Ancier v. Egan, et al.

Filing 301

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO PUBLICLY FILE DOCUMENTS IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, DOC. NO. 264 . Signed by JUDGE J. MICHAEL SEABRIGHT on 11/4/2015. (afc)CERTIFICATE OF S ERVICEParticipants 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 will be served by first class mail on November 5, 2015.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GARTH ANCIER,

)
)
Plaintiff,
)
)
vs.
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MICHAEL F. EGAN, III; JEFFREY M. )
HERMAN; and MARK F.
)
GALLAGHER,
)
)
Defendants.
)
)
________________________________ )

CIVIL NO. 14-00294 JMS-RLP
ORDER GRANTING IN PART
AND DENYING IN PART
MOTION TO PUBLICLY FILE
DOCUMENTS IN SUPPORT OF
PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT, DOC.
NO. 264

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
PUBLICLY FILE DOCUMENTS IN SUPPORT OF PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT, DOC. NO. 264
I. INTRODUCTION
On October 2, 2015, Plaintiff Garth Ancier (“Plaintiff”) filed the
instant Motion to file publicly Exhibits 4, 19-20, 23-25, Unredacted Exhibit 6, and
Unredacted Portions of his Concise Statement of Facts and Memorandum in
Support of his Motion for Summary Judgment, Doc. No. 245 (“Motion”). Doc.
No. 264. Defendants Jeffrey M. Herman (“Herman”) and Michael F. Egan, III
(“Egan”) (collectively, “Defendants”) filed Objections on October 13, 2015. Doc.
Nos. 274, 275. Pursuant to Local Rule 7.2(d), the court finds this matter suitable
for disposition without a hearing. As set forth below, Defendant’s Motion is

GRANTED in part and DENIED in part.
II. BACKGROUND
In this action, Plaintiff asserts state law claims for malicious
prosecution and abuse of process against Egan and his former counsel, Herman
and Mark F. Gallagher. Doc. No. 88, First Am. Compl. (“FAC”). Plaintiff alleges
that Defendants filed a frivolous action against him in Egan v. Ancier, Civ. No.
14-00188 SOM-BMK (the “underlying action”), which falsely accused Plaintiff of
sexually assaulting Egan in Hawaii in 1999. The underlying action was
voluntarily dismissed without prejudice after Plaintiff sought Rule 11 sanctions
against Defendants. Plaintiff further alleges that in addition to lacking merit, the
underlying action “was brought to smear, harass and severely injure Mr. Ancier as
part of an avowed and very public campaign by Mr. Egan and Mr. Egan’s counsel
to . . . shake down other entertainment industry executives with threats of sexual
assault charges.” Doc. No. 88, FAC at 2.
A Protective Order was filed on February 18, 2015. Doc. No. 128.
By the instant Motion, Plaintiff seeks to publicly file documents in connection
with his Motion for Summary Judgment that contain information either designated
confidential or derived from documents that have been designated confidential
pursuant to the Protective Order, and/or that contain information that may be
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protected by the attorney-client privilege. These documents include:
(1)

Exhibit 4 - Excerpts from Herman’s deposition (1) naming other
alleged perpetrators of sexual abuse, and (2) with respect to other
claimants, stating that Herman received monies as a result of pursuing
similar sexual abuse claims;1

(2)

Exhibit 19 - Email correspondence between Herman and a lawyer in
Herman’s law firm naming potential Egan defendants and discussing
litigation strategy;

(3)

Exhibit 20 - A July 17, 2014 letter to Herman from John Manly,
newly-retained counsel for Egan, that discusses Egan’s position
regarding the breakdown of Herman’s representation and the
monetary amount of settlements obtained by Herman in other cases;

(4)

Exhibit 23 - Email correspondence between Egan’s mother and a
lawyer in Herman’s law firm discussing a separate criminal action
and making an observation that the criminal action accelerated after
certain action was taken in connection with the underlying action;

