Robert Ito Farm, Inc. v. County of Maui

Filing 151

ORDER REQUIRING PLAINTIFFS TO SERVE COUNSEL FOR INTERVENOR-DEFENDANTS IMMEDIATELY WITH ECF NOS. 18 , 19 , AND 20 AND REFERRING TO MAGISTRATE JUDGE REMAINDER OF PLAINTIFFS' MOTION FOR PROTECTIVE ORDER re: 150 . Signed by CHIEF J UDGE SUSAN OKI MOLLWAY on 4/24/2015. (afc)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
ROBERT ITO FARM, INC.; HAWAII
FARM BUREAU FEDERATION, MAUI
COUNTY; MOLOKAI CHAMBER OF
COMMERCE; MONSANTO COMPANY;
AGRIGENETICS, INC.; CONCERNED
CITIZENS OF MOLOKAI AND MAUI;
FRIENDLY ISLE AUTO PARTS &
SUPPLIES, INC.; NEW HORIZON
ENTERPRISES, INC. dba MAKOA
TRUCKING AND SERVICES; and
HIKIOLA COOPERATIVE,

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Plaintiffs,
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vs.
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COUNTY OF MAUI,
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Defendant,
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and
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ALIKA ATAY; LORRIN PANG; MARK )
SHEEHAN; BONNIE MARSH;
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LEI`OHU RYDER; and SHAKA
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MOVEMENT,
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Intervenor)
Defendants.
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_____________________________ )

CIVIL NO. 14-00511 SOM-BMK
ORDER REQUIRING PLAINTIFFS TO
SERVE COUNSEL FOR INTERVENORDEFENDANTS IMMEDIATELY WITH
ECF NOS. 18, 19, AND 20 AND
REFERRING TO MAGISTRATE JUDGE
REMAINDER OF PLAINTIFFS’
MOTION FOR PROTECTIVE ORDER

ORDER REQUIRING PLAINTIFFS TO SERVE COUNSEL FOR
INTERVENOR-DEFENDANTS IMMEDIATELY WITH ECF NOS. 18,
19, AND 20 AND REFERRING TO MAGISTRATE JUDGE REMAINDER
OF PLAINTIFFS’ MOTION FOR PROTECTIVE ORDER
Before the court is Plaintiffs’ Motion for Protective
Order Restricting Access To Sealed Documents.

This court orders

Plaintiffs to send copies to Intervenor-Defendants’ counsel
immediately of the three sealed documents filed as ECF Nos. 18,
19, and 20, and refers all other matters raised by the Motion to

the Magistrate Judge.

Unless the Magistrate Judge deciding the

remainder of the pending Motion for Protective Order orders that
further disclosure is allowed, Intervenor-Defendants’ counsel is
not allowed to share the sealed documents themselves or the
content of what is sealed (and therefore not publicly available)
with anyone except (1) other counsel of record in this case, and
(2) individuals employed by the law firm listed as counsel of
record for Intervenor-Defendants, provided those employees
understand and agree that they may not disclose the sealed
documents or the contents of the sealed documents with anyone
else and provided further that disclosure to such employees is
for the purpose of facilitating counsel’s work in this case.
Thus, counsel may not disclose sealed material even to counsel’s
clients who are parties.

Unless the Magistrate Judge rules

otherwise, Intervenor-Defendants’ counsel is not allowed to
include sealed content in any publicly filed brief or other
document.
In limiting disclosure to Intervenor-Defendants’
counsel and counsel’s employees for now, this court does not
intend to suggest that this limitation should or should not be
permanent.

Rather, this limitation is being imposed in aid of

allowing the court to act swiftly to allow Intervenor-Defendants’
counsel to see the sealed documents, even before briefing on
other matters raised by the Motion has been completed.

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Indeed,

this court has not even waited for Intervenor-Defendants to
present arguments to the court as to why at least their attorneys
should have access to the sealed documents.

This court has no

hesitation is determining that, at the very least, counsel should
be able to see the documents, and the court was not aware until
reviewing the Motion for Protective Order that IntervenorDefendants’ counsel lacked such access.
First, this court has been assuming that all counsel of
record in this case have had access to all documents filed in
this case.

Although Intervenor-Defendants entered the case after

the sealed documents in issue were filed, this court thought that
everything filed before or after Intervenor-Defendants entered
the case was available to Intervenor-Defendants’ counsel.

