Quanta Indemnity Company v. Amberwood Development Incorporated, et al

Filing 155

ORDER - IT IS ORDERED that the motion to seal (Doc. 148 ) is denied. The Documents Lodged at Docs. 149 and 150 are stricken, but may remain under seal. General Fidelity shall file a response to the motion for summary judgment and controverting statement of facts by November 1, 2013. As indicated above, General Fidelity may not file both documents in their entirety under seal. If General Fidelity believes it can make the particularized showing required by Kamakana to file a particul ar exhibit or a particular fact in the response under seal, General Fidelity may move to file solely those items under seal. If General Fidelity so moves, it shall simultaneously file a redacted, unsealed version of both documents. IT IS FURTHER ORDERED that the stipulated protective order (Doc. 154 ) is denied, without prejudice. (See document for further details). Signed by Senior Judge James A Teilborg on 10/23/13. (LAD)

1

WO

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
16
17

)
)
)
Plaintiff,
)
)
vs.
)
)
North American Specialty Insurance)
Company; General Fidelity Insurance)
Company; Amberwood Development Inc.;)
Amberwood Homes LLC; Roll Tide LLP;)
Summerset Marketing Enterprises Inc.;)
)
Winston Casas LLC,
)
)
Defendants.
)
)
Quanta Indemnity Company,

No. CV 11-1807-PHX-JAT
ORDER

18

Pending before the Court are a motion to seal and a motion for protective order. The

19

motion fails to meet the Ninth Circuit’s strict requirements for filing under seal and will be

20

denied. As this Court has previously articulated,

21
22
23
24
25
26

A party seeking to seal a document attached to a dispositive motion must
overcome a “strong presumption in favor of access” and meet a “compelling
reasons” standard. Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172,
1178–79 (9th Cir.2006). That is, “the party must articulate compelling reasons
supported by specific factual findings that outweigh the general history of
access and the public policies favoring disclosure, such as the public interest
in understanding the judicial process.” Id. (citations and punctuation omitted).
It is then a court’s duty to balance the competing interests of the public and the
party seeking to seal the record. Id. at 1179. If a court decides to grant the
motion to seal, it must “base its decision on a compelling reason and articulate
the factual basis for its ruling, without relying on hypothesis or conjecture.” Id.
(quoting Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir.1995)).

27
28

Compelling reasons to seal a judicial record typically will exist when such
court files might become “a vehicle for improper purposes, such as the use of

1
2
3

records to gratify private spite, promote public scandal, circulate libelous
statements, or release trade secrets.” Id. (citing Nixon v. Warner Commc'ns,
Inc., 435 U.S. 589, 598 (1978)). However, “[t]he mere fact that the production
of records may lead to a litigant’s embarrassment, incrimination, or exposure
to further litigation will not, without more, compel the court to seal its
records.” Id. (citation omitted).

4
Aviva USA Corp. v. Vazirani 902 F.Supp.2d 1246, 1273 (D. Ariz. 2012).
5
In summary, generalized statements supporting sealing are inadequate; a party must
6
articulate specific facts to justify sealing, and must do so with respect to each item sought to
7
be sealed. Kamakana, 447 F.3d at 1183-84. The motion to seal in this case, which makes
8
a blanket assertion of attorney client privilege, fails to meet the showing required to file a
9
dispositive motion in its entirety under seal. By way of example, the motion at page 4, lines
10
7 through 24, is solely a discussion of law; the Court cannot envision how an argument on
11
the governing law could qualify for sealing under the test required in Kamakana.
12
Accordingly, the motion to seal will be denied.
13
Further, in the request for a protective order, the parties state the following:
14
15
16

While the parties agree that there is no evidence that any pleadings filed with
the Court at this stage would constitute a breach of confidentiality or
attorney-client privilege, out of an abundance of caution, the parties hereby
agree to request that the Court place under seal the Motions for Summary
Judgment and Statements of Fact which have been filed in this matter.

17
Doc. 154, n. 2. This assertion is even more deficient than the blanket claim of attorney client
18
privilege in the motion. See e.g., In re Midland Nat. Life Ins. Co. Annuity Sales Practices
19

Litig., 686 F.3d 1115, 1120-21 (9th Cir. 2012) (remanding to the district court to unseal the

20
records because the parties did not meet the compelling reasons test). Accordingly, the Court
21
will deny this request for retroactive sealing.
22
Additionally, the Court will deny, without prejudice, the parties’ stipulated-to
23
protective order. If the parties choose to re-file the proposed protective order, they shall
24
submit a proposed form of Order to the chambers’ email address. Further, the sole basis for
25
the protective order appears to be attorney-client privilege. If the parties re-file the proposed
26
protective order, the parties must address whether, by disclosure in this case, the claimed
27
attorney-client privilege has already been waived.
28
-2-

1

Based on the foregoing,

2

IT IS ORDERED that the motion to seal (Doc. 148) is denied. The Documents

3

Lodged at Docs. 149 and 150 are stricken, but may remain under seal. General Fidelity shall

4

file a response to the motion for summary judgment and controverting statement of facts by

5

November 1, 2013. As indicated above, General Fidelity may not file both documents in

6

their entirety under seal. If General Fidelity believes it can make the particularized showing

7

required by Kamakana to file a particular exhibit or a particular fact in the response under

8

seal, General Fidelity may move to file solely those items under seal. If General Fidelity so

9

moves, it shall simultaneously file a redacted, unsealed version of both documents.1

10
11
12

IT IS FURTHER ORDERED that the stipulated protective order (Doc. 154) is
denied, without prejudice.
DATED this 23rd day of October, 2013.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1

These same requirements apply to any other to-be-filed responses and replies,
should any party seek to file under seal.
-3-