Kilby v. CVS Pharmacy, Inc.

Filing 93

ORDER denying 84 Defendant's Motion to File Documents Under Seal. Signed by Judge M. James Lorenz on 11/16/11. (lmt)

1
2
3
4
5
6
7
8
9
10
UNITED STATES DISTRICT COURT
11
SOUTHERN DISTRICT OF CALIFORNIA
12
13
NYKEYA KILBY,
14
Plaintiff,
15
v.
16
CVS PHARMACY, INC.,
17
Defendant.
18

)
)
)
)
)
)
)
)
)
)

Civil No. 09-cv-2051-L(CAB)
ORDER DENYING MOTION TO
FILE DOCUMENTS UNDER SEAL
[DOC. 84]

19
20

Pending before the Court is Defendant’s motion to seal the deposition testimony of

21 Steven Johnson. This testimony is contained in the Declarations of Michael D. Weil in Exhibit 7
22 for Defendant’s opposition to Plaintiff’s motion for class certification (Doc. 74), and in Exhibit 3
23 for Defendant’s motion to strike (Doc. 83). In its motion, Defendant indicates that it only filed
24 this motion in order to comply with the protective order after Plaintiff’s counsel informed
25 Defendant that it intended to treat the deposition testimony as confidential.
26

For the following reasons, the Court DENIES Defendant’s motion file documents under

27 seal. (Doc. 84.)
28 //
09cv2051

1 I.

ANALYSIS

2

Two standards generally govern motions to seal documents. Pintos v. Pac. Creditors

3 Ass’n, 605 F.3d 665, 677 (9th Cir. 2010). The standard varies depending on whether the
4 documents are general judicial records or “private materials unearthed during discovery.” Id. at
5 678-79.
6

“[A] ‘compelling reasons’ standard applies to most judicial records.” Pintos, 605 F.3d at

7 677-78. A party seeking to seal judicial records must show that “compelling reasons supported
8 by specific factual findings . . . outweigh the general history of access and the public policies
9 favoring disclosure.” Id. at 678 (quoting Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172,
10 1178-79 (9th Cir. 2006)) (internal quotation marks omitted). This standard derives from the
11 common-law right “to inspect and copy public records and documents, including judicial records
12 and documents.” Id.; see also Nixon v. Warner Comm’ns, Inc., 435 U.S. 589, 597 (1978). As
13 long as the particular document is not one that is “traditionally kept secret,” the presumption of
14 access “extends to pretrial documents filed in civil cases, including materials submitted in
15 connection with motions for summary judgment.” Foltz v. State Farm Mut. Auto. Ins. Co., 331
16 F.3d 1122, 1134 (9th Cir. 2003). However, this right to access is not absolute. “‘[C]ompelling
17 reasons’ sufficient to outweigh the public’s interest in disclosure and justify sealing court
18 records exist when such ‘court files might have become a vehicle for improper purposes,’ such
19 as the use of records to gratify private spite, promote public scandal, circulate libelous
20 statements, or release trade secrets.” Kamakana, 447 F.3d at 1178-79 (citing Nixon, 435 U.S. at
21 678). But “[t]he mere fact that the production of records may lead to a litigant’s embarrassment,
22 incrimination, or exposure to further litigation will not, without more, compel the court to seal its
23 records.” Id. (citing Foltz, 331 F.3d at 1136).
24

A less burdensome “good cause” standard applies when a party seeks to seal “private

25 materials unearthed during discovery,” which are not part of the judicial record. Pintos, 605
26 F.3d at 678. The court applies the lower burden to such documents because “[t]he cognizable
27 public interest in judicial records that underlies the ‘compelling reasons’ standard does not exist
28 for documents produced between private litigants.” Id. (citing Kamakana, 447 F.3d at 1180).
09cv2051

2

1 Under such circumstances, Federal Rule of Civil Procedure 26(c) governs. Rule 26(c) provides
2 that a trial court may grant a protective order “to protect a party or person from annoyance,
3 embarrassment, oppression, or undue burden or expense.” The relevant standard for the
4 purposes of Rule 26(c) is whether “‘good cause’ exists to protect th[e] information from being
5 disclosed to the public by balancing the needs for discovery against the need for confidentiality.”
6 Pintos, 605 F.3d at 678 (citing Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d
7 1206, 1213 (9th Cir. 2002). Furthermore, documents attached to non-dispositive motions must
8 also meet the less burdensome standard under Rule 26(c). Foltz, 331 F.3d at 1135 (discussing
9 Phillips, 307 F.3d at 1213); see also Pintos, 565 F.3d at 1115-16; Kamakana, 447 F.3d at 1180.
10

Here, the Court is faced with an unusual situation where the party moving to seal

11 documents is in fact the one that does not want the documents sealed. Consequently, Defendant
12 does not address in its motion either standard for sealing documents. Defendant merely states
13 that it “does not consider anything in the deposition CONFIDENTIAL and files this motion to
14 seal solely to comply with the Stipulated Protective Order.” (Def.’s Mot. 2:14–16 [Doc. 84].)
15 Plaintiff, in its opposition, argues that the Court should grant the motion because it is
16 unopposed.1 (Pl.’s Opp’n 2:10–11 [Doc. 91].) Though Plaintiff goes on to describe the contents
17 of the documents sought to be sealed, she also fails to address either standard. Finally, in its
18 reply, Defendant opposes its own motion, arguing that neither standard is met by Plaintiff.2
19 (Def.’s Reply 3:13–20 [Doc. 92].) Ultimately, throughout this procedural anomaly, neither
20 standard for sealing documents has been met by either party, and as a result, sealing the
21 documents here is not warranted at this time.
22
23
24

1

Plaintiff also discusses the treatment of the deposition testimony as confidential. (Pl.’s
25 Opp’n 3:12–4:25.) However, as Defendant correctly points out, this is not an issue before the
Court. The issue before the Court is whether the deposition testimony submitted by Defendant
26 should be sealed. Thus, none of the confidentiality issues presented by Plaintiff will be
addressed in this order.
27
2
Given that Defendant is the moving party, the reply could also be construed as a
28 withdrawal of the motion. However, the Court nonetheless decides the motion on the merits.
09cv2051

3

1 II.

CONCLUSION & ORDER

2

In light of the foregoing, the Court DENIES Defendant’s motion to file documents under

3 seal. (Doc. 84.)
4
5

IT IS SO ORDERED.

6
7 DATED: November 16, 2011
8

M. James Lorenz
United States District Court Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
09cv2051

4