Jimenez v. Progressive Casualty Insurance Company et al

Filing 215

ORDER granting/denying in part 214 Motion to Seal. The motion is GRANTED as to Exhibit "F" (Doc. [211-7]). The Clerk of Court shall seal Document [211-7]. The motion is DENIED as to Documents 210 , 211 , [211-1 211-6], and [211-8211-11 ]. FURTHER ORDERED Plaintiff shall file a redacted copy of Exhibit "F" to Plaintiff's Statement of Facts in Support of His Motion for Summary Judgment Re: Use of Third-Party VPN Contracts By Progressive no later than October 7, 2019. FURTHER ORDERED this Order shall not be sealed. Signed by Senior Judge Roslyn O Silver on 10/3/19. (MAP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Seberaino Jimenez,
Plaintiff,

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ORDER

v.

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No. CV-15-01187-PHX-ROS

Progressive Casualty Insurance Company, et
al.,

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Defendants.

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Before the Court is Plaintiff’s Motion to Seal (Doc. 214). Plaintiff states that

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Exhibits “F” (Doc. 211-7) and “I” (Doc. 211-10) attached to Plaintiff’s Statement of Facts

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in Support of His Motion for Summary Judgment Re: Use of Third-Party VPN Contracts

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By Progressive (Doc. 211) were marked as confidential materials by Defendants. (Doc.

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214 at 1–2.) Plaintiff also states that Plaintiff’s Motion for Summary Judgment Re: Use of

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Third-Party VPN Contracts by Progressive (Doc. 210) references these two confidential

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exhibits. Id. at 2. Plaintiff believes the mere marking of documents as confidential entitles

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him to file these documents under seal. The Court will deny the motion as to Documents

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210, 211, 211-1—211-6, and 211-8—211-11 and grant the motion as to Document 211-7

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for the following reasons.

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Early in the discovery process, the Court entered a Stipulated Protective Order.

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(Doc. 100.) The Stipulated Protective Order defined the term “confidential information” to

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include “confidential financial, personal, or commercial information.” Id. at 2. The

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Stipulated Protective Order noted that before any confidential material could be filed with

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the Court, “the party seeking to file such material must seek permission of the Court to file

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the material under seal in accordance with Local Rule of Civil Procedure 5.6. Nothing in

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this order shall be construed as automatically permitting a party to file under seal. The

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party seeking leave of Court shall show “compelling reasons” (where the motion is more

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than tangentially related to the merits of the case) or “good cause” for filing under seal.”

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Id. at 5. The Stipulated Protective Order also noted “The Court may modify the terms and

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conditions of this Order for good cause, or in the interest of justice, or on its own order at

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any time in these proceedings.” Id. at 10 (emphasis added).

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Twice before, the parties have filed materials with this Court and later moved to seal

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them. Defendants moved to seal a declaration in support of their Motion for Sanctions.

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(Doc. 175.) Plaintiff moved to seal a declaration in support of his Cross-Motion for

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Sanctions and Response to Defendants’ Motion for Sanctions. (Doc. 183). The Court

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granted those motions and sealed Documents 174 and 179. (Docs. 185, 194.)

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In the Ninth Circuit, there is a “strong presumption in favor of access to court

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records.” Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003).

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This presumption is rebutted if a discovery document subject to a protective order is

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attached to a nondispositive motion. Id. But if a motion is “‘more than tangentially related

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to the underlying cause of action,’” the party seeking to seal the records must provide a

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compelling reason to do so. Unknown Parties v. Johnson, No. CV-15-00250-TUC-DCB,

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2016 WL 8199309, at *3 (D. Ariz. June 27, 2016) (quoting Center for Auto Safety v.

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Chrysler Grp., LLC, 809 F.3d 1092, 1099 (9th Cir. 2016)). To meet the compelling reasons

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standard, the party seeking to seal the records “must ‘articulate compelling reasons

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supported by specific factual findings.’” Id. (quoting Kamakana v. City and County of

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Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006).

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Here, Plaintiff seeks to seal a dispositive motion, as well as the statement of facts

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supporting the motion and several exhibits, and must therefore provide a compelling reason

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for his request. Plaintiff has not done so. Plaintiff explains only that the exhibits “were

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marked ‘confidential’ by Defendant Progressive.” (Doc. 214 at 2.) A blanket protective

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order, which is obtained “without making a particularized showing of good cause with

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respect to any individual document,” does not entitle a party “to hold these records under

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seal forever.” Foltz, 331 F.3d at 1138. Exhibit “I” contains excerpts from the deposition of

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Keith Benefiel, Jr. (Doc. 211-10.) The Court does not find a compelling reason to seal this

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document. Exhibit “F” contains nine tax identification numbers. (Doc. 211-1 at 21–24.)

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These numbers must be redacted pursuant to Federal Rule of Civil Procedure 5.2(a). The

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Court will grant Plaintiff’s motion to seal the unredacted Exhibit “F” filed at Document

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211-7. Plaintiff must redact those numbers, and no other information, and file a public

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version of the exhibit. Neither Plaintiff’s Motion for Summary Judgment Re: Use of Third-

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Party VPN Contracts by Progressive nor Plaintiff’s Statement of Facts in Support of His

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Motion for Summary Judgment Re: Use of Third-Party VPN Contracts By Progressive

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reference the tax identification numbers, and accordingly the Court does not find a

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compelling reason to seal either document, or any of the other documents attached to the

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statement of facts.

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Accordingly,

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IT IS ORDERED the Motion to Seal (Doc. 214) is GRANTED IN PART and

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DENIED IN PART. The motion is GRANTED as to Exhibit “F” (Doc. 211-7). The Clerk

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of Court shall seal Document 211-7. The motion is DENIED as to Documents 210, 211,

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211-1—211-6, and 211-8—211-11.

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IT IS FURTHER ORDERED Plaintiff shall file a redacted copy of Exhibit “F” to

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Plaintiff’s Statement of Facts in Support of His Motion for Summary Judgment Re: Use of

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Third-Party VPN Contracts By Progressive no later than October 7, 2019.

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IT IS FURTHER ORDERED this Order shall not be sealed.

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Dated this 3rd day of October, 2019.

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Honorable Roslyn O. Silver
Senior United States District Judge

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