Murnane et al v. Las Vegas Metropolitan Police Department et al

Filing 224

ORDER denying ECF No. 204 Plaintiff's Motion to Seal. Clerk directed to UNSEAL the Sealed Exhibit ECF No. 203 to make it available on the public docket. Signed by Magistrate Judge Peggy A. Leen on 02/08/2017. (Copies have been distributed pursuant to the NEF - KW)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

VICTORIA MURNANE, et al.,

8
9
10
11

Case No. 2:13-cv-01088-MMD-PAL
Plaintiffs,

ORDER

v.

(Mot. to Seal – ECF No. 204)

LAS VEGAS METROPOLITAN POLICE
DEPARTMENT, et al.,
Defendants.

12
13

Before the court is Plaintiffs’ Motion to Seal (ECF No. 204). This Motion is referred to

14

the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice.

15

The Motion seeks leave to file under seal a portion of Sgt. Jon Gentile’s deposition transcript. See

16

Sealed Exhibit (ECF No. 203).

17

(“LVMPD”) did not file a response to the Motion and the deadline to do so has now passed.

18

Defendant Las Vegas Metropolitan Police Department

BACKGROUND

19

Plaintiffs filed the deposition transcript excerpt under seal because a portion of the

20

transcript was designated as confidential pursuant to the parties’ stipulated protective order. See

21

Mot. to Seal (ECF No. 204) at 4. Plaintiffs assert that good cause exists to permit filing the excerpt

22

under seal because it contains confidential information about Defendant Norman’s prior

23

employment with LVMPD. With regard to a different portion of Gentile’s deposition transcript,

24

LVMPD previously informed the court that it had no opposition to unsealing the document. See

25

Sept. 24, 2015 Order (ECF No. 188) at 13; compare Sealed Appendix 2 (ECF No. 162) (attaching

26

pages 1–4, 19–21, 26, 28–30, 38–40, 53–55 of Gentile’s deposition transcript as exhibit to

27

Plaintiffs’ Response (ECF No. 160) to LVMPD’s Motion for Summary Judgment (ECF No. 105))

28

with Sealed Exhibit (ECF No. 203) (attaching pages 1–3, 37, 40–44, 60 of Gentile’s deposition
1

1

transcript as exhibit to Plaintiffs’ Reply (ECF No. 202)). Plaintiffs submitted the new portion of

2

the transcript in support of their Motion to Alter or Amend Judgment (ECF No. 196), which asked

3

the district judge to reevaluate the authenticity of Defendant Norman’s performance reviews

4

submitted as Exhibit 18 to Plaintiffs’ Opposition to LVMPD’s Motion for Summary Judgment.

5

See Mar. 31, 2016 Order (ECF No. 192) at 14. This court previously evaluated whether there were

6

compelling reasons to seal the performance reviews in its September 24, 2015 Order (ECF

7

No. 188), and held that LVMPD had not shown what specific harm or prejudice would result from

8

disclosure. Because LVMPD had not met its burden to file under seal, the court directed the clerk’s

9

office to unseal the performance reviews and Gentile’s deposition transcript.

10

DISCUSSION

11

As a general matter, there is a strong presumption of access to judicial records. Kamakana

12

v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). “In keeping with the strong

13

public policy favoring access to court records, most judicial records may be sealed only if the court

14

finds ‘compelling reasons’.” Oliner v. Kontrabecki, 745 F.3d 1024, 1025–26 (9th Cir. 2014)

15

(citing Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677–78 (9th Cir. 2010)). Compelling reasons

16

generally exist when court records might become a vehicle for improper purposes, “such as to

17

gratify private spite, promote public scandal, commit libel, or release trade secrets.” In re Roman

18

Catholic Archbishop of Portland, 661 F.3d 417, 429 (9th Cir. 2011) (citing Nixon v. Warner

19

Commc’ns, Inc., 435 U.S. 589, 598 (1978)); see also Oliner, 745 F.3d at 1026 (embarrassment,

20

annoyance, or undue burden are not compelling reasons to seal the entire court record).

21

The Ninth Circuit has held that the strong presumption of access to judicial records “applies

22

fully” to dispositive motions such as motions for summary judgment and related attachments,

23

which may decide the substantive merits of a case without a trial. Kamakana, 447 F.3d at 1179.

24

This principle of access was adopted for dispositive motions because “the resolution of a dispute

25

on the merits, whether by trial or summary judgment, is at the heart of the interest in ensuring the

26

“public’s understanding of the judicial process and of significant public events.” Id. (citing Valley

27

Broadcasting Co. v. U.S. Dist. Ct., 798 F.2d 1289, 1294 (9th Cir. 1986)). However, the court must

28

also look past the literal dispositive or non-dispositive label for all motions to determine whether
2

1

the “compelling reasons” standard applies. Center for Auto Safety v. Chrysler Group, LLC, 809

2

F.3d 1092, 1101 (9th Cir. 2016) (finding that “public access to filed motions and their attachments

3

does not merely depend on whether the motion is technically ‘dispositive’ ”). Courts must

4

examine “whether the motion at issue is more than tangentially related to the underlying cause of

5

action.” Id. See also, e.g., Oliner, 745 F.3d at 1026; Pintos, 605 F.3d at 678; Kamakana, 447 F.3d

6

at 1179; Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1134–36 (9th Cir. 2003). When

7

a motion that is more than tangentially related to the merits of a case, a movant must show

8

“compelling reasons” to seal any judicial records attached thereto. Center for Auto Safety, 809

9

F.3d at 1101 (finding that compelling reasons standard applied to request to seal documents

10

attached to motion for preliminary injunction, which was technically non-dispositive).

11

Under Kamakana and its progeny, the parties must show compelling reasons to file

12

Gentile’s deposition excerpt under seal. Plaintiffs’ motion to alter or amend the judgment

13

essentially asked the district judge to reconsider the unfavorable ruling on the summary judgment

14

motions. Thus, the underlying motion was more than tangentially related to the case and the higher

15

standard applies to the current Motion.

16

Plaintiffs have not shown compelling reasons for the deposition transcript to remain under

17

seal and LVMPD failed to respond to the Motion. The court’s entry of the protective order did not

18

create a presumption in favor of confidentiality. See, e.g., Foltz, 331 F.3d at 1134; Kamakana,

19

447 F.3d at 1182. The court has reviewed the excerpt and finds that it does not contain sensitive

20

law enforcement information that might become a vehicle for improper purposes.

21

Accordingly,

22

IT IS ORDERED:

23

1. Plaintiffs’ Motion to Seal (ECF No. 204) is DENIED.

24

2. The Clerk of the Court shall UNSEAL the Sealed Exhibit (ECF No. 203) to make it

25
26

available on the public docket.
DATED this 8th day of February, 2017.

27
PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

28
3