Hayes et al v. DePuy Synthes Sales, Inc. et al

Filing 58

ORDER signed by District Judge Troy L. Nunley on 12/8/17 ORDERING that the Defendants' Request to Seal (ECF No. 56 ) is hereby DENIED without prejudice. Defendants may refile the request once they have provided appropriate compelling reasons for each portion of the document which they seek to redact and determine a suitable amount of redaction.(Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDWIN HOUSTON HAYES, GREG
KNAPP, and MARK PANOZZO,
Plaintiffs,

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No. 2:15-cv-01200-TLN-DB

ORDER DENYING REQUEST TO SEAL
v.
DEPUY SYNTHES SALES, INC., et al.,
Defendants.

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This matter is before the Court on Defendants DePuy Synthes Sales, Inc., Johnson &

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Johnson Services, Inc., Synthes, Inc., and Synthes USA Sales, LLC’s (collectively “Defendants”)

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unopposed request to seal. (ECF No. 56.) Defendants request the Court seal Exhibit 25 to

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Defendants’ motion for summary judgment (ECF No. 50). Exhibit 25 is a confidential settlement

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agreement entered into in a separate court action. Defendants submitted a proposed redacted

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version which consisted of large black boxes over the entirety of the agreement except for two

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sections — section 7 and 8. For the reasons set forth below, the Request to Seal (ECF No. 56) is

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DENIED.

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Ninth Circuit precedent recognizes a strong common law presumption in favor of public

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access to court records. See, e.g., Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135

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(9th Cir. 2003). Defendants bear the burden of overcoming this presumption by demonstrating
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there is a “compelling reason” for sealing the requested items. Kamakana v. City & Cty. of

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Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). “To seal the records, the district court must

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articulate a factual basis for each compelling reason to seal.” In re Midland Nat. Life Ins. Co.

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Annuity Sales Practices Litig., 686 F.3d 1115, 1119 (9th Cir. 2012) (emphasis added).

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Here, Defendants have not provided compelling reasons for sealing the entirety of the

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confidential settlement agreement absent sections 7 and 8. Defendants propound three reasons

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the Court should seal Exhibit 25. First Defendants contend confidential settlement agreements

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are precisely the type of discovery contemplated under Federal Rule of Civil Procedure 26(c)

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which courts have discretion to protect. Second, Defendants argue the agreement contains an

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express confidentiality provision and Defendants would be significantly disadvantaged in

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resolving future disputes if this agreement is available. Finally, Defendants assert the request is

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narrowly tailored to protect the privacy of the parties and what is redacted is irrelevant to the

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action.

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First, the Ninth Circuit explained in Kamakana that during discovery parties need only

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show “good cause” to seal documents pursuant to Federal Rule of Civil Procedure 26(c).

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Kamakana, 447 F.3d at 1179–80. However, “a ‘good cause’ showing will not, without more,

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satisfy a ‘compelling reasons’ test.” Id. at 1180. Thus, Defendants’ reliance on protective orders

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and Federal Rule of Civil Procedure 26(c) is misplaced as the standard is heightened when the

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documents are attached to dispositive motions. Id.

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The last two arguments may be discussed as one. “Precisely what constitutes a

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‘compelling interest’ is not easily defined.” Republican Party of Minnesota v. White, 416 F.3d

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738, 749 (8th Cir. 2005) (en banc). The Court is aware that “[t]he federal common law right of

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access is not absolute, and is not entitled to the same level of protection accorded a constitutional

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right.” San Jose Mercury News, Inc. v. U.S. Dist. Court--N. Dist. (San Jose), 187 F.3d 1096,

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1102 (9th Cir. 1999). Nevertheless, the point remains that the precise contours of what makes an

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interest “compelling” are somewhat hard to define. However as explained by Kamakana:

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In general, ‘compelling reasons’ sufficient to outweigh the public's
interest in disclosure and justify sealing court records exist when
such court files might have become a vehicle for improper
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purposes, such as the use of records to gratify private spite, promote
public scandal, circulate libelous statements, or release trade
secrets.

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Kamakana, 447 F.3d at 1179 (some internal quotation marks omitted).
Upon review Defendants’ arguments — that making the information publically available

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would disadvantage Defendants in future negotiations of settlements and that the information is

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irrelevant — do not fit into either of the enumerate categories. Furthermore, Defendants do not

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outline a compelling reason to seal each portion of the settlement agreement, but rather block out

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the entire agreement that does not suit their ends. A simple review of the document shows that

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not all of the sections need to be redacted. For example, Section 1 of the agreement is merely a

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description of the parties involved in the settlement agreement. The Court without more cannot

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seal the document and permit the redactions as provided. Defendants bear the burden to explain

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with specificity the compelling reasons for redacting each section. Defendants have failed to do

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so.

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Accordingly, Defendants’ Request to Seal (ECF No. 56) is hereby DENIED without

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prejudice. Defendants may refile the request once they have provided appropriate compelling

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reasons for each portion of the document which they seek to redact and determine a suitable

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amount of redaction.

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IT IS SO ORDERED.
Dated: December 8, 2017

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Troy L. Nunley
United States District Judge

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