Cooke et al v. Colorado City, Town of et al

Filing 427

ORDER denying 347 Joint Motion to Seal Privileged Motion in Limine Exhibits. FURTHER ORDERED that the Clerk of the Court shall strike: (1) Exhibits 3-6 (lodged at Doc. 349 ) to Defendants' Motion to Preclude Exhibits to Robert Foster' s Deposition; (2) Exhibits A and B (lodged at Doc. 352 ) to the Hildale Defendants' Motion in Limine to Exclude Evidence and Testimony regarding Certain Letters allegedly from David Zitting; (3) exhibit 1 (lodged at Doc. 353 ) to Defendant To wn of Colorado City's Motion in Limine No. 8 to Preclude Letters that Joseph Allred allegedly Wrote; and (4) exhibit A (lodged at Doc. 357 ) to the Hildale Defendants' Motion in Limine to Exclude Evidence and Testimony regarding Alleged C ommunications with Clergy. FURTHER ORDERED that, by 5:00 p.m. on 6/21/13, Defendants shall file (1) public copies of the exhibits they previously lodged in support of their motions in limine; (2) a notice indicating that Defendants request the Court rule on the relevant motions in limine without the sealed exhibits; or (3) a notice of withdrawal of the relevant motions in limine. Signed by Senior Judge James A Teilborg on 6/20/13.(MAP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Ronald Cooke and Jinjer Cooke, husband
and wife,

10

13
14

ORDER

Plaintiffs,

11
12

No. CV 10-08105-PCT-JAT

The State of Arizona ex rel. Thomas C.
Horne, the Attorney General; and the Civil
Rights Division of the Arizona Department
of Law,

15

Plaintiff-Intervenor,

16
17
18
19
20
21
22

v.
Town of Colorado City, Arizona; City of
Hildale, Utah, Hildale-Colorado City
Utilities (Hildale-Colorado City Power,
Water, Sewer and Gas Department and
Twin City Water Authority); Twin City
Power,
Defendants.

23
24
25

Pending before the Court is Defendants’ Joint Motion to Seal Privileged Motion in
Limine Exhibits (Doc. 347). The Court now rules on the Motion.

26

Defendants seek to seal documents lodged as exhibits to four motions in limine

27

filed by Defendants; specifically, (1) exhibits 3-6 (currently lodged at Doc. 349) to

28

Defendants’ Motion to Preclude Exhibits to Robert Foster’s Deposition (Doc. 343); (2)

1

exhibits A and B (currently lodged at Doc. 352) to the Hildale Defendants’ Motion in

2

Limine to Exclude Evidence and Testimony regarding Certain Letters allegedly from

3

David Zitting (Doc. 350); (3) exhibit 1 (currently lodged at Doc. 353) to Defendant Town

4

of Colorado City’s Motion in Limine No. 8 to Preclude Letters that Joseph Allred

5

allegedly Wrote (Doc. 351); and (4) exhibit A (currently lodged at Doc. 357) to the

6

Hildale Defendants’ Motion in Limine to Exclude Evidence and Testimony regarding

7

Alleged Communications with Clergy (Doc. 356).

8

There is a strong presumption in favor of public access to documents. Kamakana

9

v. City of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (internal citations omitted). A

10

party seeking to seal a judicial record must overcome the strong presumption by

11

articulating compelling reasons supported by specific factual findings that outweigh the

12

general history of access and public policies favoring disclosure. Id. at 1178-1179

13

(internal citations and quotations omitted). “In turn, the court must conscientiously

14

balance the competing interests of the public and the party who seeks to keep certain

15

judicial records secret.” Id. at 1179 (internal quotations and citations omitted). “After

16

considering these interests, if the court decides to seal certain judicial records, it must

17

base its decision on a compelling reason and articulate the factual basis for its ruling,

18

without relying on hypothesis or conjecture.”

19

omitted).

Id. (internal quotations and citations

20

There is an exception to the presumption of access to judicial records for a sealed

21

discovery document attached to a non-dispositive motion. Id. (internal citations omitted).

22

To seal a document attached to a non-dispositive motion, the party seeking to seal must

23

make a good cause showing under Federal Rule of Civil Procedure 26(c). Id. (internal

24

citation omitted). However, even when a motion is not traditionally considered to be

25

dispositive, if the motion could have a dispositive effect on the case, the compelling

26

reasons standard should be applied. See In re Midland Life Ins. Co. Annuity Sales

27

Practices Litig., 686 F.3d 1115, 1119-1120 (9th Cir. 2012).

28

In this case, Defendants argue that they have shown good cause to seal the
-2-

1

documents attached to the motions in limine. Defendants argue that the documents that

2

they seek to exclude are subject to the clergy/communicant (also referred to as the

3

priest/penitent) privilege. Defendants assert that because they “believe the Letters to

4

Clergy are privileged under this rule, good cause exists to allow them to be sealed” for

5

the purposes of the motions in limine. (Doc. 347 at 3). Defendants further argue that,

6

regardless of whether the privilege applies, these letters contain communications with a

7

religious leader regarding the writer’s innermost thoughts, feelings, and beliefs and this

8

would cause annoyance and embarrassment to any individual and “particular annoyance

9

and embarrassment would result for FLDS individuals due to the nature of the beliefs

10

involved.” (Id.).

