1 2 The Honorable Richard A. Jones
6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8
9 MERLE NICHOLS, Case No. 2:18-cv-01253-RAJ 10 Plaintiff, ORDER STRIKING THE 11 v. PARTIES’ MOTIONS TO SEAL 12 GEICO GENERAL INSURANCE COMPANY, 13 Defendant. 14 15 This matter comes before the Court on Plaintiff Merle Nichols’s Motions to Seal 16 (Dkt. ## 90, 99) and Defendant GEICO General Insurance Company’s Motions to Seal 17 (Dkt. ## 75, 79). For the reasons stated below, the Court STRIKES the parties’ 18 motions. 19 I. BACKGROUND 20 Mr. Nichols alleges that Defendant GEICO General Insurance Company 21 (“GEICO”) “engaged in a systematic practice of prematurely and unlawfully depriving 22 its injured claimants of medical benefits under Personal Injury Protection (PIP) 23 coverage.” Dkt. # 16 ¶ 1.1. Ordinarily, Mr. Nichols says, PIP coverage pays for 24 “reasonable and necessary” medical expenses and may only be terminated if a treatment 25 is not (1) reasonable, (2) necessary, (3) related to an accident, or (4) incurred within 26 three years of the accident. Id. ¶¶ 1.1-1.2. But according to Mr. Nichols, GEICO has 27 terminated benefit payments when an insured has achieved “maximum medical 1 improvement,” which violates Washington law. Id. Mr. Nichols contends that GECIO 2 did this for “thousands of consumers” and accordingly brings the action on behalf of 3 himself and a class of all others similarly situated. Id. GEICO, on the other hand, 4 denies those allegations and asserts several affirmative defenses. Dkt. # 19. 5 The parties here have stipulated to a protective order. Dkt. # 23. Under that 6 order, they may designate certain documents as “CONFIDENTIAL” or 7 “ATTORNEYS’ EYES ONLY.” Id. at 2, 5. Confidential information includes 8 “medical or psychiatric information or records, proprietary or competitively sensitive 9 claim handling protocols, policies, procedures, internal training materials, personnel 10 records, business methodology, business plans, pricing information, and 11 financial/accounting information.” Id. at 2. The parties have indeed designated 12 documents as “confidential” and have now attached confidential documents to various 13 motions pending before the Court. To prevent disclosure of confidential information to 14 the public, they have filed several submissions under seal. Dkt. ## 76, 80-82, 88, 91-92, 15 101-02. 16 II. DISCUSSION 17 “Historically, courts have recognized a ‘general right to inspect and copy public 18 records and documents, including judicial records and documents.’” Kamakana v. City 19 & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner 20 Commc’ns, Inc., 435 U.S. 589, 597 & n.7 (1978)). Accordingly, when a court considers 21 a sealing request, “a strong presumption in favor of access is the starting point.” Id. at 22 1178 (internal quotation marks omitted). 23 Under Rule 26(c), a trial court has broad discretion to permit sealing of court 24 documents for the protection of “a trade secret or other confidential research, 25 development, or commercial information.” Fed. R. Civ. P. 26(c)(1)(G). As the Supreme 26 Court has recognized, sealing may be justified to prevent judicial documents from being 27 used “as sources of business information that might harm a litigant’s competitive 1 standing.” Nixon, 435 U.S. at 598. The party seeking to seal a judicial record, however, 2 must show that “compelling reasons supported by specific factual findings . . . outweigh 3 the general history of access and the public policies favoring disclosure.” Kamakana, 4 447 F.3d at 1178-79 (internal citations omitted). “Broad allegations of harm, 5 unsubstantiated by specific examples of articulated reasoning” will not suffice. Beckman 6 Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). 7 Additionally, in the Western District of Washington, parties moving to seal 8 documents must comply with the procedures established by Civil Local Rule 5(g). Under 9 that rule, the party who designates a document confidential must provide a “specific 10 statement of the applicable legal standard and the reasons for keeping a document under 11 seal, including an explanation of: (i) the legitimate private or public interest that warrant 12 the relief sought; (ii) the injury that will result if the relief sought is not granted; and 13 (iii) why a less restrictive alternative to the relief sought is not sufficient.” W.D. Wash. 14 Local Rules LCR 5(g)(3)(B). And where the parties have entered a litigation agreement 15 or stipulated protective order governing the exchange of documents in discovery, a party 16 wishing to file a confidential document that it obtained from another party in discovery 17 may file a motion to seal but need not satisfy subpart (3)(B). Instead, the party who 18 designated the document confidential must satisfy subpart (3)(B) in its response to the 19 motion to seal or in a stipulated motion. Id. 20 Motions to seal tend to proliferate. Although the number of sealing motions here 21 is still modest, that may not be the case as motion practice continues. Thus, the Court 22 must streamline the parties’ sealing requests, while ensuring that the parties have met the 23 legal standard for filing documents under seal. To that end, in lieu of motions to seal, the 24 