Cancino Castellar et al v. Kelly et al

Filing 159

Order: (1) Denying Without Prejudice Plaintiff-Petitioners' Applications to Seal (ECF Nos. 123 , 138 ); (2) Denying Without Prejudice Defendant-Respondents' Application to Seal (ECF No. 131 ); (3) Denying as Moot Plaintiff-Petitioners� 39; Application to Seal (ECF No. 144 ); and (4) Granting in Part and Denying in Part Joint Motion to Amend (ECF No. 152 ). On or before, 7/30/21, the parties shall file the unredacted versions of the documents previously filed in redacted form (ECF Nos. 125-3, 125-15, 125-22, 125-24, 133-1, 146-1) as supplemental documents to the corresponding filings on the docket. Should the parties choose to reapply for a sealing order, they may do so on or before 8/13/21. Signed by Judge Cynthia Bashant on 7/26/21. (jmo)

Case 3:17-cv-00491-BAS-AHG Document 159 Filed 07/26/21 PageID.3333 Page 1 of 7

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSE ORLANDO CANCINO
CASTELLAR, et al.,

Case No. 17-cv-00491-BAS-AHG
ORDER:
(1) DENYING WITHOUT
PREJUDICE PLAINTIFFPETITIONERS’ APPLICATIONS TO
SEAL (ECF Nos. 123, 138);

Plaintiffs,
v.
KEVIN K. MCALEENAN, et al.,
Defendants.

(2) DENYING WITHOUT
PREJUDICE DEFENDANTRESPONDENTS’ APPLICATION TO
SEAL (ECF No. 131);

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(3) DENYING AS MOOT
PLAINTIFF-PETITIONERS’
APPLICATION TO SEAL
(ECF No. 144); AND

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(4) GRANTING IN PART AND
DENYING IN PART JOINT
MOTION TO AMEND (ECF No. 152).

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I.

BACKGROUND

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This is a putative class action brought by immigrants in federal custody alleging that

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they were detained for prolonged periods without being given prompt initial hearings

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before an immigration judge or judicial review of probable cause for detention. As relevant

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to this Order, Plaintiff-Petitioners filed a renewed motion for class certification (Mot. for

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Class Cert., ECF No. 125); Defendant-Respondents filed an opposition (Defs.’ Opp’n, ECF

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No. 133); and Plaintiff-Petitioners a reply (Pls.’ Reply, ECF No. 140). In doing so, the

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parties submitted certain exhibits and memoranda in redacted form and now move to file

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those documents under seal.

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Pending before the Court are Defendant-Respondents’ application to file under seal

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the unredacted version of the opposition (ECF No. 131) and three sealing applications filed

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by Plaintiff-Petitioners: to file under seal the unredacted versions of the documents filed in

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support of their renewed motion for class certification (ECF No. 123); to file under seal the

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unredacted version of their reply brief (ECF No. 138); and to file under seal the unredacted

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versions of their notice of errata and corrected memorandum in support of their renewed

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motion for class certification (ECF No. 144). Also pending before the Court is the parties’

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joint motion to amend the applications to seal. (ECF No. 152.)

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II.

LEGAL STANDARD

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“[T]he courts of this country recognize a general right to inspect and copy public

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records and documents, including judicial records and documents.” Nixon v. Warner

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Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one

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‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.”

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Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz v.

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State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption

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of access is ‘based on the need for federal courts, although independent—indeed,

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particularly because they are independent—to have a measure of accountability and for the

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public to have confidence in the administration of justice.’” Ctr. for Auto Safety v. Chrysler
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Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d

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1044, 1048 (2d Cir. 1995)).

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A party seeking to seal a judicial record bears the burden of overcoming the strong

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presumption of access. Foltz, 331 F.3d at 1135. The showing required to meet this burden

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depends upon whether the documents to be sealed relate to a motion that is “more than

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tangentially related to the merits of the case.” Ctr. for Auto Safety, 809 F.3d at 1102. When

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the underlying motion is more than tangentially related to the merits, the “compelling

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reasons” standard applies. Id. at 1096–98. When the underlying motion does not surpass

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the tangential relevance threshold, the lesser, “good cause” standard applies. Id.; see Pintos

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v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010) (holding that the “good cause”

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standard imposes a lower burden than the “compelling reasons” standard). Under either

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standard, “an order sealing the documents must be narrowly drawn to seal only those

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portions of the record that, upon a balancing of the relevant interests, ought to be sealed.”

