Poole v. Centennial Imports, Inc.

Filing 24

ORDER that deleted portions of Paragraph 6 of the parties 23 Stipulated Protective Order are NOT APPROVED. The parties must comply with the requirements of Local Rule 10-5(b) and the Ninth Circuits decision in Kamakana, 447 F.3d 1172, with res pect to any documents filed under seal or used at trial. The parties 23 Stipulated Protective Order, as modified and signed by the court, is APPROVED. Signed by Magistrate Judge Cam Ferenbach on 03/14/2013. (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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PAIGE POOLE,

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Plaintiff,
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vs.
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CENTENNIAL IMPORTS, INC,
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Defendant.
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__________________________________________)

2:12-cv-00647-MMD-VCF
ORDER
(Stipulated Protective Order #23)

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Before the court is the parties’ Stipulated Protective Order (#23) which the court approves, with the
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exception of portions of Paragraph 6. This order also reminds counsel that there is a presumption of public
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access to judicial files and records. Portions of Paragraph 6 of the parties’ proposed stipulation (#23) were
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not approved and were deleted by the court. The deleted portion of Paragraph 6 stated that “[u]pon being
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given leave of court, the confidential data shall be filed in a sealed envelope or other appropriately sealed
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container on which shall be recorded the title of this action, the word “Confidential” and a statement
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substantially in the following form:
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This envelope or container filed in this case by _______ is not to be opened,
or the contents thereof revealed, except by prior order of the court.”

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(#23).
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This language is inconsistent with the rules of this court. Special Order 109 requires the Clerk of
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the Court to maintain the official files for all cases filed on or after November 7, 2005, in electronic form.
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The electronic record constitutes the official record of the court. Attorneys must file documents under seal
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using the court’s electronic filing procedures. See LR 10-5(b). That rule provides:
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Unless otherwise permitted by statute, rule or prior Court order, papers filed
with the Court under seal shall be accompanied by a motion for leave to file
those documents under seal, and shall be filed in accordance with the Court's
electronic filing procedures. If papers are filed under seal pursuant to prior
Court order, the papers shall bear the following notation on the first page,
directly under the case number: "FILED UNDER SEAL PURSUANT TO
COURT ORDER DATED __________." All papers filed under seal will
remain sealed until such time as the Court may deny the motion to seal or

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enter an order to unseal them, or the documents are unsealed pursuant to
Local Rule.
Id.
While the remaining language in Paragraph 6 is not inconsistent with the Ninth Circuit’s directives

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in Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006) regarding filing confidential
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documents or utilizing confidential documents at trial, the court issues this order to clarify that the parties
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must adhere to those directives as set forth below.
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A party seeking to file a confidential document or utilize a confidential document at trial must
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comply with the Ninth Circuit’s directives in Kamakana, 447 F.3d 1172:
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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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Id. at 1178-79 (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 to
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dispositive motions or used at trial, however, a higher threshold is required: a particularized showing that
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compelling reasons support secrecy. Id. “A ‘good cause’ showing will not, without more, satisfy a
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‘compelling reasons’ test.” Id. When private discovery materials are attached to a dispositive motion (or
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response or reply) or used at trial, such materials become a part of a judicial record, and as such “are public
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documents almost by definition, and the public is entitled to access by default.” Id.
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Accordingly, and for good cause shown,
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IT IS ORDERED that:
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1.

Deleted portions of Paragraph 6 of the parties’ Stipulated Protective Order (#23) are NOT

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APPROVED.
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2.

The parties must comply with the requirements of Local Rule 10-5(b) and the Ninth

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Circuit’s decision in Kamakana, 447 F.3d 1172, with respect to any documents filed under

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seal or used at trial.

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3.

The parties’ Stipulated Protective Order (#23), as modified and signed by the court, is
APPROVED.

Dated this 14th day of March, 2013.

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CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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