McMillan et al v. Chaker et al
ORDER: The motion to seal previously filed documents is granted with respect to the request to seal and denied as to all other requests (Dkt. #78 ). Signed by Judge William Q. Hayes on 9/29/2017. (lrf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
SCOTT A. MCMILLAN, an
individual; THE MCMILLAN LAW
FIRM, APC, a California professional
CASE NO. 16cv2186-WQH-MDD
DARREN D. CHJ\KER, an individual,
and as trustee of PLATINUM
HOLDINGS GROUP TRUST doing
business as Counter Forensics, et ar.,
The matter before the Court is the Motion to Seal or for Protective Order filed
19 by Defendant Darren D. Chaker. (ECF No. 78).
20 I. BACKGROUND
On August 29, 2016, Plaintiffs Scott A. McMillan and The McMillan Law Firm
22 ("Plaintiffs") initiated this action by filing a complaint alleging causes of action for
23 violations of the Racketeer Influenced and Corrupt Organizations Act and civil
24 extortion against Defendant Darren D. Chaker ("Defendant") and other defendants.
25 (ECF No. 1). On December 5, 2016, Plaintiffs filed the First Amended Complaint
26 alleging the same causes of action. 1 (ECF No. 25).
The Court granted a motion to dismiss the First Amended Complaint on August
28, 2017. (ECF No. 83).
On May 22, 2017, Defendant filed the Motion to Seal or for Protective Order.
2 (ECF No. 78). Defendant requests that the Court seal the following three previously
3 filed documents: (1) Exhibit FF to the Original Complaint (ECF No. 1-30); (2) Exhibit
4 FF to the First Amended Complaint (ECF No. 25-29); and (3) Exhibit C attached to the
5 declaration of Plaintiff Scott McMillan in support of his opposition to Defendant's
6 motion for sanctions (ECF No. 75-1 at 121-141). Alternatively, Defendant moves the
7 Court for a protective order pursuant to Federal Rule of Civil Procedure 5.2(e ). On
8 June 12, 2017, Plaintiff filed a response in opposition. (ECF No. 80). On June 19,
9 2017, Defendant filed a reply. (ECF No. 81 ).
10 II. CONTENTIONS
Defendant contends that the Court should seal the three exhibits pursuant to
12 common law or Federal Rule of Civil Procedure 5.2. Defendant contends that Exhibit
13 FF to the original complaint and Exhibit FF to the first amended complaint contain
14 personal and confidential information and could expose Defendant to identify theft.
15 Defendant contends that the two Exhibits FF contain his date of birth, social security
16 number, driver's license numbers, and other personal identifying details. Defendant
17 contends that Plaintiff violated Rule 5.2 by filing Exhibit FF because Plaintiff did not
18 redact the month and date ofbirth and the first five digits of Defendant's social security
19 number. Defendant contends that the personal information in the exhibits is immaterial
20 to this litigation and its inclusion in the record serves no public interest. Defendant
contends that Exhibit C contains personal information such as addresses, dates of birth,
22 driver's license information of Defendant's sister, medical information, and other
23 personal information. Further, Defendant requests that the Court order that all counsel
24 be restrained from publicly disseminating any portion of the sealed documents in this
25 matter and that all documents shall be filed in compliance with Federal Rule of Civil
26 Procedure 5.2. (ECF No. 78-1 ). Defendant contends that Exhibits 1, 2, 4, 6, 7 and 8
27 to Plaintiffs opposition to this motion (ECF No. 80) should be stricken or
28 alternatively, sealed and/or fully redacted because these exhibits contain the same
1 personal information that is the subject of the motion to seal. (ECF No. 81 at 7).
2 Defendant contends that Plaintiffs should be sanctioned for knowingly refiling this
3 information in bad faith. Id.
Plaintiffs contend that there is no compelling reason to seal Exhibit FF or Exhibit
5 C. (ECF No. 80 at 7, 15). Plaintiffs contend that there are no social security numbers
6 listed in Exhibit FF and the addresses included in the exhibit are "primarily
7 thoroughfares or commercial buildings." Id. at 8. Plaintiffs contend that the month and
8 dates of birth can be redacted and driver's license numbers are not protected
9 information. Id. at 11. Plaintiffs contend that sensitive information in Exhibit C was
10 redacted prior to filing and that the exhibit does not list Defendant's personal address
or full date of birth. Id. at 15-18. Plaintiffs contend that Defendant does not have
12 standing to request the Court seal documents containing personal information about
13 Vania Chaker. Id. Plaintiffs contend that Exhibit FF and Exhibit C were not filed for
14 an improper purpose. Plaintiffs contend that sealing the documents is an overbroad
15 measure and "proposes that the best way to balance the interests ofDefendant and the
16 public access would be to file the original exhibits under seal, and file the attached
17 proposed redacted versions on the public record." Id. at 8.