The

reason the court had this assumption is that the court
misunderstood how sealed documents were handled by administrative
staff in the electronic case file.

The court is able to view

sealed documents online, and thought that the attorneys in the
case, but not the public, had the same electronic access.
Instead, while the attorneys could be given the same electronic
access just as a matter of technology, they typically instead
view sealed materials only through the hard copies served on them
by the party who filed the sealed material.

This system

apparently was implemented as a general protection against

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unintended or mistaken disclosure to the public.

The court

confesses that it did not apprehend this before now.
Second, this court had no prior reason to specifically
consider whether Intervenor-Defendants’ counsel could view sealed
documents filed before intervention was allowed because no party
raised that issue for the court’s consideration.

The only sealed

documents filed in this case concerned Plaintiffs’ Motion for
Temporary Restraining Order and Preliminary Injunction, which was
ultimately rendered moot by the pre-intervention filing of a
Stipulation Regarding County of Maui Ordinance and Order.
Intervenor-Defendants’ counsel certainly had access to the docket
sheet in the case, which plainly reflected the existence of
sealed documents, yet took no earlier steps to seek access to the
sealed documents.

Hearing no concern about such access from any

party, this court had no reason even to wonder whether any
attorney in this case was being prevented from reviewing any
document in the record.
Third, when this court entered its Order Extending
Injunction Entered Into By Stipulation, this court did not rely
on the sealed documents at all.

Although the fact that there

were redactions from the publicly filed documents was clear from
the Motion for Temporary Restraining Order and Preliminary
Injunction, this court made no reference to the sealed documents
in its extension order and, in fact, neither the judge nor her

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law clerk paid any heed at all to the sealed materials in
preparing the extension order.

There was more than enough in the

public record to support the court’s extension order.

Thus, it

is not the case that Intervenor-Defendants were actually
prejudiced by not having access to the sealed documents before
the extension order was filed.
Fourth, the court became aware that someone was
concerned about documents being sealed only when the court was
informed by court staff a few days ago that an anonymous
voicemail message had been left complaining about the sealed
documents.

The anonymous voicemail was followed by two written

messages left in the court’s “orders box” with the same complaint
by members of the public.

The “orders box” is intended to be

used only by attorneys who are submitting proposed orders, not as
a means for members of the public to tell the court what those
members of the public dislike about court rulings.

While members

of the public are certainly free to express themselves, they
should not be doing so by misusing the “orders box,” and judges
do not typically respond to public misusers.

In any event, the

gist of the complaints was that counsel of record could not see
the sealed documents, and the court believed at the time that
this assertion was incorrect.

As noted above, the court assumed

all along that all attorneys of record in this case had access to
all filings.

Certainly the court thought that any attorney of

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record with a concern in that regard would promptly notify the
court.

Having been informed through the Motion for Protective

Order that Intervenor-Defendants’ counsel has not seen sealed
documents, the court hastens to correct the situation, but with
the limitations, at least for now, set forth in this order.
This court has no reason to think that, as suggested by
Plaintiffs, there is any danger posed to Plaintiffs by allowing
Intervenor-Defendants’ counsel to see the sealed materials.

The

attorneys representing Intervenor-Defendants are as much officers
of the court in good standing as are the attorneys representing
Plaintiffs and the County, and the court trusts that all counsel
will comply with court orders.

If, as proceedings continue, any

attorney for any party gives the court reason to retract any part
of the preceding statement, the court will, of course, act
appropriately, but at this point, the court sees disclosure of
the sealed documents at least to counsel as clearly warranted.
The Magistrate Judge may set such briefing or hearing
schedule as the Magistrate Judge sees fit.

Plaintiffs indicate

that they may be willing to unseal some material.

If that is so,

Plaintiffs should act quickly to avoid making the court and the
other parties have to spend more time than necessary on this
matter.

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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 24, 2015.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

ROBERT ITO FARM, INC., et al. v. COUNTY OF MAUI, et al.
Civil No. 14-00511 SOM-BMK, ORDER REQUIRING PLAINTIFFS TO SERVE
COUNSEL FOR INTERVENOR-DEFENDANTS IMMEDIATELY WITH ECF NOS. 18,
19, AND 20 AND REFERRING TO MAGISTRATE JUDGE REMAINDER OF
PLAINTIFFS’ MOTION FOR PROTECTIVE ORDER

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