Rich v. Shrader et al

Filing 116

ORDER Granting in part and Denying in part Defendant's 113 Motion to File Previously Filed Documents Under Seal; Granting in part and Denying in part the 114 Joint Motion to Seal Documents Attached to Plaintiff's Opposition. The parties are directed to prepare a redacted version of their briefs. Signed by Judge Anthony J. Battaglia on 11/13/2013. (rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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FOSTER RICH,
v.

Plaintiff,

RALPH W. SHRADER, et al.,
Defendants.

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Civil No. 09cv652 AJB (BGS)
ORDER:
1) GRANTING IN PART AND
DENYING IN PART
DEFENDANTS’ MOTION TO FILE
PREVIOUSLY FILED
DOCUMENTS UNDER SEAL, (Doc.
No. 113); and
2) GRANTING IN PART AND
DENYING IN PART THE JOINT
MOTION TO SEAL DOCUMENTS
ATTACHED TO PLAINTIFF’S
OPPOSITION, (Doc. No. 114).

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Before the Court is Defendants’ Motion to Seal Confidential Documents Previous-

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ly Filed. (Doc. No. 113.) Defendants seek leave of this Court to seal certain confidential

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documents attached to Defendants’ Motion for Summary Judgment, previously filed on

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October 3, 2013. (Doc. No. 108). Moreover, the parties have also jointly filed a Motion

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to Seal Confidential Documents attached the Plaintiff’s Opposition to Summary Judg-

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ment. (Doc. No. 114.)

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I. BACKGROUND
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On October 3, 2013, Defendants filed a Motion for Summary Judgment. (Doc. No.

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108.) Attached to that motion were documents that contain “confidential and proprietary

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information,” which Defendants “inadvertently filed publicly rather than under seal.”

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(Greenfield Decl., Doc. No. 113.) Defendants now seek a retroactive order from this

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Court to seal those portions (the “Confidential Materials”). In addition, Plaintiff’s

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Opposition to Summary Judgment was due by November 12, 2013. Plaintiff has lodged

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the Opposition with the Court and it will be filed and docketed after the issuance of this

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Order.

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The Court incorporates by reference the factual and procedural background of the

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instant action set forth by Magistrate Judge Bernard G. Skomal’s Order Determining

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Discovery Dispute. (Doc. No. 99.)

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II. DISCUSSION

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A. Legal Standard

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Courts have historically recognized a “general right to inspect and copy public

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records and documents, including judicial records and documents.” Nixon v. Warner

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Commc’ns, Inc., 435 U.S. 589, 597 & n. 7 (1978). “Unless a particular court record is

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one ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting

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point. Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006)

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(quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)).

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In order to overcome this strong presumption, a party seeking to seal a judicial record

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must articulate justifications for sealing that outweigh the public policies favoring

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disclosure. See id. at 1178–79. In turn, the court must “conscientiously balance []

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balance the competing interests” of the public and the party who seeks to keep certain

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judicial records secret. Id. After considering these interests, if the court decides to seal

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certain judicial records, it must “base its decision on a compelling reason and articulate

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the factual basis for its ruling, without relying on hypothesis or conjecture.” Id. (citing

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Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)).

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A strong presumption of access to judicial records applies fully to dispositve

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pleadings, including motions for summary judgment and related attachments. Thus

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compelling reasons must be shown to seal judicial records attached. See id (internal

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citations omitted). Relevant factors include the “public interest in understanding the

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judicial process and whether disclosure of the material could result in improper use...”

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Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 659 (9th Cir. 2010)(citations omitted).

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In general, “compelling reasons” sufficient to outweigh the public's interest in disclosure

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and justify sealing court records exist when such “court files might have become a

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vehicle for improper purposes,” such as the use of records to gratify private spite,

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promote public scandal, circulate libelous statements, or release trade secrets. Id. (citing

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Nixon, 435 U.S. at 598).

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B. Defendant’s Motion to File Previously Filed Documents Under Seal
Defendants requests that certain documents and excerpts of depositions attached

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as exhibits to the Motion for Summary Judgment be sealed on the grounds that they

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contain confidential and proprietary information and if disclosed, would allow Booz

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Allen competitors access to operational and personnel information. Defendants group

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the documents into two sets: (1) Booz Allen employee appraisals and documents

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describing the appraisal process and (2) deposition testimony that contain information

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regarding Mr. Rich’s appraisals, Booz Allen’s internal policies and procedures, as well

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as financial performance metrics. Although some of the materials have already been

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declared confidential pursuant to Discovery Protective Orders (Doc. Nos. 82 and 94), the

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Court must make an independent review to determine if the high standard of “compelling

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reason” has been met to warrant sealing.
Although these exhibits have been public since the Summary Judgment motion

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was filed on October 3, 2013, the Court may grant relief to mitigate continuing harm if

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warranted.