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Herman’s affirmation that he received monies, but without stating from whom, is found
in Exhibit 4 on page 66 of his deposition transcript. The court determined that these monies
were received on behalf of other claimants by reviewing pages 64-65 of Herman’s unsealed
deposition transcript. See Doc. No. 246-7, Pl.’s Ex. 3.
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(5)

Exhibit 24 - Email correspondence from a consultant or contractor
retained by Herman to Herman, transmitting files;

(6)

Exhibit 25 - Email correspondence from a lawyer in Herman’s law
firm confirming a conversation between Egan and Herman regarding
litigation of the underlying action;

(7)

Exhibit 6 - unredacted Egan deposition testimony which includes
multiple questions concerning allegations in the Complaint in the
underlying action, quotes from a Certificate of Merit that is sealed,
see Doc. No. 116, pursuant to a court order dated February 3, 2015,
see Doc. No. 114, and Egan’s refusal to answer such questions; and

(8)

Excerpts from Plaintiff’s Concise Statement of Facts (“CSF”) and
Memo in Support (“MIS”) of Plaintiff’s Motion for Summary
Judgment that summarize and/or refer to information contained in the
exhibits at issue.
In addition, pursuant to paragraph 18 of the Protective Order, Plaintiff

seeks a court order “declassifying” the above documents and/or information as not
confidential.
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III. STANDARD OF REVIEW
Pursuant to Local Rule 83.12(b), a party “wish[ing] to file . . . [any]
matter that has been designated as confidential by another party pursuant to a
protective order, or . . . to refer in a memorandum or other filing to information so
designated by another party” must file a motion to file such matter publicly.
“[A]ny party may file . . . written objections seeking to have all or part of the
matter sealed.” Id. However, based on the “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.”2
Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006).
This strong presumption “applies fully to . . . motions for summary judgment and
related attachments.” Id. at 1179.
A party seeking to seal attachments to a dispositive motion “bears the
burden of overcoming this strong presumption by meeting the ‘compelling
reasons’ standard.” Id. at 1178. In so doing, the party “must ‘articulate
compelling reasons supported by specific factual findings’ that outweigh . . .

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Records that are traditionally kept secret include “grand jury transcripts and warrant
materials in the midst of a pre-indictment investigation.” Kamakana v. City & Cty. of Honolulu,
447 F.3d 1172, 1178 (9th Cir. 2006).
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public policies favoring disclosure.” Id. at 1178-79 (quoting Foltz v. State Farm
Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). The “compelling
reasons” standard applies “even if the dispositive motion, or its attachments, were
previously filed under seal or protective order.” Id. at 1179-80 (“A ‘good cause’
showing” is sufficient to obtain “a protective order to seal documents during
discovery,” but “will not, without more, satisfy a ‘compelling reasons’ test.”)
Generally, compelling reasons that are sufficient to overcome this
strong presumption exist when court filings contain privileged attorney-client
communications. Creative Tent Int’l Inc. v. Kramer, 2015 WL 4638320, at *3 (D.
Ariz. Aug. 4, 2015) (“[T]he presence of privileged attorney-client communications
is a compelling reason to seal the subject judicial record.”); Guidiville Rancheria
of Cal. v. United States, 2013 WL 6571945, at *9 (N.D. Cal. Dec. 13, 2013) ([T]he
attorney-client privilege . . . establishes compelling reasons for sealing.”). Also,
compelling reasons may be shown where
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, 447 F.3d at 1179 (internal citations and quotation marks omitted).
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IV. DISCUSSION
It is Defendants’ burden to establish compelling reasons to seal each
of the documents that Plaintiff seeks to file publicly. Egan contends generally that
the documents at issue contain information protected by the attorney-client
privilege and/or the protective order, and that he “has not waived” his attorneyclient privilege. Doc. No. 275, Egan’s Opp’n at 2. Herman contends that
(1) Exhibits 19 and 23-25 contain information subject to Egan’s attorney-client
privilege, (2) Egan has not waived his attorney-client privilege, (3) Exhibit 4
contains confidential information that Herman disclosed in reliance on Plaintiff’s
counsel’s assurances that such information would be sealed, and (4) the documents
at issue contain “the names of other alleged perpetrators of sexual abuse who are
not parties to this dispute and executed agreements with Herman to keep their
names confidential.” Doc. No. 274, Herman’s Obj. at 2-6. After a review of the
record and as discussed below, the court finds that Defendants have not met their
burden except as to the inclusion of other alleged perpetrators’ full names.
A.

