ losses 26 under an errors and omissions policy. HCC paid out the maximum of its policy with Cibus 27 subject to the right to seek reimbursement. The insurer then sued, seeking a determination 28 that its policy did not cover the growers’ crop injuries. 1 Pending before the Court are several pretrial motions, including a motion to 2 bifurcate, cross-motions for summary judgment, and motions to exclude experts. As part 3 of these motions, HCC and Cibus have filed eight motions to seal. All the sealing motions 4 are unopposed. 5 LEGAL STANDARD 6 “[T]he courts of this country recognize a general right to inspect and copy public 7 records and documents, including judicial records and documents.” Nixon v. Warner 8 Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one 9 ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” 10 Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz 11 v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption 12 of access is ‘based on the need for federal courts, although independent—indeed, 13 particularly because they are independent—to have a measure of accountability and for 14 the public to have confidence in the administration of justice.” Ctr. for Auto Safety v. 15 Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. 16 Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)). 17 A party seeking to seal a judicial record bears the burden of overcoming the strong 18 presumption of access. Foltz, 331 F.3d at 1135. The showing required to meet this burden 19 depends upon whether the documents to be sealed relate to a motion that is “more than 20 tangentially related to the merits of the case.” Ctr. for Auto Safety, 809 F.3d at 1102. 21 When the underlying motion is more than tangentially related to the merits, the 22 “compelling reasons” standard applies. Id. at 1096–98. 23 “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in 24 disclosure and justify sealing court records exists when such ‘court files might have 25 become a vehicle for improper purposes,’ such as the use of records to gratify private 26 spite, promote public scandal, circulate libelous statements, or release trade secrets.” 27 Kamakana, 447 F.3d at 1179 (quoting Nixon, 435 U.S. at 598). However, “[t]he mere 28 fact that the production of records may lead to a litigant’s embarrassment, incrimination, 1 or exposure to further litigation will not, without more, compel the court to seal its 2 records.” Id. (citing Foltz, 331 F.3d at 1136). The decision to seal documents is “one 3 best left to the sound discretion of the trial court” upon consideration of “the relevant facts 4 and circumstances of the particular case.” Nixon, 435 U.S. at 599. 5 STANDING ORDER FOR CIVIL CASES 6 Consistent with the presumptive right of public access to court records, this Court’s 7 Standing Order for Civil Cases provides: 8 The Court may seal documents to protect sensitive information, however, the 9 documents to be filed under seal will be limited by the Court to only those documents, or portions thereof, necessary to protect such sensitive 10 information. 11 Parties seeking a sealing order must provide the Court with: (1) a specific 12 description of particular documents or categories of documents they need to 13 protect; and (2) declarations showing a compelling reason or good cause to protect those documents from disclosure. The standard for filing documents 14 under seal will be strictly applied. 15 . . . . 16
17 The fact that both sides agree to seal or that a protective order was issued at the onset of the case alone is insufficient cause for sealing. 18 19 (Standing Order ¶ 5.) 20 ANALYSIS 21 I. HCC’s Motion to Seal (ECF No. 35) 22 HCC moves to seal portions of: 23 1. Its Summary Judgment Motion; 24 2. Exhibits B through H, J through O, Q, S, U, W through GG, II, and KK to the 25 Summary Judgment Motion; 26 3. Its Daubert Motion to Exclude or Limit the Expert Testimony of Jim Radtke; 27 and 28 4. Exhibits E, G, H through N, and Q through U to the Daubert Motion. 1 (ECF No. 35.) Altogether, HCC lodges under seal about 1,100 pages of documents. For 2 one exhibit, Exhibit GG, HCC argues the document is subject to the attorney-client 3 privilege, and therefore compelling reasons exist for sealing. HCC explains that the 4 remaining redacted content 5 references documents that Cibus designated as CONFIDENTIAL pursuant to the parties’ Stipulated Protective Order and/or contain private information of 6 third parties. The Stipulated Protective Order requires the parties to treat the 7 documents in accordance with the designation until the Court rules on any objections. However, by submitting this Application, HCC does not concede 8 that any documents designated by Cibus that are the subject of this 9 Application are in fact Confidential. 