Des Roches et al v. California Physicians' Service et al
Filing
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Order by Judge Lucy H. Koh Denying without Prejudice 85 101 104 Administrative Motions to File Under Seal. (lhklc2S, COURT STAFF) (Filed on 6/1/2017)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
United States District Court
Northern District of California
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CHARLES DES ROCHES, et al.,
Plaintiffs,
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v.
CALIFORNIA PHYSICIANS' SERVICE, et
al.,
Case No. 16-CV-02848-LHK
ORDER DENYING WITHOUT
PREJUDICE ADMINISTRATIVE
MOTIONS TO SEAL
Re: Dkt. Nos. 85, 101, 104
Defendants.
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“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)). Thus, when considering a sealing request, “a strong presumption in
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favor of access is the starting point.” Id. (internal quotation marks omitted).
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Parties seeking to seal judicial records relating to motions that are “more than tangentially
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related to the underlying cause of action,” Ctr. for Auto Safety & Chrysler Grp., 809 F.3d 1092,
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1099 (9th Cir. 2016), bear the burden of overcoming the presumption with “compelling reasons
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supported by specific factual findings” that outweigh the general history of access and the public
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policies favoring disclosure, Kamakana, 447 F.3d at 1178–79. Compelling reasons justifying the
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Case No. 16-CV-02848-LHK
ORDER DENYING WITHOUT PREJUDICE ADMINISTRATIVE MOTIONS TO SEAL
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sealing of court records generally exist “when such ‘court files might have become a vehicle for
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improper purposes,’ such as the use of records to gratify private spite, promote public scandal,
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circulate libelous statements, or release trade secrets.” Id. at 1179 (quoting Nixon, 435 U.S. at
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598). However, “[t]he mere fact that the production of records may lead to a litigant’s
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embarrassment, incrimination, or exposure to further litigation will not, without more, compel the
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court to seal its records.” Id.
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Records attached to motions that are “not related, or only tangentially related, to the merits
of a case,” are not subject to the strong presumption of access. Ctr. for Auto Safety, 809 F.3d at
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1099; see also Kamakana, 447 F.3d at 1179 (“[T]he public has less of a need for access to court
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records attached only to non-dispositive motions because those documents are often unrelated, or
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United States District Court
Northern District of California
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only tangentially related, to the underlying cause of action.”) (internal quotation marks omitted).
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Parties moving to seal records attached to motions unrelated or only tangentially related to the
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merits of a case must meet the lower “good cause” standard of Rule 26(c) of the Federal Rules of
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Civil Procedure. Ctr. for Auto Safety, 809 F.3d at 1098–99; Kamakana, 447 F.3d at 1179–80.
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The “good cause” standard requires a “particularized showing” that “specific prejudice or harm
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will result” if the information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp.,
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307 F.3d 1206, 1210–11 (9th Cir. 2002); see Fed. R. Civ. P. 26(c). “Broad allegations of harm,
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unsubstantiated by specific examples or articulated reasoning” will not suffice. Beckman Indus.,
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Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992).
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Pursuant to Rule 26(c), a trial court has broad discretion to permit sealing of court
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documents for, inter alia, the protection of “a trade secret or other confidential research,
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development, or commercial information.” Fed. R. Civ. P. 26(c)(1)(G). The Ninth Circuit has
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adopted the definition of “trade secrets” set forth in the Restatement of Torts, holding that “[a]
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trade secret may consist of any formula, pattern, device or compilation of information which is
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used in one’s business, and which gives him an opportunity to obtain an advantage over
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competitors who do not know or use it.” Clark v. Bunker, 453 F.2d 1006, 1009 (9th Cir. 1972)
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(quoting Restatement (First) of Torts § 757 cmt. b). “Generally [a trade secret] relates to the
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Case No. 16-CV-02848-LHK
ORDER DENYING WITHOUT PREJUDICE ADMINISTRATIVE MOTIONS TO SEAL
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production of goods . . . . It may, however, relate to the sale of goods or to other operations in the
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business . . . .” Id. (ellipses in original). In addition, the U.S. Supreme Court has recognized that
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sealing may be justified to prevent judicial documents from being used “as sources of business
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information that might harm a litigant’s competitive standing.” Nixon, 435 U.S. at 598.
