Ellsworth v. U.S. Bank, N.A.

Filing 126

Order by Magistrate Judge Laurel Beeler granting in part and denying in part 120 Administrative Motion to File Under Seal.(lblc1S, COURT STAFF) (Filed on 10/18/2013)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

Northern District of California

10

San Francisco Division

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

STEPHEN ELLSWORTH, as an individual
and as a Representative of the classes and on
behalf of the general public,

13

Plaintiff,
v.

14
15

U.S. BANK, N.A., and AMERICAN
SECURITY INSURANCE COMPANY,

16

No. C 12-02506 LB
ORDER GRANTING IN PART AND
DENYING IN PART PLAINITFF’S
ADMINISTRATIVE MOTION TO FILE
UNDER SEAL

Defendants.
_____________________________________/

[ECF No. 120]

17
18

On September 24, 2013, Plaintiff Stephen Ellsworth filed an administrative motion to file under

19

seal a number of exhibits he cites in support of his motion for class certification. See Admin. Mot.,

20

ECF No. 120.1 In accordance with the then-applicable local rules, Ellsworth electronically filed

21

redacted copies of his motion and the exhibits at issue, and he lodged unredacted copies of them

22

with the court. See N.D. Cal. Civ. L.R. 79-5 (superseded October 1, 2013). On October 1, 2013,

23

U.S. Bank filed a declaration in support of Ellsworth’s sealing motion. See Tahdooahnippah Decl.,

24

ECF No. 121. ASIC filed its declaration in support of the sealing motion the same day. See Wilson

25

Decl., ECF No. 122. For the reasons explained below, the court GRANTS IN PART and DENIES

26
27
1

28

Citations are to the Electronic Case File (“ECF”) with pin cites to the electronicallygenerated page numbers at the top of the document.

C 12-02506 LB (ORDER)

1

IN PART Ellsworth’s administrative motion to file under seal.

“Historically, courts have recognized a ‘general right to inspect and copy public records and

4

documents, including judicial records and documents.’” Kamakana v. City and Cnty. Of Honolulu,

5

447 F.3d 1172, 1178 (9th Cir. 2006). A party that seeks to file under seal a document attached to a

6

non-dispositive motion must demonstrate good cause to do so because the public interest favors

7

filing all court documents in the public record. Pintos v. Pac. Creditors Ass’n, 565 F.3d 1106, 1115

8

(9th Cir. 2009). Good cause “cannot be established simply by showing that the document is subject

9

to a protective order or by stating in general terms that the material is considered to be confidential,

10

but rather must be supported by a sworn declaration demonstrating with particularity the need to file

11

each document under seal.” Bain v. AstraZeneca LP, No. C 09-4147 CW, 2011 WL 482767, at *1

12
For the Northern District of California

DISCUSSION

3

UNITED STATES DISTRICT COURT

2

(N.D. Cal. Feb. 7, 2011); see Kamakana, 447 F.3d at 1179-80 (requiring a “particularized

13

showing”).

14

In addition to making particularized showings of good cause, parties moving to seal documents

15

must comply with the procedures established by Civil Local Rule 79-5. That rule permits sealing

16

only where the party establishes that “the document, or portions thereof, are privileged, protecable as

17

a trade secret or otherwise entitled to protection under the law.” Civil L.R. 79-5(b). The request to

18

seal must be “narrowly tailored to seek sealing only of sealable material.” Id. “Reference to a

19

stipulation or protective order that allows a party to designate certain documents as confidential is

20

not sufficient to establish that a document, or portions thereof, are sealable.” Civil L.R. 79-

21

5(d)(1)(A).

22

Here, Ellsworth seeks to file under seal large portions of his class certification motion, portions

23

of the Richter Declaration, sixteen exhibits attached to the Richter declaration, and one exhibit

24

attached to Ellsworth’s own declaration. See Sealing Motion, ECF No. 120 at 2-3. The exhibits

25

attached to the Richter Declaration include deposition transcripts (Exs. 1-6), policy and procedure

26

manuals (Exs. 7, 14), contracts (Exs. 8-13, 16), and an annual review of the lender placed insurance

27

services ASIC provided to U.S. Bank (Ex. 15). Finally, Ellsworth seeks to seal Exhibit 5 to his

28

declaration, which appears to be a copy of his own insurance policy. The sole basis for Ellsworths’s

C 12-02506 LB (ORDER)

2

1

sealing motion is that U.S. Bank or ASIC designated this information as confidential under the

2

stipulated protective order. See Sealing Motion, ECF No. 120 at 3-4.