10 (Id. (citation omitted).) Therefore, these documents are ones where Cibus is the proponent 11 of keeping them secret, but the Court lacks support for doing so beyond the Stipulated 12 Protected Order. And as the Court’s Standing Order states: “The fact that both sides agree 13 to seal or that a protective order was issued at the onset of the case alone is insufficient 14 cause for sealing.” 15 Accordingly, the Court needs more information to determine whether sealing these 16 items is appropriate. The Court orders Cibus to file a response to HCC’s Motion to Seal 17 (ECF No. 35) that explains why there are compelling reasons to seal information Cibus 18 designated as confidential. For instance, if Cibus claims the documents are “sources of 19 business information that might harm [its] competitive standing,” it must explain why. See 20 Ctr. for Auto Safety, 809 F.3d at 1097 (quoting Nixon, 435 U.S. at 598). Further, if Cibus 21 intends to rely on this rationale, it must explain why the release of information that is now 22 at least several years old would harm its competitive standing going forward. 23 Cibus must also include with its response supporting evidence, e.g., a declaration 24 from one of its employees, that includes facts that demonstrate compelling reasons for 25 sealing. And it must tailor its response to each document at issue. For example, one 26 document lodged under seal is a slideshow from a Cibus sales webinar. (Ex. H.) Most of 27 the presentation is redacted, but it is unlikely that there are compelling reasons to seal all 28 of this information. As another example, the Rule 30(b)(6) deposition of a Cibus employee, 1 Peter Beetham, is similarly redacted. All of his testimony is not subject to sealing.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HOUSTON CASUALTY COMPANY, Case No. 19-cv-00828-BAS-LL
12 Plaintiff, ORDER RE: PARTIES’ EIGHT 13 v. MOTIONS TO SEAL
14 CIBUS US LLC, (ECF Nos. 35, 41, 44, 54, 57, 64, 66, 74) 15 Defendant. 16
17 And Related Counterclaim 18 19 20 This case is an insurance coverage dispute between Houston Casualty Company 21 (“HCC”) and Cibus US LLC (“Cibus”). Cibus is a company that develops seeds for crops, 22 including hybrid canola plants. Cibus developed its canola hybrids to be tolerant of a 23 specific herbicide. It then sold seeds to commercial growers. But after some of those 24 growers applied herbicide, their canola hybrids suffered more phytotoxicity—plant 25 damage—than expected. Cibus turned to HCC, its insurer, to cover the growers’ losses 26 under an errors and omissions policy. HCC paid out the maximum of its policy with Cibus 27 subject to the right to seek reimbursement. The insurer then sued, seeking a determination 28 that its policy did not cover the growers’ crop injuries. 1 Pending before the Court are several pretrial motions, including a motion to 2 bifurcate, cross-motions for summary judgment, and motions to exclude experts. As part 3 of these motions, HCC and Cibus have filed eight motions to seal. All the sealing motions 4 are unopposed. 5 LEGAL STANDARD 6 “[T]he courts of this country recognize a general right to inspect and copy public 7 records and documents, including judicial records and documents.” Nixon v. Warner 8 Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one 9 ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” 10 Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz 11 v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption 12 of access is ‘based on the need for federal courts, although independent—indeed, 13 particularly because they are independent—to have a measure of accountability and for 14 the public to have confidence in the administration of justice.” Ctr. for Auto Safety v. 15 Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. 16 Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)). 17 A party seeking to seal a judicial record bears the burden of overcoming the strong 18 presumption of access. Foltz, 331 F.3d at 1135. The showing required to meet this burden 19 depends upon whether the documents to be sealed relate to a motion that is “more than 20 tangentially related to the merits of the case.” Ctr. for Auto Safety, 809 F.3d at 1102. 21 When the underlying motion is more than tangentially related to the merits, the 22 “compelling reasons” standard applies. Id. at 1096–98. 23 “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in 24 disclosure and justify sealing court records exists when such ‘court files might have 25 become a vehicle for improper purposes,’ such as the use of records to gratify private 26 spite, promote public scandal, circulate libelous statements, or release trade secrets.” 