Black & Veatch Corporation v. Modesto Irrigation District

Filing 83

ORDER on request for stipulated protective order. The parties shall refile a revised stipulation and proposed order for a protective order that correct the deficiencies set forth in this order; The parties shall email a conforming copy of the stipula tion and proposed order to [e-mail]; and if, upon further consideration, the parties determine that there is no need for a Court order due to a private agreement between them, they shall withdraw their request for a protective order. Order signed by Magistrate Judge Sheila K. Oberto on 2/14/2012. (Timken, A)

1
2
3
4
5
6
7
8
9
10
11
12

UNITED STATES DISTRICT COURT

13

EASTERN DISTRICT OF CALIFORNIA

14
BLACK & VEATCH CORPORATION,

CASE NO. 1:11-cv-00695-LJO-SKO

15
16
17

ORDER ON REQUEST FOR
STIPULATED PROTECTIVE ORDER

Plaintiff,
v.

18
MODESTO IRRIGATION DISTRICT,
19
20

Defendant,

21
22

AND RELATED ACTIONS.
/

23
24

I.

INTRODUCTION

25

On February 13, 2012, the parties filed a Stipulated Protective Order and Proposed Order

26

regarding confidential discovery materials. The Court has reviewed the stipulation and proposed

27

order and has determined that, in its current form, the Court cannot grant the request for a protective

28

order. For the reasons set forth below, the Court DENIES without prejudice the parties’ request.

1
2

II.
A.

DISCUSSION

The Parties’ Request for a Blanket Sealing Order is Inappropriate

3

Although the parties state that the proposed protective order “creates no entitlement to file

4

confidential information under seal,” the parties nonetheless stipulate that “all Protected Material

5

filed with the Court, or any pleading or memorandum that includes or purports to reproduce or

6

paraphrase any Protected Material, shall be filed only in sealed envelopes or other appropriate sealed

7

containers.” (Doc. 82, ¶¶ 1, 11.) Further, the Proposed Order states as follows:

8
9
10
11
12
13

The Clerk of the Court is hereby directed to file under seal pursuant to Local Rule
141.1 all documents marked "Confidential" or "Confidential - Attorneys/Consultants
Only" any/or any and all pleadings in which information from said documents (or
parts thereof) is contained or disclosed without further order of this Court. This
Order shall suffice for all purposes with regard to the Clerk of this Court accepting
the filing of said documents or pleadings under seal. The Party seeking to file said
documents or pleadings shall present a copy of this Order to the Clerk at the time of
presentment of said documents or pleadings for filing under seal. No further order
of this Court is necessary.
(Doc. 82, p. 18.)

14
15

1.

The Parties’ Request Does Not Comply with the Procedural Requirements for
Sealing Documents Set Forth in Local Rule 141

16

The Court’s Local Rule 141 sets forth the requirements for a party seeking to file documents

17

under seal.1 Local Rule 141(a) states that “[d]ocuments may be sealed only by written order of the

18

Court, upon the showing required by applicable law.” A Court order is required for each sealing

19

request. “To ensure that documents are properly sealed, specific requests to seal must be made even

20

if an existing protective order, statute, or rule requires or permits the sealing of the publicly available

21

case file.” L.R. 141(a).

22
23

Local Rule 141(b) sets forth the procedure for seeking to file documents under seal and states
in pertinent part:

24
25
26
27
28

1

The Court notes that the Stipulated Protective Order and Proposed Order indicate that Local Rule 141.1 sets
forth the procedures for sealing documents. (See Doc. 82, ¶1, p. 18.) This is not entirely accurate. Local Rule 141.1(e)
states that “[d]ocuments that are the subject of a protective order may be filed under seal only if a sealing order is first
obtained in compliant with L.R. 141.” As such, it is Local Rule 141, not 141.1, which sets forth the procedural
requirements for filing sealed documents.

2

1

3

[T]he ‘Notice of Request to Seal Documents’ shall be filed electronically. . . . The
Notice shall describe generally the documents sought to be sealed, the basis for
sealing, the manner in which the ‘Request to Seal Documents,’ proposed order, and
the documents themselves were submitted to the Court, and whether the Request,
proposed order, and the documents were served on all other parties.

4

Rule 141(b) further requires that “[t]he ‘Request to Seal Documents’ shall set forth the statutory or

5

other authority for sealing, the requested duration, the identity, by name or category, of persons

6

permitted access to the documents, and all other relevant information.”

2

7

As such, the parties request that the Clerk of the Court file documents under seal without a

8

further Court order is procedurally improper and does not comply with the requirements of Local

9

Rule 141.

10
11

2.

The Parties Are Cautioned that the Court Will Not Issue a Sealing Order
Absent Good Cause

12

Every court has supervisory power over its own records and files, and may provide access

13

to court documents at its discretion. See Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)

14

(citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)). In the Ninth Circuit, there is

15

a strong presumption in favor of access to court records. See Foltz v. State Farm Mut. Auto. Ins. Co.,

16

331 F.3d 1122, 1135 (9th Cir. 2003) (stipulated order without more insufficient basis to seal court

17

records).

18

The party seeking to seal a document related to a motion must meet the “good cause”

19

standard set forth by Federal Rule of Civil Procedure 26(c) that applies to protective orders. Pintos

20

v. Pac. Creditors Ass’n, 605 F.3d 665, 677-80 (9th Cir. 2010). “Blanket protective orders,” like the

21

protective order at issue here, extend “broad protection to all documents produced [in litigation],

22

without a showing of good cause for confidentiality as to any individual documents.”2 Pub. Citizen

23

v. Liggett Grp., Inc., 858 F.2d 775, 790 (1st Cir. 1988). Such orders are, by nature, overinclusive.

24

See Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476.

25

As such, the parties’ inclusion in the Proposed Order of an order that all documents marked

26

“Confidential” or “Confidential – Attorneys/Consultants Only” be sealed is inappropriate. If a party

27
2

28

Blanket protective orders typically extend broad protection to all documents produced during discovery
without a showing of good cause with respect to any individual document.

3

1

seeks to file confidential information under seal with the Court, the filing party must comply with

2

the requirements set forth in Local Rule141 concerning the sealing of documents and must make a

3

“good cause” showing pursuant to Rule 26.

4

B.

The Stipulation Submitted for Court Approval Must be Signed and Dated

5

While the Court notes that the Stipulated Protective Order filed with the Court is dated and

6

signed (see Doc. 82, pp. 13-16), the electronic version emailed to the Court for approval does not

7

contain dates or electronic signatures. The Court will not issue an order that encompasses an

8

undated, unsigned stipulation. As such, any stipulation resubmitted for the Court’s consideration

9

should be dated and signed.

10

III.

CONCLUSION AND ORDER

11

Based on the foregoing, the Court DENIES without prejudice the parties’ request for a

12

protective order. If the parties would like the Court to consider their stipulation and request, they

13

are directed to refile a stipulation and a proposed order that comply with the Local Rules and correct

14

the deficiencies set forth above.

15

Accordingly, it is HEREBY ORDERED that:

16

1.

17

The parties shall refile a revised stipulation and proposed order for a protective order
that correct the deficiencies set forth in this order;

18

2.

19

The parties shall email a conforming copy of the stipulation and proposed order to
[e-mail]; and

20

3.

If, upon further consideration, the parties determine that there is no need for a Court

21

order due to a private agreement between them, they shall withdraw their request for

22

a protective order.

23
24

IT IS SO ORDERED.

25

Dated:
ie14hj

February 14, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

26
27
28
4