Primoris Energy Services Corporation v. Air Products and Chemicals Incorporated, et al.

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Primoris Energy Services Corporation, No. CV-24-01072-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Air Products and Chemicals Incorporated, et al., 13 Defendants. 14 15 On May 29, 2026, the dispositive motions deadline (see Doc. 108), Air Products 16 and Chemicals, Inc. (“APCI”) filed a motion for summary judgment (Doc. 129), which 17 Travelers Casualty and Surety Company of America (“Travelers”) joined (Doc. 130). That 18 same day, Primoris Energy Services Corporation (“Plaintiff”) lodged under seal a cross- 19 motion for summary judgment. (Doc. 127.) 20 There is no pending motion to seal Plaintiff’s motion for summary judgment. 21 However, that same day, the parties filed a stipulation to seal 18 separate documents: 22 1. APCI-AZ0430852-59 23 2. APCI-AZ0430351-53 24 3. APCI-AZ0430448-54 25 4. APCI-AZ0430379-84 26 5. APCI-AZ0430715 27 6. APCI-AZ0430364-69 28 7. APCI-AZ0429624-25 1 8. APCI-AZ0429611-13 2 9. APCI-AZ0427135-44 3 10. APCI-AZ0427124-34 4 11. APCI-AZ0254526-31 5 12. APCI-AZ0430545-47 6 13. APCI-AZ0425393-95 7 14. APCI-AZ0425414-15 8 15. Gentry, 258:16-262:181 9 16. Gentry, 263:25-275:6 10 17. Gentry, 278:7-280:9 11 18. Gentry, 285:1-286:25 12 (Doc. 124 at 2-3.) The parties did not lodge these 18 documents under seal in tandem with 13 filing the stipulation to seal. However, Plaintiff’s lodged motion for summary judgment 14 contains 21 exhibits: 15 1. Exhibit 1 16 2. Exhibit 2 17 3. Exhibit 3 18 4. Exhibit 4 19 5. Exhibit 5 20 6. Exhibit 6 21 7. Exhibit 7 22 8. Exhibit 8 23 9. Exhibit 9 24 10. Exhibit 10 25 11. Exhibit 11 26 12. Exhibit 11-A 27 13. Exhibit 12 28 14. Exhibit 12-A 1 15. Exhibit 13 2 16. Exhibit 13-A 3 17. Exhibit 14 4 18. Exhibit 15 5 19. Exhibit 16 6 20. Exhibit 17 7 21. Exhibit 18 8 (Doc. 127 at 18-19.) 9 In the Ninth Circuit, “[t]wo standards generally govern motions to seal documents.” 10 Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2010). Those two standards 11 are referred to as “the presumptive ‘compelling reasons’ standard or the ‘good cause’ 12 exception.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1097 (9th Cir. 13 2016). The presumptive “compelling reasons” standard applies when the documents that 14 are the subject of the sealing request are being filed in conjunction with a motion or 15 pleading that “is more than tangentially related to the underlying cause of action” or “the 16 merits of a case.” Id. at 1099. See also Kamakana v. City & Cty. of Honolulu, 447 F.3d 17 1172, 1180 (9th Cir. 2006) (“Those who seek to maintain the secrecy of documents 18 attached to dispositive motions must meet the high threshold of showing that ‘compelling 19 reasons’ support secrecy.”). The “good cause” exception most often applies to “sealed 20 materials attached to a discovery motion unrelated to the merits of a case.” Ctr. for Auto 21 Safety, 809 F.3d at 1097. Here, the filing giving rise to the sealing request is a motion for 22 summary judgment. The parties acknowledge that the “compelling reasons” standard 23 applies in this circumstance. (Doc. 124 at 3.) 24 Under that standard, a party seeking to seal a judicial record must overcome “a 25 strong presumption in favor of access.” Kamakana, 447 F.3d at 1178. To do so, the party 26 must “articulate compelling reasons supported by specific factual findings that outweigh 27 the general history of access and the public policies favoring disclosure . . . .” Id. at 1178- 28 79 (cleaned up). The Court must then “conscientiously balance the competing interests of 1 the public and the party who seeks to keep certain judicial records secret.” Id. at 1179 2 (cleaned up). “After considering these interests, if the court decides to seal certain judicial 3 records, it must base its decision on a compelling reason and articulate the factual basis for 4 its ruling, without relying on hypothesis or conjecture.” Id. (cleaned up). “The party 5 seeking to seal any part of a judicial record bears the heavy burden of showing that the 6 material is the kind of information that courts will protect and that disclosure will work a 7 clearly defined and serious injury to the party seeking closure,” Oliner v. Kontrabecki, 745 8 F.3d 1024, 1026 (9th Cir. 2014), at which point that injury is weighed against the public’s 9 interest in disclosure. Kamakana, 447 F.3d at 1178-79. “The mere fact that the production 10 of records may lead to a litigant’s embarrassment, incrimination, or exposure to further 11 litigation will not, without more, compel the court to seal its records.” Id. 12 The fact that a sealing request is stipulated or unopposed does not weigh in favor of 13 sealing. See generally Lipocine Inc. v. Clarus Therapeutics, Inc., 2020 WL 4569473, *7 14 (D. Del. 2020) (“The problem for judges is that [sealing] requests are seldom opposed— 15 the would-be opposing party has access to the materials and doesn’t particularly care 16 whether the public has access as well. . . . That leaves the judge in the position of having 17 to decide a sometimes complex issue of sealing or redaction with no adversarial briefing 18 and often, as in this case, with only a perfunctory submission from the party seeking 19 relief.”). 20 The protective order governing this case specifies that “the mere fact the parties 21 have designated certain materials or information as confidential pursuant to an agreement 22 or stipulation does not establish that any legal standard for placing those materials or 23 information under seal has been met.” (Doc. 39 at 6.) Likewise, the parties cannot 24 separately contract their way into meeting the sealing standard in federal court. Thus, the 25 parties’ assertion that “[t]he ‘Confidential Settlement Agreements’ (APCI-AZ0427135-44 26 and APCI-AZ0427124-34) each contain provisions requiring the terms thereof to be kept 27 confidential, which created in both Intel and APCI a reasonable expectation that the 28 agreements and Settlement Documents would not be disclosed,” is not dispositive, and 1 neither is the parties’ assertion that the Intel-APCI Change Orders “are subject to the 2 provisions of the prime contract between APCI and Intel which require contract documents 3 containing Intel non-public information, including Intel change orders, to be kept 4 confidential.” (Id. at 4.) Senderra Rx Partners LLC v. Express Scripts Incorporated, 2:19- 5 mc-00016-DWL, Doc. 5 (“Petitioner has filed a petition in federal district court, and this 6 Court does not automatically seal documents—let alone entire cases—based on agreements 7 between the parties.”); TriQuint Semiconductor, Inc. v. Avago Techs. Ltd., 2010 WL 8 2474387, *1 (D. Ariz. 2010) (“TriQuint’s sole basis advanced for sealing the motion to 9 amend in this case is this side agreement. Similarly, Avago’s sole basis for seeking to seal 10 its response is the side agreement. The Court again does not find this side agreement to 11 show a compelling reason to seal the complaint in this case.”). 12 The parties further assert, in a conclusory manner, that the Settlement Documents 13 and the Intel-APCI Change Orders “are ‘sources of business information that might harm 14 a litigant’s competitive standing’ if filed in the public record.” (Doc. 124 at 4.) Conclusory 15 allegations of harm do not meet the “compelling reasons” standard. Oliner v. Kontrabecki, 16 745 F.3d 1024, 1026-27 (9th Cir. 2014) (“[A] naked conclusory statement that publication 17 . . . will injure the bank in the industry and local community falls woefully short of the kind 18 of showing which raises even an arguable issue as to whether it may be kept under seal.”); 19 Primus Grp., Inc. v. Inst. for Env’t Health, Inc., 395 F. Supp. 3d 1243, 1270 (N.D. Cal. 20 2019) (“conclusory allegations of harm” did not “outweigh the public’s right of access”). 21 “The party seeking to seal any part of a judicial record bears the heavy burden of showing 22 that the material is the kind of information that courts will protect and that disclosure will 23 work a clearly defined and serious injury to the party seeking closure.” Oliner, 745 F.3d 24 at 1026 (emphasis added). Litigation sometimes airs the internal workings of a company 25 that are otherwise not available to the public. Vaguely asserting that disclosure of certain 26 material would result in competitive harm—without explaining why or how this is so— 27 will not suffice. Id. It is the moving party’s burden to provide facts, arguments, and legal 28 authority that would allow the Court to “articulate the factual basis”—“without relying on 1 hypothesis or conjecture”—for ruling that compelling reasons “outweigh the general 2 history of access and the public policies favoring disclosure.” Kamakana, 447 F.3d at 3 1178-79. 