27 Kamakana, 447 F.3d at 1179 (quoting Nixon, 435 U.S. at 598). However, “[t]he mere 28 fact that the production of records may lead to a litigant’s embarrassment, incrimination, 1 or exposure to further litigation will not, without more, compel the court to seal its 2 records.” Id. (citing Foltz, 331 F.3d at 1136). The decision to seal documents is “one 3 best left to the sound discretion of the trial court” upon consideration of “the relevant facts 4 and circumstances of the particular case.” Nixon, 435 U.S. at 599. 5 STANDING ORDER FOR CIVIL CASES 6 Consistent with the presumptive right of public access to court records, this Court’s 7 Standing Order for Civil Cases provides: 8 The Court may seal documents to protect sensitive information, however, the 9 documents to be filed under seal will be limited by the Court to only those documents, or portions thereof, necessary to protect such sensitive 10 information. 11 Parties seeking a sealing order must provide the Court with: (1) a specific 12 description of particular documents or categories of documents they need to 13 protect; and (2) declarations showing a compelling reason or good cause to protect those documents from disclosure. The standard for filing documents 14 under seal will be strictly applied. 15 . . . . 16
17 The fact that both sides agree to seal or that a protective order was issued at the onset of the case alone is insufficient cause for sealing. 18 19 (Standing Order ¶ 5.) 20 ANALYSIS 21 I. HCC’s Motion to Seal (ECF No. 35) 22 HCC moves to seal portions of: 23 1. Its Summary Judgment Motion; 24 2. Exhibits B through H, J through O, Q, S, U, W through GG, II, and KK to the 25 Summary Judgment Motion; 26 3. Its Daubert Motion to Exclude or Limit the Expert Testimony of Jim Radtke; 27 and 28 4. Exhibits E, G, H through N, and Q through U to the Daubert Motion. 1 (ECF No. 35.) Altogether, HCC lodges under seal about 1,100 pages of documents. For 2 one exhibit, Exhibit GG, HCC argues the document is subject to the attorney-client 3 privilege, and therefore compelling reasons exist for sealing. HCC explains that the 4 remaining redacted content 5 references documents that Cibus designated as CONFIDENTIAL pursuant to the parties’ Stipulated Protective Order and/or contain private information of 6 third parties. The Stipulated Protective Order requires the parties to treat the 7 documents in accordance with the designation until the Court rules on any objections. However, by submitting this Application, HCC does not concede 8 that any documents designated by Cibus that are the subject of this 9 Application are in fact Confidential. 10 (Id. (citation omitted).) Therefore, these documents are ones where Cibus is the proponent 11 of keeping them secret, but the Court lacks support for doing so beyond the Stipulated 12 Protected Order. And as the Court’s Standing Order states: “The fact that both sides agree 13 to seal or that a protective order was issued at the onset of the case alone is insufficient 14 cause for sealing.” 15 Accordingly, the Court needs more information to determine whether sealing these 16 items is appropriate. The Court orders Cibus to file a response to HCC’s Motion to Seal 17 (ECF No. 35) that explains why there are compelling reasons to seal information Cibus 18 designated as confidential. For instance, if Cibus claims the documents are “sources of 19 business information that might harm [its] competitive standing,” it must explain why. See 20 Ctr. for Auto Safety, 809 F.3d at 1097 (quoting Nixon, 435 U.S. at 598). Further, if Cibus 21 intends to rely on this rationale, it must explain why the release of information that is now 22 at least several years old would harm its competitive standing going forward. 23 Cibus must also include with its response supporting evidence, e.g., a declaration 24 from one of its employees, that includes facts that demonstrate compelling reasons for 25 sealing. And it must tailor its response to each document at issue. For example, one 26 document lodged under seal is a slideshow from a Cibus sales webinar. (Ex. H.) Most of 27 the presentation is redacted, but it is unlikely that there are compelling reasons to seal all 28 of this information. As another example, the Rule 30(b)(6) deposition of a Cibus employee, 1 Peter Beetham, is similarly redacted. All of his testimony is not subject to sealing. Once 2 the Court reviews Cibus’s response, it will resolve HCC’s Motion to Seal, including HCC’s 3 proposed redactions to its memoranda (ECF No. 35). 