McMahon v. Whitney

Opinion

Ryan McMahon, No. 2:23-cv-01972-KJM-JDP Plaintiff, ORDER v. John Whitney, City of Vallejo, and Does 1 through 10, inclusive, Defendants.

Plaintiff Ryan McMahon moves the court to strike and/or seal portions of defendant John Whitney’s opposition to Mr. McMahon’s motion to disqualify counsel and, in addition, to sanction Mr. McMahon and his attorney. See Mot. Strike or Seal, ECF No. 35; Opp’n Mot. Disqualify, ECF No. 31. Mr. Whitney has opposed the motion to strike and for sanctions, Opp’n Mot. Strike or Seal, ECF No. 42, and has filed a notice of request to seal the portions of his opposition to the motion to disqualify at issue. See Notice Req. Seal, ECF No. 38. In addition, Mr. McMahon has filed an ex parte application to strike, seal or, in the alternative, restrain a local news outlet, the Vallejo Sun, from using the contested information. See Ex Parte Appl., ECF No. 39. Mr. Whitney has responded to the ex parte application stating he does not object to the motion to seal, opposes the motion to strike and does not take a position regarding the proposed restraint on the Vallejo Sun. See Response Ex Parte Appl., ECF No. 40. The court takes the

matter under submission without holding a hearing. The court grants Mr. McMahon’s motion to seal to the extent explained below. The court begins with Mr. McMahon’s motion to seal. Because the pending request to seal is tied to a “dispositive” motion, it can be granted only if the parties offer “a compelling reason” to keep the information in question from the public. Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1096–97 (9th Cir. 2016) (quoting Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)). To decide whether the party requesting a seal has carried that burden, the court balances the reasons for secrecy with the public’s interests in disclosure. See Kamakana, 447 F.3d at 1179. If a court decides to grant a request to seal, it must explain its reasons and may not rely on “hypothesis or conjecture.” Id. (quoting Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)). In light of the strong presumption in favor of access to court records, and given the frequency and overbreadth of many motions to seal, federal courts deny motions to seal that merely cite “a general category of privilege.” See id. at 1184. A party that wishes to keep its documents secret must point out a “specific linkage” between its interests in secrecy and those documents. See id. “[C]onclusory offerings do not rise to the level of ‘compelling reasons’ sufficiently specific to bar the public access to the documents.” Id. at 1182. Though the public has an interest in the content of the contested excerpts, Mr. McMahon provides compelling reasons to seal. He argues and provides evidence showing some of the excerpts “contain[], refer[] or relate[] to records that are generally described as confidential personnel records under the federal qualified privilege, California Penal Code § 832.7, Cal[ifornia] Evid[ence] Code § 954.” Mot. Strike or Seal at 2, 5–10. He also argues some of the excerpts include privileged attorney client communications because Mr. Whitney’s attorney, Alison Berry-Wilkinson, previously represented Mr. McMahon. See id. at 4–10. In his ex parte application, Mr. McMahon suggests the Vallejo Sun intends to run a story on the contents of the contested excerpts. See Ex Parte Appl. at 1–2. The court finds Mr. McMahon has shown more than just “conclusory offerings” and has shown “specific linkage[s]” between the contested excerpts and Mr. McMahon’s interests in secrecy under the federal qualified privilege and attorney-client privilege. Kamakana, 447 F.3d at 1182, 1184. Moreover, Mr. Whitney does not object to the motion to seal, see Opp’n Mot. Strike or Seal; Response Ex Parte Appl. at 1, and agrees with Mr. McMahon regarding portions of the opposition and its exhibits the court should seal, see Mot. Strike or Seal at 2; Notice Req. Seal at 6—7. For these reasons, the court grants Mr. McMahon’s motion to seal the portions of Mr. Whitney’s opposition to Mr. McMahon’s motion to disqualify identified in the pending motion. The court does so on the condition that Mr. Whitney promptly file a version of the opposition on the public docket that redacts these portions only. Though Mr. McMahon’s pending motion includes a request for sanctions against Mr. Whitney and his attorney, the court denies the request for sanctions without prejudice because he does not make an argument in support of his request. Mot. Strike or Seal at 1-2. Because the motion to seal is granted and resolves the central issue of removing the contested excerpts from the public docket, the court denies the motion to strike without prejudice. Mr. Whitney’s notice of request to seal, Notice Req. Seal, is moot. The court denies Mr. McMahon’s ex parte application request to restrain the Vallejo Sun and finds the rest of the ex parte application moot. See Ex Parte Appl. The Vallejo Sun’s application to appear as amicus curae on the matter is moot. Appl. Amicus Curiae, ECF No. 41. This order resolves ECF Nos. 35, 38, 39 and 41. The court directs the Clerk of Court to seal defendant John Whitney’s opposition to plaintiffs motion to disqualify counsel, ECF No. 31, and directs defense counsel to resubmit redacted versions of the same within two days, redacting only what the court has approved in this order. DATED: January 30, 2024. pete CHIEF ED STATES DISTRICT JUDGE