McDonagh et al v. Harrah's Las Vegas, Inc. et al

Filing 61

ORDER Granting Plaintiffs' 58 Ex Parte Motion for Leave to File Under Seal Unredacted Version of Exhibt 2 to Menhennet Declaration. Signed by Judge Richard F. Boulware, II on 12/10/2014. (Copies have been distributed pursuant to the NEF - SLD)

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Mark R. Thierman NV #8285
[e-mail]
THIERMAN LAW FIRM
7287 Lakeside Drive
Reno, Nevada 89511
Telephone: [phone]
David R. Markham CA Bar #071814 (pro hac vice)
[e-mail]
Janine R. Menhennet CA Bar #163501 (pro hac vice)
[e-mail]
THE MARKHAM LAW FIRM
750 B Street, Suite 1950
San Diego, CA 92101
Telephone: [phone]

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Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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NICOLE MCDONAGH, DAVID GRUCELLO,
on behalf of themselves, and all others similarly
situated,

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)
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Plaintiffs,
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v.
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HARRAH’S LAS VEGAS, INC., HARRAH’S
)
ENTERTAINMENT, LLC, and DOES 1 through )
50, inclusive,
)
)
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Defendants.
)
)
)
________________________________________ )

Case No. 13-cv-01744 RFB CWH
Hon. Richard F. Boulware
PLAINTIFFS’ EX PARTE APPLICATION
FOR LEAVE TO FILE UNDER SEAL
EXHIBIT 2 TO MENHENNET
DECLARATION IN SUPPORT OF
PLAINTIFF’S OPPOSITION TO
DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT

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PLAINTIFFS’ EX PARTE APPLICATION TO FILE UNDER SEAL EXHIBIT 2 TO MENHENNET
DECLARATION
Case No. 13-cv-01744 CJM CWH

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PLEASE TAKE NOTICE that Plaintiffs Nicole McDonagh and David Grucello hereby apply to

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the Court ex parte for leave to allow Plaintiffs to file the following documents under seal, pursuant to

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the Stipulated Protective Order filed on December 2, 2014 (Dkt. No. 57). Defendant has been notified

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about the Plaintiffs’ intention to file this application. These documents are being submitted as part of

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the Declaration of Janine Menhennet in Support of Plaintiffs’ Opposition to Defendant’s Motion for

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Summary Judgment, filed concurrently herewith. The documents requested to be filed under seal are as
follows:


Menhennet Decl. Exhibit 2: Excerpts of the deposition transcript of William M. Kelly,
Defendant’s 30(b)(6) witness.

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Good cause exists to allow Plaintiffs to file this document under seal because (1) it is subject to
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the parties’ Stipulated Protective Order; (2) it could be considered a document containing trade secrets
or other non-public information of a proprietary, strategic, commercially valuable and/or competitively
sensitive nature of Defendant.
This Application is based upon this Notice, the attached Memorandum of Points and

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Authorities, the attached Declaration of Janine R. Menhennet, and the pleadings, documents and

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records on file in this action, and such further or additional evidence or argument as may be presented

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before or at the time this application is taken under submission.

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Dated: December 3, 2014

THE MARKHAM LAW FIRM
By:/s/ Janine R. Menhennet
Janine R. Menhennet
[e-mail]
Attorneys for Plaintiffs

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PLAINTIFFS’ EX PARTE APPLICATION TO FILE UNDER SEAL EXHIBIT 2 TO MENHENNET
DECLARATION
Case No. 13-cv-01744 CJM CWH

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MEMORANDUM OF POINTS AND AUTHORITIES
I. GOOD CAUSE EXISTS TO SEAL EXHIBIT 2 TO MENHENNET DECLARATION
“[T]he Supreme Court recognize[s] a federal common law right to ‘inspect and copy public
records and documents.’ This right extends to pretrial documents filed in civil cases…” Foltz v. State
Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1134 (9th Cir. 2003) (quoting Nixon v. Warner Commc’n,
435 U.S. 589, 597 (1978)). As such, there is “a strong presumption in favor of access to court records,”
id. at 1135 (citation omitted), unless the documents are “among those which have ‘traditionally been
kept secret for important policy reasons,’” id. at 1134 (quoting Times Mirror Co. v. United States, 873
F.2d 1210, 1219 (9th Cir. 1989)).

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A party moving to seal a court document needs to overcome this presumption by meeting the

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compelling reasons standard. “That is, the party must articulate compelling reasons supported by

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specific factual findings,…that outweigh the general history of access and the public policies favoring

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disclosure, such as the public interest in understanding the judicial process.” Kamakana v. City & Cnty

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of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (citations and quotation marks omitted).

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However, there is an exception to the presumption of access to court records for documents

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attached to a non-dispositive motion and filed under seal pursuant to a valid protective order. “[T]he

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presumption of access [is] rebutted because ‘when a court grants a protective order for information

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produced during discovery, it already has determined that “good cause” exists to protect this

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information from being disclosed to the public by balancing the needs for discovery against the need

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for confidentiality,’” Foltz, 331 F.3d at 1135 (quoting Phillips v. GMC, 307 F.3d 1206, 1213 (9th Cir.

