Green Tree Servicing LLC v. Elkhorn Community Association et al

Filing 109

PROTECTIVE ORDER. ORDER granting 108 Stipulated Protective Order. Signed by Magistrate Judge Daniel J. Albregts on 11/8/2019. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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GREEN TREE SERVICING, LLC,
Plaintiff,

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Case No. 2:15-cv-00477-APG-DJA
ORDER

v.
ELKHORN COMMUNITY ASSOCIATION,
ET AL.,

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Defendants.

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This matter is before the Court on the parties’ Stipulated Protective Order (ECF No. 108),

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filed on November 7, 2019. The parties request that the Court enter a protective order to govern

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their exchange of confidential information. However, the parties fail to state the governing

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standard for filing documents under seal with the Court. This order reminds counsel that there is

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a presumption of public access to judicial files and records. A party seeking to file a confidential

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document under seal must file a motion to seal and must comply with the Ninth Circuit’s

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

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Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1097 (9th Cir. 2016).

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IT IS THEREFORE ORDERED that the parties’ Stipulated Protective Order (ECF No.
108) is granted subject to the following modifications:
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The Court has adopted electronic filing procedures. Attorneys must file

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documents under seal using the Court’s electronic filing procedures. See Local

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Rule IA 10-5. Papers filed with the Court under seal must be accompanied with a

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concurrently-filed motion for leave to file those documents under seal. See Local

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Rule IA 10-5(a).

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•

The Court has approved the instant protective order to facilitate discovery
exchanges, but there has been no showing, and the Court has not found, that any

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

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specific facts supported by declarations or concrete examples to establish that a

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protective order is required to protect any specific trade secret or other confidential

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information pursuant to Rule 26(c) or that disclosure would cause an identifiable

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and significant harm.

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•

and explain why that standard has been met. 809 F.3d at 1097.

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All motions to seal shall address the standard articulated in Ctr. for Auto Safety

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Specifically, a party seeking to seal judicial records bears the burden of meeting
the “compelling reasons” standard, as previously articulated in Kamakana. 447

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F.3d 1172. Under the compelling reasons standard, “a court may seal records only

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when it finds ‘a compelling reason and articulate[s] the factual basis for its ruling,

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without relying on hypothesis or conjecture.” Ctr. for Auto Safety, 809 F.3d at

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1097. (quoting Kamakana, 447 F.3d at 1179). “The court must then

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‘conscientiously balance[ ] the competing interests of the public and the party who

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seeks to keep certain judicial records secret.” Ctr. for Auto Safety, 809 F.3d at

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1097.

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•

There is an exception to the compelling reasons standard where a party may satisfy

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the less exacting “good cause” standard for sealed materials attached to a

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discovery motion unrelated to the merits of the case. Id. “The good cause

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language comes from Rule 26(c)(1), which governs the issuance of protective

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orders in the discovery process: ‘The court may, for good cause, issue an order to

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protect a party or person from annoyance, embarrassment, oppression, or undue

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burden or expense.’” Id. (citing Fed.R.Civ.P. 26(c)). “For good cause to exist, the

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party seeking protection bears the burden of showing specific prejudice or harm

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will result if no protective order is granted.” Phillips v. General Motors, 307 F.3d

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1206, 1210-11 (9th Cir. 2002).

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•

The labels of “dispositive” and “nondispositive” will not be the determinative
factor for deciding which test to apply because the focal consideration is “whether
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the motion is more than tangentially related to the merits of a case.” Ctr. for Auto

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Safety, 809 F.3d at 1101.

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•

The fact that the Court has entered the instant stipulated protective order and that a

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party has designated a document as confidential pursuant to that protective order

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does not, standing alone, establish sufficient grounds to seal a filed document. See

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Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1133 (9th Cir. 2003); see

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also Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). If

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the sole ground for a motion to seal is that the opposing party (or non-party) has

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designated a document as confidential, the designator shall file (within seven days

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of the filing of the motion to seal) either (1) a declaration establishing sufficient

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justification for sealing each document at issue or (2) a notice of withdrawal of the

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designation(s) and consent to unsealing. If neither filing is made, the Court may

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order the document(s) unsealed without further notice.

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•

To the extent any aspect of the stipulated protective order may conflict with this

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order or Local Rule IA 10-5, that aspect of the stipulated protective order is hereby

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superseded with this order.

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IT IS SO ORDERED.
DATED: November 8, 2019

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DANIEL J. ALBREGTS
UNITED STATES MAGISTRATE JUDGE

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