3

On October 1, 2013, U.S. Bank and ASIC filed declarations in support of their sealing requests

4

as required by the Local Rule 79-5. See ECF Nos. 121-22. Below, the court addresses the

5

sufficiency of Defendants’ showings in the context of the specific documents.

6

I. ELLSWORTH’S CLASS CERTIFICATION MOTION

Declaration under seal because they quote or contain information that U.S. Bank or ASIC designated

9

confidential under the protective order. See Redacted versions of Class Certification Motion and the

10

Richter Declaration and ECF Nos. 119 and 119-1, respectively). U.S Bank and ASIC argue that the

11

motion should be sealed wherever it references information they deem confidential. See

12
For the Northern District of California

Ellsworth filed large portions of his class certification motion and the accompanying Richter

8

UNITED STATES DISTRICT COURT

7

Tahdooahnippah Decl., ECF No. 121, ¶ 15; Wilson Decl., ECF No. 122, passim. But just because a

13

particular document may be sealable does not mean that mere references to it are similarly sensitive.

14

This is a motion for class certification, and the public has a strong interest in knowing the

15

theories of liability. The outlines of these theories already are in public records. The only difference

16

here is that there are references to the supporting evidence. But the motion does not (for the most

17

part) contain confidential information such as contract terms. Accordingly, the court finds that

18

Defendants have not shown good cause for sealing the class certification motion to the extent they

19

request. Because ASIC links specific passages in the motion to the reasons for sealing the

20

corresponding exhibits, however, the court reviewed the unredacted class certification motion and

21

grants the motion to seal only as to the following passages.

22

Page

Lines

Note

23

2

16

Starting after “had” and
ending at “business”

2

19

The word after “Bank’s”

3

2

Starting after “gave ASIC” to
“force-place”

4

18-24

Starting after “equal’

4

n.6

24
25
26
27
28

C 12-02506 LB (ORDER)

3

1

5

6-20

Only the deposition quotation

2

5

23

Starting after “for” to “forceplace”

6

3-18

Starting after “received”

6

n.7

7

17-21

Just the figures under “2010”
and “2011” and in line 21.

7

11

11

Starting after “was” to the
citation

8

11

19-23

Ending with “In”

9

13

16

Just the number

10

13

n.12

Just the numbers of flood
policies

3
4
5
6

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11
Except for the passages designated above, the court DENIES the sealing motion.

13

II. THE RICHTER DECLARATION

14

Ellsworth redacted those portions of the Richter Declaration that reference information about the

15

size and scope of the class,2 list some of the categories of information about the class that ASIC

16

produced, and refer generally to a business relationship between a U.S. Bank entity and ASIC.

17

See Richter Decl., ¶ 22-25, 37(d). As above, Defendants contend that these passages should be

18

sealed because they reference confidential documents. This is not good cause. The court finds good

19

cause to seal only the specific numbers of force-placed flood insurance policies identified in

20

paragraph 24. Accordingly, the court GRANTS IN PART AND DENIES IN PART Ellsworth’s

21

motion with regard to the Richter Declaration (but not the exhibits discussed below).

22

III. THE BUSINESS DOCUMENTS AND THE ELLSWORTH DECLARATION

23

U.S. Bank and ASIC explain that Exhibits 7 and 14 are their internal policy and procedures

24

manuals for lender placed insurance operations. See Tahdooahnippah Decl. ¶ 11; Wilson Decl. ¶ 11.

25

Exhibits 8-13 and 16 are contracts between U.S. Bank and ASIC. Tahdooahnippah Decl. ¶ 12;

26
27
28

2

ASIC states that the underlying class data it produced includes confidential information,
but does not argue that the aggregate data in the Richter Declaration is sealable.

C 12-02506 LB (ORDER)

4

1

Wilson Decl. ¶¶ 12, 14. Finally, Exhibit 15 is ASIC’s annual review of the services it provided U.S.

2

Bank. Wilson Decl. ¶ 13. Defendants explain the business reasons for filing these documents under

3

seal. These constitute good cause. Accordingly, the court GRANTS Ellsworth’s motion to seal with

4

respect to Exhibits 7-16 to the Richter Declaration.