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Acad. of Motion Picture Arts & Scis. v. GoDaddy.com, Inc., No. CV 10-03738-AB (CWX),

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2015 WL 12698301, at *1 (C.D. Cal. Jan. 22, 2015) (collecting cases).

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Under this Court’s Standing Order, the parties seeking a sealing order must provide

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the Court with “(1) a specific description of particular documents or categories of

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documents they need to protect; and (2) declarations showing a compelling reason or good

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cause to protect those documents from disclosure.” Hon. Cynthia Bashant’s Standing

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Order for Civil Cases (“Standing Order”) § 5. “The standard for filing documents under

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seal will be strictly applied.” Id. “Any protective order must be narrowly drawn” to reflect

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the balance between the moving party’s interests and the public’s right to access the court

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files, and “[a]ny member of the public may challenge the sealing of any particular

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document.” Id. “The fact that both side[s] agree to seal or that a protective order was

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issued at the onset of the case alone is insufficient cause for sealing.” Id.

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//

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III.

ANALYSIS

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A.

The Sealing Applications Do Not Satisfy the Compelling Reasons

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Standard

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A motion for class certification is central to the merits of a case and thus is “more

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than tangentially related to the underlying cause of action.” Krommenhock v. Post Foods,

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LLC, 334 F.R.D. 552, 586 (N.D. Cal. 2020) (citing Ctr. for Auto Safety, 809 F.3d at 1099).

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Therefore, the parties applying to seal documents in support of, or opposition to, the class

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certification motion must bear the heavy burden of showing “‘compelling reasons

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supported by specific factual findings’ that outweigh the general history of access and the

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public policies favoring disclosure.” See id. (citing Kamakana, 447 F.3d at 1178–79).

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Generally, “compelling reasons sufficient to outweigh the public’s interest in disclosure

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and 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 public

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scandal, circulate libelous statements, or release trade secrets.” Kamakana, 447 F.3d at

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1179 (citing Nixon, 435 U.S. at 598).

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Here, the parties’ sealing applications are about the documents designated as

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confidential pursuant to the Protective Order entered in this case. (See Pls.’ App. Seal,

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ECF No. 123 (providing as justifications for sealing requests Defendant-Respondents’

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designation of documents as confidential); Defs.’ App. Seal, ECF No. 131 (same); Pls.’

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App. Seal, ECF No. 138 (same); Pls.’ App. Seal, ECF No. 144 (same).) The parties’ joint

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motion to revise the scope of the sealing applications are also based on the parties’ lifting

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of certain confidentiality designations. (Joint Mot. to Amend, ECF No. 152.) The mere

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fact that the parties have designated certain materials as confidential, regardless of whether

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the parties agree to the scope of such designations, does not supply a legal basis to curtail

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the public’s access to judicial records. See Standing Order § 5 (“The fact that both side[s]

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agree to seal or that a protective order was issued at the onset of the case alone is

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insufficient cause for sealing.”); see also In re Ferrero Litig., No. 11–CV–205 H(CAB),

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2011 WL 3360443, *2 (S.D. Cal. Aug. 3, 2011) (holding that a protective order itself does

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not satisfy the standard required of a sealing order).

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The parties have not “articulate[d] compelling reasons supported by specific factual

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findings ‘that outweigh the general history of access and the public policies favoring

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disclosure.’”

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counsel’s declarations provide as reasons behind the sealing applications that the

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information requested to be filed under seal has been designated as confidential by

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Defendant-Respondents or that the parties agree as to the designation. As explained above,

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neither the designation of confidentiality nor the parties’ agreement that the information is

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confidential is enough to satisfy the compelling reasons standard. At a minimum, the

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parties must specify the specific reasons why certain documents should be maintained

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under seal and provide factual findings that support that assertion.

Kamakana, 447 F.3d 1172 (citations omitted).

Plaintiff-Petitioners’

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For example, a declaration by a federal government employee with personal

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knowledge and foundation for the impact of the release of information sought to be avoided

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may be enough. See, e.g., United States ex rel. Kelly v. Serco, Inc., No. 11CV2975 WQH-

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RBB, 2014 WL 12675246, at *4 (S.D. Cal. Dec. 22, 2014) (finding compelling reasons to

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maintain under seal information about “locations, technical specifications, and operational

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capabilities of towers along the U.S. Border” based on a government employee’s

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declaration that “release of [the] information could significantly compromise the

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effectiveness of these sites and thereby impair the effectiveness of Customs and Border

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Patrol in carrying out their assigned missions and duties at those sites and in nearby areas”).