Attorney-Client Privilege
1.

Legal Standard
“The attorney-client privilege protects confidential disclosures made

by a client to an attorney in order to obtain legal advice, . . . as well as an
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attorney’s advice in response to such disclosures.” United States v. Ruehle, 583
F.3d 600, 607 (9th Cir. 2009) (internal citations and quotation marks omitted).
The party “asserting the attorney-client privilege has the burden of establishing the
[existence of an attorney-client] relationship and the privileged nature of the
communication.” Id. (internal citations and quotation marks omitted). The Ninth
Circuit applies an eight-part test to determine whether information is covered by
the attorney-client privilege:
(1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or
by the legal adviser, (8) unless the protection be waived.
United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010) (quoting In re Grand
Jury Investigation, 974 F.2d 1068, 1071 n.2 (9th Cir. 1992)). “The party asserting
the privilege bears the burden of proving each essential element.” Id. (citations
omitted).
As to the last element, the attorney-client privilege is waived “when a
party discloses privileged information to a third party who is not bound by the
privilege, or otherwise shows disregard for the privilege by making the
information public.” Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir. 2003) (en
banc); see also Hernandez v. Tanninen, 604 F.3d 1095, 1100 (9th Cir. 2010)
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(determining that in opposing a summary judgment motion, Hernandez’ disclosure
of privileged communications constituted a waiver of such privilege); Wichansky
v. Zowine, 2015 WL 5693521, at *1 (D. Ariz. Sept. 29, 2015) (recognizing that the
attorney-client privilege is waived when a third party participated in
communications between the client and his counsel, even though the third party
was there to provide support). Waiver of the attorney-client privilege based on
disclosure of a privileged communication “results in waiver as to all other
communications on the same subject.” Hernandez, 604 F.3d at 1100; see also
Weil, 647 F.2d at 24 (recognizing that disclosure “constitutes waiver of the
privilege as to all other such communications on the same subject”).
2.

Application
Defendants’ bare assertions that the attorney-client privilege covers

