Lee v. Hawaii Pacific University et al

Filing 67

ORDER Denying Defendant's 66 Ex Parte Motion to File Under Seal. Signed by Judge BARRY M. KURREN on 12/6/2013. (gab, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MAROL K. LEE aka MAROL K.
LOFTIS,

)
)
)
Plaintiff,
)
)
vs.
)
)
HAWAII PACIFIC UNIVERSITY, )
ET AL.,
)
)
Defendants.
)
______________________________ )

Civ. No. 12-00604 BMK
ORDER DENYING
DEFENDANTS’ EX PARTE
MOTION TO FILE UNDER SEAL

ORDER DENYING DEFENDANTS’ EX PARTE
MOTION TO FILE UNDER SEAL
Before the Court is Defendants Hawaii Pacific University, Deborah
Nakashima, and John Kearns’ (“Defendants”) Ex Parte Motion to File Under Seal.
(Doc.66.) After careful consideration of the Motion and the supporting
memorandum, Defendants’ Motion is DENIED.1
DISCUSSION
Defendants’ Motion seeks leave of the court to file a Motion for
Summary Judgment, Concise Statement of Facts, and supporting documents under

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7.2(d).

The Court elects to decide this Motion without a hearing, pursuant to Local Rule

seal. Defendants contend that filing under seal is appropriate pursuant to the
parties’ Stipulated Protective Order (Doc. 60), the Family Educational Rights and
Privacy Act (“FERPA”), and in light of an ongoing federal investigation.
Additionally, Defendants assert that Plaintiff does not object to filing under seal.
Due to the common law “general right to inspect and copy public
records and documents, including judicial records and documents,” there is a
“strong presumption” in favor of maintaining public access to judicial records that
are not of a type “traditionally kept secret for important policy reasons.”
Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006); see
also Doe v. Kamehameha Schools, 596 F.3d 1036, 1042 (9th Cir. 2010).
Dispositive motions, “including motions for summary judgment and related
attachments,” are not the type of documents traditionally kept secret. Kamakana,
447 F.3d at 1179. Rather, open access to dispositive motions is “at the heart of the
interest in ensuring the ‘public’s understanding of the judicial process and of
significant public events.’” Id.
Accordingly, a party seeking to seal a motion for summary judgment
and its supporting documents bears the burden of overcoming the strong
presumption in favor of public access by “articulating compelling reasons that
outweigh the general history of access and the public policy favoring disclosure.”
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U.S. v. Business of Custer Battlefield Museum, 658 F.3d 1188, 1194 (9th Cir.
2011)(internal quotes omitted).
In general, “compelling reasons” sufficient to outweigh
the public's interest in disclosure and justify sealing court
records exist when such “court files might have become a
vehicle for improper purposes,” such as the use of
records to gratify private spite, promote public scandal,
circulate libelous statements, or release trade secrets.
The mere fact that the production of records may lead to
a litigant's embarrassment, incrimination, or exposure to
further litigation will not, without more, compel the court
to seal its records.

Kamakana, 596 F.3d at 1179. The “compelling reasons” standard is decidedly
more stringent than the “good cause” standard applicable to non-dispositve
motions and documents produced in discovery. Id. at 1180.
Defendants primarily assert that the Stipulated Protective Order in this
case “requires that information designated as ‘Confidential’ or ‘Highly
Confidential’ be filed under seal.” (Motion at 3.) A Stipulated Protective Order
limiting access to discovery documents does not, however, relieve a party from
satisfying the “compelling reasons” test when that discovery is later utilized in a
dispositive motion. See id. at 1183 (noting that a stipulated blanket protective
order for purposes of discovery, without more, “does not justify sealing court
records.”). As the Ninth Circuit explained in Kamakana, judges may grant pre-trial
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protective orders without the benefit of making individualized determinations as to
specific documents. Id. at 1183. Thus a protective order cannot by itself be a
compelling reason that rebuts the presumption of public access to court documents.
See id.
Moreover, a party moving to file documents under seal is required to
provide “specific compelling reasons” to justify doing so. Id. at 1183-84. “Simply
mentioning a general category of privilege, without any further elaboration or any
specific linkage with the documents, does not satisfy the burden.” Id. at 1184.
Defendants’ Motion to File Under Seal offers no document specific discussion.
Rather, Defendants simply cite the discretion granted to them by the Protective
Order to designate “confidential information,” the broad standards of FERPA, and
note “an ongoing federal investigation.” The Court holds that Defendants have
failed to provide “specific compelling reasons” to justify their broad request.

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CONCLUSION
For the foregoing reasons, the Court DENIES Defendants’ Ex Parte
Motion to File Under Seal.
DATED: Honolulu, Hawaii, December 6, 2013.
IT IS SO ORDERED.

/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge

Marol K. Lee aka Marol K. Loftis v. Hawaii Pacific University, et al,, Civ. No. 12-00604 BMK;
ORDER DENYING DEFENDANTS’ EX PARTE MOTION TO FILE UNDER SEAL.
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