Easley et al v. U.S. Home Corporation et al
Filing
25
ORDER re 23 Stipulated Protective Order. Signed by Magistrate Judge Carl W. Hoffman on 9/15/2011. (Copies have been distributed pursuant to the NEF - SLR)
1
2
3
4
UNITED STATES DISTRICT COURT
5
DISTRICT OF NEVADA
6
***
7
BETRAM EASLEY, et al.,
8
9
10
Plaintiffs,
vs.
LENNAR CORP., et al.,
11
Defendants.
)
)
)
)
)
)
)
)
)
)
2:11-cv-00357-ECR-CWH
ORDER
12
The parties submitted a Stipulated Protective Order (#23) which the Court has reviewed
13
and entered. This order modifies the parties’ stipulated protective order with respect to any
14
documents filed or submitted with any dispositive motions filed in this case, and with respect to
15
any documents the parties seek to maintain as confidential for purposes of identification in the
16
joint pretrial order.
17
The Court has approved the parties’ protective order to facilitate discovery exchanges.
18
However, the parties have not made an individualized showing that a protective order is
19
necessary to protect their secret or other confidential information or established that disclosure
20
would cause an identifiable, significant harm. The Ninth Circuit has recently examined the
21
presumption of public access to judicial files and records and held that parties seeking to
22
maintain the secrecy of documents attached to dispositive motions must show compelling
23
reasons sufficient to overcome the presumption of public access. See, Kamakana v. City and
24
County of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006). Accordingly, the Court has approved
25
the parties’ stipulation but will require that any party seeking to seal attachments to a motion for
26
summary judgment or other dispositive motion or documents identified in the joint pretrial order
27
shall be required to seek further leave of Court consistent with Local Rule 10-5(b).
28
///
1
A.
2
Fed. R. Civ. P. 26(c) permits the court in which an action is pending to “make any order
Protective Orders
3
which justice requires to protect the party or person from annoyance, embarrassment, oppression
4
or undue burden or expense” upon motion by a party or a person from whom discovery is sought.
5
The burden of persuasion under Fed. R. Civ. P. 26(c) is on the party seeking the protective order.
6
Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986). To meet that burden of
7
persuasion, the party seeking the protective order must show good cause by demonstrating a
8
particular need for the protection sought. Beckman Indus., Inc., v. Int’l. Ins. Co., 966 F.2d 470,
9
476 (9th Cir. 1992). Rule 26(c) requires more than “broad allegations of harm, unsubstantiated
10
by specific examples or articulated reasoning.” Id., citing Cipollone v. Liggett. “A party
11
asserting good cause bears the burden, for each particular document it seeks to protect, of
12
showing that prejudice or harm will result if no protective order is granted.” Foltz v. State Farm,
13
331 F.3d 1122, 1130 (9th Cir. 2003), citing San Jose Mercury News, Inc., v. District Court, 187
14
F.3d 1096, 1102 (9th Cir. 1999).
In Seattle Times Co. v. Rhinehart, the Supreme Court interpreted the language of Fed. R.
15
16
Civ. P. 26(c) conferring “broad discretion on the trial court to decide when a protective order is
17
appropriate and what degree of protection is required.” 467 U.S. 20, 36 (1984). The Supreme
18
Court acknowledged that the “trial court is in the best position to weigh fairly the competing
19
needs and interests of the parties affected by discovery. The unique character of the discovery
20
process requires that the trial court have substantial latitude to fashion protective orders.” Id.
21
Although the trial court has broad discretion in fashioning protective orders, the Supreme Court
22
has also recognized “a general right to inspect and copy public records and documents, including
23
judicial records and documents.” Nixon v. Warner Communications, 435 U.S. 589, 597 (1978).
24
However, the common law right to inspect and copy judicial records is not absolute. Id. Thus,
25
the Supreme Court concluded, “[e]very court has supervisory power of its own records and files,
26
and access has been denied where the court files might have become a vehicle for improper
27
purposes.” Id.
28
//
-2-
1
B.
2
Unless court records are of the type “traditionally kept secret” the Ninth Circuit
3
recognizes a “strong presumption in favor of access.” Foltz v. State Farm Mutual Auto
4
Insurance Company, 331 F.3d 1122, 1135 (citing Hagestad v. Tragesser, 49 F.3d 1430, 1434
5
(9th Cir. 1995)). Grand jury transcripts and warrant materials involved in pre-indictment
6
investigations are two categories of documents and records which have “traditionally been kept
7
secret for important policy reasons.” Times Mirror Co. v. United States, 873 F.2d 1210, 1219
8
(9th Cir. 1989). Although the federal common law right of access exists, it “does not mandate
9
disclosure in all cases.” San Jose Mercury News, Inc., 187 F.3d at 1102. The strong
The Presumption of Public Access
10
presumption in favor of public access recognized by the Ninth Circuit “can be overcome by
11
sufficiently important countervailing interests.” Id.
12
1.
13
Pretrial Discovery
In the Ninth Circuit, “[i]t is well-established that the fruits of pretrial discovery are, in the
14
absence of a court order to the contrary, presumptively public.” San Jose Mercury News v.
15
United States District Court, 187 F.3d 1096, 1103 (9th Cir. 1999). Thus, the Ninth Circuit
16
concluded, “[g]enerally, the public can gain access to litigation documents and information
17
produced during discovery unless the party opposing disclosure shows ‘good cause’ why a
18
protective order is necessary.” Phillips v. General Motors, 307 F.3d 1206, 1210 (9th Cir. 2002).
