Republic of Kazakhstan v. Lawler

Filing 5

ORDER: IT IS ORDERED denying without prejudice the Republic of Kazakhstan's Motion for Leave to File Documents Under Seal (Doc. #4 ). (See attached Order).Signed by Judge Dominic W Lanza on 10/9/19. (JAMA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Republic of Kazakhstan,

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Petitioner,

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ORDER

v.

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No. MC-19-00035-PHX-DWL

William Scott Lawler,

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Respondent.

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Pending before the Court is the Republic of Kazakhstan’s Motion for Leave to File

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Documents Under Seal. (Doc. 4.) For the reasons stated below, the motion is denied

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without prejudice.

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The public has a general right to inspect judicial records and documents, such that

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a party seeking to seal a judicial record must overcome “a strong presumption in favor of

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access.” Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). To

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do so, the party must “articulate compelling reasons supported by specific factual findings

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that outweigh the general history of access and the public policies favoring

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disclosure . . . .” Id. at 1178-79 (internal quotation marks and citations omitted). The Court

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must then “conscientiously balance the competing interests of the public and the party who

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seeks to keep certain judicial records secret.” Id. at 1179 (internal quotation marks

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omitted). “After considering these interests, if the court decides to seal certain judicial

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records, it must base its decision on a compelling reason and articulate the factual basis for

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its ruling, without relying on hypothesis or conjecture.” Id. (internal quotation marks

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omitted). The “stringent” compelling reasons standard applies to all filed motions and their

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attachments where the motion is “more than tangentially related to the merits of a case.”

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Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096, 1101 (9th Cir. 2016).

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The Republic of Kazakhstan initiated this case by filing an application under 28

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U.S.C. § 1782 for a subpoena to compel an Arizona resident to testify in, and produce

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certain evidence concerning, a pending international investor-state arbitration. (Doc. 1.)

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That application, however, is heavily redacted. (Id.) In the motion to seal, the Republic of

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Kazakhstan seeks to seal the unredacted version of the application and its 14 exhibits,

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which together total 273 pages. (Doc. 4.) The motion is very short and identifies, in

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perfunctory fashion, two reasons why sealing is appropriate: (1) the arbitration is

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confidential and (2) the documents are “sensitive.” (Doc. 4 at 2.)

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These arguments are insufficient. Whatever the nature of the underlying arbitration,

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the Court must determine whether the documents sought to be sealed in this case, currently

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pending before the Court—indeed, the application that forms the basis of the case and its

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supporting exhibits—meet the Kamakana standard. The Republic of Kazakhstan has not

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attempted to “articulate compelling reasons supported by specific factual findings that

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outweigh the general history of access and the public policies favoring disclosure . . . .”

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Kamakana, 447 F.3d at 1178-79 (emphasis added); see also LRCiv 5.6(b) (“Any motion

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or stipulation to file a document under seal must set forth a clear statement of the facts and

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legal authority justifying the filing of the document under seal . . . .”). Indeed, multiple

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courts have recognized that arbitration-related documents should not automatically be

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allowed to be filed under seal simply because the underlying proceeding is, in some sense,

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confidential. See, e.g., Ovonic Battery Co., Inc. v. Sanyo Elec. Co., Ltd., 2014 WL

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2758756, *3 (N.D. Cal. 2014) (“OBC also seeks to seal the interim and final arbitration

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awards . . . [because] the awards are to remain confidential subject to limited exception

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according to the governing International Arbitration Rules and order of the Arbitration

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Panel. The fact that parties agreed to the confidentiality of certain documents, however,

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does not alone constitute a compelling reason to seal them. . . . OBC’s motion to seal the

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interim and final arbitration awards is denied without prejudice.”) (citations omitted);

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Markel Am. Ins. Co. v. Internet Brands, Inc., 2017 WL 10433991, *5 (C.D. Cal. 2017)

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(“Defendants assert that the substance of the underlying arbitration proceedings, including

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the findings of the arbitrator, were kept strictly private by all parties involved, and thus

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should not be made public in this action. Essentially, Defendants’ position boils down to

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the assertion that because the matter is a business matter that thus far has been kept secret,

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it should continue to be so. But Defendants do not explain why the material should be kept

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secret. There is no indication, for example, that permitting the Complaint to be unsealed

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will hurt their competitive standing by revealing trade secrets. And this Court is not bound

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by the decisions of the arbitrators and Delaware Chancery court as to whether the action

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should be kept under seal.”).

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Thus, the motion is denied without prejudice. To the extent that the Republic of

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Kazakhstan wishes to try again, it must include—for each document it wishes to file under

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seal—a specific description of the document and compelling reasons for sealing that

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document, supported by specific facts. The more specific and compelling the reasons and

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facts provided are, the more likely it is that the Court will find that compelling reasons

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justify sealing the documents.

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Accordingly,

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IT IS ORDERED denying without prejudice the Republic of Kazakhstan’s Motion

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for Leave to File Documents Under Seal (Doc. 4).

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Dated this 9th day of October, 2019.

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