Newmark Realty Capital, Inc. v. BGC Partners, Inc. et al

Filing 101

ORDER MODIFYING 99 ORDER RE 95 SEALING MOTION. Signed by Judge Beth Labson Freeman on 8/8/2017. (blflc4S, COURT STAFF) (Filed on 8/8/2017)

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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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NEWMARK REALTY CAPITAL, INC.,
Plaintiff,

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BGC PARTNERS, INC., et al.,
Defendants.

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United States District Court
Northern District of California

ORDER MODIFYING ORDER RE
SEALING MOTION

v.

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Case No. 16-cv-01702-BLF

Before the Court is Plaintiff’s declaration in support of a motion to file under seal certain

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exhibits in connection to a motion for preliminary injunction. ECF 100. For the reasons discussed

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below, the Court MODIFIES the prior order disposing of the motion to seal at ECF 95. See ECF

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99.

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I.

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

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and documents, including judicial records and documents.’” Kamakana v. City & Cty. of

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Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435

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U.S. 589, 597 & n. 7 (1978)). Accordingly, when considering a sealing request, “a ‘strong

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presumption in favor of access’ is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto.

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Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to

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motions that are “more than tangentially related to the underlying cause of action” bear the burden

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of overcoming the presumption with “compelling reasons” that outweigh the general history of

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access and the public policies favoring disclosure. Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d

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1092, 1099 (9th Cir. 2016); Kamakana, 447 F.3d at 1178–79.

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However, “while protecting the public’s interest in access to the courts, we must remain

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mindful of the parties’ right to access those same courts upon terms which will not unduly harm

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their competitive interest.” Apple Inc. v. Samsung Elecs. Co., Ltd., 727 F.3d 1214, 1228–29 (Fed.

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Cir. 2013). Records attached to motions that are “not related, or only tangentially related, to the

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merits of a case” therefore are not subject to the strong presumption of access. Ctr. for Auto

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Safety, 809 F.3d at 1099; see also Kamakana, 447 F.3d at 1179 (“[T]he public has less of a need

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for access to court records attached only to non-dispositive motions because those documents are

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often unrelated, or only tangentially related, to the underlying cause of action.”). Parties moving

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to seal the documents attached to such motions must meet the lower “good cause” standard of

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Rule 26(c). Kamakana, 447 F.3d at 1179 (internal quotations and citations omitted). This

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standard requires a “particularized showing,” id., that “specific prejudice or harm will result” if the
information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206,

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United States District Court
Northern District of California

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1210–11 (9th Cir. 2002); see Fed. R. Civ. P. 26(c). “Broad allegations of harm, unsubstantiated

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by specific examples of articulated reasoning” will not suffice. Beckman Indus., Inc. v. Int’l Ins.

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Co., 966 F.2d 470, 476 (9th Cir. 1992). A protective order sealing the documents during

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discovery may reflect the court’s previous determination that good cause exists to keep the

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documents sealed, see Kamakana, 447 F.3d at 1179–80, but a blanket protective order that allows

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the parties to designate confidential documents does not provide sufficient judicial scrutiny to

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determine whether each particular document should remain sealed. See Civ. L.R. 79-5(d)(1)(A)

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(“Reference to a stipulation or protective order that allows a party to designate certain documents

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as confidential is not sufficient to establish that a document, or portions thereof, are sealable.”).

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

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documents must comply with the procedures established by Civ. L.R. 79-5. Pursuant to Civ. L.R.

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79-5(b), a sealing order is appropriate only upon a request that establishes the document is

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“sealable,” or “privileged or protectable as a trade secret or otherwise entitled to protection under

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the law.” “The request must be narrowly tailored to seek sealing only of sealable material, and

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must conform with Civil L.R. 79-5(d).” Civ. L.R. 79-5(b). In part, Civ. L.R. 79-5(d) requires the

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submitting party to attach a “proposed order that is narrowly tailored to seal only the sealable

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material” which “lists in table format each document or portion thereof that is sought to be

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sealed,” Civ. L.R. 79-5(d)(1)(b), and an “unredacted version of the document” that indicates “by
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highlighting or other clear method, the portions of the document that have been omitted from the

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redacted version.” Civ. L.R. 79-5(d)(1)(d). “Within 4 days of the filing of the Administrative

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Motion to File Under Seal, the Designating Party must file a declaration as required by subsection

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79-5(d)(1)(A) establishing that all of the designated material is sealable.” Civ. L.R. 79-5(e)(1).

