Bruehner v. American Family Mutual Insurance Company

Filing 11

ORDER that Deleted Paragraphs III(3) and (4) of the parties' Stipulated Confidentiality Order 10 are NOT APPROVED. The parties must comply with the requirements of Local Rule 10-5(b) and the Ninth Circuit's decision in Kamakana, 4 47 F.3d 1172, with respect to any documents filed under seal or used at trial. The parties' Stipulated Confidentiality Order 10 , as modified and signed by the court, is APPROVED. Signed by Magistrate Judge Cam Ferenbach on 10/15/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARILYN BRUEHNER,

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Plaintiff,
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vs.
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AMERICAN FAMILY MUTUAL INSURANCE )
COMPANY,
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Defendant.
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__________________________________________)

2:12-cv-00748-JCM -VCF
ORDER

(Stipulated Confidentiality Order #10)

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Before the court is the parties’ Stipulated Confidentiality Order (#10) which the court approves,

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with the exception of Paragraphs III (3) and (4). This order also reminds counsel that there is a presumption

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of public access to judicial files and records. Paragraphs III (3) and (4) of the parties’ proposed stipulation

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were not approved and were deleted by the court. Paragraph III (3) stated that “Confidential Material may

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be referred to or incorporated in briefs, affidavits, or other documents filed with this Court provided that

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such documents are filed with the Clerk of Court under seal and prominently marked "Confidential Material

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Subject to Confidentiality Order." A reasonably similar designation shall also suffice.” (#10). Paragraph

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III (4) stated that “[n]othing in this agreement is intended to have any effect on trial. If AM FAM desires

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protection at trial, a separate motion must be filed by them. AM F AM understands that [p]laintiffs intend

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to use Confidential Materials at trial, and AM F AM may move for appropriate confidential treatment of

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the materials at trial.” Id.

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While some of the deleted language is not inconsistent with the Ninth Circuit’s directives in

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Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006) or this court’s Local Rules

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regarding filing confidential documents or utilizing confidential documents at trial, the court issues this

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order to clarify that the parties must adhere to those directives as set forth below.

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Special Order 109 requires the Clerk of the Court to maintain the official files for all cases filed on
or after November 7, 2005, in electronic form. The electronic record constitutes the official record of the

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court. Attorneys must file documents under seal using the court’s electronic filing procedures. See LR 10-

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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 enter an order to unseal them, or the documents are unsealed pursuant to
Local Rule.

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Id.
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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Deleted Paragraphs III (3) and (4) of the parties’ Stipulated Confidentiality Order (#10) are
NOT APPROVED.

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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 Confidentiality Order (#10), as modified and signed by the court, is
APPROVED.

15th day of October, 2012.
Dated this 12th day of October, 2012.

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CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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15th

October