Student A et al v. Berkeley Unified School District et al

Filing 33

ORDER by Judge Maria-Elena James denying without prejudice 5 Administrative Motion to File Under Seal. (mejlc2S, COURT STAFF) (Filed on 5/17/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STUDENT A, ET AL.,

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Case No. 17-cv-02510-MEJ

Plaintiffs,
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ORDER RE: ADMINISTRATIVE
MOTION TO FILE UNDER SEAL

v.
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BERKELEY UNIFIED SCHOOL
DISTRICT, et al.,

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Defendants.

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United States District Court
Northern District of California

Re: Dkt. No. 5

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INTRODUCTION

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On May 2, 2017, Plaintiffs filed an administrative motion to file under seal portions of the

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following: (1) Exhibits 1 and 4 attached to their Complaint (Dkt. No. 1); (2) Applications for the

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Appointment of Guardians Ad Litem (Appls., Dkt. Nos. 6-9); and (3) Plaintiffs’ Reference List

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(Dkt. No. 5-23). Dkt. No. 5. Having considered Plaintiffs’ arguments,1 the relevant legal

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authority, and the record in this case, the Court issues the following order.
LEGAL STANDARD

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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 overcome this presumption, a “party must articulate compelling reasons

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supported by specific fact[s].” Id. at 1178 (internal quotation and citation omitted); see also

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Apple, Inc. v. Samsung Elecs. Co., 727 F.3d 1214, 1223 (Fed. Cir. 2013) (finding sealing

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As Defendants have not yet appeared in this action, they have not had an opportunity to oppose
the Motion.

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appropriate where companies “filed declarations from employees” that “explained the measures

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the two companies take to keep their product-specific financial information confidential” and “the

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harm they would suffer if their product-specific financial information were made public”).

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Indeed, such showing is required even where “the dispositive motion, or its attachments, were

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previously filed under seal or protective order.” Kamakana, 447 F.3d at 1179.

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This presumption does not apply in the same way to non-dispositive motions, “such that

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the usual presumption of the public's right of access is rebutted.” Id. (citing Phillips v. General

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Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002). “Good cause” is the proper standard when

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parties wish to keep records attached to a non-dispositive motion under seal. Pintos v. Pac.
Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010). Simply put, records attached to dispositive

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United States District Court
Northern District of California

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motions require the court to apply the compelling reasons standard, whereas records attached to

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non-dispositive motions require the court to apply the “good cause” standard. See id. at 678–79.
DISCUSSION

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A.

Exhibits 1 and 4
Courts in this District treat a complaint as a dispositive motion. Rieckborn v. Velti PLC,

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2014 WL 4964313, at *2 (N.D. Cal. Oct. 3, 2014); see In re NVIDIA Corp. Derivative Litig., 2008

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WL 1859067, at *3 (N.D. Cal. Apr. 23, 2008) (“While a complaint is not, per se, the actual

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pleading by which a suit may be disposed of, it is the root, the foundation, the basis by which a

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suit arises and must be disposed of.”). As such, the compelling reasons standard applies to

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Exhibits 1 and 4 to the Complaint.

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Exhibit 1 consists of a Compliance Resolution Process Complaint (“CRP Complaint”) that

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the Disability Rights Education and Defense Fund (“DREDF”) filed with the California

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Department of Education (“CDOE”) on May 29, 2015, which includes declarations by parents of

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minor students with disabilities. See Compl., Ex. 1. Exhibit 4 is a Reconsideration Investigation

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Report by CDOE. See id., Ex. 4.

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Plaintiffs seek to seal those portions of Exhibit1 that identify their children’s initials, the

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parents’ names and contact information, and the schools their children attend. See Ex. 1.

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Plaintiffs also seek to redact the students’ initials in Exhibit 4. See Ex. 4 at 1. In support of their
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Motion, Plaintiffs submit the Declaration of Larisa Cummings. Cummings Decl., Dkt. No. 5-1.

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The Cummings Declaration is insufficient to justify sealing the requested material, as it

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does not state with particularity the need to file Exhibits 1 and 4 under seal. Civil L.R. 79-5(d);

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see Cummings Decl. Cummings declares that Exhibit 1 contains “personally identifiable

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information of minors and their parents” and that “Exhibit 4 . . . references the same students by

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their initials, all of whom are minors who attend or who have attended BUSD schools.”

