Corbello v. DeVito

Filing 366

ORDER Granting 361 Motion to Seal Certain Exhibits to 362 MOTION to Compel. Signed by Magistrate Judge Peggy A. Leen on 12/22/10. (Copies have been distributed pursuant to the NEF - ASB)

Corbello v. DeVito

Doc. 366

1 Gregory H. Guillot [e-mail] 2 Admitted Pro Hac Vice GREGORY H. GUILLOT, P.C. 3 13455 Noel Road, Suite 1000 Dallas, TX 75240 4 Telephone: [phone] Facsimile: [phone] 5 John L. Krieger, (Nevada Bar No. 6023) 6 [e-mail] LEWIS AND ROCA LLP 7 3993 Howard Hughes Parkway, Suite 600 Las Vegas, NV 89169 8 Telephone: [phone] Facsimile: [phone] 9 George L. Paul 10 [e-mail] Admitted Pro Hac Vice 11 Robert H. McKirgan, [e-mail] 12 Admitted Pro Hac Vice LEWIS AND ROCA LLP 13 40 North Central Avenue, Suite 1900 Phoenix, AZ 85004 14 Telephone: [phone] Facsimile: [phone] 15 Attorneys for Plaintiff, 16 DONNA CORBELLO 17 18 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA Case No. 2:08-cv-00867-RCJ-PAL PLAINTIFF'S MOTION FOR LEAVE TO FILE CERTAIN EXHIBITS TO PLAINTIFF'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND THE PRODUCTION OF DOCUMENTS BY DEFENDANT, DES MCANUFF (DOC. 362) UNDER SEAL

19 DONNA CORBELLO, an individual, 20 21 vs. Plaintiff,

22 THOMAS GAETANO DEVITO, an individual, et al., 23 Defendants. 24 25

Plaintiff Donna Corbello, by her attorneys, and pursuant to the Stipulated Protective

26 Order (Doc. 94) entered into by the parties, and the Court's Protective Order Governing 27 Confidentiality of Documents entered on January 5, 2009 ("Order Regarding Sealing 28 Requirements") (Doc. 95), herewith requests leave to file certain documents under seal as

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1 exhibits to Plaintiff's Motion to Compel Answers to Interrogatories and the Production of 2 Documents by Defendant, Des McAnuff (Doc. 362) ("Motion to Compel"). 3 4 MEMORANDUM OF POINTS AND AUTHORITIES Pursuant to her obligations under the Stipulated Protective Order and Order Regarding

5 Sealing Requirements, Plaintiff seeks an order permitting her to file the following documents 6 under seal, which were produced by Defendants Frankie Valli, Robert J. Gaudio, Marshall 7 Brickman, Eric S. Elice, DSHT, Inc., Dodger Theatricals, Inc., and/or JB Viva Vegas, LP (the 8 "New Defendants"), and/or by third party Kevin Kinsella ("Kinsella"), and/or by third party 9 Charles Alexander ("Alexander"), and marked "CONFIDENTIAL" and "HIGHLY

10 CONFIDENTIAL" thereby, which she intends to attach as exhibits to her Motion to Compel, as 11 to Defendant Des McAnuff ("McAnuff"): 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JB-0027245, JB-0027257, JB-0027275, JB-0027280, JB-0027325, JB-0027448, JB-0027467, JB-0027468, JB-0027474, JB-0027505, JB-0027576, JB-0027590, JB-0027591, JB-0027629, JB-0033051 to JB-0033053, JB-0033055 to JB0033057, JB-0033059 to JB-0033067, JB-0033069 to JB-0033071, JB-0033073, JB-0033080, JB-0033082 to JB-0033083, JB-0033085, JB-0033087, and JB0033150, consisting of e-mails to and from McAnuff regarding the creation of Jersey Boys. JB-002334 to JB-002335, JB-0027002, JB-0027295, JB-0054382, and JB0062289, consisting of communications to and from New Defendants regarding the Work. Exhibit 4 are McAnuff's relevant, written discovery responses. JB-00274377 to JB-0027492, consisting of the August 2005 Director's Agreement. JB-0030446 to JB-0030452, consisting of correspondence regarding the McAnuff/Skunk director's agreements. KINSELLA-005585, consisting of a communication regarding McAnuff's investment interest, produced by a third party. 2

1 2 3 I. 4

ALEX-00134, consisting of an e-mail regarding the authorship of The Work, produced by a third party.

