Dremak v. Iovate Health Sciences Group, Inc. et al

Filing 147

ORDER Granting in part and Denying in part 134 Ex Parte Application to file under seal portions of the courts July 12, 2011 order. The Court shall file a redacted version of the July 12, 2011 Order on the public docket. Signed by Judge Barry Ted Moskowitz on 8/24/11. (ecs)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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IN RE HYDROXYCUT MARKETING
AND SALES PRACTICES LITIGATION

Case No. 09md2087 BTM (AJB)
ORDER GRANTING IN PART AND
DENYING IN PART EX PARTE
APPLICATION TO FILE UNDER
SEAL PORTIONS OF THE COURT’S
JULY 12, 2011 ORDER

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Defendant Kerr Investment Holding Corp. f/k/a Iovate Health Sciences Group Inc.

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(“Defendant”) has filed an ex parte application to file under seal certain portions of the Court’s

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July 12, 2011 Order Denying Defendant’s Motion to Dismiss for Lack of Personal Jurisdiction

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(“Order”). Defendant’s motion is GRANTED IN PART and DENIED IN PART.

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I. GOVERNING LAW

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The courts in this country recognize a “general right to inspect and copy public records

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and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc.,

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435 U.S. 589, 597 (1978). Unless a court record falls within the limited category of records

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“traditionally kept secret,” a “strong presumption in favor of access is the starting point.”

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

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presumption of access to judicial records applies fully to discovery documents attached to

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dispositive motions. San Jose Mercury News, Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1102 (9th

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09md2087 BTM(AJB)

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Cir. 1999).

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The party seeking to seal a judicial record bears the burden of overcoming this strong

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presumption by articulating compelling reasons supported by specific factual findings. Foltz

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v. State Farm Mutual Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). As explained by

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the Ninth Circuit:

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In general, “compelling reasons” sufficient to outweigh the public's interest in
disclosure and justify sealing court records exist when such “court files might
have become a vehicle for improper purposes,” such as the use of records to
gratify private spite, promote public scandal, circulate libelous statements, or
release trade secrets. Nixon, 435 U.S. at 598, 98 S.Ct. 1306; accord Valley
Broadcasting Co., 798 F.2d at 1294.

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Kamakana, 447 F.3d at 1172. “[T]he common-law right of inspection has bowed before the
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power of a court to insure that its records are not used . . . as sources of business
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information that might harm a litigant’s competitive standing.” Nixon, 435 U.S. at 598.
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However, “The 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
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the court to seal its records. Kamakana, 447 F.3d at 1172.
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II. DISCUSSION
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Defendant seeks to file under seal the following portions of the Court’s Order: 5:14,
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7:13-16, 8:13-17, 8:25-27, 9:3-10, 12:2-3, 15:19-21, 15:24-26, 22:7-9, 22:25-28, 23:16-18,
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28:13-14, and 29:4-5.
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The Court GRANTS the motion to seal as to the following portions of the Order:
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• 7:13-16 & 28:13-14 reveal detailed financial information about Iovate Health
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Sciences U.S.A., Inc.
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• 8:15-17, 15:19-21, 15:24-26, and 22:26-28 reveal information that was provided on
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tax returns.
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• 9:3-10 provides detailed information about a profit-sharing plan and the
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compensation of Gardiner.
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• 12:2-3 reveals pricing information of a retailer.
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The Court finds that this information either constitutes confidential tax return information

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under 26 U.S.C. § 6103 or is private financial information of competitive value.

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Defendant’s request to seal the remaining portions of the Order is DENIED.

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III. CONCLUSION

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Defendant’s ex parte application [Doc. No. 842] is GRANTED IN PART and DENIED

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IN PART as detailed above. The Court shall file a redacted version of the July 12, 2011

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Order on the public docket.

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IT IS SO ORDERED.

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DATED: August 24, 2011
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Honorable Barry Ted Moskowitz
United States District Judge

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