19
“For good cause to exist, the party seeking protection bears the burden of showing specific
20
prejudice or harm will result if no protective order is granted.” Id. at 1210-11. Or, as the Ninth
21
Circuit articulated the standard in Foltz, “[t]he burden is on the party requesting a protective
22
order to demonstrate that (1) the material in question is a trade secret or other confidential
23
information within the scope of Rule 26(c) and (2) disclosure would cause an identifiable,
24
significant harm.” Foltz at 1131, quoting Deford v. Schmid Prods. Co., 120 F.R.D. 648, 653 (D.
25
Md. 1987). “If a court finds particularized harm will result from disclosure of information to the
26
public, then it balances the public and private interests to decide whether a protective order is
27
necessary.” Id. at 1211 (citing Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir.
28
1995)).
-3-
1
2.
Sealed Discovery Documents
2
In Phillips, the Ninth Circuit carved out an exception to the presumption of public access,
3
holding that the presumption does not apply to materials filed with the court under seal subject to
4
a valid protective order. 307 F.3d at 1213. The Phillips decision relied on the Seattle Times
5
decision in concluding that protective orders restricting disclosure of discovery materials which
6
are not admitted in evidence do not violate the public right of access to traditionally public
7
sources of information. Id. at 1213 (quoting, Seattle Times, 467 U.S. at 33. The Ninth Circuit
8
reasoned that the presumption of public access was rebutted because a district court had already
9
determined that good cause existed to protect the information from public disclosure by
10
balancing the need for discovery against the need for confidentiality in issuing the protective
11
order. Id. Therefore, “when a party attaches a sealed discovery document to a non-dispositive
12
motion, the usual presumption of the public’s right of access is rebutted.”
13
14
3.
Materials Attached to Dispositive Motions
The Ninth Circuit recently and comprehensively examined the presumption of public
15
access to judicial files and records in Kamakana v. City and County of Honolulu, 447 F.3d 1172
16
(9th Cir. 2006). There, the court recognized that different interests are at stake in preserving the
17
secrecy of materials produced during discovery and materials attached to dispositive motions.
18
Citing Phillips and Foltz, the Kamakana decision reiterated that a protective order issued under
19
the Rule 26(c) may be issued once a particularized showing of good cause exists for preserving
20
the secrecy of discovery materials. “Rule 26(c) gives the district court much flexibility in
21
balancing and protecting the interests of private parties.” 447 F.3d at 1180. The Kamakana
22
court, therefore, held that a “good cause” showing is sufficient to seal documents produced in
23
discovery. Id.
24
However, the Kamakana decision also held that a showing of “compelling reasons” is
25
needed to support the secrecy of documents attached to dispositive motions. A showing of “good
26
cause” does not, without more, satisfy the “compelling reasons” test required to maintain the
27
secrecy of documents attached to dispositive motions. Id. The court found that:
28
Different interests are at stake with the right of access than with
-4-
1
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.
(Citation omitted). This fact sharply tips the balance in favor of
production when a document formally sealed for good cause under
Rule 26(c) becomes part of the 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.
2
3
4
5
6
7
Id. Kamakana recognized that “compelling reasons” sufficient to outweigh the public’s interests
8
in disclosure and justify sealing records exist when court records may be used to gratify private
9
spite, permit public scandal, circulate libelous statements, or release trade secrets. Id. at 1179
10
(internal quotations omitted). However, “[t]he mere fact that the production of records may lead
11
to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, without
12
more, compel the court to seal its records.” Id., citing, Foltz, 331 F.3d at 1136. To justify
13
sealing documents attached to dispositive motions, a party is required to present articulable facts
14
identifying the interests favoring continuing secrecy and show that these specific interests
15
overcome the presumption of public access by outweighing the public’s interests in
16
understanding the judicial process. Id. at 1181 (internal citations and quotations omitted).
17
For all of the foregoing reasons,
18
IT IS ORDERED:
19
1.
No documents which are filed with the court as attachments to a summary
20
judgment or other dispositive motion, or documents which are identified in the joint pretrial
21
order, may be filed under seal unless the proponent seeking protected status of the document(s)
22
establishes “compelling reasons” to rebut the presumption of public access.
23
2.
Any party seeking to seal attachments to a motion for summary judgment or other
24
dispositive motion filed with the court, or documents which are identified in the joint pretrial
25
order, shall submit a separate memorandum of points and authorities which presents articulable
26
facts identifying the interests favoring continuing the secrecy of the attachments, and shows that
27
these specific interests outweigh the public’s interests in disclosure sufficient to overcome the
28
presumption of public access to dispositive pleadings and attachments.
-5-
1
3.
Any application to seal documents attached to a motion for summary judgment or
2
other dispositive motion, or documents identified in the joint pretrial order, shall be served on
3
opposing counsel together with the documents proposed to be filed under seal. Opposing
4
counsel shall have fourteen (14) days from service of any application to seal documents attached
5
to a motion for summary judgment or other dispositive motion, or documents identified in the
6
joint pretrial order, in which to file a response.
7
IT IS FURTHER ORDERED that in regard to discovery and other non-dispositive
8
motions, only those portions of the motion, response or reply pleadings which contain specific
9
reference to the contents of confidential documents or information, and the exhibits which
10
contain such confidential information, shall be filed under seal. The remainder of the pleading
11
and other exhibits, which do not contain confidential information, shall be filed as publicly
12
accessible documents unless otherwise specifically ordered by the court.
13
DATED this 15th day of September, 2011.
14
15
16
C.W. Hoffman, Jr.
United States Magistrate Judge
17
18
19
20
21
22
23
24
25
26
27
28
-6-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?