Bartech Systems International, Inc. v. Mobile Simple Solutions, Inc. et al

Filing 80

ORDER denying without prejudice ECF No. 66 Motion to Seal; instructing Clerk's Office to keep ECF Nos. 16 , 38 , 42 , 47 , and 57 sealed for time being; directing the parties to file a renewed motion by 5/4/2016 (see order for de tails); directing Plaintiff by 5/2/2016 to file notice as to whether it intends to file its redacted motion for preliminary injunction and reply (ECF Nos. 67 , 71 ) under seal. Signed by Magistrate Judge Nancy J. Koppe on 4/27/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BARTECH INTERNATIONAL, INC.,
Plaintiff(s),

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vs.

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MOBILE SIMPLE SOLUTIONS, INC., et al.,

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Defendant(s).

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Case No. 2:15-cv-02422-MMD-NJK
ORDER
(Docket No. 66)

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Pending before the Court is the parties’ motion to seal. Docket No. 66. The parties seek
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permission to file on the public docket only redacted versions of the following documents: Plaintiff’s
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motion for preliminary injunction and several exhibits to that motion (Docket No. 16); Defendants’
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opposition to Plaintiff’s motion for preliminary injunction, Errata to the opposition, and several exhibits
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to those documents (Docket No. 38, 42); as well as Plaintiff’s reply and several exhibits to the reply
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(Docket No. 47, 57). Docket No. 66 at 6-9.
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The Ninth Circuit has held that there is a strong presumption of public access to judicial records.
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See Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006); Foltz v. State Farm
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Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). A party seeking to file documents under seal
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bears the burden of overcoming that presumption. Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678
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(9th Cir. 2010) (quoting Kamakana, 447 F.3d at 1178).
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Parties who seek to maintain the secrecy of documents attached to a motion for preliminary
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injunction must meet the high threshold of showing that “compelling reasons” support secrecy. Ctr. for
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Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th Cir. 2016) (holding that because a motion

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for preliminary injunction was “more than tangentially related to the merits” of the case, the compelling

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reasons standard applied). Those compelling reasons must outweigh the competing interests of the

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public in having access to the judicial records and understanding the judicial process. Kamakana, 447

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F.3d at 1178-79; see also Pintos, 605 F.3d at 679 & n.6 (court must weigh “relevant factors,” including

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the public’s interest in understanding the judicial process).

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The Ninth Circuit has indicated that “‘compelling reasons’ sufficient to outweigh the public’s

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interest in disclosure and justify sealing court records exist when such ‘court files might have become

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a vehicle for improper purposes,’ such as the use of records to gratify private spite, promote public

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scandal, circulate libelous statements, or release trade secrets.’” Kamakana, 447 F.3d at 1179 (citing

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Nixon v. Warner Commc’ns Inc., 435 U.S. 589, 598 (1978)); see also Apple Inc. v. Samsung Elecs. Co.,

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727 F.3d 1214, 1221-22 (Fed. Cir. 2013) (applying Ninth Circuit law regarding competitive harm to

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business and the definition of “trade secret”). On the other hand, “[t]he mere fact that the production

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of records may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will

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not, without more, compel the court to seal its records.” Kamakana, 447 F.3d at 1179 (citing Foltz, 331

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F.3d at 1136).

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The burden to show compelling reasons for sealing is not met by general assertions that the

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information is “confidential” or a “trade secret,” but rather the movant must “articulate compelling

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reasons supported by specific factual findings.” Id. at 1178. The Ninth Circuit has rejected efforts to

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seal documents under the “compelling reasons” standard based on “conclusory statements about the

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contents of the documents – that they are confidential and that, in general,” their disclosure would be

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harmful to the movant. Kamakana, 447 F.3d at 1182; see also Vaccine Ctr. LLC v. GlaxoSmithKline

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LLC, 2013 U.S. Dist Lexis 68298, *5-6 (D. Nev. May 14, 2013) (finding insufficient general assertions

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regarding confidential nature of documents). Such “conclusory offerings do not rise to the level of

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‘compelling reasons’ sufficiently specific to bar the public access to the documents.” Kamakana, 447

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F.3d at 1182. In allowing the sealing of a document, the Court must “articulate the basis for its ruling,

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without relying on hypothesis and conjecture.” See, e.g., Pintos, 605 F.3d at 679 (quoting Hagestad v.

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Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)).
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In this case, the parties contend that the compelling reasons standard is satisfied because a

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“clearly defined and serious injury will result” if these documents are publicly disclosed. Docket No.

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66 at 5. In particular, they contend that public access will reveal the parties’ confidential business

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information and trade secrets as well as “result in public scandal [for the parties’] families and children,

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or be used to gratify spite.” Id.

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The motion, however, speaks only in general terms and fails to specify the standards for each

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requested redaction. A blanket contention that the documents fall under one or the other of these

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justifications does not suffice. The Ninth Circuit has long eschewed such conclusory assertions of

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confidentiality. See, e.g., Kamakana, 447 F.3d at 1182 (rejecting conclusory assertions that documents

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would hinder future operations).

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The motion to seal as currently presented fails to satisfy the compelling reasons standard for

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sealing and is therefore DENIED without prejudice. The Court hereby INSTRUCTS the Clerk’s Office

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to keep the documents at Docket Nos. 16, 38, 42, 47, and 57 sealed for the time being. The parties must

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file a renewed motion to seal no later than May 4, 2016. The renewed motion must contain declarations

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that articulate the specific compelling reasons, supported by specific factual findings, for each requested

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redaction. Additionally, no later than May 2, 2016, Plaintiff must file notice with the Court as to

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whether it intended to file its redacted motion for preliminary injunction and reply (Docket Nos. 67, 71)

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under seal. In the event Plaintiff intended to file these documents under seal, it must establish specific

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compelling reasons for those documents to remain under seal. In the event the parties fail to do so, the

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Court may order the subject documents unsealed.

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IT IS SO ORDERED.

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DATED: April 27, 2016

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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