McBain v. Behr Paint Corporation

Filing 58

ORDER by Judge Maria-Elena James denying without prejudice 48 Administrative Motion to File Under Seal. Supplemental declaration due July 19, 2017. (mejlc2S, COURT STAFF) (Filed on 7/11/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RYAN MCBAIN,

Case No. 16-cv-07036-MEJ

Plaintiff,
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ORDER RE: ADMINISTRATIVE
MOTION TO FILE UNDER SEAL

v.
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BEHR PAINT CORPORATION, et al.,

Re: Dkt. No. 48

Defendants.

United States District Court
Northern District of California

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INTRODUCTION

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On June 29, 2017, Plaintiff Ryan McBain filed an administrative motion to file under seal

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portions of his Motion for Court-Authorized Notice (―Notice Motion‖) and documents attached

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thereto. Mot., Dkt. No. 48; see Notice Mot., Dkt. No. 48-3. Plaintiff seeks to seal these

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documents on the basis that Defendants Behr Paint Corporation and Behr Processing Corporation

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(together, ―Defendants‖) ―may choose to designate [the information] as ‗Confidential‘‖ pursuant

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to the parties‘ Stipulated Protective Order. Mot. at 1; see Protective Order, Dkt. No. 43. Having

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considered the parties‘ arguments, the relevant legal authority, and the record in this case, the

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Court issues the following order.

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LEGAL STANDARD
There is a ―strong presumption in favor of access‖ by the public to judicial records and

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documents accompanying dispositive motions. Kamakana v. City & Cty. of Honolulu, 447 F.3d

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1172, 1178-79 (9th Cir. 2006) (citing Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135

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(9th Cir. 2003)). To seal judicial records relating to motions that are ―more than tangentially

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related to the merits of a case,‖ Center for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1098

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(9th Cir.), cert. denied sub nom. FCA U.S. LLC v. Ctr. for Auto Safety, 137 S. Ct. 38 (2016), a

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party must ―articulate compelling reasons supported by specific factual findings,‖ Kamakana, 447

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F.3d at 1178 (internal quotation marks and citation omitted). Indeed, such showing is required

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even where ―the [] motion, or its attachments, were previously filed under seal or protective

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order.‖ Kamakana, 447 F.3d at 1179.

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The strong presumption of public access to judicial documents applies to such motions

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because the resolution of a dispute on the merits is at the heart of the interest in ensuring that the

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public understands the judicial process. Id. The presumption does not apply in the same way to

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motions that are ―not related, or only tangentially related, to the merits of a case.‖ Center for Auto

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Safety, 809 F.3d at 1099. With such motions, ―the usual presumption of the public‘s right of
access is rebutted.‖ Id. at 1179 (citing Phillips v. General Motors Corp., 307 F.3d 1206, 1213 (9th

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United States District Court
Northern District of California

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Cir. 2002). A party seeking to seal documents attached to such motions nevertheless must meet

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the lower ―good cause‖ standard under Rule 26(c). Pintos v. Pac. Creditors Ass’n, 605 F.3d 665,

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678 (9th Cir. 2010). This requires the party to make a ―particularized showing‖ that ―specific

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prejudice or harm‖ will result if the information is disclosed. Phillips, 307 F.3d at 1211. ―Broad

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allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy

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the Rule 26(c) test.‖ In re Roman Catholic Archbishop of Portland in Or., 661 F.3d 417, 424 (9th

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Cir. 2011) (internal quotation marks omitted; edits omitted).
DISCUSSION

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The Court applies the good cause standard to the Notice Motion, as it is only ―tangentially

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related to the underlying cause of action.‖ Center for Auto Safety, 809 F.3d at 1099. Determining

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whether or not to provide notice to a putative collective under the Fair Labor Standards Act, 29

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U.S.C. § 201, is not ―directly related to the merits of the case[.]‖ Center for Auto Safety, 809 F.3d

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at 1099.

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Plaintiff requests to file under seal Exhibits 1-7 to the Declaration of Ryan McBain

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(―McBain Declaration‖). See Mot.; McBain Decl., Dkt. No. 48-5. In compliance with Civil Local

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Rule 79-5(e), Defendants submit the Declaration of Damien DeLaney (―DeLaney Declaration‖).

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See DeLaney Decl., Dkt. No. 55-1. Plaintiff and Defendants describe these Exhibits as follows:

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Exhibit
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Plaintiff’s Description
―An email to McBain (addressed to all
Bay Area Sales Representatives), dated
April 9, 2017, from Regional Manager
Jim Belloli[.]‖ Mot. at 1.
―An email to McBain (addressed to
‗BEHRP Sales – All HD In-Store Reps &
Trainers‘) from Vikki Hobson and its
attachment[.]‖ Mot. at 1.
―McBain‘s job description at Behr[.]‖
Mot. at 1.

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―Excerpts from McBain‘s
‗Sales/Operations Standard Operating
Procedures Manual[.]‘‖ Mot. at 1.

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―Excerpts from McBain‘s training manual
titled ‗Sales Training Manual[.]‘‖ Mot. at
1.

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―An email to McBain (addressed to
‗BEHRP Sales – All HD In-Store Reps &
Trainers‘) dated December 9, 2017 from
Senior Vice President Kevin Jaffe and
excerpts from its slideshow attachment
titled ‗Sales Organization Steering
Committee Playbook[.]‘‖ Mot. at 1.
―The ‗Sales Budget‘ and ‗Commission
Rate‘ figures from McBain‘s
Compensation Letter from Behr, dated
March 27, 2015.‖ Mot. at 1.

