Ferguson v. Diversified Consultants, Inc. et al

Filing 18

ORDER re 16 Stipulated Protective Order. Paragraphs 9 and 10 are NOT APPROVED and DENIED. The parties shall comply with LR 10-5(b) and the Ninth Circuit's opinion in Kamakana, 447 F.3d 1172 (9th Cir. 2006), with respect to filing documents under seal. Signed by Magistrate Judge Peggy A. Leen on 7/23/2014. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOANNA FERGUSON, et al.,

Case No. 2:14-cv-00375-RCJ-PAL

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Plaintiffs,

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ORDER

v.
DIVERSIFIED CONSULTANTS, INC., et al.
Defendants.

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Before the court is the parties= Stipulated Protective Order and Confidentiality Agreement

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(Dkt. #16), which the court approved, with the exception of Paragraphs 9 and 10, to facilitate

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discovery in this case. This order also reminds counsel that there is a presumption of public

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access to judicial files and records. A party seeking to file a confidential document under seal

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must file a motion to seal and must comply with the Ninth Circuit=s directives in Kamakana v.

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City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006).

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Paragraphs 9 and 10 of the parties’ proposed stipulation was not approved and was

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deleted by the court.

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information with the Clerk of the Court in a sealed envelope. While this was an accepted

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practice prior to the court’s adoption of electronic filing procedures, with a few exceptions not

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applicable here, the Clerk of the Court no longer maintains paper records. Special Order 109

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requires the Clerk of the Court to maintain the official files for all cases filed on or after

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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.

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See LR 10-5(b). That rule provides:

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It contained provisions permitting the parties to file confidential

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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: AFILED 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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The court has approved the parties= blanket protective order to facilitate their discovery

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exchanges. However, the parties have not shown, and court has not found, that any specific

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documents are secret or confidential. The parties have not provided specific facts supported by

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affidavits or concrete examples to establish that a protective order is required to protect any

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specific trade secret or other confidential information under Rule 26(c) or that disclosure would

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cause an identifiable and significant harm. The Ninth Circuit has held that there is a presumption

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of public access to judicial files and records and that parties seeking to maintain the

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confidentiality of documents attached to non-dispositive motions must show good cause exists to

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overcome the presumption of public access. See Kamakana 447 F.3d at 1179. Parties seeking to

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maintain the secrecy of documents attached to dispositive motions must show compelling

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reasons sufficient to overcome the presumption of public access. Id. at 1180.

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Accordingly,

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IT IS ORDERED:

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1. Paragraphs 9 and 10 of the Stipulated Protective Order and Confidentiality

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Agreement (Dkt. #16) are NOT APPROVED and DENIED.

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2. The parties shall comply with LR 10-5(b) and the Ninth Circuit’s opinion in

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Kamakana, 447 F.3d 1172 (9th Cir. 2006), with respect to filing documents under

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seal.

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Dated this 23rd day of July, 2014.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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