18 III. LEGAL STANDARDS
"Historically, courts have recognized a' general right to inspect and copy public
20 records and documents, includingjudicial records and documents."' Kamakana v. City
and Cty. ofHonolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner
22 Commc 'ns., Inc., 435 U.S. 589, 597 & n.7 (1978). "A party seeking to seal a judicial
23 record then bears the burden of overcoming this strong presumption by meeting the
24 compelling reasons standard. That is, the party must articulate compelling reasons
25 supported by specific factual findings ... that outweigh the general history of access
26 and the public policies favoring disclosure ...." Id. at 1178-79 (citations and
27 quotation marks omitted). The presumed right to access court proceedings and
28 documents can be overcome "only by an overriding right or interest 'based on findings
1 that closure is essential to preserve higher values and is narrowly tailored to serve that
2 interest."' Oregonian Pub/ 'g Co. v. United States District Court, 920 F.2d 1462, 1465
3 (9th Cir. 1990) (quoting Press-Enterprise Co. v. Superior Court, 446 U.S. 501, 510
"Under the compelling reasons standard, the district court must weigh relevant
6 factors, base its decision on a compelling reason, and articulate the factual basis for its
7 ruling, without relying on hypothesis or conjecture." Pintos v. Pac. Creditors Ass 'n,
8 605 F.3d 665, 679 (9th Cir. 2010) (quotations omitted). "'Relevant factors' include the
9 'public interest in understanding the judicial process and whether disclosures of the
10 material could result in improper use of the material for scandalous or libelous
11 purposes or infringement upon trade secrets."' Id. at 659 n.6 (quoting Hagestad v.
12 Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)); see also Kamakana, 447 F.3d at 1179
("In general, 'compelling reasons' sufficient to outweigh the public's interest in
14 disclosure and justify sealing court records exist when such 'court files might have
15 become a vehicle for improper purposes,' such as the use of records to gratify private
16 spite, promote public scandal, circulate libelous statements, or release trade secrets.").
Further, Rule 5.2 provides,
Unless the court orders otherwise, in an electronic or paper filing with the
court that contains an individual's social-security number
taxpayer-identification number, or birth date, the name of an individuai
known to be a minor, or a financial-account number, a party or nonparty
making the filing may include only:
(1) the last four digits of the
(2) the year of the individual's birth;
(3) the minor's initials; and
(4) the last four digits of the financial-account number.
26 Fed. R. Civ. P. 5.2(a). Rule 5.2 provides exemptions from this redaction requirement
27 for certain documents, including "the official record of a state-court proceeding." Fed.
28 R. Civ. P. 5.2(b).
16cv2 l 86-WQH-MDD
1 IV. RULING OF THE COURT
The Court has reviewed the three exhibits. Exhibit FF to the Original Complaint
3 (ECF No. 1-30), Exhibit FF to the First Amended Complaint (ECF No. 25-29), and
4 Exhibit C attached to the declaration of Plaintiff Scott McMillan in support of his
5 opposition to Defendant's motion for sanctions (ECF No. 75-1at121-141) contain
6 personal and confidential identifying information related to Defendant.
7 confidential information contained in these exhibits, such as addresses, financial
8 information, driver's license information, and a possible social security number, "could
9 become a vehicle for improper purposes" and justifies sealing the exhibits. Kamakana,
10 447 F.3d at 1179.
The Court finds that Defendant has carried his burden of
overcoming the strong presumption in favor of public access by articulating compelling
12 reasons, supported by specific factual findings, for sealing the documents. Further,
13 because Exhibits 1, 2, 4, 5, 6, 7 and 8 attached to Plaintiffs' response in opposition to
14 the motion to seal contain most of the same personal information, the Court finds that
15 Defendant has carried his burden to seal these exhibits as well.
IT IS HEREBY ORDERED that the motion is GRANTED with respect to the
17 request to seal and denied as to all other requests. (ECF No. 78). The Clerk of Court
18 shall seal the following previously filed documents: (1) Exhibit FF to the Original
19 Complaint (ECF No. 1-30); (2) Exhibit FF to the First Amended Complaint (ECF No.
20 25-29); (3) Exhibit C attached to the declaration of Plaintiff Scott McMillan in support
of his opposition to Defendant's motion for sanctions (ECF No. 75-1 at 121-141); and,
22 (4) Exhibits 1, 2, 4, 5, 6, 7, and 8 attached to Plaintiffs' response in opposition to the
23 motion to seal (ECF Nos. 80-2, 80-3, 80-5, 80-6, 80-7, 80-8, 80-9).
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