Digital Ally, Inc. v. Utility Associates, Inc.
MEMORANDUM AND ORDER granting in part and denying in part 13 Motion for Leave to File Under Seal. SEE ORDER FOR DETAILS. Signed by U.S. District Senior Judge Sam A. Crow on 2/18/14. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS
DIGITAL ALLY, INC.,
a Nevada corporation
UTILITY ASSOCIATES, INC.,
a Georgia company
MEMORANDUM AND ORDER
The case comes before the court on the unopposed motion for
leave to file under seal pursuant to D. Kan. Rule 5.4.6 that was submitted by
the plaintiff Digital Ally, Inc. (“Digital Ally”) (Dk. 13). The documents
attached to this motion include Digital Ally’s response to Utility Associates,
Inc.’s (Utility Associates”) motion to dismiss; the affidavit of Digital Ally’s
Chief Financial Officer, Thomas Heckman, which identifies over 50 pages of
attached documents; the affidavit of a Township Police Captain with an
attached letter; and the order proposed for granting the motion to seal.
Utility Associates sought and received leave to file under seal some exhibits
in support of its motion to dismiss, but its motion was not filed under seal.
This court has discussed the law relevant to sealing judicial
records and filings:
The sealing of judicial records is committed to the district court's
sound discretion exercised in consideration of the following:
Courts have long recognized a common-law right of access to
judicial records. Nixon [v. Warner Communications, Inc.], 435
U.S. 589] at 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 [(1978)];
Lanphere & Urbaniak v. Colorado, 21 F.3d 1508, 1511 (10th
Cir.1994). This right, however, is not absolute. The “presumption
of access ... can be rebutted if countervailing interests heavily
outweigh the public interests in access.” Rushford v. New Yorker
Magazine, Inc., 846 F.2d 249, 253 (4th Cir.1988). “The party
seeking to overcome the presumption bears the burden of
showing some significant interest that outweighs the
Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007), cert. denied,
552 U.S. 1098, 128 S.Ct. 897, 169 L.Ed.2d 728 (2008). This commonlaw right “derives from the public's interest in understanding disputes
that are presented to a public forum for resolution and is intended to
assure that the courts are fairly run and judges are honest.”
Carefusion 213, LLC, v. Professional Disposables, Inc., 2010 WL
2653643 (D. Kan. June 29, 2010) (citations and internal quotation
marks deleted). The court looks to the relevant circumstances in
deciding whether the parties' asserted interests are significant and
outweigh the public's presumed right of access. That a party's request
to seal “is unopposed or that it refers to material protected from
disclosure by a protective order is not, in itself, sufficient basis for this
Court to seal.” Carefusion 213, LLC, v. Professional Disposables, Inc.,
2010 WL 2653643 at *1 (D. Kan. June 29, 2010); see Helm v. Kansas,
656 F.3d 1277, 1292–93 (10th Cir.2011). The moving party still “must
establish a harm sufficient to overcome the public's right of access to
judicial records.” Garcia v. Tyson Foods, Inc., 2010 WL 3584462, at *1
(D. Kan. Sept.13, 2010). “Documents should be sealed only on the
basis of articulable facts known to the court, not on the basis of
unsupported hypothesis or conjecture.” Id. (citation and internal
quotation marks omitted). Specifically, the party “must come forward
with evidence as to the nature of the public or private harm that would
result if it were so filed.” Heartland Surgical Specialty Hosp., LLC v.
Midwest Div., Inc., 2007 WL 101858, at *5 (D.Kan.2007). “[A] moving
party must submit particular and specific facts, and not merely
‘stereotyped and conclusory statements.’ Gulf Oil Co. v. Bernard, 452
U.S. 89, 102 n. 16, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981).” Sibley v.
Sprint Nextel Corp., 254 F.R.D. 662, 667 (D.Kan.2008).
Stormont-Vail Healthcare, Inc. v. BioMedix Vascular Solutions, 2012 WL
884926 at *1 (D. Kan. 2012). The plaintiff’s motion for leave here fails to
meet the above standards. The other side’s favorable disposition to sealing
is not a sufficient basis for granting leave to seal a filing. Nor is it enough to
tender the conclusory statement that the information includes “confidential
and sensitive . . . business information.” (Dk. 13, p. 1).
Nonetheless, in keeping with the court’s prior order by text entry
on February 7, 2014, which granted Utility Associates’ motion for leave to
file under seal the supporting affidavit of Jason Blair and attached exhibits,
the court will allow Digital Ally to file exhibits two and three under seal for
now but subject to possible review at a later time. The court also will allow
Digital Ally to file its memorandum, exhibit one, under seal. Because much
of this memorandum does not address any matters that are arguably subject
to sealing, Digital Ally will be required to file for public viewing a separate
memorandum with redactions of that information which it can reasonably
defend as covered by the above standards. All future requests for sealing
filings in this case will be subject to the above requirements.
IT IS THEREFORE ORDERED that the plaintiff’s motion for leave
to file under seal (Dk. 13) is granted in part and denied in part.
Dated this 18th day of February, 2014, Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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