Paul Evert's RV Country, Inc. et al v. Universal Underwriters Insurance Company

Filing 88

MEMORANDUM AND ORDER re 86 THIRD AMENDED REQUEST TO SEAL signed by Senior Judge William B. Shubb on 9/22/2016: IT IS THEREFORE ORDERED that 78 plaintiffs' amended request to seal in connection with its opposition to defendant's motio n for summary judgment be, and the same hereby is, GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that 86 plaintiffs' amended request to seal certain portions of their opposition to motion for summary judgment be, and the same hereby is, DENIED. (See document for further details.) (Kirksey Smith, K)

1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

----oo0oo----

11
12
13
14
15
16
17
18

PAUL EVERT’S RV COUNTRY,
INC.; PAUL EVERT; and CHARLES
CURTIS,
Plaintiffs,

CIV. NO. 1:15-00124 WBS SKO
MEMORANDUM AND ORDER RE: THIRD
AMENDED REQUEST TO SEAL

v.
UNIVERSAL UNDERWRITERS
INSURANCE COMPANY; and DOES
1-25, inclusive,
Defendant.

19
20

AND RELATED COUNTERCLAIMS.

21
22
23
24

----oo0oo---Plaintiffs Paul Evert’s RV Country, Inc., Paul Evert,

25

and Charles Curtis initiated this suit against defendant

26

Universal Underwriters Insurance Company alleging a breach of

27

defendant’s duty to defend and indemnify.

28

filed cross-claims for declaratory relief.
1

Defendant subsequently
Presently before the

1

court is plaintiffs’ amended request to seal in connection with

2

their opposition to defendant’s motion for summary judgment and

3

their amended request to seal certain portions of their

4

opposition to defendant’s motion for summary judgment.

5

Nos. 78, 86.)

6

(Docket

On August 5, 2016, this court denied the parties’

7

requests that the court seal their cross-motions for summary

8

judgment, responsive briefs, and all supporting documents as

9

overly broad.

(Aug. 5, 2016 Order (Docket No. 64).)

On August

10

31, 2016, this court again denied the parties’ requests to seal

11

certain exhibits.

12

August 31, 2016 Order, this court stated plaintiffs may file an

13

amended request to seal that “makes clear exactly what might be

14

harmful to them in the underlying state court action and should

15

therefore be redacted.”

16

(Aug. 31, 2016 Order (Docket No. 74).)

In the

(Id.)

Plaintiffs move to seal all or part of twenty-two

17

exhibits.

18

portions of seven pages of their opposition to defendant’s motion

19

to dismiss and portions of eight additional material facts in

20

their opposition to defendant’s separate statement of facts.

21

(Docket No. 86.)

22

(Docket No. 78.)

Plaintiffs also move to seal

A party seeking to seal a judicial record bears the

23

burden of overcoming a strong presumption in favor of public

24

access.

25

1178 (9th Cir. 2006).

26

reasons supported by specific factual findings that outweigh the

27

general history of access and the public policies favoring

28

disclosure, such as the public interest in understanding the

Kamakana v. City & County of Honolulu, 447 F.3d 1172,
The party must “articulate compelling

2

1

judicial process.”

2

on a motion to seal, the court must balance the competing

3

interests of the public and the party seeking to keep records

4

secret.

5

client communications may not be used both as a sword and a

6

shield.”

7

Cir. 1992).

Id. at 1178-79 (citation omitted).

Id. at 1179.

In ruling

“The privilege which protects attorney-

Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th

8

The court acknowledges plaintiffs identified specific

9

material in its amended request to seal that they allege may be

10

harmful to them in the underlying state court action currently on

11

appeal.

12

believe is privileged in order to defeat summary judgment while

13

simultaneously preventing the public from understanding the basis

14

upon which this court make its decisions.

This is using the

15

information both as a sword and a shield.

This, paired with the

16

plaintiffs’ short description of the material, does not outweigh

17

the interest of the public in understanding the judicial process.

18

Plaintiffs have not provided any reason why their interest in the

19

privacy of these excerpts outweighs the public’s right to access.

20

But plaintiffs are attempting to use information they

There are some excerpts that the court may seal.

These

21

excerpts are segments that plaintiffs do not rely upon in their

22

opposition to the motion for summary judgment or separate

23

statement of facts.

24

page as material plaintiffs rely on in their opposition but are

25

properly identified and protected by privilege.

26

plaintiffs’ amended request to seal includes portions of the

27

depositions of Stephanie Cole, Gregory Dyer, Richard Harris, and

28

Charles Curtis; a portion of an email conversation between Ms.

Instead, these excerpts fall on the same

3

Specifically,

1

Cole and insured; and portions of the May 20, 2016 Expert Report

2

of Guy Kornblum.

3

plaintiffs and their attorneys regarding the merits of the

4

underlying state court action, which this court has recognized as

5

potentially protected.

6

These excerpts relate to conversations between

Accordingly the court will remove from the public

7

docket the following pages: exhibit 2 at lines 5-6 of the email

8

from Stephanie Cole dated June 17, 2011, at 11:49 AM; exhibit 3

9

at 157:1-3, 5, 222:11-18, 242:6-20, deposition transcript of Ms.

10

Cole; exhibit 5 at 37:9-18, 38:4-7, deposition transcript of

11

attorney Gregory Dyer; exhibit 11 at pages 12 to 16, expert

12

report of Guy Kornblum; exhibit 13 at 47:16-24, 58:2, deposition

13

transcript of attorney Richard Harris; and exhibit 17 at 29:17-

14

25, 85:17-24, 91:20-22, deposition transcript of Charles Curtis.

15

Plaintiffs’ request to seal certain portions of their

16

opposition to motion for summary judgment fails for the same

17

reasons as the requests to seal portions of certain exhibits.

18

Plaintiffs do not establish why their interest in sealing these

19

portions of their opposition to summary judgment outweighs the

20

public’s interest in disclosure and access.

21

F.3d at 1178.

22

this court’s previous orders, the court will deny plaintiffs’

23

amended request to seal certain portions of their opposition to

24

motion for summary judgment.

25

See Kamakana, 447

For the reasons stated above and the reasons in

IT IS THEREFORE ORDERED that plaintiffs’ amended

26

request to seal in connection with its opposition to defendant’s

27

motion for summary judgment (Docket No. 78) be, and the same

28

hereby is, GRANTED in part and DENIED in part.
4

The court will

1

remove from the public docket the following portions of the

2

exhibits filed in connection with plaintiffs’ opposition to

3

motion for summary judgment: exhibit 2 at lines 5-6 of the email

4

from Stephanie Cole dated June 17, 2011, at 11:49 AM (Docket No.

5

85-5); exhibit 3 at 157:1-3, 5, 222:11-18, 242:6-20, deposition

6

transcript of Ms. Cole (Docket No. 85-5); exhibit 5 at 37:9-18,

7

38:4-7, deposition transcript of attorney Gregory Dyer (Docket

8

No. 85-6); exhibit 11 at pages 12 to 16, expert report of Guy

9

Kornblum (Docket No. 85-7); exhibit 13 at 47:16-24, 58:2,

10

deposition transcript of attorney Richard Harris (Docket No. 85-

11

7); and exhibit 17 at 29:17-25, 85:17-24, 91:20-22, deposition

12

transcript of Charles Curtis (Docket No. 85-8).

13

IT IS FURTHER ORDERED that plaintiffs’ amended request

14

to seal certain portions of their opposition to motion for

15

summary judgment (Docket No. 86) be, and the same hereby is,

16

DENIED.

17

Dated:

September 22, 2016

18
19
20
21
22
23
24
25
26
27
28
5