Court instructs the parties to submit their sealing requests as a joint submission, described 25 in more detail below. For illustration: if a party wishes to file a document under seal, it 26 must confer with the opposing party, prepare the joint statement as detailed in Section III 27 below, and submit that joint statement instead of a motion to seal. 1 This applies to past and future motions to seal. For such motions already filed, the 2 Court will strike the motions and instructs the parties to consolidate the motions into one 3 joint submission. For motions yet to be filed, the parties must use the procedure set forth 4 in Section III. To be clear, this does not relieve the parties of their ordinary burdens: 5 They must still comply with local rules and must still show that the weighty presumption 6 of public disclosure has been overcome. Any authority that the parties rely on must be 7 included in the joint submission. 8 Accordingly, the Court STRIKES the parties’ Motions to Seal. Dkt. ## 75, 79, 9 90, 99. 10 III. CONCLUSION 11 The Court will not accept motions to seal that fail to comply with the Local Rules 12 and offer only boilerplate reasons to seal documents from the public domain. The parties 13 are hereby ORDERED to meet and confer and file a joint statement concisely 14 consolidating their positions on any materials for sealing by August 14, 2020. The joint 15 statement, as discussed with the parties on the July 31, 2020 teleconference, must include 16 (i) specific examples of harm from the designating party that would result from allowing 17 the submitted materials, or portions thereof, into the public domain and (ii) articulated 18 reasons as to why alternatives to sealing would be insufficient. 19 The joint statement must include a chart of the parties’ positions in the form below. 20 ECF Detailed Designating Reasons for Reasons why alternatives to 21 No. Document Party Confidentiality sealing, such as redactions, are 22 Description Designation insufficient
23 24 Because of the COVID-19 pandemic, the courthouse in which this Court sits is 25 currently closed until early September. General Order No. 11-20. The parties are not 26 required to submit a physical courtesy copy at this time.
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1 2 The Honorable Richard A. Jones
6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8
9 MERLE NICHOLS, Case No. 2:18-cv-01253-RAJ 10 Plaintiff, ORDER STRIKING THE 11 v. PARTIES’ MOTIONS TO SEAL 12 GEICO GENERAL INSURANCE COMPANY, 13 Defendant. 14 15 This matter comes before the Court on Plaintiff Merle Nichols’s Motions to Seal 16 (Dkt. ## 90, 99) and Defendant GEICO General Insurance Company’s Motions to Seal 17 (Dkt. ## 75, 79). For the reasons stated below, the Court STRIKES the parties’ 18 motions. 19 I. BACKGROUND 20 Mr. Nichols alleges that Defendant GEICO General Insurance Company 21 (“GEICO”) “engaged in a systematic practice of prematurely and unlawfully depriving 22 its injured claimants of medical benefits under Personal Injury Protection (PIP) 23 coverage.” Dkt. # 16 ¶ 1.1. Ordinarily, Mr. Nichols says, PIP coverage pays for 24 “reasonable and necessary” medical expenses and may only be terminated if a treatment 25 is not (1) reasonable, (2) necessary, (3) related to an accident, or (4) incurred within 26 three years of the accident. Id. ¶¶ 1.1-1.2. But according to Mr. Nichols, GEICO has 27 terminated benefit payments when an insured has achieved “maximum medical 1 improvement,” which violates Washington law. Id. Mr. Nichols contends that GECIO 2 did this for “thousands of consumers” and accordingly brings the action on behalf of 3 himself and a class of all others similarly situated. Id. GEICO, on the other hand, 4 denies those allegations and asserts several affirmative defenses. Dkt. # 19. 5 The parties here have stipulated to a protective order. Dkt. # 23. Under that 6 order, they may designate certain documents as “CONFIDENTIAL” or 7 “ATTORNEYS’ EYES ONLY.” Id. at 2, 5. Confidential information includes 8 “medical or psychiatric information or records, proprietary or competitively sensitive 9 claim handling protocols, policies, procedures, internal training materials, personnel 10 records, business methodology, business plans, pricing information, and 11 financial/accounting information.” Id. at 2. The parties have indeed designated 12 documents as “confidential” and have now attached confidential documents to various 13 motions pending before the Court. To prevent disclosure of confidential information to 14 the public, they have filed several submissions under seal. Dkt. ## 76, 80-82, 88, 91-92, 15 101-02. 16 II. DISCUSSION 17 “Historically, courts have recognized a ‘general right to inspect and copy public 18 records and documents, including judicial records and documents.’” Kamakana v. City 19 & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner 20 Commc’ns, Inc., 435 U.S. 589, 597 & n.7 (1978)). Accordingly, when a court considers 21 a sealing request, “a strong presumption in favor of access is the starting point.” Id. at 22 1178 (internal quotation marks omitted). 