Kowalsky v. Hewlett-Packard Company

Filing 78

Order by Hon. Lucy H. Koh denying without prejudice 76 Administrative Motion to File Under Seal. (lhklc1, COURT STAFF) (Filed on 1/18/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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United States District Court
For the Northern District of California

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CHAIM KOWALSKY, on Behalf of Himself
and All Others Similarly Situated,
Plaintiffs,
v.
HEWLETT-PACKARD CO. and DOES 1
Through 100, inclusive,
Defendants.

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Case No.: 10-CV-02176-LHK
ORDER DENYING MOTION TO FILE
UNDER SEAL

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On January 6, 2012, Plaintiff filed a motion, pursuant to Civil Local Rule 79-5(b), for leave

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to file under seal certain exhibits attached to the Declaration of Joel Elkins in Support of Plaintiff’s

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Motion for Class Certification. ECF No. 76. Plaintiff states that he intends to file “portions of the

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Memorandum, and certain of the Exhibits to the Declaration, under seal, as they incorporate or

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otherwise cite to documents produced by Defendant to Plaintiff in this action which Defendant has

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designated as confidential” pursuant to the parties’ proposed protective order. Specifically,

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Plaintiff seeks to file Exhibits B-C, and I-X under seal, in their entirety, on the ground that these

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exhibits have been designated “restricted information” or “restricted outside counsel only

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information” pursuant to the parties’ proposed protective order.

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Pursuant to Civil Local Rule 79-5(d), when a party seeks to file a document designated

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confidential by another party, the designating party must, within 7 days, “file with the Court and

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serve a declaration establishing that the designated information is sealable, and must lodge and

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serve a narrowly tailored proposed sealing order, or must withdraw the designation of

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confidentiality.” More than 7 days have passed since Plaintiff filed his motion, and HP has not

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filed any declaration regarding Plaintiff’s motion to file under seal.
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Case No.: 10-CV-02176-LHK
ORDER DENYING MOTION TO FILE UNDER SEAL

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Moreover, the Court has reviewed the exhibits proposed to be sealed and finds that some of

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these are not sealable. Specifically, Exhibit T is product packaging and does not bear any

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confidentiality designation. Exhibits U and V bear the designation “restricted,” but they appear to

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be advertisements that were available to the public. HP must explain why these exhibits should be

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sealed, or withdraw the confidentiality designations.

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Finally, the Court notes that Plaintiff has not indicated what portions of the memorandum

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he intends to file under seal. Pursuant to Civil Local Rule 79-5(c)(3), Plaintiff was required to

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identify “by notations or highlighting” the portions of the memorandum he intended to file under

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seal. Pursuant to the Court’s standing order of December 1, 2011, Plaintiff was also required to

United States District Court
For the Northern District of California

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publicly e-file a proposed redacted version of the memorandum.
The Court ORDERS that the following take place by 5:00 p.m. on January 25, 2012:

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(1) Plaintiff shall meet and confer with Defendant and e-file a public proposed, narrowly tailored,

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redacted version of the memorandum; and (2) Defendant shall file its declaration pursuant to Civil

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Local Rule 79-5(d). Furthermore, the parties shall consult and comply with Civil Local Rule 79-5,

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General Order 62, and the Court’s December 1, 2011 standing order in all future administrative

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motions to file under seal. Accordingly, Plaintiff’s motion to file under seal is DENIED without

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prejudice.

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IT IS SO ORDERED.

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Dated: January 18, 2012

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LUCY H. KOH
United States District Judge

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Case No.: 10-CV-02176-LHK
ORDER DENYING MOTION TO FILE UNDER SEAL