4 Similarly, the parties assert that APCI’s expert, Mark Gentry, “discloses details of 5 documents that were designated as Attorney-Eyes Only under the protective order” and 6 that disclosure “might harm a litigant’s competitive standing.” (Doc. 124 at 4-5.) Again, 7 the parties’ designations under the protective order and vague, conclusory assertions 8 regarding unspecified harm that disclosure “might” cause are not “compelling” under the 9 Kamakana standard. 10 As such, the stipulation to seal is denied. 11 Finally, even if the parties’ stipulation were sufficient to establish that any document 12 in this litigation should be sealed—which it is not—it would not follow that Plaintiff could 13 submit its entire motion for summary judgment under seal. ImageKeeper LLC v. Wright 14 Nat’l Flood Ins. Servs., LLC, 2023 WL 7042448, *2 (D. Nev. 2023) (“Evoke makes no 15 attempt to narrow its request to only information which might reveal ImageKeeper’s 16 allegedly sensitive business information, instead requesting—without explanation—that 17 the court seal every word and exhibit relating to its summary judgment motion, even those 18 potentially fit for public consumption. This is improper.”); Perfect 10, Inc. v. Giganews, 19 Inc., 2014 WL 12586248, *2 (C.D. Cal. 2014) (“Despite the heightened ‘compelling 20 reasons’ standard for sealing documents submitted along with a motion for summary 21 judgment, Defendants fail to articulate any ‘compelling reasons’ that would justify sealing 22 the entirety of their motion and supporting documents, which constitute roughly two reams 23 of paper. The Court’s independent review of the motion and supporting documents reveal 24 little, if any, information that could meet that heightened standard of review. Defendants 25 make no attempt to argue otherwise or to narrowly tailor their sealing request to portions 26 of the record that might, in fact, be subject to sealing.”). 27 The parties have placed calls to the undersigned judge’s chambers in an attempt to 28 determine whether the response deadline for Plaintiff’s motion for summary judgment will 1 || be the date on which it was lodged or the date on which it will be filed. Pursuant to LRCiv 2|| 56.1(d), the opposing party has 30 days from the date of “service” of a motion for summary 3 || judgment in which to file a response, and pursuant to Rule 5 of the Federal Rules of Civil Procedure, which applies to all written motions, service on a represented party is made on 5 || the attorney, generally via filing on ECF. In this case, where the motion was lodged under 6 || seal rather than filed—and where, in theory, Plaintiff could decide not to file a motion for || summary judgment or to amend it in some way before filing, in response to being denied 8 || leave to file under seal—the Court construes the service date as the date on which any 9|| motion for summary judgment that Plaintiff chooses to file is actually filed on the public □□ docket. 11 However, in order to reduce the possibility of prejudice to any party and to streamline the briefing schedule for the cross-motions, the Court will extend the briefing 13 || deadlines for APCI’s motion for summary judgment to ensure that the responses and replies 14]| are due on the same dates. 15 Accordingly, 16 IT IS ORDERED that the parties’ stipulation (Doc. 124) is denied. 17 IT IS FURTHER ORDERED that, pursuant to LRCiv 5.6(e), the lodged 18 |} documents will not be filed. Plaintiff “may, within five (5) days of the entry of the order □□ denying the request, resubmit the document for filing in the public record.” Plaintiff is || encouraged to resubmit the document for filing as soon as possible. 21 IT IS FURTHER ORDERED that the briefing schedule for the cross-motions for 22 || summary judgment will be aligned. The response briefs will be due 30 days from the date 23 || on which Plaintiff resubmits its motion for summary judgment in the public record. The 24 || reply deadlines extend accordingly. 25 Dated this 3rd day of June, 2026. 26 5

28 Dominic W. Lanza United States District Judge

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