Thomas v. Clark County School District Police Department et al

Filing 60

ORDER denying 54 Motion to Seal 56 Motion for Summary Judgment, 55 Motion to Dismiss. Defendants are GRANTED LEAVE to file a renewed motion to seal by May 4, 2015. Defendants Motion to Dismiss 55 , Motion for Summary Judgment 56 , and attached exhibits are SEALED pending Defendants renewed motion. Signed by Magistrate Judge Cam Ferenbach on 4/20/2015. (Copies have been distributed pursuant to the NEF - DKJ)

1

UNITED STATES DISTRICT COURT
2

DISTRICT OF NEVADA

3

***

4
5

MICHAEL THOMAS,

6

Case No. 2:13–cv–1743–RFB–VCF
Plaintiff,

7

vs.

ORDER

FILIBERTO ARROYO, et al.,

MOTION TO SEAL (#54)

8
9

Defendants.
10
11

This matter involves Michael Thomas’ employment-discrimination action against the Clark
12
13
14

County School District Police Department, among others. Before the court is Defendants’ unopposed
Motion to Seal (#54). 1 For the reasons stated below, Defendants’ motion is denied.
BACKGROUND

15
16

On March 23, 2015, Defendants filed a Motion to Dismiss and/or Motion for Summary Judgment.

17

The motion and exhibits comprise of 158 pages. Nothing is redacted. Rather, Defendants filed all 158

18

pages under seal.

19

On the same day, Defendants filed the instant Motion to Seal. They argue that all 158 pages of the

20

Motion to Dismiss and/or Motion for Summary Judgment should be filed under seal because the motion

21

“reference[s]” the exhibits and the nature of the underlying exhibits are “not a matter of public concern.”

22

(Doc. #54 at 3:20–21; 5:9).
23
24
25

1

Parenthetical citations refer to the court’s docket.
1

LEGAL STANDARD

1

“It is clear that the courts of this country recognize a general right to inspect and copy public

2
3

records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435

4

U.S. 589, 597 (1978). “It is uncontested, however, that the right to inspect and copy judicial records is not

5

absolute.” Id. at 598.

6

When determining whether a document may be sealed, courts in the Ninth Circuit “treat judicial

7

records attached to dispositive motions differently from records attached to non-dispositive motions.”

8

Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006). “Unless a particular court

9
10

record is one traditionally kept secret, a strong presumption in favor of access is the starting point.” Id.
at 1178. 2 A party seeking to seal a judicial record attached to a dispositive motion “must articulate

11

compelling reasons.” Id. at 1178 (internal quotation marks omitted). This is a “high threshold showing.”
12

Id. at 1180. In general, compelling reasons exist where court files might become a vehicle for “improper
13
14
15
16

purposes.” Id. The gratification of private spite, the promotion of public scandal, the circulation of libelous
statements, and the release of trade secrets satisfy this standard; embarrassment, incrimination, or
exposure to further litigation do not. Id.

17

The Ninth Circuit requires the moving party to provide “specific factual findings” to seal a judicial

18

record attached to a dispositive motion. Id. This showing is akin to what to what Iqbal and Twombly

19

require: formulaic recitations, legal conclusions, and “hypothesis or conjecture” do not suffice. See id.

20

at 1179. To justifying sealing, the movant must “present articulable facts identifying the interests favoring

21

continued secrecy.” Id. at 1181 (citation omitted). If the party seeking to seal a judicial record attached to

22
23
24
25

2

The Ninth Circuit has identified two categories of documents that are traditionally kept secret: “grand jury
transcripts and warrant materials in the midst of a pre-indictment investigation.” Kamakana, 447 F.3d at 1178 (citing
Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir. 1989)).
2

a dispositive motion presents “compelling reasons” that are supported by “specific factual findings,” then
1
2
3

the court must “conscientiously balance the competing interests of the public and the party who seeks to
keep certain judicial records secret.” Id. at 1179 (internal quotation marks omitted).

