Martin v. Wells Fargo Bank, N.A.

Filing 61

ORDER RE: MOTIONS TO SEAL 54 56 (Illston, Susan) (Filed on 9/30/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California

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MADELINE MARTIN, on behalf of herself and
all others similarly situated,

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Case No. CV 12-06030 SI
ORDER RE: MOTIONS TO SEAL

Plaintiff,
v.
WELLS FARGO BANK, N.A.,

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Defendant.

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On March 7, 2013, defendant filed a Motion to Compel Arbitration. Docket No. 30. On August

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16, 2013, plaintiff filed an Opposition to defendant’s Motion to Compel Arbitration and an

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Administrative Motion to File Under Seal. Docket Nos. 53-54. Currently before the Court is plaintiff’s

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Administrative Motion to File Under Seal the following documents: (1) plaintiff’s evidentiary

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objections to declarations of Marcus O’Sullivan and Joan Larsen submitted in support of defendant’s

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Motion to Compel Arbitration (“Objections”) and (2) Exhibits A, B, and D to the declaration of Nicole

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D. Reynolds submitted in opposition to defendant’s Motion to Compel Arbitration (“Reynolds

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Declaration”).

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On September 4, 2013, the defendant filed a Reply Brief in support of its motion to compel

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arbitration (“Reply Brief”) and the declaration of counsel Eric J. Troutman in support of the Motion to

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Compel Arbitration (“Troutman Reply Declaration”). Docket Nos. 57-58. On September 4, 2013, the

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parties jointly filed a Stipulation to File Confidential Exhibits and Materials Under Seal (“Stipulation

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to File Under Seal”). Docket No. 56. Also currently before the Court is the parties’ Stipulation to File

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Under Seal the following documents: (1) two exhibits to the Larsen Deposition1 and (2) certain material

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within the Reply Brief and the Troutman Reply Declaration that make reference to those portions of the

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Larsen Deposition.

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BACKGROUND
In response to plaintiff’s August 16, 2013 Administrative Motion to File Under Seal, on August

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23, 2013, defendant filed the Declaration of Kalama M. Lui-Kwan (“Lui-Kwan Declaration”)

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designating the Objections and Reynolds Declaration Exhibits A, B, and D confidential.2 See Docket

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No. 55 ¶¶ 3-6. Defendant proposed maintaining under seal identified portions of Exhibit A and B as

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United States District Court
For the Northern District of California

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well as identified portions of the Objections because they contain “private, non-public information about

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Wells Fargo’s employees.” Id. ¶¶ 8, 10 & 13. Defendant proposed maintaining identified portions of

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Exhibits A, B, and D as well as identified portions of the Objections under seal because they contain

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“private non public information about Wells Fargo’s internal processes and customer accounts that

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could benefit competitor banks at Wells Fargo’s expense.” Id. ¶¶ 7, 9, 11-12.

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On September 9, 2013, defendant filed a second Declaration of Eric J. Troutman, this time in

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support of the joint Stipulation to File Under Seal (“Troutman Stipulation Declaration”) designating

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Troutman Reply Exhibits A and B and portions of the Reply Brief as confidential by Wells Fargo.3 See

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Docket No. 56-2 ¶¶ 2-3. Defendant proposed maintaining under seal Troutman Reply Exhibits A and

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B and the identified portions of the Reply Brief because they contain “private, nonpublic information

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about Wells Fargo’s internal processes and customer accounts that could benefit competitor banks at

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Batestamped as 0001330 and 0001336. Stipulation ¶ 2. These exhibits also happen to be
Exhibits A and B of the Declaration of Eric J. Troutman in Support of the Stipulation to File Under Seal.
For simplicity’s sake the Court will refer to the exhibits as Troutman Reply Declaration Exhibits A and
B.
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Pursuant to Civil Local Rule 7-5(d), within 7 days the party designating the document as
confidential must file with the Court and serve a declaration establishing that the designated information
is sealable, and must lodge and serve a narrowly tailored proposed sealing order, or must withdraw the
designation of confidentiality.
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All were designated “Confidential” by Wells Fargo under the Stipulated Protective Order
granted by this court on June 19, 2013. Docket No. 44.
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Wells Fargo’s expense, and also contain personal information regarding plaintiff’s financial information

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that should remain sealed.” Id. ¶ 2-3.

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LEGAL STANDARD

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With the exception of a narrow range of documents that are “traditionally kept secret,” courts

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begin their sealing analysis with “a strong presumption in favor of access.” Foltz v. State Farm Mut.

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Auto. Ins., 331 F.3d 1122, 1135 (9th Cir. 2003). When applying to file documents under seal in

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connection with a dispositive motion, the submitting party bears the burden of “articulating compelling

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reasons supported by specific factual findings that outweigh the general history of access and the public

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United States District Court
For the Northern District of California

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policies favoring disclosure, such as the public interest in understanding the judicial process.”

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Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (internal quotations

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and citations omitted). When a party seeks to seal documents attached to a non-dispositive motion, a

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showing of “good cause” under Federal Rule of Civil Procedure 26(c) is sufficient. Kamakana, 447

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F.3d at 1179-80; see also Fed. R. Civ. P. 26(c). All requests to file under seal must be “narrowly

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tailored,” such that only sealable information is sought to be redacted from public access. Civil Local

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Rule 79-5(a).

