Aerodynamics Incorporated et al v. Caesars Entertainment Operating Company, Inc. et al

Filing 68

ORDER Granting Defendants' 58 Motion to Seal Exhibit 1 to 54 Declaration of Steven Markhoff and Defendants' 53 Response discussing that exhibit are sealed. ADI's 66 Motion to Seal 60 Reply is Granted. ADI is instructed to re-file its reply with the portion that discusses Exhibit 1 to 54 , 60 redacted. Signed by Judge Jennifer A. Dorsey on 10/23/2015. (Copies have been distributed pursuant to the NEF - SLD)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3
4

AERODYNAMICS INCORPORATED, a
Michigan corporation; ADI HOLDINGS
COMPANY, INC., a Georgia corporation,

5
6

2:15-cv-01344-JAD-PAL
Order Granting Defendants’ Motion to
Seal Exhibit 1 to the Declaration of Steven
Markhoff [ECF 58] and Plaintiffs’ Motion
to Seal their Reply [ECF 66]

Plaintiffs

7

v.

8

CAESARS ENTERTAINMENT
OPERATING COMPANY, INC., a Delaware
corporation; STEVEN MARKHOFF, an
individual; INTERNATIONAL
MANAGEMENT SOLUTIONS, LLC, a
Delaware corporation; VIA AIRLINES, INC.,
a Colorado corporation; VIA AIR, LLC, a
Delaware corporation; and AMOS VIZER, an
individual,

9
10
11
12
13

Defendants

14
Defendants move to seal Exhibit 1 to the declaration of Steven Markhoff1 and the

15
16

portions of his declaration2 and defendants’ response3 to the motion for preliminary injunction

17

discussing that exhibit, arguing that the document contains confidential and non-public sensitive

18

information of Via Airlines.4 ADI does not oppose the motion and, in fact, moves to seal its

19

reply (ECF 60) and refile that document after redacting the portion that discusses Exhibit 1.5 I

20

find compelling reasons to seal Exhibit 1 to Markhoff’s declaration and thus grant both motions.

21
22
23
24

1

ECF 54-1; ECF 57-1 (sealed).

25

2

ECF 54 at 7 ¶¶ 53–54; ECF 57 at 7 ¶¶ 53–54 (sealed).

26

3

ECF 53 at 11:05 & n. 9; ECF 56 at 11:05 & n. 9 (sealed).

27

4

ECF 58.

5

ECF 66.

28

1

1

“The public has a ‘general right to inspect and copy public records and documents

2

including judicial records and documents.’”6 “Although the common law right of access is not

3

absolute, ‘[courts] start with a strong presumption in favor of access to court records.’”7 “A party

4

seeking to seal judicial records can overcome the strong presumption of access by providing

5

‘sufficiently compelling reasons’ that override the public policies favoring disclosure.”8 “When

6

ruling on a motion to seal court records, the district court must balance the competing interests of

7

the public and the party seeking to seal judicial records.”9

8
9

“To seal the records, the district court must articulate a factual basis for each compelling
reason to seal[,] [which] must continue to exist to keep judicial records sealed.”10 The Ninth

10

Circuit has, however, “‘carved out an exception to the presumption of access’ to judicial records”

11

that is “‘expressly limited to’ judicial records ‘filed under seal when attached to a non-dispositive

12

motion.’”11 “Under the exception, ‘the usual presumption of the public’s right is rebutted[,]’” so

13

“a particularized showing of ‘good cause’ under [FRCP] 26(c) is sufficient to preserve the

14

secrecy of sealed discovery documents attached to non-dispositive motions.”12 Defendants move

15

under the higher “compelling reasons” standard.13 I find this standard applies in this

16
17
18
19

6

In re Midland Nat. Life Ins. Co. Annuity Sales Practices Litig., 686 F.3d 1115, 1119 (9th Cir.
2012) (quoting Nixon v. Warner Commcns., Inc., 435 U.S. 589, 597 (1978)).

20
7

21
22
23

Id. at 1119 (quoting Foltz v. St. Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir.
2003)).
8

Id. (quoting Foltz, 331 F.3d at 1135).

9

Id. (citing Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)).

24
10

Id. (citing Kamakana, 447 F.3d at 1179; Foltz, 331 F.3d at 1136).

11

Id. (quoting Foltz, 331 F.3d at 1135).

25
26
12

27
28

Id. (quoting Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1213 (9th
Cir. 2002); Foltz, 331 F.3d at 1135, 1138).

13

ECF 58 at 2:5–8.
2

1

context—the motion is dispositive because it addresses the merits of the action and seeks

2

injunctive relief before trial.14

3

I reviewed the sealed Exhibit 1 in camera and conclude that there are compelling reasons

4

to seal that exhibit in its entirety. Exhibit 1 is a letter containing information pertaining to Via

5

Airlines’ effort to obtain an FAA 121 certification. I am satisfied that releasing the information

6

contained in the letter could be valuable to other potential air carriers (competitors of Via

7

Airlines), and that preventing potential damage to Via Airlines’ business interests constitutes a

8

compelling reason to seal this information. I am also satisfied that the letter contains confidential

9

business information of a non-party, and that preventing damage to the business interests of that

10

non-party is another compelling reason to seal this information.

11

Accordingly, IT IS HEREBY ORDERED that defendants’ motion to seal Exhibit 1 to

12

ECF 54 [ECF 58] is GRANTED. Exhibit 1 to ECF 54, and the portions of Markhoff’s

13

declaration (ECF 54 at 7 ¶¶ 53–54) and defendants’ response (ECF 53 at 11:05 & n. 9)

14

discussing that exhibit, are sealed.

15

IT IS FURTHER ORDERED that ADI’s motion to seal its reply at ECF 60 [ECF 66] is

16

GRANTED. ADI’s reply at ECF 60 is sealed. ADI is instructed to re-file its reply with the

17

portion that discusses Exhibit 1 to ECF 54 (ECF 60 at 13 n. 12) redacted.

18

Dated this 23rd day of October, 2015.

19

__________________________________
___________________________
_
__
____________
___
_
__
Jennifer A. Dorsey
ennifer A Dorsey
fe
y
United States District Judge
nited States
d tate
tate
Judge
ud
ud

20
21
22
23
24
25
26
27
28

14

C.f. 28 U.S.C. 636(b)(1)(A) (listing “a motion for injunctive relief” among the categories of
non-dispositive motions district judges cannot designate a magistrate judge to hear and
determine).
3