4

By contrast, a party seeking to seal a judicial record attached to a nondispositive motion must

5

demonstrate “good cause” under Federal Rule of Civil Procedure 26(c). Id. Under Rule 26(c), “[t]he court

6

may, for good cause, issue an order to protect a party or person from annoyance, embarrassment,

7

oppression, or undue burden or expense.” See id. at 1180 (citing FED. R. CIV. P. 26(c)(1)). Rule 26(c)

8

requires the moving party to make a “particularized showing.” Foltz v. State Farm Mut. Auto. Ins. Co.,

9
10

331 F.3d 1122, 1138 (9th Cir. 2003). This showing is also akin to what Iqbal and Twombly require:
formulaic recitations, legal conclusions, and “[b]road allegations of harm, unsubstantiated by specific

11

examples or articulated reasoning, do not satisfy the Rule 26(c) test.” Beckman Indus., Inc. v. Int’l Ins.
12

Co., 966 F.2d 470, 475 (9th Cir. 1992) (citing Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3rd
13
14
15
16

Cir. 1986)). “To justify a protective order, one of Rule 26(c)(1)’s enumerated harms must be illustrated
‘with a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory
statements.’” Serrano v. Cintas Corp., 699 F.3d 884, 901 (6th Cir. 2012) (citation omitted).
DISCUSSION

17
18

Defendants argue that 158 pages of judicial records included in their Motion to Dismiss should be

19

sealed because personnel files are “confidential and not a matter of public concern” and the personnel files

20

are “reference[d]” throughout the motion, which requires the entire motion to be filed under seal. (Doc.

21
22

#54 at 3:20–21; 5:9–10).
These arguments fail as a matter of law. “Unless a particular court record is one traditionally kept

23

secret, a strong presumption in favor of access is the starting point.” Kamakana, 447 F.3d at 1178 (citing
24

Foltz, 331 F.3d at 1135). The Ninth Circuit has only identified two categories of documents that are
25

3

traditionally kept secret: “grand jury transcripts and warrant materials in the midst of a pre-indictment
1
2

investigation.” Kamakana, 447 F.3d at 1178 (citing Times Mirror Co. v. United States, 873 F.2d 1210,

3

1219 (9th Cir. 1989)). Defendants’ contention that personnel files are automatically “confidential and not

4

a matter of public concern” is incorrect. Because Defendants attached the personnel files to a dispositive

5

motion, they made the personnel files a matter of public concern. As stated in Kamakana, “the resolution

6

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

7

the public’s understanding of the judicial process and of significant public events.” Kamakana, 447 F.3d

8

at 1179.

9
10

Under certain circumstances, personnel files may be privileged. See, e.g., Sanchez v. City of Santa
Ana, 936 F.2d 1027, 1033 (9th Cir. 1990). However, the party asserting a privileged bears the burden of

11

demonstrating that the privilege applies to the documents in question. See Kerr v. U.S. Dist. Court for N.
12

Dist. of California, 511 F.2d 192, 198 (9th Cir. 1975) aff’d, 426 U.S. 394 (1976) (holding that personnel
13
14
15

files are not privileged, in part, because “[n]either the Chairman of the Authority nor the Director of
Corrections nor any official of these agencies asserted, in person or writing, any privilege in the district

16

court.”); see also United States v. Martin, 278 F.3d 988, 999–1000 (9th Cir. 2002) (“The burden is on the

17

party asserting the privilege to establish all the elements of the privilege.”). Defendants failed to show that

18

the documents in question are privileged.

19

Defendants similarly failed to present “compelling reasons” that are supported by “specific factual

20

findings” in the record. Instead, Defendants presented the court with 158 pages of documents and

21
22

unsubstantiated legal conclusions and “hypothesis or conjecture,” see Kamakana, 447 F.3d at 1179,
regarding those documents. “[J]udges are not archaeologists. They need not excavate masses of papers in

23

search of revealing tidbits.” Nw. Nat’l Ins. Co. v. Baltes, 15 F.3d 660, 662 (7th Cir. 1994).
24
25

4

Finally, the court rejects Defendants suggestion that the entire Motion to Dismiss must be sealed
1
2

because it references purportedly privileged and/or confidential documents. If the court determines that

3

the personnel files are privileged and/or confidential, Defendants may redact only those portions of the

4

motion that contain privileged and/or confidential information. The public has a right to access and inspect

5

all other portions of the Motion to Dismiss. See Nixon, 435 U.S. at 597; Kamakana, 447 F.3d at 1178.

6

ACCORDINGLY, and for good cause shown,

7

IT IS ORDERED that Defendants’ Motion to Seal (#54) is DENIED.

8

IT IS FURTHER ORDERED that Defendants are GRANTED LEAVE to file a renewed motion

9
10

to seal by May 4, 2015.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss (#55), Motion for Summary

11

Judgment (#56), and attached exhibits are SEALED pending Defendants’ renewed motion.
12

DATED this 20th day of April, 2015.
13
14
15

_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

16
17
18
19
20
21
22
23
24
25

5