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DISCUSSION

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To determine which standard applies to plaintiff’s Administrative Motion to File Under Seal

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(Docket No. 54) and the parties’ Stipulation to File Under Seal (Docket No. 56), the Court must first

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determine whether the underlying motion to compel arbitration is a dispositive or non-dispositive

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motion. The Ninth Circuit has not provided guidance on distinguishing dispositive from non-dispositive

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motions, in the sealing context. In re Nat'l Sec. Agency Telecommunications Records Litig., 2007 WL

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549854 (N.D. Cal. Feb. 20, 2007) (noting a “lack of explicit guidance on this issue”). Absent specific

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guidance “the court looks to the underlying rationale for distinguishing between dispositive and

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non-dispositive motions.” Id.

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Even so, district courts differ on whether a motion to compel arbitration is a dispositive or non-

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dispositive motion for sealing purposes. Compare Leal v. Chapman Chevrolet, L.L.C., 2006 U.S. Dist.

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LEXIS 38586, at *3 (D. Ariz. June 9, 2006) (stating that “a motion to compel arbitration, even a

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stipulation to such, may be deemed a dispositive motion, as a motion to remand is”), and Flannery v.

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Tri–State Div., 402 F. Supp. 2d 819, 821 (E.D. Mich. 2005) (finding a motion to compel arbitration

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dispositive because “the effect of the magistrate judge's order is to terminate the litigation in this Court

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and transfer the case to another forum for a determination of the merits”), with Herko v. Metropolitan

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Life Ins. Co., 978 F. Supp. 141, 142 n.1 (W.D.N.Y. 1997) (concluding that a motion to compel

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arbitration is not a dispositive motion because “the FAA provides that there is no final exercise of

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United States District Court
For the Northern District of California

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Article III power until after arbitration is complete and the arbitrator's decision is either affirmed,

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modified, or vacated by the district court judge where the actions remain lodged”), and Gonzalez v. GE

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Group Adm'rs, Inc., 321 F. Supp. 2d 165, 166-67 (D. Mass. 2004) (noting that orders to stay

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proceedings pending arbitration and to compel arbitration are non-dispositive orders).

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The Court need not pause long on this disagreement because here the parties failed to make a

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showing under either the compelling reasons standard for dispositive motions or the lower good cause

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standard for non-dispositive motions. To make the lower showing of good cause, the moving party must

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make a “particularized showing” that “specific prejudice or harm” will result if the information is

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disclosed. Kamakana, 447 F.3d at 1180, 1186. “Simply mentioning a general category of privilege,

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without any further elaboration or any specific linkage with the documents, does not satisfy the burden.”

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Id. at 1184. Neither do “[b]road allegations of harm, unsubstantiated by specific examples or articulated

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reasoning.” Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1211 (9th Cir.

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2002) (citations omitted).

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The Lui-Kwan Declaration submitted in support of plaintiff’s Administrative Motion to File

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Under Seal, while providing page and line numbers, asserts only two general justifications—competitive

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harm and privacy. This language amounts to general claims of competitive harm and privacy without

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any “particularized showing” that “specific prejudice or harm will result” with the disclosure of this

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referenced information. Kamakana, 447 F.3d at 1180, 1186. The Lui-Kwan declaration includes

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nothing about the measures Wells Fargo takes to maintain confidentiality and fails to describe the
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competitive harm Wells Fargo would suffer from disclosure. This is insufficient to demonstrate good

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cause to seal. Therefore, the Court DENIES plaintiff’s Administrative Motion to File Under Seal

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information relating to competitive harm and privacy.
Similarly, the Troutman Stipulation Declaration highlights portions of the documents both

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parties request to seal, but again provides only two general justifications—competitive harm and

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privacy. In the Troutman Stipulation Declaration, the exact language Wells Fargo uses to claim

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competitive harm is identical to the Lui-Kwan Declaration language claiming competitive harm. Like

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the Lui-Kwan declaration, the Troutman Stipulation Declaration includes nothing about the measures

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Wells Fargo takes to maintain confidentiality and fails to describe the competitive harm Wells Fargo

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United States District Court
For the Northern District of California

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would suffer from disclosure. This again is insufficient to demonstrate good cause. Therefore, the

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Court DENIES the joint Stipulation to File Under Seal information relating to competitive harm.

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Additionally, the Troutman Stipulation Declaration requests “personal information regarding

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plaintiff’s financial information should remain sealed,” providing only a general justification of privacy.

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The plaintiff’s full bank account number is referenced in full in the following portions:

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a.

Reply Brief Page 8:13-16

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b.

Reply Brief Page 8:23-25

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c.

Troutman Declaration Exhibit A

18 The parties’ justification language amounts to a general claim of privacy that lacks specificity to any
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21 the references to plaintiff’s full bank account number pursuant to Federal Rule of Civil Procedure 5.2
22 requiring that a party or nonparty making the filing may include only the last four digits of the financial23 account number and provide no specific mention of the full bank account number
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This resolves Docket Nos. 54 and 56.
IT IS SO ORDERED.

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Dated: September 30, 2013
SUSAN ILLSTON
United States District Judge

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