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2002)). In that respect, courts routinely enter protective orders for personal, sensitive information. See,
e.g., In re Zyprexa Injunction, 474 F.Supp.2d 385, 394 (E.D.N.Y. 2007).
Here, documents sought to be sealed are marked “Confidential,” pursuant to the Parties’
Protective Order.” The Stipulated Protective Order was filed by the Parties on December 2, 2014. See
Dkt. No. 57. Thus, it has already been determined that good cause exists to seal those documents.

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PLAINTIFFS’ EX PARTE APPLICATION TO FILE UNDER SEAL EXHIBIT 2 TO MENHENNET
DECLARATION
Case No. 13-cv-01744 CJM CWH

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Further, Exhibit 2 to Menhennet Declaration, which is deposition testimony of Defendant’s

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30(b)(6) expert, qualifies as information containing trade secrets or other non-public information of a

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proprietary, strategic, commercially valuable and/or competitively sensitive nature of Defendant. See

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Nutratech, Inc. v. Syntech Int’l, Inc., 242 F.R.D. 552, 554 n.4 (C.D. Cal. 2007) (“Fed. R. Civ. P.

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26(c)(7) does not limit its reach to ‘trade secrets,’ but also allows for protection of ‘confidential

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commercial information.’) Thus, good cause exists to seal this document.

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II. CONCLUSION
For the reasons discussed above, the Court should grant Plaintiffs’ Ex Parte Application to File
Under Seal the unredacted version of Exhibits 2 to Menhennet Declaration. This document is subject to

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the Stipulated Protective Order. Additionally, independent reasons, such protection of financial and
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commercial information, and trade secrets, warrant sealing this documents.

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Dated: December 3, 2014

THE MARKHAM LAW FIRM
By:/s/ Janine R. Menhennet
Janine R. Menhennet
[e-mail]
Attorneys for Plaintiffs

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IT IS SO ORDERED.

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Dated: December 10, 2014.

___________________________________
HON. RICHARD F. BOULWARE
UNITED STATES DISTRICT JUDGE

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PLAINTIFFS’ EX PARTE APPLICATION TO FILE UNDER SEAL EXHIBIT 2 TO MENHENNET
DECLARATION
Case No. 13-cv-01744 CJM CWH

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2
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Mark R. Thierman NV #8285
[e-mail]
THIERMAN LAW FIRM
7287 Lakeside Drive
Reno, Nevada 89511
Telephone: [phone]
David R. Markham CA Bar #071814 (pro hac vice)
[e-mail]
Janine R. Menhennet CA Bar #163501 (pro hac vice)
[e-mail]
THE MARKHAM LAW FIRM
750 B Street, Suite 1950
San Diego, CA 92101
Telephone: [phone]

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Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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NICOLE MCDONAGH, DAVID GRUCELLO,
on behalf of themselves, and all others similarly
situated,

)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
HARRAH’S LAS VEGAS, INC., HARRAH’S
)
ENTERTAINMENT, LLC, and DOES 1 through )
50, inclusive,
)
)
)
Defendants.
)
)
)
________________________________________ )

Case No. 13-cv-01744 RFB CWH
Hon. Richard F. Boulware
DECLARATION OF JANINE R.
MENHENNET IN SUPPORT OF
PLAINTIFFS’ EX PARTE APPLICATION
FOR LEAVE TO FILE UNDER SEAL
EXHIBIT 2 FILED IN SUPPORT OF
PLAINTIFF’S OPPOSITION TO
DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT

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DECLARATION OF JANINE R. MENHENNET IN SUPPORT OF PLAINTIFFS’ EX PARTE
APPLICATION TO FILE UNDER SEAL EXHIBIT 2
Case No. 13-cv-01744 CJM CWH

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I, Janine R. Menhennet, declare:

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1. I am an attorney at law admitted pro hac vice to practice before this Court. I am an associate at

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the Markham Law Firm, counsel of record for Plaintiffs Nicole McDonagh and David Grucello in this

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action.

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2. I submit this Declaration in support of Plaintiff’s Ex Parte Application for Leave to File under

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Seal the Unredacted Exhibit 2 to Menhennet Declaration in Support of Plaintiffs’ Opposition to

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Defendant’s Motion for Summary Judgment. I have personal knowledge of the facts contained in this

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declaration, and if called as a witness, I would and could competently testify to those facts.
3. In compliance with the Parties’ Stipulated Protective Order, filed on December 2, 2014, this
application will be served on the opposing counsel. On December 3, 2014, I have informed Defendant’s
counsel of Plaintiffs’ intention to file this application.
I declare under penalty of perjury under the laws of the State of Nevada and of the United States of
America that the foregoing is true and correct.

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Dated: December 3, 2014

THE MARKHAM LAW FIRM
By:/s/ Janine R. Menhennet
Janine R. Menhennet
[e-mail]
Attorneys for Plaintiffs

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DECLARATION OF JANINE R. MENHENNET IN SUPPORT OF PLAINTIFFS’ EX PARTE
APPLICATION TO FILE UNDER SEAL EXHIBIT 2
Case No. 13-cv-01744 CJM CWH