Golden v. BofI Holding, Inc. et al

Filing 317

ORDER Granting 303 Motion to Seal. Signed by Magistrate Judge Karen S. Crawford on 12/20/21. (sxa)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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In re B of I HOLDING, INC.
SECURITIES LITIGATION

Case No.: 15-cv-2324-GPC-KSC
ORDER GRANTING MOTION TO
SEAL

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[Doc. No. 303]

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The parties have recently filed two joint discovery motions related to defendants’

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assertion of the bank examination privilege on behalf of the Office of the Comptroller of

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the Currency. See Doc. Nos. 300, 301. The parties also jointly move to seal one exhibit

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referenced in those motions, and the portions of the motions that quote from or reveal the

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exhibit’s content (the “Motion to Seal”). See Doc. No. 303. For the reasons set forth

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below, the Court GRANTS the Motion to Seal.

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The right of the public “‘to inspect and copy … judicial records and documents’” is

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well established. Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir.

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2006) (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). The Court starts

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with “a ‘strong presumption in favor of access,’” which the party seeking sealing “bears

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the burden of overcoming.” Id. Where, as here, the documents to be sealed are attached to

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a non-dispositive discovery motion, the party requesting sealing must make a

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“‘particularized showing’” of “‘good cause.’” Id. at 1180 (citation omitted). The Court has
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previously cautioned the parties that, pursuant to Ninth Circuit authority, designation of

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documents or testimony under the operative Second Amended Protective Order [Doc. No.

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286] is not in itself sufficient to demonstrate good cause for sealing. Doc. No. 297 at 9-10.

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Rather, the party seeking sealing must provide the Court with sufficient information to

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make “an individualized determination” that a particular document or information should

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be sealed. Id. (citing Kamakana, 447 F.3d at 1183); see also Anderson v. Marsh, 312

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F.R.D. 584, 594 (E.D. Cal. 2015) (stating that the “party seeking protection” must “show

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that specific prejudice or harm will result” if sealing is not permitted).

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The Motion to Seal now before the Court concerns an audit-related document that

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defendants assert is protected by the bank examination privilege that was purportedly

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produced inadvertently. Doc. No. 303 at 2-3. Without making any findings as to whether

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the document is, in fact, privileged, the Court agrees with the parties that due to the

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assertion of privilege, it would be prudent to seal this document at least “while the dispute

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[regarding defendants’ clawback request] is pending.” Id. The Court also finds that the

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parties have proposed narrowly tailored redactions to the two motions which quote from

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this document that obscure only the information necessary to protect against the disclosure

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of privileged information. Doc. No. 300 at 11; Doc. No. 301 at 8; accord In re Roman

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Catholic Archbishop of Portland in Or., 661 F.3d 417, 425 (9th Cir. 2011) (in determining

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whether to seal documents, “a court must still consider whether redacting portions of the

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discovery material will nevertheless allow disclosure”). Accordingly, the Court GRANTS

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the Motion to Seal [Doc. No. 303].

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IT IS SO ORDERED.

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Dated: December 20, 2021

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