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United States District Court
Northern District of California

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Defendants’ Description
―[A]n internal company communication
that contains sensitive information
regarding sales and marketing matters.‖
DeLaney Decl. ¶ 5.
―[A]n internal company communication
that . . . contains sensitive information
regarding sales and marketing matters.‖
DeLaney Decl. ¶ 6.
―[A]n internal job description document
that contains sensitive competitive
information regarding the job
requirements of Plaintiff‘s position.‖
DeLaney Decl. ¶ 7.
―[P]urports to be excerpts from a Standard
Operating Procedures manual, which
contains sensitive competitive information
regarding sales and marketing strategy.‖
DeLaney Decl. ¶ 8.
―[P]urports to be excerpts from a Sales
Training Manual, which contains sensitive
competitive information regarding sales
and marketing strategy.‖ DeLaney Decl.
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―[A]n internal company communication
containing sensitive information
regarding sales and marketing strategy.‖
DeLaney Decl. ¶ 10.

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―[A] compensation letter to McBain dated
March 27, 2015, which contains
specific sales target figures which are
confidential and proprietary.‖ DeLaney
Decl. ¶ 11.

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Plaintiff also requests to seal the portions of the Notice Motion that discuss the foregoing exhibits.

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See Notice Mot. at 3-8 (redacting portions of the Motion).

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Defendants request these Exhibits be sealed in their entirety. See Resp. at 1, Dkt. No. 55;

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Dkt. No. 48-5 (proposed redactions). DeLaney declares the Exhibits ―contain[] sensitive

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proprietary and confidential information relating to Defendants‘ sales and marketing strategy,

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tactics, and methods‖ that, if made public to their competitors, ―would severely and irreparably

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damage Defendants‘ business[.]‖ DeLaney Decl. ¶ 12; see Resp. at 3 (asserting same).
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The Court DENIES the Motion. Civil Local Rule 79-5(b) provides that any sealing

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―request must be narrowly tailored to seek sealing only of sealable material[.]‖ Having reviewed

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the Exhibits, the Court finds not all of the information contained therein is sealable. On the

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contrary, it appears that some portions of the Exhibits are publicly available in the record or

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elsewhere.

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For instance, paragraph 12(c) of the McBain Declaration discusses the contents of the

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―internal company communication‖ in Exhibit 2. This paragraph also contains an image which

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appears at page PL001260 of Exhibit 2. Compare McBain Decl. ¶ 12(c) with id., Ex. 2 at

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PL001260. Defendants do not request paragraph 12(c) be sealed. Moreover, the McBain
Declaration suggests this image was used as part of a public display. See id. ¶ 12(c) (―I also

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United States District Court
Northern District of California

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assemble and put up on the store Company merchandising materials, as instructed by the

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Company. [] As an example, in May 2016, Behr instructed all Reps in the United States to print

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out signs related to a Memorial Day promotion‖, including the image in Exhibit 2). Defendants do

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not offer facts to the contrary.

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Paragraph 28 of the McBain Declaration discusses and even quotes information contained

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in Exhibit 3. Again, Defendants do not request paragraph 28 be sealed. As portions of Exhibit 3

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are available on the public docket, the Court finds no reason to seal Exhibit 3 in its entirety.

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Exhibit 4 also appears to contain information that is publicly available. Specifically, pages

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PL000477 and PL000479 to Exhibit 4 consist of the title of the document—which McBain quotes

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in his Declaration (see McBain Decl. ¶ 30) and which DeLaney largely includes in his Declaration

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(see DeLaney Decl. ¶ 8)—and the logos of several companies. See McBain Decl., Ex. 4.

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Defendants offer no reason why this should be sealed, given that DeLaney describes the document

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in his publicly-filed Declaration and that these logos are publicly available.

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Given that portions of the Exhibits are publicly available elsewhere in the docket and

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Defendants do not seek to seal them there, the Court cannot find that the request is narrowly

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tailored or that Defendants will suffer competitive harm if the Exhibits are not sealed.

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Accordingly, the Court DENIES the Motion to Seal WITHOUT PREJUDICE. No later than July

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19, 2017, Defendants may file a supplemental declaration requesting narrowly-tailored redactions
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and setting forth specific reasons for sealing.1 If Defendants do not file a supplemental declaration

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by that date, Plaintiff shall file Exhibits 1-7 in the public docket.
IT IS SO ORDERED.

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Dated: July 11, 2017
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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United States District Court
Northern District of California

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DeLaney declares Plaintiff did not meet and confer with Defendants prior to filing the Motion, as
required by Civil Local Rule 7-11. DeLaney Decl. ¶ 3; see Civ. L.R. 7-11(a) (―A motion for an
order concerning a miscellaneous administrative matter . . . must be accompanied by a proposed
order and by either a stipulation under Civil L.R. 7-12 or by a declaration that explains why a
stipulation could not be obtained.‖); Civ. L.R. 79-5(d)(1) (―A party seeking to file a document, or
portions thereof, under seal . . . must . . . [f]ile an Administrative Motion to File Under Seal, in
conformance with Civil L.R. 7-11.‖). Consequently, ―Defendants have had no opportunity to
designate [the documents at issue] as Confidential pursuant to the protective order.‖ DeLaney
Decl. ¶ 3. Plaintiff did not respond to this assertion, and Plaintiff‘s Motion to Seal does not
indicate that he sought to obtain a stipulation for Defendant.
The Court also notes Plaintiff‘s unredacted version of the Notice Motion does not ―indicate, by
highlighting or other clear method, the portions of the document that have been omitted from the
redacted version[.]‖ Civ. L.R. 79-5(d)(1)(D); see Dkt. No. 48-4 (unredacted version of Notice
Motion).
Based on the foregoing, the Court ORDERS Plaintiff to review the Civil Local Rules. The Court
warns Plaintiff that it will not consider any future motions to seal that do not comport with the
applicable Civil Local Rules.
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