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Cummings Decl. ¶¶ 3-4. This is no more than a description of the Exhibits; Cummings does not

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otherwise explain why this information should be sealed.
Plaintiffs argue that “Federal Rule of Civil Procedure 5.2 requires that a minor’s identity

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must be protected and kept out of the public record.” Mot. at 2. This misrepresents the scope of

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United States District Court
Northern District of California

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the Rule. In relevant part, Rule 5.2(a)(3) provides that “in an electronic or paper filing with the

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court that contains . . . the name of an individual known to be a minor . . . , a party or nonparty

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making the filing may include only . . . the minor’s initials[.]” While Rule 5.2(a)(3) permits

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parties to identify minors only by their initials, it does not provide a basis for sealing their initials.

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Cummings does not demonstrate Plaintiffs are entitled to sealing. Furthermore, Plaintiffs fail to

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show specific reasons why the parents’ names should be redacted.
Plaintiffs shall be permitted four days from the date of this Order to provide additional

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information to conform with Local Rule 79-5. If Plaintiffs fail to do so, their Motion will be

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denied. Supplemental filings may not exceed five pages, excluding declarations and exhibits.

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Plaintiffs must identify “a limited amount of exceptionally sensitive information that truly

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deserves protection” under the “compelling reasons” standard of Kamakana, outlined by page and

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line number and including “specific factual findings” for each. See O’Connor v. Uber Techs.,

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Inc., 2015 WL 355496, at *1 (N.D. Cal. Jan. 27, 2015).

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B.

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Applications for the Appointment of Guardians Ad Litem
The good cause standard applies to the non-dispositive Applications. Plaintiffs request the

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Court seal the portions of their Applications and accompanying Declarations that contain

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Plaintiffs’ birthdates and the names of the guardians ad litem.

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The Court previously denied Plaintiffs’ Motion to Proceed Using Fictitious Names and
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ordered Plaintiffs to either refile this Motion or refile their Complaint with their initials and the

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true names of their guardians ad litem. Order, Dkt. No. 32. The renewed motion or the refiled

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Complaint is due May 31, 2017. Id. at 8. As such, the Court DENIES WITHOUT

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PREJUDICE the Motion to Seal the names of the guardians ad litem. If Plaintiffs refile a motion

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to proceed using fictitious names, they may also refile their motion to seal the names of the

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guardians ad litem.
In addition, Rule 5.2(a)(2) allows a court filing to list only an individual’s birth year.

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Plaintiffs nonetheless included their months and dates of their birth in the Declarations of

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proposed guardians ad litem. See Dkt. Nos. 6-1, 7-1, 8-1, 9-1. As such, the Court GRANTS IN

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PART the Motion as to Plaintiffs’ birth dates: Plaintiffs may redact only the month and date of

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United States District Court
Northern District of California

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their birth.

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C.

Reference List

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Plaintiffs argue the Reference List contains the full names of each Plaintiff and their

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guardians ad litem. Mot. at 3. The Court previously struck Plaintiffs’ Reference List on the

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ground that it did not accurately match each Plaintiff’s identity with the correct pseudonym. See

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Order at 3 n.2; compare Reference List with Appls.; Compl. As such, the Court DENIES AS

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MOOT the Motion as to the Reference List.2
CONCLUSION

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For the foregoing reasons, the Court ORDERS the following:

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1. No later than May 23, 2017, Plaintiffs shall submit a declaration that states

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with specificity why the minors’ initials and their parents’ names and

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contact information contained in Exhibits 1 and 4 are sealable. If no

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declaration is filed, the Motion shall be denied.
2. The Motion as to names of the guardians ad litem is DENIED WITHOUT

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Cummings declares that “[i]f this information is publicly disclosed as part of this Court’s record,
Plaintiff students – most of whom attend schools in [Berkeley Unified School District] – would
face significant exposure and potential harm.” Cummings Decl. ¶ 6. This generalized statement
does not demonstrate that specific harm or prejudice may result if Plaintiffs’ names are disclosed.
See Allagas v. BP Solar Int’l, Inc., 2016 WL 324040, at *2 (N.D. Cal. Jan. 27, 2016).
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PREJUDICE. Plaintiffs may refile this motion if they also refile their

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motion to proceed using fictitious names.

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3. The Motion as to Plaintiffs’ birth dates is GRANTED IN PART. Plaintiffs

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may redact the months and dates of their birth. Plaintiffs shall refile the

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Applications in the public docket in accordance with this Order no earlier

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than May 23, 2017 and no later than May 30, 2017.

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4. The Motion as to Plaintiffs’ Reference List is DENIED AS MOOT.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: May 17, 2017
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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