Esquivel et al v Bank of America, N.A., et al

Filing 66

ORDER signed by Judge Garland E. Burrell, Jr. on 3/31/2015 DENYING 65 Notice of Request to Seal Document(s). (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTONIO ESQUIVEL and BEATRIZ
ESQUIVEL, individually, on
behalf of all others
similarly situated, and on
behalf of the general public,

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ORDER DENYING PLANITIFFS’
SEALING REQUEST

Plaintiffs,

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No. 2:12-cv-02502-GEB-KJN

v.
BANK OF AMERICA, N.A.; BANK
OF AMERICA CORPORATION,
Defendants.

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On March 30, 2015, Plaintiffs submitted for in camera

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consideration a Request to Seal Documents, a proposed sealing

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order,

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requested to be sealed are referenced in a publicly filed Notice

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of Request to Seal Documents as certain, itemized “exhibits . . .

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included

as

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Zinner,

Esq.

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Certification

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“Plaintiffs‟

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Appointment

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taken from these exhibits.” (Pls.‟ Notice of Req. to Seal 2:10-

and

the

.

documents

.
in

.

attachment[s]

support

and

Class

of

to

to

be

sealed.

the

Motion

Counsel[,1

of
for

Class
Class

which]

The

documents

declaration

Plaintiffs‟

Appointment

unredacted
of

sought

Motion

of

for

Noah
Class

Counsel[,]”

and

Certification

and

contain[s]

information

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A redacted version of Plaintiffs‟ class certification motion was filed
on the public docket. (See ECF No. 64.)

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14, ECF No. 65.) Plaintiffs seek to file the referenced documents

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under seal, arguing they are obligated to do so since each of the

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itemized exhibits was designated as “confidential” by Bank of

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America,

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action (Dkt. #58).” (Id. at 2:2-10.)

N.A.

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under

“Two

“the

standards

Stipulated

generally

Protective

in

this

[requests]

govern

Order

to

seal

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documents like the one at issue here.” Pintos v. Pac. Creditors

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Ass‟n, 605 F.3d 665, 677 (9th Cir. 2010). “[J]udicial records

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attached to dispositive motions [are treated] differently from

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records attached to non-dispositive motions.”

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Cnty. of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006). “Those

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who

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dispositive motions must meet the high threshold of showing that

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„compelling reasons‟ support secrecy.” Id. Whereas, “[a] „good

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cause‟

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records

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Circuit has not yet addressed whether or not, or under what

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circumstances, a motion for class certification is a dispositive

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motion for purposes of deciding what standard applies on sealing

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motions, and . . . [district] courts in [the Ninth Circuit] have

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reached different conclusions.” Herskowitz v. Apple, Inc., No.

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12-cv-02131-LHK, 2014 WL 3920036, at *2 (N.D. Cal. Aug. 7, 2014)

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(internal quotation marks, citation, and brackets omitted).

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seek

to

maintain

showing

under

attached

Here,

to

the

Rule

secrecy

26(c)

will

non-dispositive

Plaintiffs

have

of

Kamakana v. City &

documents

suffice

motions.”

neither

shown

to
Id.

attached

keep

sealed

“The

which

to

Ninth

sealing

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standard applies to their sealing request, nor demonstrated that

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the applicable standard has been met. Even under the lesser “good

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cause” standard, “„the party seeking protection bears the burden

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of showing specific prejudice or harm will result‟ if the request
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to seal is denied.” Ross v. Bar None Enterprises, No. 2:13-cv-

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00234-KJM-KJN, 2014 WL 2700901, at *2 (E.D. Cal. June 13, 2014)

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(quoting Phillips ex rel. Estates of Byrd v. Gen. Motors Corp.,

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307 F.3d 1206, 1210–11 (9th Cir. 2002)); see also Herskowitz,

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2014 WL 3920036, at *2 (“Even under the „good cause‟ standard . .

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. , a party must make a „particularized showing‟ with respect to

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any individual document in order to justify sealing the relevant

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document.”

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allegations

(quoting
of

harm,

Kamakana,

447

unsubstantiated

F.3d
by

at

1180)).

specific

“„Broad

examples

or

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articulated reasoning‟ are insufficient.” Ross, 2014 WL 2700901,

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at *2 (quoting Beckman Indus., Inc. v. Int‟l Ins. Co., 966 F.2d

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470, 476 (9th Cir. 1992)).

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For the stated reasons, Plaintiffs‟ sealing request is

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DENIED. Further, since Local Rule 141(e)(1) prescribes that if a

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sealing

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return to the submitting party the documents for which sealing

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has been denied,” the documents emailed to the courtroom deputy

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clerk for judicial in camera consideration are treated as having

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been returned to the Plaintiffs. United States v. Baez–Alcaino,

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718 F. Supp. 1503, 1507 (M.D. Fla. 1989) (indicating that when a

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judge denies a sealing request the party submitting the request

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then decides how to proceed in light of the ruling).

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Dated:

“[r]equest is denied in full or in part, the Clerk will

March 31, 2015

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