Smith v. City of Billings et al

Filing 24

ORDER DENYING 23 STIPULATED PROTECTIVE ORDER - WITH LEAVE TO RENEW. Signed by Magistrate Carolyn S Ostby on 11/7/2013. Mailed to Smith. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION

BENJAMIN KARL SMITH,

CV 13-107-BLG-SEH-CSO

Plaintiff,
vs.
CITY OF BILLINGS, BILLINGS
POLICE DEPARTMENT, CHIEF
ST. JOHN and OFFICER
MORRISON,

ORDER DENYING
STIPULATED PROTECTIVE
ORDER – WITH LEAVE TO
RENEW

Defendants.
On November 6, 2013, the parties filed a Stipulated Protective
Order. DKT 23. Attached to the Stipulated Order was a proposed
protective order. Based on the following authorities, the Court will
deny the motion with leave to renew.
I.

Discussion
The Court’s preference is to approve a stipulated protective order.

The parties should be aware, however, that even a stipulated order may
not protect documents from later disclosure if required showings have
not been made.

Fed. R. Civ. P. 26(c)(1) states that a court “may, for good cause,
issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.” Fed. R. Civ.
P. 26(c)(1) (2011). In addition, the Ninth Circuit has ruled that the
following standards determine whether a protective order is
appropriate: (1) a “good cause” standard for “private materials
unearthed during discovery” and (2) a “compelling reasons” standard
for “most judicial records.” Pintos v. Pacific Creditors Ass’n, 605 F.3d
665, 677-79 (9th Cir. 2010).
Here, the proposed protective order contemplates the sealing of
documents filed with the Clerk of Court (judicial records), but there has
been no showing of compelling reasons. As such, the Court will not sign
the proposed order.
To protect documents filed with the court, especially documents
filed with dispositive motions, a party must go beyond the “good cause”
standard and show “compelling reasons” for sealing. Pintos, 605 F.3d at
679 (citing Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135
(9th Cir. 2003) (holding that the Phillips exception for privately
exchanged material is “expressly limited to the status of materials . . .
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attached to a non-dispositive motion”) (emphasis in original)).
Where access to the Clerk of Court’s case files is at issue, there
exists a common law right of access, which is a “general right held by all
persons.” U.S. v. Business of Custer Battlefield Museum and Store
Located at Interstate 90, Exit 514, South of Billings, Mont., 658 F.3d
1188, 1192, n.4 (9th Cir. 2011). The common law right of access does
not apply to all types of documents, however. Id. at 1192 (citing
Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir.
2006) (“A narrow range of documents is not subject to the right of public
access at all because the records have ‘traditionally been kept secret for
important policy reasons.’ ”)). Thus, “[u]nless a particular court record
is one ‘traditionally kept secret,’ a ‘strong presumption in favor of
access’ is the starting point.” Kamakana, 447 F.3d at 1178 (quoting
Foltz, 331 F.3d at 1135). The Ninth Circuit explained this ruling as
follows:
Different interests are at stake with the right of access [to court
records] than with Rule 26(c); with the former, the private
interests of the litigants are not the only weights on the scale.
Unlike private materials unearthed during discovery, judicial
records are public documents almost by definition, and the public
is entitled to access by default. See Nixon, 435 U.S. at 597, 98
S.Ct. 1306. This fact sharply tips the balance in favor of
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production when a document, formerly sealed for good cause
under Rule 26(c), becomes part of a judicial record. Thus a “good
cause” showing alone will not suffice to fulfill the “compelling
reasons” standard that a party must meet to rebut the
presumption of access to dispositive pleadings and attachments.
Kamakana, 447 F.3d at 1180.
To overcome this “strong presumption” favoring access, a party
seeking to seal a judicial record must meet the “compelling reasons”
standard. Id. This standard requires the party to “articulate[]
compelling reasons supported by specific factual findings that outweigh
the general history of access and the public policies favoring disclosure .
. . ” Id. at 1178-79 (citations omitted). It is reversible error for a court to
seal documents connected with dispositive motions without considering
the “compelling reasons” standard and both “relevant factors.” Pintos,
605 F.3d at 679; see also In re Roman Catholic Archbishop of Portland
in Oregon, 661 F.3d at 430, n.8.
Despite the parties’ stipulation, it would be error for the Court to
issue the broad protective order as proposed. The parties may re-file
their stipulation, submitting a proposed protective order that satisfies
the legal standards set forth above. In so doing and in all future
documents jointly filed, the parties must comply with Local Rule 11.2.
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The parties stipulated protective order, as currently filed, violates Local
Rule 11.2(b) which provides that: “[i]n no event may one signature page
be signed in the “/s/” electronic form by one party and by hand signature
by another party.”
Based on the foregoing,
IT IS ORDERED that the Unopposed Stipulated Protective
Order (DKT 23), treated as a motion, is DENIED with leave to renew.
DATED this 7th day of November, 2013.
/s/ Carolyn S. Ostby
United States Magistrate Judge

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