Rocky Mountain Bank v. Google, Inc.

Filing 22

FILED MEMORANDUM DISPOSITION (FERDINAND F. FERNANDEZ, JOHNNIE B. RAWLINSON and LESLEY WELLS) REVERSED AND REMANDED. FILED AND ENTERED JUDGMENT. [7718663] (DD)

FILED
APR 15 2011

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ROCKY MOUNTAIN BANK,
a Wyoming corporation,
Plaintiff – Appellee,
v.
GOOGLE, INC., a Delaware
corporation,
Defendant – Appellee.
and
MEDIAPOST
COMMUNICATIONS,
Intervenor-Appellant.

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No. 10-15522
D.C. No. 5:09-cv-04385-JW
MEMORANDUM *

Appeal from the United States District Court
for the Northern District of California
James Ware, Chief District Judge, Presiding
Submitted April 12, 2011 **
*

This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. Rule 36-3.
**

The panel unanimously finds this case suitable for decision without oral
(continued...)

San Francisco, California
Before:

FERNANDEZ, RAWLINSON, Circuit Judges, and WELLS,***
District Judge.

MediaPost Communications, the business name of Fadner Enterprises, LLC
(MediaPost), which intervened in an action by Rocky Mountain National Bank
against Google, Inc., appeals the district court’s denial of its motion to access a
compliance report submitted to the district court by Google. We reverse and
remand.
The usual rule regarding judicial records and documents is that there is a
strong presumption that the public is entitled to access. See, e.g., Kamakana v.
City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006); Phillips ex rel.
Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1212 (9th Cir. 2002); see
also Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 1312, 55
L. Ed. 2d 570 (1978). Like most presumptions, this one does not delineate an
absolute right, but to overcome it a compelling reason to deny access must be
shown. See Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678–79 (9th Cir. 2010);

**

(...continued)
argument. Fed. R. App. P. 34(a)(2).
***

The Honorable Lesley Wells, Senior United States District Judge for the
Northern District of Ohio, sitting by designation.
2

Kamakana, 447 F.3d at 1178–79. Some exceptions to that general rule are
instances where access is sought to grand jury transcripts,1 or to warrant materials
while a pre-indictment investigation is in progress,2 or to materials which were
filed or produced pursuant to a protective order.3
Here, the district court carved out another exception by determining that if a
document is lodged, rather than filed, with the court, it is not a judicial record or
document at all and, therefore, the public is generally not entitled to access. Of
course, there are some distinctions between filed and lodged documents. See
Barcamerica Int’l USA Trust v. Tyfield Imps., Inc., 289 F.3d 589, 595 & n.6 (9th
Cir. 2002); N.D. Cal. Civ. R. 1-5(m). However, the district court did not point to
any authority for the proposition that lodging alone is sufficient to overcome the
public’s right to access. As we see it, the public’s long-standing right cannot be
absterged by the simple expedient of having documents lodged. Here, for
example, the report in question is a quintessential judicial document. The district

1

See Kamakana, 447 F.3d at 1178.

2

See id.

3

See Pintos, 605 F.3d at 678; Kamakana, 447 F.3d at 1179; Phillips, 307
F.3d at 1213; cf. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1131 (9th
Cir. 2003) (where blanket protective order issued, an actual showing of good cause
must be made if another seeks access to the document).
3

court issued an ex parte temporary restraining order against Google and its
customer, and ordered Google to lodge a report with the court so that it could
assess whether Google had complied with the temporary restraining order. Rocky
Mountain and the court were satisfied with the response, and the action was then
dismissed. Absent some further determination,4 the public would be entitled to
access to the report. Thus, the district court erred.
REVERSED and REMANDED for further proceedings.

4

We express no opinion about whether some or all of the information in the
report should be redacted or sealed. The district court did not decide that issue.
Nor will we. We leave the application of the usual standards for deciding
redaction and sealing issues to the district court in the first instance. See Hagestad
v. Tragesser, 49 F.3d 1430, 1434–35 (9th Cir. 1995).
4