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(1)

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praisal Process

Booz Allen Employee Appraisals and Documents Describing Booz Allen Ap-

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Having reviewed the listed exhibits described as Booz Allen appraisals and

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documents describing the appraisal process, the Court finds Exhibits 4-6 and 11-14 do

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contain sensitive information and could be used for improper purposes by Booz Allen’s

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competitors. The documents listed contain internal partnership evaluations, management

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expectations and performance reviews, financial information, as well as company

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strategies to improve employee performance and experience. If disseminated, Defen-

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dants argue that Booz Allen’s competitors would gain access to operational and person-

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nel information, projections and modeling, and strategic positioning vis-a-vis its

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competitors. Magistrate Judge Skomal’s findings also inform the Court’s analysis. The

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Magistrate Judge determined that some documents contained information, that if

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disseminated, would allows competitors to “piece together portions of [Booz Allen’s]

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proprietary review system and employee development system.” (Doc. No. 94 at 3.)
On the other hand, the public would receive little benefit from the information

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contained therein, and gain little insight into the judicial process. Thus Defendants have

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provided compelling reasons that outweigh the presumption of public disclosure to file

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those exhibits under seal.

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(2)

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Deposition Testimony
Attached to the Motion for Summary Judgment as Exhibits 2, 7-9, and 15 are

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deposition excerpts Defendants describe as containing “testimony regarding Mr. Rich’s

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appraisals, Booz Allen’s internal policies and procedures to enhance employee perform-

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ance, and Booz Allen’s financial performance metrics.” (Greenfield Decl. Doc. No.

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113.) Defendants fail to describe with sufficient specificity exactly what types of

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information each Exhibit contains, thus the Court conducts its own review.

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Exhibit 2 is the Deposition of Dennis O. Doughty. Testimony excepts include

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information that is already part of the briefs as allegations and/or defenses including Mr.

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Rich’s negative performance review and details as to his retirement plans. On page 85 of

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the deposition, there is reference to certain Booz Allen projects that may be considered

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sensitive information that the company would want to keep confidential from competi4

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tors. (Doc. No. 108, Ex. 2 at 69.) To the extent that the deposition excerpts cover

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information regarding those projects, Defendants may redact those portions. However,

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the Court finds the rest of the information to be already a part of the public records as

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they pertain to allegations and defenses with regards to Mr. Rich’s employment contract

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dispute. Defendants have not provided a sufficient justification to warrant the filing of

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the entirety of Exhibit 2 under seal.
Exhibit 7 is the deposition of Samuel R. Strickland and contains information as to

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Booz Allen’s partnership track, committee representation, as well as internal policies and

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controls with regards to employee performance and review. Such information may be

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subjected to improper use if made public. Thus like the Court’s analysis above on the

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internal documents, the Court also finds a compelling justification to file Exhibit 7 under

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seal.

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Exhibit 8 is the deposition of Ralph W. Shrader. The portions attached contain

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information as to Mr. Rich’s performance, a vague description of partner expectations

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and advancement, and plans in 2007 to separate Booz Allen and sell one portion to a

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third party.1 This information is already in the public record as part of allegations and/or

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defenses and any possible sensitive information is too generalized and vague to be

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subjected to improper use by competitors. Thus, the Court finds that Defendants have

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failed to provide a sufficient justification to warrant the filing of Exhibit 8 under seal.

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Exhibit 9 is the deposition of Theodore Shema. Information contained therein

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pertain to Booz Allen’s employee review system, internal policies and standards to be

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used for performance evaluation, and partnership advancement. The Court finds that

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such information may be subjected to improper use by competitors. Defendants have

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shown a sufficient justification to warrant Exhibit 9 to be sealed.

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Exhibit 15 is a one page excerpt of the deposition of John M. McConnell. The
Court is unable to characterize the information contained therein as confidential. Indeed,

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This past strategy has been actualized and is a basis of Plaintiff’s allegation that he was pushed
out so that remaining partners would receive a larger profit from the sale of that portion of Booz Allen.
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the testimony relates to Mr. McConnell’s leaving Booz Allen in 2007 and his communi-

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cations with Mr. Shrader, the Court does not find this information to be sensitive and

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likely subjected to improper use. Defendants have failed to provide a sufficient justifica-

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tion to warrant the sealing of Exhibit 15.

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C. Parties’ Joint Motion to File Documents Attached to Plaintiff’s Opposition

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Under Seal
According to the parties, many of the same justifications already given also pertain

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to the documents attached to Plaintiff’s Opposition. Indeed, there is a substantial

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overlap in the documents both parties have attached to their respective motions.

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(1)

Booz Allen Employee Appraisals and Documents Describing Booz Allen Ap-

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praisal Process
For the same reasons the Court has stated above, the Court finds that the docu-

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ments attached as Exhibits B-E, G, I, K, M-N, P-Q warrant the filing under seal. These

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documents pertain to Booz Allen’s partnership evaluation, internal policies and strate-

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gies, financial information and partnership distribution. Such information may be

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subjected to improper use by Booz Allen competitors if publicly disseminated. The

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parties have adequately described and advanced compelling reasons to justify the filing

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of these documents under seal.

