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

Filing 87

ORDER signed by Judge Garland E. Burrell, Jr on 8/5/15 ORDERING that Defendants' Request to seal Exhibits 1, 5, 7, 13, and 17 is DENIED; Further, Defendants' Request to file a redacted version of their Opposition is DENIED since Defendants have not shown that any referenced exhibit or declaration should be sealed.(Mena-Sanchez, L)

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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 REGARDING JULY 31, 2015
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 July 31, 2015, the parties submitted for in camera

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consideration a Stipulated Request to Seal Class Certification

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Opposition

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documents sought to be sealed, a proposed redacted version of

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Defendants’

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Certification (“Opposition”), and a proposed sealing order.

Documents,

a

declaration

Opposition

to

in

Plaintiffs’

support

thereof,

Motion

for

the

Class

The parties seek to file the following documents under

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seal

for

a

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version

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Evans in Support thereof, and exhibits 1-3, 5, 7, and 13-17 to

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the Declaration of Alyssa Sussman in support thereof. The parties

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argue:

of

period

of

Defendants’

no

less

than

Opposition,

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six
the

years:

an

Declaration

unredacted
of

Sandra

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All of [these] documents have been
designated as “CONFIDENTIAL” pursuant to the
Parties’ Stipulated Protective Order and
there is good cause to seal these documents.
Some of these documents contain [Defendants’]
confidential
and
proprietary
information . . . that is not available to
[their] competitors or the public at large.
Public disclosure of this information would
harm [Defendants] and put [them] at a
competitive disadvantage. Other of these
documents
contain
personal
financial
information of Plaintiffs.

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(Notice Stipulated Req. to Seal (“Notice”) 1:24-2:2, ECF No. 85.)

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Specifically, the parties argue:

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5
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These documents contain information that
constitutes a trade secret, and/or reflecting
non-public
business
strategies,
and/or
confidential competitive information which,
if disclosed, would result in competitive
harm to [Defendants]. Courts regularly find
that confidential and proprietary information
is
properly
designated
confidential
and
should be filed under seal.
Exhibits 1-3, 5, 7, and 13-17[,] and the
Declaration of Sandra Evans in support of the
Opposition
meet
this
standard.
These
documents contain information related to
[Defendants’] loan servicing and modification
practices
that
are
proprietary
to
[Defendants]. [Defendants’] loan servicing
and
modification
practices
are
complex
business
operations
that
depend
on
a
sophisticated body of internal policies and
procedures that require significant time and
human resources to develop and thus have
substantial value to the bank. Filing them on
a
public
docket
would
disadvantage
[Defendants] by making information about
[their]
proprietary,
internal
policies
available to other institutions that have not
invested the time and resources necessary to
develop them.
[Defendants] take[] reasonable efforts
to maintain the secrecy of this valuable and
sensitive information, which is not generally
known to the public or to [Defendants’]
competitors. Because the disclosure of these
documents would be harmful to [Defendants] by
providing [their] competitors the opportunity
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to create or modify their own practices and
procedures to match (or beat) [Defendants’],
good cause exists to file these documents
under seal.

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In addition, Exhibits 5, 7, 13, and 17
contain individual personal information that
is
protected
from
disclosure,
borrower
specific and/or credit applicant specific
information that is derived using nonpublic
personal
information,
and/or
information
regarding Plaintiffs’ banking or lending
relationships,
including . . . information
regarding [Plaintiffs’] mortgage or credit
history.

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(Id. at 4:4-4:10, 5:6-6:8 (internal quotation marks, citations,

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5
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7

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and alteration omitted).)
The

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parties

also

“request

an

order

permitting

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[Defendant] to file a redacted version of its Opposition . . . ,

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because portions of the brief reference or discuss confidential

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or

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exhibits and declaration.” (Notice 2:5-9.)

proprietary

contained

in

the

aforementioned

I. LEGAL STANDARD

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information

“Two

standards

generally

govern

[requests]

to

seal

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documents . . . .” Pintos v. Pac. Creditors Ass’n, 605 F.3d 665,

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677 (9th Cir. 2010). “[J]udicial records attached to dispositive

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motions [are treated] differently from records attached to non-

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dispositive motions.” Kamakana v. City and Cnty. of Honolulu, 447

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F.3d 1172, 1180 (9th Cir. 2006). “[A] party seeking to seal a

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judicial record attached to a dispositive motion or one that is

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presented at trial must articulate ‘compelling reasons’ in favor

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of sealing.” Williams v. U.S. Bank Nat’l Ass’n, 290 F.R.D. 600,

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604 (E.D. Cal. 2013) (citing Kamakana, 447 F.3d at 1178). In

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contrast, “a party seeking to seal a document attached to a non-

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dispositive motion need only demonstrate ‘good cause’ to justify
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sealing.” Williams, 290 F.R.D. at 604 (citing Pintos, 605 F.3d at

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678).