some or all of the exhibits at issue here are not sufficient to establish such fact.
Moreover, applying the eight-part test, the court finds that the attorney-client
privilege does not cover most of the exhibits at issue, and to the extent it could, it
has been waived.
More specifically, in Exhibit 4, the names of other alleged
perpetrators are disclosed in documents that Egan publicly filed in the instant
action. See Doc. No. 254-1, Fred. M. Ryan Decl. at 2; see also Doc. No. 229-11,
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Egan’s Ex. J at 2. And the remaining information in Exhibit 4 refers to facts
known by Herman and not confidential information disclosed between Egan and
Herman.
Similarly, as to Exhibit 19, Egan disclosed the names of alleged
perpetrators as set forth above. And to the extent litigation strategy is discussed,
there is no indication that such information was communicated between Egan and
Herman or his law firm. In any case, the litigation strategy at issue was disclosed
in a press conference conducted by Herman and Egan. See Doc. No. 69-2, Ex. A,
Tr. of April 21, 2014 press conference at 2 (discussing generally the timing of
asserting claims); see also Bittaker, 331 F.3d at 719; Weil, 647 F.2d at 24
(recognizing that disclosure “constitutes waiver . . . as to all other such
communications on the same subject”).
To the extent Exhibit 20 includes information Egan communicated to
Herman regarding his position in connection with the underlying action, Egan
disclosed such information to Mr. Manly to obtain help in Egan’s dealings with
Herman and his law firm -- a separate legal matter. By disclosing such
information, Egan waived any attorney-client privilege that might have applied.
And to the extent Exhibit 20 discloses the amount of settlement monies Herman
received on behalf of other claimants, such information is factual and not a
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confidential communication between Egan and Herman and his law firm. Thus, to
that extent, Exhibit 20 does not include confidential attorney-client
communications between Egan and Herman and his law firm.
Exhibit 23 is a letter written by Egan’s mother. To the extent this
letter references information that was the subject of confidential attorney-client
communications, the disclosure of such information to Egan’s mother, either
contemporaneously or after the fact, destroyed the confidentiality of such
information. See Bittaker, 331 F.3d at 719; see also Wichansky, 2015 WL
5693521, at *1 (recognizing that the attorney-client privilege is waived when a
third party participated in communications between the client and his counsel,
even though the third party was there to provide support).
Exhibit 24 is nothing more than a transmittal message and contains no
confidential attorney-client communication. Furthermore, Egan disclosed the
identity of the consultant and the subject matter of the transmittal (not included in
Exhibit 24) in a document he filed in this action. See Doc. No. 254-1, Ryan Decl.
at 2.
Exhibit 25 contains information communicated between Egan and
Herman’s law firm regarding litigation of the underlying action that might be
covered if such information were confidential. However, Egan discusses the
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subject matter of such communication in a document he filed publicly in this
action. See Doc. No. 254, Egan’s Reply at 3. Thus, Egan waived the attorneyclient privilege as to Exhibit 25.
In Exhibit 6, questions posed to Egan during his deposition quote
from a Certificate of Merit prepared by a mental health professional. Neither Egan
nor Herman explained why information disclosed to a mental health professional
would be covered by the attorney-client privilege.
In short, the attorney-client privilege does not cover any of Plaintiff’s
exhibits or excerpts from his CSF and MIS that summarize and/or refer to the
information in these exhibits. Consequently, the documents at issue are not
subject to sealing on this basis.
B.

Neither the Protective Order Nor Opposing Counsel’s Assurances of
Confidentiality Constitute Compelling Reasons to Seal Exhibits
Egan contends that all exhibits must remain sealed because they are

covered by the Protective Order. Doc. No. 275, Egan’s Opp’n at 2. Herman
contends that compelling reasons exist to seal Exhibit 4 -- excerpts of his
deposition testimony -- because he relied on Plaintiff’s counsel’s assurance that
such testimony would be sealed. Doc. No. 274, Herman’s Opp’n at 4-6.
Defendants are mistaken.

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To the extend Egan argues that simply because information is covered
by the Protective Order it must remain sealed, such argument is without merit.
See Kamakana, 447 F.3d at 1179 (applying “compelling reasons” standard “even
if the dispositive motion, or its attachments, were previously filed under seal or
protective order”). Similarly, the mere fact that the Certificate of Merit, portions
of which are quoted in Exhibit 6, was filed under seal by a prior court order is not
sufficient to establish a compelling reason to seal such information at this time,
particularly where the order to seal was based on the less stringent “good cause”
standard. See Doc. No. 114, Entering Order (“The Court . . . finds good cause to
seal the Certificate of Merit.”). See Kamakana, 447 F.3d at 1179. Moreover, the
crux of this action is a dispute about whether Egan filed the underlying action in
bad faith. An examination of the underlying facts and circumstances that are also
addressed in the Certificate of Merit will be of critical importance in resolving
Plaintiff’s claims. Defendants do not set forth compelling reasons why portions of
Exhibit 6 quoting the Certificate of Merit must be sealed.3 And Herman’s

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Nor does Hawaii Revised Statutes (“HRS”) § 657-1.8(d) provide a compelling reason
to seal the Certificate of Merit. “[Section] 657-1.8 “extended the statute of limitations for
bringing a cause of action relating to the sexual abuse of a minor.” Roe v. Ram, 2014 WL
10474393, at *4 (D. Haw. Nov. 26, 2014). In order to avail himself of the extended limitation
period to file the underlying action, the statute required that Egan obtain a certificate of merit
from a mental health professional that includes “a notarized statement . . . [that] set[s] forth in
reasonable detail the facts and opinions relied upon” by such mental health professional in
concluding that there is a reasonable basis to believe that some sexual abuse occurred. HRS
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argument that information produced solely in “[r]eliance on Ancier’s counsel’s
assurances certainly qualifies as a compelling reason . . . [to] seal the records,”
Doc. No. 274, Herman’s Opp’n at 5, without more, is not persuasive.
In short, Defendants’ mere reliance on the fact that information was
previously sealed for discovery purposes falls well short of establishing a
compelling reason to seal such information in relation to a dispositive motion.
C.