ARGUMENT There is an exception to the normal presumption of access to judicial records, for "sealed

5 discovery document[s] [attached] to a non-dispositive motion," such that "the usual presumption 6 of the public's right of access is rebutted." Kamakana v. City & County of Honolulu, 447 F.3d 7 1172, 1179-1180 (9th Cir. 2006) (citing Phillips v. General Motors Corp., 307 F.3d 1206, 1213 8 (9th Cir. 2002)). The public has less of a need for access to court records attached only to non9 dispositive motions because those documents are often "`unrelated, or only tangentially related, 10 to the underlying cause of action.'" Id. (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 11 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984)). Moreover, "public policies that support the right of 12 access to dispositive motions, and related materials, do not apply with equal force to non13 dispositive materials." Id. (citing Phillips, 307 F.3d at 1213). Finally, when a district court 14 grants a protective order to seal documents during discovery, "it already has determined that 15 `good cause' exists to protect this information from being disclosed to the public by balancing 16 the needs for discovery against the need for confidentiality." Id. Accordingly, "good cause" 17 exists for the filing of the foregoing documents under seal. 18 19 the Pursuant to the Stipulated Protective Order herein, Plaintiff has an obligation to maintain confidentiality of any document marked "CONFIDENTIAL" or "HIGHLY

20 CONFIDENTIAL" by an opposing party, and the documents identified above were so marked by 21 the New Defendants, Kinsella, and Alexander. Accordingly, Plaintiff may not file the

22 documents with the Court without obtaining an Order and/or filing them under seal. Whereas, 23 Plaintiff's Motion to Compel is not a dispositive motion, the filing of these documents under seal 24 falls within the exception to the general presumption of public access carved out by the courts of 25 this Circuit for documents attached to non-dispositive motions. Accordingly, leave to file the 26 subject documents under seal should be granted. 27 /// 28 /// 3

1 II. 2

CONCLUSION IN VIEW OF THE ABOVE, Plaintiff respectfully requests that her present motion be

3 granted. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 UNITED STATES MAGISTRATE JUDGE DATED: December 22, 2010 IT IS SO ORDERED: /s/Gregory H. Guillot Gregory H. Guillot George L. Paul John L. Krieger Robert H. McKirgan Attorneys for Plaintiff, Donna Corbello Dated: December 21, 2010 RESPECTFULLY SUBMITTED:

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CERTIFICATE OF SERVICE Pursuant to Fed. R. Civ. P. 5(b), I, Gregory H. Guillot, hereby certify that on December

3 21, 2010, I electronically filed the foregoing document and this Certificate of Service with the 4 Clerk of Court using the CM/ECF system which will send notifications of such filing to the 5 following: 6 L. Bradley Hancock Christopher B. Payne 7 Greenberg Traurig, LLP 1000 Louisiana 8 Suite 1800 Houston, TX 77002 9 Booker T. Evans, Jr. 10 Greenburg Traurig, LLP 2375 East Camelback Road 11 Suite 700 Phoenix, AZ 85016 12 Alma Chao 13 Greenburg Traurig, LLP 3773 Howard Hughes Parkway 14 Suite 500 North Las Vegas, Nevada 89169 15 Attorneys for Thomas Gaetano DeVito 16 17 Daniel M. Mayeda LEOPOLD, PETRICH & SMITH, P.C. 18 2049 Century Park East, Suite 3110 Los Angeles, California 90067-3274 19 David S. Korzenik 20 MILLER KORZENIK SOMMERS LLP 488 Madison Avenue, Suite 1120 21 New York, New York 10022-5702 22 Samuel S. Lionel Todd Kennedy 23 LIONEL, SAWYER & COLLINS 300 So. 4th Street #1700 24 Las Vegas, Nevada 89101 25 Attorneys for Defendants Frankie Valli, Robert J. Gaudio, Marshall Brickman, Eric S. Elice, Des McAnuff, DSHT, Inc., and Dodger Theatricals, Ltd. 26 27 28 5 /s/Gregory H. Guillot