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Even

under

the

lesser

“good

cause”

standard,

“‘the

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party seeking protection bears the burden of showing specific

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prejudice or harm will result’ if the request to seal is denied.”

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Ross

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2700901, at *2 (E.D. Cal. June 13, 2014) (quoting Phillips ex

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rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210–11

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(9th

v.

Bar

Cir.

None

Enters.,

2002)).

The

No.

2:13-cv-00234-KJM-KJN,

movant

“must

make

a

2014

WL

‘particularized

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showing’ with respect to any individual document in order to

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justify [its] sealing . . . .” Herskowitz v. Apple, Inc., No. 12-

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

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(quoting

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harm,

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reasoning’

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

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476 (9th Cir. 1992)).

Kamakana,

447

unsubstantiated
are

F.3d
by

at

1180).

specific

insufficient.”

“‘Broad

allegations

examples

or

2014

2700901,

Ross,

WL

of

articulated
at

*2

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The Court need not decide which standard applies to the

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instant request since the parties have not provided sufficient

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justification to seal any document under the lesser good cause

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standard.

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II. DISCUSSION

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Defendants have not shown good cause to seal Exhibits 2

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and 3 (portions of certain deposition transcripts) and Sandra

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Evans’

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Defendants’

loan

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information

discussed

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Therefore, Defendants’ request to seal these documents is DENIED.

Declaration.

Although

servicing
is

and
too

these

modification
general

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documents

to

reference

practices,
warrant

the

sealing.

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Defendants
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also

have

of

good

America

cause

seal

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agreements). “Although [Defendants] identif[y] the [documents] as

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proprietary and confidential, [Defendants have] not provide[d]

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reasons

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disadvantage if the [documents] were publically available.” Welle

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v.

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(KAW), 2013 WL 6055369, at *2 (N.D. Cal. Nov. 14, 2013). “[W]hile

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[Defendants] assert[] competitive harm may result, [they] ha[ve]

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not shown why that is likely to be the case.” Id.; see also

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Martin v. Wells Fargo Bank, N.A., No. CV 12-06030 SI, 2013 WL

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5441973, at *2-3 (N.D. Cal. Sept. 30, 2013) (“Simply mentioning a

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general category of privilege without any further elaboration or

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any specific linkage with the documents does not satisfy the

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burden. Neither do broad allegations of harm, unsubstantiated by

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specific examples or articulated reasoning.” (internal quotation

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marks,

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Defendants’ request to seal Exhibits 14-16 is DENIED.

Provident

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Life

&

citations,

The

boilerplate

Accident

and

remainder

references

Ins.

Co.,

alteration

of

loan

to

Exhibits

the

Bank

shown

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beyond

(sample

not

No.

modification

to

competitive

3:12-cv-3016

omitted)).

Defendants’

June

2,

EMC

Therefore,

2015

sealing

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request, i.e., the request to seal Exhibits 1, 5, 7, 13, and 17,

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is

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redactions would not adequately protect the privacy interests

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concerning credit histories and personal financial information.1

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“Because

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records[,]” “[s]ealing orders . . .

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Perry v. City & Cnty. of S.F., No. 10-16696, 2011 WL 2419868, at

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overbroad

of

since

the

Defendants

strong

have

presumption

not

of

shown

access

why

to

targeted

[court]

must be narrowly tailored.”

Federal Rule of Civil Procedure 5.2(a) authorizes parties to redact,
without obtaining a court order, portions of a person’s financial-account
number.

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*21 (9th Cir. 2011). Therefore, “any interest justifying closure

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must

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showing] that the [sealing requested] is narrowly confined to

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protect that interest.” Id. (internal quotation marks, citation,

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and

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must . . . use

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completely frustrate the public’s . . . right[] of access.” Id.

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For example, “[i]n many cases, courts can accommodate [privacy]

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concerns by redacting sensitive information rather than [sealing]

be

specified

emphasis

materials

with

omitted).
less

particularity,

“For

this

restrictive

any

alternatives

sealing
that

do

not

2011); see also Press-Enterprise Co. v. Sup. Ct., 464 U.S. 501,

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513 (1984) (“Those parts of the transcript reasonably entitled to

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privacy

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order . . . .”). Therefore, Defendants’ request to seal Exhibits

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1, 5, 7, 13, and 17 is DENIED.

such

of

order

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without

Bus.

[a

Battlefield Museum & Store, 658 F.3d 1188, 1195 n.5 (9th Cir.

sealed

v.

be

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been

States

must

the

have

United

reason,

there

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could

entirely.”

and

a

Custer

sweeping

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Further, Defendants’ request to file a redacted version

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of their Opposition is DENIED since Defendants have not shown

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that any referenced exhibit or declaration should be sealed.

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Dated:

August 5, 2015

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