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In contrast, a declaration by counsel as to matters of which counsel lacks personal

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knowledge is generally not enough to satisfy the compelling reasons standard. See, e.g.,

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Pac. Marine Propellers, Inc. v. Wartsila Def., Inc., No. 17-CV-555-L-NLS, 2018 WL

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6601671, at *2 (S.D. Cal. Dec. 14, 2018) (finding that the declaration by counsel was not

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enough to meet the “compelling reasons” standard because counsel lacked personal

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knowledge of or foundation for the assertions that the information at issue might harm the

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defendant company’s competitive standing); Signal Hill Serv., Inc. v. Macquarie Bank Ltd.,
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No. CV1101539MMMJEMX, 2013 WL 12244287, at *3 (C.D. Cal. May 14, 2013)

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(assigning “no weight” to the conclusory declaration by plaintiff’s counsel that disclosure

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of the information at issue could harm the plaintiff’s business where the plaintiff did not

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demonstrate that counsel had personal knowledge about the harm asserted).

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Therefore, the compelling reasons standard has not been satisfied by the original

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sealing applications, and the joint motion to amend the sealing applications do not cure the

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deficiency.

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B.

The Parties May Replace the Documents Previously Filed in Redacted

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Form with the Unredacted Versions.

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Separately, the parties seek to replace the following, previously filed documents with

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unredacted versions:

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• Plaintiff-Petitioners’ Corrected Memorandum of Points and Authorities in

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Support of Plaintiff-Petitioners’ Renewed Motion for Class Certification

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(ECF No. 146-1);

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• Declaration of Bardis Vakili in Support of Renewed Motion for Class
Certification (ECF No. 125-3);
• Excerpted Transcripts of the Sept. 16, 2020 Deposition of Judge Rico
Bartolomei (30(b)(6) Witness for EOIR) (ECF Nos. 125-15, 133-1);

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• Declaration of Tom K. Wong (ECF No. 125-22);

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• Exhibit B to the Declaration of Tom K. Wong (ECF No. 125-24); and

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• Exhibit D to the Declaration of Tom K. Wong (ECF No. 125-26).

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The parties’ request is granted. The parties shall file the unredacted versions of the

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documents as supplemental documents to the corresponding filings on the docket.

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Because Plaintiff-Petitioners seek to file the unredacted versions of the notice of

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errata and corrected memorandum in support of their renewed motion for class

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certification, their previous sealing application seeking to file those documents under seal

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(ECF No. 144) is denied as moot.

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IV.

CONCLUSION

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The Court DENIES WITHOUT PREJUDICE Plaintiff-Petitioners’ application to

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file under seal the unredacted versions of the documents filed in support of their renewed

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motion for class certification. (ECF No. 123.)

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The

Court

DENIES

WITHOUT

PREJUDICE

Defendant-Respondents’

application to file under seal the unredacted version of the opposition. (ECF No. 131.)
The Court DENIES WITHOUT PREJUDICE Plaintiff-Petitioners’ application to
file under seal the unredacted version of their reply brief. (ECF No. 138).

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The Court DENIES AS MOOT Plaintiff-Petitioners’ application to file under seal

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the unredacted versions of their notice of errata and corrected memorandum in support of

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their renewed motion for class certification. (ECF No. 144.)

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The Court GRANTS IN PART AND DENIES IN PART the parties’ joint motion
to amend the applications to seal. (ECF No. 152.)

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On or before July 30, 2021, the parties SHALL file the unredacted versions of the

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documents previously filed in redacted form (ECF Nos. 125-3, 125-15, 125-22, 125-24,

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133-1, 146-1) as supplemental documents to the corresponding filings on the docket.

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Should the parties choose to reapply for a sealing order, they may do so on or before

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August 13, 2021. Any motion for a sealing order must fully address the “compelling

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reasons” supporting the sealing of each document, identifying the specific harm that would

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likely flow from public disclosure of that precise document, supported by factual findings.

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See Kamakana, 447 F.3d at 1178.

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IT IS SO ORDERED.

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DATED: July 26, 2021

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