Brightwell v. McMillan Law Firm, APC The et al

Filing 90

ORDER Granting 85 Ex Parte Motion to File Documents Under Seal. Signed by Judge Thomas J. Whelan on 3/13/2018. (jao)

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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 GRANTING EX PARTE
APPLICATION TO FILE
DOCUMENTS UNDER SEAL
[DOC. 85]

THE MCMILLAN LAW FIRM, et al.,
Defendants.

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

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documents under seal. [Doc. 85.] 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 GRANTS

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the application.

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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.

Parties seek to file twelve exhibits under seal— Defendants’ Exhibits E, F, G, H, I,

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DISCUSSION

K, M, N, O, P, Q, and R. (Ex Parte App. [Doc. 85] 4:26–27.)

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Exhibits E, P, and Q are confidential email correspondences between Plaintiff

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Brightwell and Defendant McMillan while McMillan served as Brightwell’s attorney.

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(Ex Parte App. [Doc. 85] 5:1–3.)

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Exhibits F and K are confidential email correspondences between Scott McMillan

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and Joshua Heinlein, Plaintiff Brightwell’s current counsel. (Ex Parte App. [Doc. 85]

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5:3–5.) One discusses the terms of the underlying settlement, and the other discusses

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strategy as to the underlying matter. (Exhs. F, K [Doc. 86].)

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Exhibit G is a confidential communication to Plaintiff Brightwell from her former
counsel, Josh Gruenberg. (Ex Parte App. [Doc. 85] 5:7–8.)
Exhibit H are Plaintiff Brightwell’s confidential handwritten notes during her

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meeting with her then-counsel, Defendant McMillan. (Ex Parte App. [Doc. 85] 5:9–10.)

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Exhibit I constitutes excerpts from the deposition of Plaintiff Brightwell. (Ex

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Parte App. [Doc. 85] 5:11–14.) These pages contain confidential communications

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between Brightwell and her former attorneys, discussion of strategy in the underlying

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matter, and details as to Brightwell’s personal financial information. (Id.)
Exhibits M, N, and O are confidential communications that contain Brightwell’s

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personal financial information. (Ex Parte App. [Doc. 85] 5:15–16.)

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Exhibit R is a confidential settlement agreement in the underlying case. (Ex Parte

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App. [Doc. 85] 5:17.)

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16-CV-1696 W (NLS)

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The facts contained within these documents are confidential per a July 18, 2017

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Protective Order. (Protective Order [Doc. 52]; Ex Parte App. [Doc. 85] 5:18–22.)

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Disclosure threatens harmful repercussions to parties’ professional and financial

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wellbeing. Sufficiently important countervailing reasons exist to overcome the

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presumption of public access. See San Jose Mercury News, 187 F.3d at 1102.

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The unopposed ex parte application will be granted.

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III.

CONCLUSION & ORDER
Defendants’ unopposed application to file under seal is GRANTED. [Doc. 85.]

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IT IS SO ORDERED.
Dated: March 13, 2018

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16-CV-1696 W (NLS)