Federal Deposit Insurance Corporation v. Johnson et al

Filing 194

ORDER that the following exhibits attached to 162 Defendant's Motion for Summary Judgment shall remain under seal: Exhibit 74, Exhibit 75, Exhibit 76A, Exhibit 76B, and Exhibit U. Signed by Magistrate Judge Peggy A. Leen on 04/08/2014. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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FEDERAL DEPOSIT INS. CORP.,

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Plaintiff,
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vs.
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COREY L. JOHNSON, et al.,
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Defendants. )
__________________________________________)

Case No. 2:12-cv-00209-KJD-PAL
ORDER

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This matter is before the court on Plaintiff FDIC-R’s Memorandum of Points and Authorities

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Regarding Sealed Documents (Dkt. #172) filed March 25, 2014. The court has considered the

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Memorandum.

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On March 13, 2014, the court denied Defendant Corey L. Johnson’s Motion for Leave to File

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Under Seal Defendant Corey Johnson’s Motion for Summary Judgment (Dkt. #161) without prejudice.

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That Motion sought to file certain documents as exhibits to Defendant Johnson’s Motion for Summary

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Judgment (Dkt. #162) under seal. Defendant represented that Plaintiff had deemed those documents

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confidential pursuant to the Protective Order (Dkt. #62) entered by the court on August 14, 2012. On

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March 13, 2014, the court entered an Order (Dkt. #168) denying Defendant’s Motion for Leave to File

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Under Seal without prejudice because Defendant had not established compelling reasons for keeping

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the Motion for Summary Judgment under seal as required by the Ninth Circuit in Kamakana v. City and

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County of Honolulu, 447 F.3d 1172 (9th Cir. 2006). The court allowed Plaintiff until March 25, 2014

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to file a memorandum of points and authorities along with any supporting declaration to establish

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compelling reasons for keeping the Motion for Summary Judgment under seal. Plaintiff complied and

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filed the instant Memorandum.

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Plaintiff represents that it only seeks to keep the following exhibits to Defendant’s Motion for
Summary Judgment under seal:

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(a)

Exhibit 74–Bank Examination Report by Bret Morgan dated May 30, 2006.

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(b)

Exhibit 75–Bank Examination Report by Dirk Smith dated May 14, 2007.

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(c)

Exhibit 76A–Bank Examination Report by Bret Morgan dated June 9, 2008.

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(d)

Exhibit 76B–Bank Examination Report by Bret Morgan dated June 9, 2008.

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(e)

Exhibit U–Deposition of Bret Morgan, Vol. 1, pp. 298-317.

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Plaintiff represents that it is required to maintain documents containing bank regulatory

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information and bank information created in the course of its examination and supervision of a bank

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confidential. The documents Plaintiff wishes to keep under seal contain sensitive financial information

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of Silver State Bank and also reflect the bank examiners’ opinions, analyses, deliberations and

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conclusions regarding Silver State Bank. In addition, 12 C.F.R. §§ 261.2(c)(1)(I) and 309.5(g)(8) list

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examination reports as exempt records, and 12 C.F.R. §§ 309.6(a) and 261.14(a)(8) prohibit disclosure

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of exempt records except in certain limited circumstances, none of which do not exist here. Moreover,

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courts in other districts have prohibited the disclosure of bank regulatory information and confidential

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bank information. Finally, courts have recognized that in order to encourage candor in communications

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between banks and their regulators, depositions of bank examiners and bank examination records

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should remain confidential.

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In the Ninth Circuit, it is well-established that the “fruits of pretrial discovery are, in the absence

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of a court order to the contrary, presumptively public.” San Jose Mercury News v. United States District

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Court, 187 F.3d 1096, 1103 (9th Cir.1999). However, where a party opposing disclosure shows

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compelling reasons for limiting access to litigation documents and information produced during

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discovery and attached to dispositive motions, the materials may be filed under seal. See Kamakana v.

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City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006). The court finds Plaintiff has established

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compelling reasons to keep the five exhibits listed, which are attached to Defendant’s Motion for

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Summary Judgment, under seal.

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Accordingly,
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IT IS ORDERED that the following exhibits attached to Defendant Johnson’s Motion for
Summary Judgment (Dkt. #162) shall remain under seal:

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(a)

Exhibit 74–Bank Examination Report by Bret Morgan dated May 30, 2006.

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(b)

Exhibit 75–Bank Examination Report by Dirk Smith dated May 14, 2007.

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(c)

Exhibit 76A–Bank Examination Report by Bret Morgan dated June 9, 2008.

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(d)

Exhibit 76B–Bank Examination Report by Bret Morgan dated June 9, 2008.

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(e)

Exhibit U–Deposition of Bret Morgan, Vol. 1, pp. 298-317.

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Dated this 8th day of April, 2014.

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_________________________________________
PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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