Full Names of Alleged Perpetrators Will Be Sealed
Herman asserts two bases for establishing that compelling reasons

exist to seal Exhibit 4: (1) public release of the names of other alleged
perpetrators not part of this or the underlying action would promote public
scandal; and (2) Herman executed agreements with the alleged perpetrators named
in Exhibit 4 to keep their names confidential. Although not specified by
Defendants, the court notes that names of other alleged perpetrators also appear in
Exhibits 6 and 19, as well as Plaintiff’s CSF and MIS.

§ 657.1-8(d). The statute further provides that the “certificate of merit shall be filed by the
attorney for the plaintiff and shall be sealed and remain confidential.” Id.
Neither Defendant argues that § 657-1.8(d) requires that the Certificate of Merit remain
sealed in this case. That is, it is far from clear that § 657-1.8(d) applies to this case where the
statute’s extended statute of limitation is inapplicable, Egan is a defendant (and not a plaintiff
alleging abuse), and no party was required to file a certificate of merit. Thus, the court finds that
§ 657-1.8(d) does not provide a compelling reason to seal the portions of Exhibit 6 that quote
from the Certificate of Merit.
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The court agrees that publicly reiterating the names of other alleged
perpetrators of sexual abuse -- who are not parties to either the underlying action
or this action -- could promote public scandal. Although the court recognizes that
names of other alleged perpetrators are already in the public record, see, e.g., Doc.
No. 140-2, Gallagher’s Ex. A, continued public identification is not necessary to
either the prosecution or defense of this action. Accordingly, the court finds that
there are compelling reasons to seal the names of other alleged perpetrators. The
court directs Plaintiff to redact the full names of such individuals and to use only
their initials wherever they appear in Exhibits 4, 6, 19, the CSF, and MIS.
D.

Request to “Declassify” Documents
Finally, Plaintiff seeks to “declassify” Exhibits 4, 6, 19-20, 23-25, the

CSF, and MIS pursuant to the Protective Order which provides:
Declassification. If any Party wishes to have any
Confidential Document(s) and/or Confidential
Information deemed declassified and removed from the
scope of this Order, he or it must first seek consent to do
so from the Party or Parties who produced the disputed
material. If consent is not obtained, the Party seeking
declassification may move for an order determining that
the disputed material is not Confidential. The Party who
designated the disputed material shall have the burden of
proving that it was properly designated as Confidential.
Doc. No. 128, Protective Order ¶ 18.

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It is not clear what effect the court’s rulings above -- which allow
Plaintiff to file Exhibits 4, 6, 19-20, 23-25, the CSF, and MIS publicly, with
minimal redactions -- will have on the issue of “declassification,” and/or whether
they render the instant request moot. Thus, the court DENIES Plaintiff’s request
without prejudice. If Plaintiff wishes to “declassify” these documents, he may file
an appropriate motion before Magistrate Judge Richard L. Puglisi, who issued the
Protective Order.
V. CONCLUSION
Based on the foregoing, the Motion is GRANTED in part and
DENIED in part. Plaintiff’s Exhibits 4, 6, 19-20, 23-25, CSF, and MIS may be
filed publicly in support of his Motion for Summary Judgment, provided that the
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names of other alleged perpetrators be redacted and replaced by their initials only.
Plaintiff’s request to “declassify” these documents is DENIED without prejudice.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 4, 2015.

/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

Ancier v. Egan, et al., Civ. No. 14-00294 JMS-RLP, Order Granting in Part and Denying in Part
Motion to Publicly File Documents in Support of Plaintiff’s Motion for Summary Judgment,
Doc. No. 264

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