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II.

DISCUSSION
Because the sealing motions relate to a motion for preliminary injunction, which is more

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than tangentially related to the merits of the case, the instant motions are resolved under the

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compelling reasons standard. Ctr. for Auto Safety, 809 F.3d at 1101-2 (holding that “public access

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will turn on whether the motion is more than tangentially related to the merits of a case” and
finding that a “motion for preliminary injunction is more than tangentially related to the merits”).

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United States District Court
Northern District of California

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“Reference to a stipulation or protective order that allows a party to designate certain documents

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as confidential is not sufficient to establish that a document, or portions thereof, are sealable.”

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Civ. L.R. 79-5(d)(1)(A). The compelling reasons standard must be met even as to documents that

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were previously filed under seal or protective order. Kamakana, 447 F.3d at 1179.
After reviewing the declaration submitted by Plaintiff, the Court rules as follows on the

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various exhibits sought to be sealed referenced in the declaration that had been previously denied

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sealing. The ruling permitting certain exhibits to be filed under seal in the prior order remains in

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place.

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ECF
No.
95-3
95-4

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95-20

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Document to be
Sealed
Exhibits 20.1 – 20.3
and 21 to Barry
Gosin Decl.
Exhibit 1 to Ryan
Bricker Decl.

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95-21

Exhibit 7.2 to Ryan
Bricker Decl.

Result

Reasoning

GRANTED.

GRANTED as
to the
highlighted
portion.
GRANTED.

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The entirety of Exhibits 20.1 – 20.3 and 21
contains the parties’ confidential settlement
discussions. See Yip Decl. ¶¶ 5-6, ECF 100.
The highlighted portion on page 20 contains
confidential information between Plaintiff and
a third party, the disclosure of which would
harm the competitiveness of Plaintiff. See Yip
Decl. ¶ 7.
The entirety of the exhibit contains
confidential information between Plaintiff and
a third party, the disclosure of which would
harm the competitiveness of Plaintiff. See Yip
Decl. ¶ 8.

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95-22

Exhibit 10 to Ryan
Bricker Decl.

95-23

Exhibit 16.3 to Ryan
Bricker Decl.

GRANTED.

95-24

Exhibits 18.2 – 18.3
to Ryan Bricker
Decl.

GRANTED.

95-25

Exhibit 28.3 to Ryan
Bricker Decl.

GRANTED.

95-26

Exhibit 39.3 to Ryan
Bricker Decl.

The entirety of the exhibit contains the parties’
confidential settlement discussions. See Yip
Decl. ¶ 9.
The exhibit is an excerpt of a deposition
transcript containing confidential business
information of Plaintiff, the disclosure of
which would harm the competitiveness of
Plaintiff. See Yip Decl. ¶ 10.
The exhibits contain excerpts of confidential
business and marketing information of
Plaintiff, the disclosure of which would harm
the competitiveness of Plaintiff. See Yip
Decl. ¶ 11.
The exhibit is an excerpt of a deposition
transcript containing confidential business
information of Plaintiff, the disclosure of
which would harm the competitiveness of
Plaintiff. See Yip Decl. ¶ 12.
The exhibit is an excerpt of a deposition
transcript containing confidential business
information of Plaintiff, the disclosure of
which would harm the competitiveness of
Plaintiff. See Yip Decl. ¶ 13.

GRANTED.

GRANTED.

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United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: August 8, 2017
______________________________________
BETH LABSON FREEMAN
United States District Judge

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