Brightwell v. McMillan Law Firm, APC The et al

Filing 76

ORDER Denying Without Prejudice Defendants' Ex Parte Application to File Documents Under Seal [DOC. 71 ]. Signed by Judge Thomas J. Whelan on 11/20/2017. (lrf) (Additional attachment(s) added on 11/21/2017: # 1 Stricken Document) (lrf).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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L. LEE BRIGHTWELL,

Case No.: 16-CV-1696 W (NLS)
Plaintiff,

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v.

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ORDER DENYING WITHOUT
PREJUDICE DEFENDANTS’ EX
PARTE APPLICATION TO FILE
DOCUMENTS UNDER SEAL
[DOC. 71]

THE MCMILLAN LAW FIRM, et al.,
Defendants.

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Pending before the Court is Defendants’ ex parte application to file documents

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under seal. [Doc. 71.] Despite the passing of a week since the filing of the application,

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no opposition has been filed. The Court decides the matter without oral argument

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pursuant to Civil Local Rule 7.1(d)(1). For the following reasons, the Court DENIES the

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application without prejudice.

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16-CV-1696 W (NLS)

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I.

LEGAL STANDARD

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Federal law creates a strong presumption in favor of public access to court records.

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But this right of access is not absolute. San Jose Mercury News, Inc. v. U.S. Dist. Court–

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N. Dist. (San Jose), 187 F.3d 1096, 1102 (9th Cir. 1999). “Every court has supervisory

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power over its own records and files[,]” and may provide access to court documents at its

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

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Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978)). District courts

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therefore have authority to seal and unseal court records, a power that derives from their

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inherent supervisory power. See Hagestad, 49 F.3d at 1434.

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When a district court is asked to seal court records in a civil case, the presumption

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in favor of access can be overcome by a showing of “sufficiently important

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countervailing interests.” See San Jose Mercury News, 187 F.3d at 1102. The factors

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relevant to determining whether this presumption has been overcome include the “

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‘public interest in understanding the judicial process and whether disclosure of the

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material could result in improper use of the material for scandalous or libelous purposes

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or infringement upon trade secrets.’ ” Hagestad, 49 F.3d at 1434 (quoting EEOC v.

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Erection Co., Inc., 900 F.2d 168, 170 (9th Cir. 1990). “After taking all relevant factors

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into consideration, the district court must base its decision on a compelling reason and

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

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(citing Valley Broad. Co. v. United States Dist. Court, 798 F.2d 1289, 1295 (9th Cir.

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1986)).

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As a natural consequence of the public’s right of access to records in civil cases,

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the presumption of public access cannot be overcome by a mere stipulation of the parties.

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As Judge Posner recognized, the district judge is duty-bound to scrutinize any request to

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seal court documents and therefore “may not rubber stamp a stipulation to seal the

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record.” Citizens First Nat. Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945

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(7th Cir. 1999); accord City of Hartford v. Chase, 942 F.2d 130, 136 (1st Cir. 1991)

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16-CV-1696 W (NLS)

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(“[T]he trial court—not the parties themselves—should scrutinize every such agreement

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involving the sealing of court papers and what, if any, of them are to be sealed . . . .”).

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II.

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DISCUSSION
Defendants seek to file 180 pages under seal, without corresponding redacted

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public copies. (Sealed Lodged Proposed Documents [Doc. 72].) Their application

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provides the correct legal standard (Defs.’ App. [Doc. 71] 2:5–3:9), but it offers no

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reasons that could justify sealing the material. (Id. [Doc. 71] 3:12–25.) It does not even

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describe the documents in question. Instead, it merely cites to the protective order.

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(Protective Order [Doc. 52].)

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The protective order does not itself authorize parties to seal court records. (See id.

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[Doc. 52] 14:19–27 (“Nothing shall be filed under seal, and the Court shall not be

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required to take any action, without separate prior order by the Judge . . . . The parties

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shall follow and abide by applicable law . . . with respect to filing documents under

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seal.”).) Parties must still provide important countervailing interests to overcome the

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presumption of public access to court records. San Jose Mercury News, 187 F.3d at

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1102. Defendants have not done so here.

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The application will be denied without prejudice.

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16-CV-1696 W (NLS)

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III.

CONCLUSION & ORDER
Defendants’ ex parte application to file under seal is DENIED WITHOUT

PREJUDICE. [Doc. 71.]
The sealed lodged proposed documents are STRICKEN from the docket.
[Doc. 72.]

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IT IS SO ORDERED.

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Dated: November 20, 2017

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16-CV-1696 W (NLS)