23 Under Rule 26(c), a trial court has broad discretion to permit sealing of court 24 documents for the protection of “a trade secret or other confidential research, 25 development, or commercial information.” Fed. R. Civ. P. 26(c)(1)(G). As the Supreme 26 Court has recognized, sealing may be justified to prevent judicial documents from being 27 used “as sources of business information that might harm a litigant’s competitive 1 standing.” Nixon, 435 U.S. at 598. The party seeking to seal a judicial record, however, 2 must show that “compelling reasons supported by specific factual findings . . . outweigh 3 the general history of access and the public policies favoring disclosure.” Kamakana, 4 447 F.3d at 1178-79 (internal citations omitted). “Broad allegations of harm, 5 unsubstantiated by specific examples of articulated reasoning” will not suffice. Beckman 6 Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). 7 Additionally, in the Western District of Washington, parties moving to seal 8 documents must comply with the procedures established by Civil Local Rule 5(g). Under 9 that rule, the party who designates a document confidential must provide a “specific 10 statement of the applicable legal standard and the reasons for keeping a document under 11 seal, including an explanation of: (i) the legitimate private or public interest that warrant 12 the relief sought; (ii) the injury that will result if the relief sought is not granted; and 13 (iii) why a less restrictive alternative to the relief sought is not sufficient.” W.D. Wash. 14 Local Rules LCR 5(g)(3)(B). And where the parties have entered a litigation agreement 15 or stipulated protective order governing the exchange of documents in discovery, a party 16 wishing to file a confidential document that it obtained from another party in discovery 17 may file a motion to seal but need not satisfy subpart (3)(B). Instead, the party who 18 designated the document confidential must satisfy subpart (3)(B) in its response to the 19 motion to seal or in a stipulated motion. Id. 20 Motions to seal tend to proliferate. Although the number of sealing motions here 21 is still modest, that may not be the case as motion practice continues. Thus, the Court 22 must streamline the parties’ sealing requests, while ensuring that the parties have met the 23 legal standard for filing documents under seal. To that end, in lieu of motions to seal, the 24 Court instructs the parties to submit their sealing requests as a joint submission, described 25 in more detail below. For illustration: if a party wishes to file a document under seal, it 26 must confer with the opposing party, prepare the joint statement as detailed in Section III 27 below, and submit that joint statement instead of a motion to seal. 1 This applies to past and future motions to seal. For such motions already filed, the 2 Court will strike the motions and instructs the parties to consolidate the motions into one 3 joint submission. For motions yet to be filed, the parties must use the procedure set forth 4 in Section III. To be clear, this does not relieve the parties of their ordinary burdens: 5 They must still comply with local rules and must still show that the weighty presumption 6 of public disclosure has been overcome. Any authority that the parties rely on must be 7 included in the joint submission. 8 Accordingly, the Court STRIKES the parties’ Motions to Seal. Dkt. ## 75, 79, 9 90, 99. 10 III. CONCLUSION 11 The Court will not accept motions to seal that fail to comply with the Local Rules 12 and offer only boilerplate reasons to seal documents from the public domain. The parties 13 are hereby ORDERED to meet and confer and file a joint statement concisely 14 consolidating their positions on any materials for sealing by August 14, 2020. The joint 15 statement, as discussed with the parties on the July 31, 2020 teleconference, must include 16 (i) specific examples of harm from the designating party that would result from allowing 17 the submitted materials, or portions thereof, into the public domain and (ii) articulated 18 reasons as to why alternatives to sealing would be insufficient. 19 The joint statement must include a chart of the parties’ positions in the form below. 20 ECF Detailed Designating Reasons for Reasons why alternatives to 21 No. Document Party Confidentiality sealing, such as redactions, are 22 Description Designation insufficient
23 24 Because of the COVID-19 pandemic, the courthouse in which this Court sits is 25 currently closed until early September. General Order No. 11-20. The parties are not 26 required to submit a physical courtesy copy at this time. Later, when the Court instructs 27 them to do so, the parties must jointly submit a physical courtesy copy of the proposed 1 materials for sealing in a tabbed three-ring binder. The documents in the binder must be 2 in the order that they appear in the chart. Where the designating party is proposing that 3 only portions of a document be sealed, the redacted version shall immediately precede 4 the document for sealing in the tabbed binder. 5 For the reasons stated herein, the Court STRIKES the parties’ Motions to Seal. 6 Dkt. ## 75, 79, 90, 99. The remaining pending motions remain intact. Dkt ## 73, 77, 7 94. 8 DATED this 31st day of July, 2020. A 9 10 The Honorable Richard A. Jones 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27