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

Filing 99

ORDER GRANTING IN PART AND DENYING IN PART 95 MOTION TO SEAL. Signed by Judge Beth Labson Freeman on 8/7/2017. (blflc4S, COURT STAFF) (Filed on 8/7/2017)

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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 GRANTING IN PART AND
DENYING IN PART MOTION TO SEAL

v.

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Case No. 16-cv-01702-BLF

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Before the Court is Defendants’ motion to file under seal certain exhibits in connection to a

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motion for preliminary injunction. ECF 95. For the reasons discussed below, the Court GRANTS

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IN PART and DENIES IN PART the motion.

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I.

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.
With this standard in mind, the Court rules on the instant motions as follows:

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ECF
No.
95-3

Document to be
Sealed
Exhibits 20.1 – 20.3
to Barry Gosin Decl.

95-3

Exhibits 20.4 – 20.7
to Barry Gosin Decl.

GRANTED.

95-4

Exhibit 21 to Barry
Gosin Decl.

DENIED.

95-6

Exhibit 1 to Michael
Ippolito Decl.

GRANTED as
to highlighted
portions.

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Result

Reasoning

DENIED.

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Plaintiff is the designating party but no
declaration has been filed in support of sealing
these exhibits in their entirety. See Civ. L.R.
79-5(e).
The entirety of Exhibits 20.4 – 20.7 contains
the parties’ confidential settlement
discussions. See Manes Decl. ¶ 4, ECF 95-1.
Plaintiff is the designating party but no
declaration has been filed in support of sealing
this exhibit in its entirety.
The highlighted portions contain confidential
financial and business information relating to
Defendants’ client, the disclosure of which
would harm the competitiveness of
Defendants and their clients. See Manes Decl.
¶ 5.

95-8

Exhibit 3 to Michael
Ippolito Decl.

GRANTED as
to highlighted
portions.

95-9

Exhibit 4 to Michael
Ippolito Decl.

GRANTED.

95-10

Exhibits 5.1 – 5.4 to
Michael Ippolito
Decl.

GRANTED.

95-11

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Exhibit 1 (Part 1) to
Zach Schnoll Decl.

GRANTED.

95-12

Exhibit 1 (Part 2) to
Zach Schnoll Decl.

GRANTED.

95-14

Exhibit 2 to Danielle
Welsh Decl.

GRANTED as
to highlighted
portions.

95-16

Exhibit 5 to Danielle
Welsh Decl.

GRANTED as
to highlighted
portions.

95-18

Exhibit 6 to Danielle
Welsh Decl.

GRANTED as
to highlighted
portions.

95-20

Exhibit 1 to Ryan
Bricker Decl.

DENIED.

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United States District Court
Northern District of California

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The highlighted portions contain confidential
financial and business information relating to
Defendants’ client, the disclosure of which
would harm the competitiveness of
Defendants and their clients. See Manes Decl.
¶ 6.
The entirety of the exhibit contains
confidential business strategy communications
between Defendants and their client, the
disclosure of which would harm the
competitiveness of Defendants and their
clients. See Manes Decl. ¶ 7.
The exhibits contain confidential agreements
between Defendants and their clients, the
disclosure of which would harm the
competitiveness of Defendants. See Manes
Decl. ¶ 8.
The exhibit contains confidential information
relating to Defendants’ fee structures,
disclosure of which would harm the
competitiveness of Defendants. See Manes
Decl. ¶ 9.
The exhibit contains confidential information
relating to Defendants’ fee structures,
disclosure of which would harm the
competitiveness of Defendants. See Manes
Decl. ¶ 9.
The highlighted portions contain confidential
financial and business information relating to
Defendants’ client, the disclosure of which
would harm the competitiveness of
Defendants and their clients. See Manes Decl.
¶ 10.
The highlighted portions contain confidential
financial and business information relating to
Defendants’ client, the disclosure of which
would harm the competitiveness of
Defendants and their clients. See Manes Decl.
¶ 11.
The highlighted portions contain confidential
financial and business information relating to
Defendants’ client, the disclosure of which
would harm the competitiveness of
Defendants and their clients. See Manes Decl.
¶ 12.
Plaintiff is the designating party but no
declaration has been filed in support of sealing
this exhibit in its entirety.

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95-21

Exhibit 7.2 to Ryan
Bricker Decl.

DENIED.

95-22

Exhibit 10 to Ryan
Bricker Decl.

DENIED.

95-23

Exhibit 16.3 to Ryan
Bricker Decl.

DENIED.

95-24

Exhibits 18.2 – 18.3
to Ryan Bricker
Decl.
Exhibit 28.3 to Ryan
Bricker Decl.

DENIED.

Exhibit 39.3 to Ryan
Bricker Decl.

DENIED.

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95-25

95-26

Plaintiff is the designating party but no
declaration has been filed in support of sealing
this exhibit in its entirety.
Plaintiff is the designating party but no
declaration has been filed in support of sealing
this exhibit in its entirety.
Plaintiff is the designating party but no
declaration has been filed in support of sealing
this exhibit in its entirety.
Plaintiff is the designating party but no
declaration has been filed in support of sealing
these exhibits in their entirety.
Plaintiff is the designating party but no
declaration has been filed in support of sealing
this exhibit in its entirety.
Plaintiff is the designating party but no
declaration has been filed in support of sealing
this exhibit in its entirety.

DENIED.

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United States District Court
Northern District of California

For the foregoing reasons, the sealing motion at ECF 95 is GRANTED IN PART and
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DENIED IN PART. As to the documents for which the motion is denied, the motion may be
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renewed with a declaration setting forth a compelling reason in support of the motion. The motion
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shall be renewed no later than 10 days from the filing of this order. If the motion is not renewed
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in time or if no declaration is submitted within four days of the filing of the renewed motion,
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Defendants shall file the unredacted documents in the public record. Civil L.R. 79-5(e)(1), (2).
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IT IS SO ORDERED.
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Dated: August 7, 2017
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______________________________________
BETH LABSON FREEMAN
United States District Judge

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