Shimmick Construction Company, Inc. et al v. Sicoma North America, Inc.

Filing 118

ORDER denying Plaintiff's 112 Amended Motion to File Documents Under Seal; terminating Plaintiff's 107 Motion to File Documents Under Seal. Plaintiff shall file all of the remaining exhibits in support of its opposition on the public docket. Signed by Judge Cynthia Bashant on 10/5/2015. (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SHIMMICK CONSTRUCTION
COMPANY, INC./OBAYASHI
CORPORATION,

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v.

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Plaintiff,

Case No. 13-cv-2700-BAS(JLB)
ORDER DENYING PLAINTIFF’S
MOTION TO FILE DOCUMENTS
UNDER SEAL
[ECF Nos. 107, 112]

OFFICINE MECCANICHE
GALLETTI-O.M.G. S.R.L., et al.,
Defendants.

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Pending before the Court is Plaintiff’s motion to file portions of exhibits

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supporting its opposition to Defendants’ summary-judgment motion under seal. To

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date, Defendants have not opposed.

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For the following reasons, the Court DENIES Plaintiff’s motion to file
documents under seal. (ECF No. 112.)

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I.

ANALYSIS

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

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Creditors Ass’n, 605 F.3d 665, 677 (9th Cir. 2010). The standard varies depending on

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whether the documents are general judicial records or “private materials unearthed

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during discovery.” Id. at 678-79.
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“[A] ‘compelling reasons’ standard applies to most judicial records.” Pintos, 605

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F.3d at 677-78. A party seeking to seal judicial records must show that “compelling

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reasons supported by specific factual findings . . . outweigh the general history of

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access and the public policies favoring disclosure.” Id. at 678 (quoting Kamakana v.

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City & Cnty. of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006)) (internal quotation

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marks omitted). This standard derives from the common-law right “to inspect and copy

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public records and documents, including judicial records and documents.” Id.; see also

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Nixon v. Warner Comm’ns, Inc., 435 U.S. 589, 597 (1978). As long as the particular

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document is not one that is “traditionally kept secret,” the presumption of access

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“extends to pretrial documents filed in civil cases, including materials submitted in

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connection with motions for summary judgment.” Foltz v. State Farm Mut. Auto. Ins.

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Co., 331 F.3d 1122, 1134 (9th Cir. 2003). However, this right to access is not absolute.

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“‘[C]ompelling reasons’ sufficient to outweigh the public’s interest in disclosure and

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justify sealing court records exist when such ‘court files might have become a vehicle

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for improper purposes,’ such as the use of records to gratify private spite, promote

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public scandal, circulate libelous statements, or release trade secrets.” Kamakana, 447

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F.3d at 1178-79 (citing Nixon, 435 U.S. at 598). But “[t]he mere fact that the

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production of records may lead to a litigant’s embarrassment, incrimination, or

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exposure to further litigation will not, without more, compel the court to seal its

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records.” Id. (citing Foltz, 331 F.3d at 1136).

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

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“private materials unearthed during discovery,” which are not part of the judicial

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record. Pintos, 605 F.3d at 678. The court applies the lower burden to such documents

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because “[t]he cognizable public interest in judicial records that underlies the

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‘compelling reasons’ standard does not exist for documents produced between private

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litigants.” Id. (citing Kamakana, 447 F.3d at 1180). Under such circumstances,

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Federal Rule of Civil Procedure 26(c) governs. Rule 26(c) provides that a trial court

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may grant a protective order “to protect a party or person from annoyance,
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embarrassment, oppression, or undue burden or expense.” The relevant standard for

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the purposes of Rule 26(c) is whether “‘good cause’ exists to protect th[e] information

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from being disclosed to the public by balancing the needs for discovery against the

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need for confidentiality.” Pintos, 605 F.3d at 678 (citing Phillips ex rel. Estates of

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Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002). Furthermore,

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documents attached to non-dispositive motions must also meet the less burdensome

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standard under Rule 26(c). Foltz, 331 F.3d at 1135 (discussing Phillips, 307 F.3d at

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1213); see also Pintos, 565 F.3d at 678-79; Kamakana, 447 F.3d at 1180.

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“The ‘compelling reasons’ standard is invoked even if the dispositive motion,

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or its attachments, were previously filed under seal or protective order.” Kamakana,

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447 F.3d at 1179. However, the basis of Plaintiff’s request to seal is that certain

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documents were designated “confidential” in accordance with the protective order.

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(Pl.’s Mot. 9:20–10:13.) Each exhibit identified for sealing, amounting to nineteen

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exhibits in total, is an email communication where Plaintiff asserts “confidentiality of

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this document” and contends that the document contains “commercially sensitive

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information about non-parties.” (Id. at 3:5–8:21.) Plaintiff adds that several of these

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exhibits should be sealed also due to pricing information, pricing negotiations, or third-

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party names. (Id.) The existence of the protective order is inadequate to rebut the

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presumption of access afforded to the public.

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Furthermore, Plaintiff fails to explains how the identified documents might become a

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vehicle for improper purposes. See Kamakana, 447 F.3d at 1178-79. There is no

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indication that the identified documents may be used to “gratify public spite, promote

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public scandal, circulate libelous statements, or release trade secrets.” See id.

See Foltz, 331 F.3d at 1136.

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Because Plaintiff fails to provide a compelling reason to seal the identified

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documents, Plaintiff also fails to justify sealing those documents. See Kamakana, 447

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F.3d at 1178-79; Foltz, 331 F.3d at 1136.

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//

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//
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II.

CONCLUSION & ORDER

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In light of the foregoing, the Court DENIES Plaintiff’s amended motion to file

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documents under seal. (ECF No. 112.) Accordingly, Plaintiff shall file all of the

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remaining exhibits in support of its opposition on the public docket. Furthermore, the

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Court also TERMINATES Plaintiff’s previously filed motion to file documents under

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seal (ECF No. 107) in light of its explanation that that motion is substantively identical

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to this one. (Pl.’s Mot. 1 n.1.)

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IT IS SO ORDERED.

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DATED: October 5, 2015
Hon. Cynthia Bashant
United States District Judge

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