5

Finally, Ellsworth moves to file under seal Exhibit 5 to his declaration, which U.S. Bank

6

designated as confidential. See Richter Decl., ECF No. 120 at 3. U.S. Bank does not mention this

7

document, and the court thus finds no good cause to file it under seal. Accordingly, the court

8

DENIES the motion to seal as it pertains to this document.

9

IV. DEPOSITION TRANSCRIPTS

10

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

The Richter Declaration Exhibits 1 through 6 are complete deposition transcripts that U.S. Bank
or ASIC (depending on the deposition) designated as confidential under the protective order.
U.S. Bank objects to Ellsworth’s filing entire deposition transcripts instead of just those portions

13

of the transcripts upon which Ellsworth relied. See id. at 3. It also argues that portions of the

14

deposition transcripts lodged as Exhibits 1, 4, and 5 to the Richter declaration constitute “sensitive

15

personal, financial, and/or commercial information” under the protective order. Tahdooahnippah

16

Decl., ECF No. 121 at 3-4. U.S. Bank provides good cause for sealing portions of the transcripts but

17

the court cannot tell which portions.

18

ASIC designates limited portions of Exhibits 2-6 as confidential but also supports U.S. Bank’s

19

blanket designations. See Wilson Decl., ECF No. 122, ¶¶ 3-9. Also ASIC helpfully filed less

20

redacted copies of several of the deposition transcripts. See id. Exs. C-E.

21

Still, there are several problems with the filings. First, U.S. Bank does not show good cause to

22

seal the deposition transcripts in their entirety, but its justifications likely would support sealing

23

portions of them. Second, though ASIC’s redactions are helpful, it is not a good use of judicial

24

resources for the court to review side-by-side the complete redacted and unredacted transcripts of 6

25

depositions to determine what should be sealed. Third, Local Rule 79-5 was amended, effective the

26

same day that U.S. Bank and ASIC filed their declarations. Among other things, the amended rule

27

requires the parties to e-file under seal (not lodge) an unredacted version of the document with the

28

publicly redacted portions highlighted. Finally, the court recognizes that there are differing schools

C 12-02506 LB (ORDER)

5

1

of thought regarding whether it is better to file complete deposition transcripts or only the relevant

2

portions (the cited material and necessary context). Generally, full transcripts can provide helpful

3

context, but it is not workable here to have the full transcripts given the sealing issues. Accordingly,

4

the court defers ruling on the motion to seal the deposition transcripts and orders the following:

5

1. By the close of business on Monday, October 14 (and preferably earlier), Ellsworth should

6

inform Defendants which portions of the depositions it deems relevant for its motion.

7

2. Defendants should prepare redacted and unredacted copies of the deposition portions,

8

including any additional excerpts of these depositions that they cite in their opposition briefs.

9

3. No later than October 24, 2013 (the date their opposition briefs are due), Defendants should

of the excerpted deposition transcripts, including the portions Defendants cite.3

12
For the Northern District of California

jointly provide Ellsworth’s counsel with one redacted and one unredacted (but highlighted) copy

11
UNITED STATES DISTRICT COURT

10

4. By Friday, October 26, 2013, Ellsworth should file amended redacted and unredacted copies

13

of the class certification motion, the declarations, and all exhibits, with redactions that comport

14

with this order.4 Except for the redactions and the possible addition of deposition excerpts

15

chosen by Defendants, the amended copies must be identical to those Ellsworth previously filed.

16

CONCLUSION

17

For the reasons discussed, the court GRANTS IN PART and DENIES IN PART Ellsworth’s

18

adminstrative motion to file under seal. The court (1) grants in part and denies in part the motion to

19

seal portions of Ellsworth’s class certification motion and the Richter Declaration itself (not the

20

exhibits), (2) denies the motion as to the Ellsworth Declaration Exhibit 5, (3) defers ruling on the

21

motion with respect to the Richter Declaration Exhibits 1-6, and (4) grants the motion as to the

22

Richter Declaration Exhibits 7-16.

23

This disposes of ECF No. 120.

24
25
26
27

3

In their opposition briefs, Defendants can cite to the deposition by deponent name,
transcript page, and line number.
4

If possible, please provide courtesy copies with printing on both sides of the page. See
Judge Beeler’s Standing Order.

28

C 12-02506 LB (ORDER)

6

1
2

IT IS SO ORDERED.
Dated: October 18, 2013

_______________________________
LAUREL BEELER
United States Magistrate Judge

3
4
5
6
7
8
9
10

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

C 12-02506 LB (ORDER)

7