Cramton v. Grabbagreen Franchising LLC et al

Filing 226

ORDER: IT IS ORDERED that: (1) The amended motion to seal (Doc. 224 ) is denied; and (2) Pursuant to LRCiv 5.6(e), the lodged document (Doc. 222-1) will not be filed. The submitting party may, within five days of the entry of this Order, resubmit the document for filing in the public record [see attached Order for details]. Signed by Judge Dominic W Lanza on 9/16/19. (MAW)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Kim Cramton,
Plaintiff,

10
11

ORDER

v.

12

No. CV-17-04663-PHX-DWL

Grabbagreen Franchising LLC, et al.,

13

Defendants.

14
15

Pending before the Court is an amended motion to seal filed by Defendants and

16

Counterclaimants Eat Clean Holdings LLC, Eat Clean Operations LLC, Grabbagreen

17

Franchising LLC, and Keely Newman (collectively, “the movants”). (Doc. 224.) For the

18

following reasons, the motion will be denied.

19

The background for the sealing request is that the movants have filed a motion for

20

sanctions.

In that motion, the movants have argued “that relevant evidence in the

21

possession of the Plaintiff was hidden, withheld or destroyed, and that the evidence could

22

not be recovered from other sources through the exercise of reasonable and diligent

23

efforts.” (Id. at 2.) However, because “[a]ll discovery and disclosure were completed

24

before undersigned counsel was retained,” the movants’ new attorneys have obtained a

25

declaration from the movants’ previous attorney that “describes in detail [the movants’]

26

efforts to obtain the evidence from all sources, including his explanations as to why certain

27

actions were taken and why other actions were not.” (Id.) According to the movants, this

28

declaration should be filed under seal because “[a]rguably . . . [it] touches upon both

1

[a]ttorney-client and work product privileged communications regarding decisions and

2

actions by Defendants and [their prior law firm] to find the missing evidence from Plaintiff

3

and from other third-party sources. While the Declaration does not directly reveal any

4

privileged communications, and is not intended as to waive any privileges, it does contain

5

information which [their prior law firm] is required to protect under E.R. 1.6, which is the

6

broader duty to protect client confidentiality.” (Id.)

7

This argument is not compelling. As an initial matter, the declaration was not filed

8

on an ex parte basis with the Court—it has already been provided to the movants’

9

adversaries in this lawsuit. This means that any expectation of confidentiality has already

10

been extinguished. The Court is aware of no rule that would permit a privileged or

11

confidential communication to retain that status so long as it’s only disclosed to one set of

12

outsiders, but not to the rest of the world. Moreover, it seems to the Court that the movants

13

have already (if implicitly) released their prior law firm from any duty to maintain

14

confidentiality by choosing to inject the contents of the declaration into this lawsuit in

15

support of their claims. See E.R. 1.6(a) (“A lawyer shall not reveal information relating to

16

the representation of a client unless the client gives informed consent . . . .”) (emphasis

17

added).

18

Accordingly, IT IS ORDERED that:

19

(1)

The amended motion to seal (Doc. 224) is denied; and

20

(2)

Pursuant to LRCiv 5.6(e), the lodged document (Doc. 222-1) will not be

21

filed. The submitting party may, within five days of the entry of this Order, resubmit the

22

document for filing in the public record.

23

Dated this 16th day of September, 2019.

24
25
26
27
28

-2-