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(B)

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Booz Allen Strategic Business Documents and Financial Projections
After a review of the motion, the declaration in support by Sarah A. Greenfield,

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and the attached Exhibits, the Court finds the Exhibits attached as S and U-W also

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warrant the filing of under seal. These Exhibits contain sensitive information on major

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Booz Allen business projects, including military initiatives, investments and develop-

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ments of specific markets, revenue projections, and strategic priorities.

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The Court finds that the materials could be used for improper purposes by

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including the release of business strategies and secrets. Such information may be

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utilized by business competitors seeking to gain an advantage by circumventing the time

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and resources necessary to develop their own business strategies and models. Thus the

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parties have shown compelling reasons that outweigh the public’s interest in disclosure.

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(C)

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Deposition Testimony
The parties again fail to describe with sufficient specificity as to what type of

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information is contained in each of the attached exhibits. The Court must again indepe-

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ndently review the attached documents.

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Plaintiff’s Exhibit F overlaps in large part with Defendants’ Exhibit 2, the Exhibit

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is excerpts of Dennis O. Doughty’s deposition. Again, the Court finds that in large part,

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information revealed is already a part of the public record as they pertain to the parties

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allegations and/or defenses. There are mentions of specific Booz Allen projects, and to

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the extent that the testimony relate to those projects, the parties may redact those

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provisions. On page 112 of the deposition transcript, the testimony goes into informa-

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tion with regards to Booz Allen’s internal review system of personnel appraisals. The

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Court finds that this information does qualify as sensitive and may be used by competi-

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tors to piece together portions of Booz Allen’s proprietary review and employee

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development system. Thus, the parties may redact those provisions as well.

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Plaintiff’s Exhibit J overlaps with Defendants’ Exhibit 7, excerpts of Samuel R.

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Strickland’s deposition and contains substantially the same information as well as

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information on Booz Allen compensation policies. Like the Court’s analysis with

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regards to Defendants’ Exhibit 7, the Court finds that the parties have shown a compel-

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ling justification to warrant the filing of this Exhibit under Seal.

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Plaintiff’s Exhibit H overlaps with Defendants’ Exhibit 8, although the excerpts of

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Ralph W. Shrader’s deposition provided by Plaintiff are substantially different from the

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excerpts provided by Defendants. The provisions the parties wish to seal in Plaintiff’s

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Opposition do contain sensitive personnel information as well as internal partnership

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track policies. Such information could be used for improper purposes by Booz Allen

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competitors and thus the parties have shown a compelling justification to warrant the

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filing of these excerpts under seal.
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Plaintiff’s Exhibit O overlaps with Defendants’ Exhibit 9, excerpts of Theodore

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Shema’s deposition and contains substantially the same information. Information

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contained therein pertain to Booz Allen’s employee review system, internal policies and

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standards to be used for performance evaluation, and partnership advancement. The

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Court finds that such information may be subjected to improper use by competitors.

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Thus, as with Defendants’ Motion, the Court also finds a substantial justification to

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warrant the filing of Exhibit O under seal.

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III. CONCLUSION
For the aforementioned reasons, the Court hereby:

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1. GRANTS Defendants’ Motion to File Under Seal the Booz Allen Appraisals

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and Documents Describing Booz Allen Appraisal Process Exhibits. (Defendants’

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Exhibits: 4, 5, 6, 10, 11, 12, 13, and 14).
2. GRANTS Defendants’ Motion to File Under Seal deposition testimony attached

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as Defendants’ Exhibits 7 and 9.
3. DENIES Defendant’s Motion to File Under Seal deposition testimony attached

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as Defendants’ Exhibits 2, 6 and 15. However, Defendants may redact portions of

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Exhibit 2 as they pertain to Booz Allen projects as explained above.
4. GRANTS the Joint Motion to File Under Seal the Booz Allen Appraisals and

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Documents Describing Booz Allen’s Appraisal Process Exhibits. (Plaintiff’s Exhibits: B,

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C, D, E, G, I, K, M, N, P, and Q).
5. GRANTS the Joint Motion to File Under Seal Booz Allen Strategic Business

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Documents and Financial Projections. (Plaintiff’s Exhibits: S, U, V, and W).
6. GRANTS the Joint Motion to File Under Seal deposition testimony attached as

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Plaintiff’s Exhibits J, H, and O.
7. DENIES the Joint Motion to File Under Seal deposition testimony attached as

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Plaintiff’s Exhibit F. However, Plaintiff may redact those portions pertaining to Booz

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//

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//
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Allen projects and internal review processes as explained above.
The parties are directed to prepare a redacted version of their briefs, pursuant to

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the Court’s Order, to be filed and made available publicly. The Clerk of Court is directed

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to seal Defendants’ Motion for Summary Judgment, (Doc. No. 108) and file Plaintiff’s

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Opposition under seal.

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IT IS SO ORDERED.

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DATED: November 13, 2013

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Hon. Anthony J. Battaglia
U.S. District Judge

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