Mechanical Insulation Specialists, Inc. v. Elite Insulation, LLC et al

Filing 22

ORDER that the 21 Proposed Protective Order is disapproved without prejudice to submit and amended order consistent with the requirements of Kamakana v City and County of Honolulu. Signed by Magistrate Judge Lawrence R. Leavitt on 6/22/11. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MECHANICAL INSULATION
SPECALISTS, INC.,

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Plaintiff,
v.
ELITE INSULATION, LLC, et al.,

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Defendants.
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2:10-cv-01621-LDG-LRL
ORDER

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Before the court is a proposed Stipulated Protective Order (#21, filed June 20, 2011). Paragraph

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4.1.1 does not comply with the requirements of the Ninth Circuit Court of Appeals with regard to the

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sealing of confidential documents that are either attached as exhibits to a dispositive motion (or

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response or reply), or offered in evidence at trial.

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Unless a particular court record is one “traditionally kept secret,” a
“strong presumption in favor of access” is the starting point. ... A party
seeking to seal a judicial record then bears the burden of overcoming this
strong presumption by meeting the “compelling reasons” standard. ...
that is, the party must “articulate[ ] compelling reasons supported by
specific factual findings,” that outweigh the general history of access and
the public policies favoring disclosure ....
In general, “compelling reasons” sufficient to outweigh the public’s
interest in disclosure and justify sealing court records exist when 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.

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Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006)(citations omitted).

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To justify the sealing of discovery materials attached to non-dispositive motions, a particularized

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showing of good cause is required. Id. at 1180. To justify the sealing of discovery materials attached

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to dispositive motions, however, a higher threshold is required: a particularized showing that compelling

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reasons support secrecy. Id. “A ‘good cause’ showing will not, without more, satisfy a ‘compelling

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reasons’ test.” Id. When private discovery materials are attached to a dispositive motion (or response

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or reply), such materials become a part of a judicial record, and as such “are public documents almost

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be definition, and the public is entitled to access by default.” Id.

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IT IS THEREFORE ORDERED that the proposed protective order is disapproved without

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prejudice to submit an amended order consistent with the requirements of Kamakana v. City and County

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of Honolulu.
DATED this 22nd day of June, 2011.

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LAWRENCE R. LEAVITT
UNITED STATES MAGISTRATE JUDGE

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