4 II. Cibus’s Motion to Seal (ECF No. 41) 5 Cibus moves to seal unredacted versions of Exhibits F, G, and H to the Declaration 6 of Douglas J. Brown filed in support of Cibus’s Motion for Partial Summary Judgment 7 (ECF No. 40). (ECF No. 41.) The redacted information is the names and addresses of the 8 company’s commercial customers who participated in the canola hybrid program. Cibus 9 supports its claim with a declaration from its outside counsel that cites to the Stipulated 10 Protective Order. (ECF No. 4-1.) While this information may be sealable, Cibus needs to 11 support its motion with competent evidence and connect the dots for the Court. See Fed 12 R. 602 (requiring a witness to have personal knowledge). Therefore, the Court orders 13 Cibus to file a supplemental response in support of its Motion to Seal (ECF No. 41). 14 III. Cibus’s Motion to Seal (ECF No. 44) 15 Cibus moves to seal an unredacted version of Exhibit A to the Declaration of 16 Douglas J. Brown filed in support of Cibus’s Motion to Exclude the Expert Opinion of 17 Jerry L. Cass (ECF No. 43). (ECF No. 44.) This request seeks to seal the same type of 18 information as Cibus’s Motion to Seal (ECF No. 41) discussed above. The analysis is 19 identical. Therefore, the Court orders Cibus to file a supplemental response in support of 20 its Motion to Seal (ECF No. 44). 21 IV. HCC’s Motion to Seal (ECF No. 54) 22 HCC moves to seal Exhibits C, D, and E to its Reply in support of HCC’s Daubert 23 Motion to Exclude or Limit the Expert Testimony of Jim Radtke (ECF No. 38). (ECF No. 24 54.) HCC supports this request in the same way as above. It cites the Stipulated Protective 25 Order and notes the material lodged under seal references or consists of documents that 26 Cibus designated confidential. (Id.) Therefore, like above, the Court orders Cibus to file 27 a response to HCC’s Motion to Seal (ECF No. 54) that explains why there are compelling 28 reasons to seal the information Cibus designated as confidential. 1 V. Cibus’s Motion to Seal (ECF No. 57) 2 Cibus moves to seal unredacted versions of Exhibit E and Exhibit F to the 3 Declaration of Douglas J. Brown filed in support of Cibus’s Opposition to HCC’s Motion 4 to Exclude or Limit The Expert Testimony of Denise Schmidt and Christopher French 5 (ECF No. 56). (ECF No. 57.) Like above, Cibus argues the information to be filed under 6 seal is customer information that could harm the company’s commercial standing if 7 released. While this information may be sealable, Cibus needs to support its motion with 8 competent evidence and connect the dots for the Court. See Fed R. 602. Therefore, the 9 Court orders Cibus to file a supplemental response in support of its Motion to Seal (ECF 10 No. 57). 11 VI. HCC’s Motion to Seal (ECF No. 64) 12 HCC moves to seal Exhibits PP through VV to its Opposition to Cibus’s Motion for 13 Partial Summary Judgment (ECF No. 62). (ECF No. 64.) HCC supports this request in 14 the same way as above. It cites the Stipulated Protective Order and notes the material 15 lodged under seal references or consists of documents that Cibus designated confidential. 16 (Id.) Therefore, like above, the Court orders Cibus to file a response to HCC’s Motion to 17 Seal (ECF No. 64) that explains why there are compelling reasons to seal the information 18 Cibus designated as confidential. 19 VII. Cibus’s Motion to Seal (ECF No. 66) 20 Cibus moves to seal unredacted versions of Exhibit C and Exhibit E to the 21 Declaration of Douglas J. Brown filed in connection with Cibus’s Opposition to HCC’s 22 Motion for Summary Judgment (ECF No. 63). (ECF No. 66.) Like above, Cibus argues 23 the information to be filed under seal is customer information that could harm the 24 company’s commercial standing if released. While this information may be sealable, Cibus 25 needs to support its motion with competent evidence and connect the dots for the Court. 26 See Fed R. 602. Therefore, the Court orders Cibus to file a supplemental response in 27 support of its Motion to Seal (ECF No. 66). 28 1 || VIII. HCC’s Motion to Seal (ECF No. 71) 2 HCC moves to seal Exhibits YY, AAA, and BBB to HCC’s Reply in Support of Its 3 ||Motion for Summary Judgment. (ECF No. 71.) HCC supports this request in the same 4 || way as its Motion to Seal (ECF No. 35) discussed above. It cites the Stipulated Protective 5 ||Order and notes the material lodged under seal references or consists of documents that 6 ||Cibus designated confidential. (ECF No. 71.) Therefore, like above, the Court orders 7 || Cibus to file a response to HCC’s Motion to Seal (ECF No. 71) that explains why there are 8 || compelling reasons to seal the information Cibus designated as confidential. 9 CONCLUSION 10 In light of the foregoing, the Court needs more information to apply the sealing 11 |}standard and resolve the parties’ eight motions to seal. Cibus shall file the responses 12 ordered above no later than Friday, September 3, 2021. 13 IT IS SO ORDERED. 14 /) 15 || DATED: August 18, 2021 (Yin A (Lyphan 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28