11

Defendants assert that seven of the letters that they now seek to seal were

12

previously attached to Plaintiffs’ Motion for Summary Judgment. Defendants assert that,

13

because these letters were previously attached to a Motion for Summary Judgment, they

14

must meet the compelling reasons standard for sealing these letters. Defendants assert

15

that they have met the compelling reasons standard because Plaintiffs “improperly” seek

16

to use these letters to confuse the jury. (Id. at 4). Finally, Defendants argue that “[i]f the

17

communications with clergy privilege could not apply to keep letters like these private, a

18

chilling effect would occur for all communications with clergy.” (Id. at 5).

19

In Response, Plaintiffs argue that a majority of the letters that Defendants now

20

seek to seal have already been filed publicly in this case and have been filed in the public

21

records of other Courts. (See Doc. 369 at 3 and Doc. 369-1 at Exhibit 2). Plaintiffs argue

22

that, as a result, “Defendants’ request to seal these letters, without any effort to seek a

23

protective order and despite knowledge that many of them are already in the public

24

domain is disingenuous.” (Doc. 369 at 3). Plaintiffs further argue that the relevance of

25

these letters far outweighs any prejudicial value they may have and, thus, the public

26

should have access to them.

27

In this case, Defendants have failed to meet either the good cause or compelling

28

reasons standard for sealing the documents attached to their motions in limine. First,
-3-

1

with regard to the exhibits that have been filed unsealed in any public record, including

2

those that have been filed in this Court’s Record since July 30, 2012, with no party

3

seeking to seal them or otherwise obtaining a protective order for them, there is no reason

4

to now seal those exhibits. In determining whether to seal a document, “the court must

5

conscientiously balance the competing interests of the public and the party who seeks to

6

keep certain judicial records secret.” There can be no secrets in previously publicly

7

disclosed records that no one has previously sought to protect. As a result, there can be

8

no good cause or compelling reasons to keep such non-existent “secrets.”

9

Moreover, Defendants have failed to show compelling reasons or good cause to

10

seal any of the letters attached to their Motions in Limine. While the Court agrees that a

11

clergy/communicant privilege would certainly constitute a compelling reason to seal

12

documents in certain situations, Defendants have offered no explanation as to how they

13

have standing to assert the clergy/communicant privilege on behalf of individuals who

14

have not sought to protect this information. See, e.g., Proposed Federal Rule of Evidence

15

506(c), 56 F.R.D. 183, 247 (1972) (“The privilege may be claimed by the person, by his

16

guardian or conservator, or by his personal representative if he is deceased. The

17

clergyman may claim the privilege on behalf of the person. His authority so to do is

18

presumed in the absence of evidence to the contrary.”). Defendants have not cited to any

19

authority that would allow a communicant’s employers to assert the clergy/communicant

20

privilege on behalf of the communicant. Defendants have offered nothing from the

21

individuals who wrote these letters suggesting that those individuals seek to enforce this

22

privilege or that those individuals have sought or now seek to prevent these letters from

23

public disclosure. Moreover, Defendants have offered no information indicating that, to

24

the extent these individuals are aware that these letters are being used in litigation, such

25

individuals have made any efforts to protect these letters from further disclosure.

26

Likewise, Defendants have made no showing that the individuals who wrote these letters

27

would suffer any annoyance or embarrassment from the disclosure of these letters. A

28

mere generalized statement that any FLDS member would suffer such annoyance or
-4-

1

embarrassment is not sufficient to demonstrate good cause or compelling reasons to seal

2

and is mere hypothesis and conjecture.

3

Accordingly,

4

IT IS ORDERED that Defendants’ Joint Motion to Seal Privileged Motion in

5

Limine Exhibits (Doc. 347) is denied.

6

IT IS FURTHER ORDERED that the Clerk of the Court shall strike:

7

(1) exhibits 3-6 (currently lodged at Doc. 349) to Defendants’ Motion to

8

Preclude Exhibits to Robert Foster’s Deposition;

9

(2) exhibits A and B (currently lodged at Doc. 352) to the Hildale Defendants’

10

Motion in Limine to Exclude Evidence and Testimony regarding Certain Letters

11

allegedly from David Zitting;

12

(3) exhibit 1 (currently lodged at Doc. 353) to Defendant Town of Colorado

13

City’s Motion in Limine No. 8 to Preclude Letters that Joseph Allred allegedly Wrote;

14

and

15

(4) exhibit A (currently lodged at Doc. 357) to the Hildale Defendants’ Motion

16

in Limine to Exclude Evidence and Testimony regarding Alleged Communications with

17

Clergy.

18

IT IS FURTHER ORDERED that, by 5:00 p.m. on Friday, June 21, 2013,

19

Defendants shall file (1) public copies of the exhibits they previously lodged in support of

20

their motions in limine; (2) a notice indicating that Defendants request the Court rule on

21

the relevant motions in limine without the sealed exhibits; or (3) a notice of withdrawal

22

of the relevant motions in limine.

23

Dated this 20th day of June, 2013.

24
25
26
27
28
-5-