National Federation of the Blind, et al v. Arizona Board of Regents, et al

Filing 47

ORDER denying without prejudice the 46 Stipulation for Entry of Protective Order Regarding Confidential Information. Signed by Judge G Murray Snow on 9/9/09. (REW, )

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11
12
13
14
15

)
The National Federation of the Blind,
The American Council of The Blind, and )
)
Darrell Shandrow,
)
)
Plaintiffs,
)
)
vs.
)
)
The Arizona Board of Regents and
)
Arizona State University,
)
)
)
Defendants.
)

No. CV-09-1359-PHX-GMS
ORDER

16
17

The parties have submitted a Stipulation for Entry of Protective Order Regarding

18 Confidential Information (Dkt. # 46). The proposed order fails to take into account Ninth
19 Circuit law restricting the circumstances under which confidentiality orders may be entered
20 and documents in the Court’s file may be sealed.
21

Two standards are relevant. “First, a ‘compelling reasons’ standard applies to [the

22 sealing of] most judicial records.” Pintos v. Pac. Creditors Ass’n, 504 F.3d 792, 801 (9th Cir.
23 2007) (citing Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006);
24 Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135-36 (9th Cir. 2003)). “This
25 standard derives from the common law right ‘to inspect and copy public records and
26 documents, including judicial records and documents.’ To limit this common law right of
27 access, a party seeking to seal judicial records must show that ‘compelling reasons supported
28 by specific factual findings outweigh the general history of access and the public policies

1

favoring disclosure.’” Id. (quoting Kamakana, 447 F.3d at 1178) (alteration and internal

2

citations omitted).

3

The second standard applies to discovery materials. “‘Private materials unearthed

4

during discovery’ are not part of the judicial record.” Id. (quoting Kamakana, 447 F.3d at

5

1180) (alteration omitted). The “good cause” standard set forth in Rule 26(c) of the Federal

6

Rules of Civil Procedure applies to orders rendering this category of documents confidential.

7

See id.; San Jose Mercury News, Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1103 (9th Cir. 1999)

8

(“It is well-established that the fruits of pretrial discovery are, in the absence of a court order

9

to the contrary, presumptively public. Rule 26(c) authorizes a district court to override this

10

presumption where ‘good cause’ is shown.”) (citations omitted).

11

The good cause standard also applies to the sealed filing of documents attached to

12

non-dispositive motions because those documents are often “‘unrelated, or only tangentially

13

related, to the underlying cause of action.’” Phillips v. G.M. Corp., 307 F.3d 1206, 1213

14

(9th Cir. 2002); see Pintos, 504 F.3d at 802. Documents attached to dispositive motions such

15

as motions for summary judgment, however, are governed by the compelling reasons

16

standard. See San Jose Mercury News, 187 F.3d at 1102; Foltz, 331 F.3d at 1136.

17

parties do not establish good cause or compelling reasons merely by stipulating that

18

documents may be filed under seal

The

19

The parties may submit a revised proposed order that takes into account these

20

standards. The stipulation or motion seeking entry of the order should show good cause for

21

a confidentiality order governing discovery materials. The proposed order should also reflect

22

the fact that any party seeking to file documents under seal must show good cause for

23

documents attached to non-dispositive motions or compelling reasons for documents attached

24

to dispositive motions. Therefore,

25

///

26

///

27

///

28

///
-2-

1

IT IS HEREBY ORDERED denying the Stipulation (Dkt. # 46) without prejudice.

2

DATED this 9th day of September, 2009.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-