Further, parties moving to seal documents must comply with the procedures established by
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Civil Local Rule 79-5. Pursuant to that rule, a sealing order is appropriate only upon a request that
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establishes the document is “sealable,” or “privileged, protectable as a trade secret or otherwise
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entitled to protection under the law.” Civil L.R. 79-5(b). “The request must be narrowly tailored
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to seek sealing only of sealable material, and must conform with Civil L.R. 79-5(d).” Id. Civil
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Local Rule 79-5(d), moreover, requires the submitting party to attach a “proposed order that is
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United States District Court
Northern District of California
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narrowly tailored to seal only the sealable material” and that “lists in table format each document
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or portion thereof that is sought to be sealed,” as well as an “unredacted version of the document”
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that “indicate[s], by highlighting or other clear method, the portions of the document that have
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been omitted from the redacted version.” Id.
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Since the Ninth Circuit’s decision in Center for Auto Safety v. Chrysler Group, 809 F.3d
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1092, 1099 (9th Cir. 2016), most district courts to consider the question have found that a motion
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for class certification is “more than tangentially related to the underlying cause of action” and
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therefore merits application of the “compelling reasons” standard. See Philips v. Ford, 2016 WL
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7374214 (N.D. Cal. Dec. 20, 2016) (collecting cases); see also Cohen v. Trump, 2016 WL
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3036302 (S.D. Cal. May 27, 2016) (discussing other cases applying compelling reason standard to
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class certification motion after Center for Auto Safety and applying compelling reason standard).
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In the instant case, the issues on class certification “entail some overlap with the merits of the
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plaintiff’s underlying claim.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). The Court
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finds that the instant motion for class certification is “more than tangentially related to the
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underlying cause of action,” Ctr. for Auto Safety, 809 F.3d at 1099, and thus the “compelling
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reasons” standard applies.
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On April 1, 2017, Plaintiffs filed an administrative motion to file under seal Plaintiff’s
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Case No. 16-CV-02848-LHK
ORDER DENYING WITHOUT PREJUDICE ADMINISTRATIVE MOTIONS TO SEAL
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motion for class certification and supporting exhibits. ECF No. 85. On May 1, 2017, Defendant
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filed an administrative motion to file under seal Defendant’s opposition to Plaintiff’s motion for
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class certification and supporting exhibits. ECF No. 101. On May 15, 2017, Plaintiff filed an
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administrative motion to file under seal Plaintiff’s reply in support of Plaintiff’s motion for class
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certification and supporting exhibits. ECF No. 104.
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The Court finds the parties’ motions overbroad, as large portions of the parties’ motions
are redacted and seek to redact non-confidential information. For example, in Plaintiffs’ motion
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for summary judgment, the entire section entitled “Defendants Followed a Uniform Process in
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Making Clinical Decisions about Class Members’ Coverage” is redacted. See ECF No. 85-1, at 9–
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11. This section does not contain any private health, medical, or identification information, and the
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United States District Court
Northern District of California
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parties have made no effort to explain why this section is confidential.
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Moreover, the parties have asked the Court to seal information that the parties have
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designated “Confidential” under their stipulated protective order without any further analysis
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regarding why these documents contain sealable information. See, e.g., ECF No. 85-1, at 9–11.
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Under the Court’s Civil Local Rules, “[r]eference to a stipulation or protective order that allows a
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party to designate certain documents as confidential is not sufficient to establish that a document,
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or portions thereof, are sealable.” Civ. L.R. 79-5(d)(1)(A). Additionally, the parties have applied
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only the “good cause” standard to its requests to seal, rather than the “compelling reasons”
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standard that the Court finds appropriate for the instant motion. ECF No. 85, at 2; ECF No. 101, at
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4; ECF No. 104, at 2.
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Accordingly, the parties’ administrative motions to file under seal are DENIED
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WITHOUT PREJUDICE. The parties shall file any renewed motions to seal within seven days of
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this Order.
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To facilitate compliance with the sealing rules and standards discussed above, the Court
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hereby establishes the following procedures for filing administrative motions to file under seal in
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this case:
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The parties shall file all administrative motions to file under seal as joint motions. Prior to
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Case No. 16-CV-02848-LHK
ORDER DENYING WITHOUT PREJUDICE ADMINISTRATIVE MOTIONS TO SEAL
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filing any such joint motions, lead counsel for both parties must meet and confer to decide what
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information the parties will request to file under seal. The parties must file declarations from lead
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counsel that confirm compliance with this order with each motion to file under seal.
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IT IS SO ORDERED.
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Dated: June 1, 2017
______________________________________
LUCY H. KOH
United States District Judge
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United States District Court
Northern District of California
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Case No. 16-CV-02848-LHK
ORDER DENYING WITHOUT PREJUDICE ADMINISTRATIVE MOTIONS TO SEAL
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