Russell v. Nissan Motor Co., Ltd. et al

Filing 49

ORDER. IT IS ORDERED that: 1) Paragraph 6 of 48 the parties' Stipulated Confidentiality Agreement and Protective Order is NOT APPROVED. 2) The parties shall comply with the requirements of Local Rule IA 10-5(b) and the Ninth Circuit' ;s decision in Kamakana, 447 F.3d 1172, with respect to any documents filed under seal or used at trial. 3) The parties' Stipulated Confidentiality Agreement and Protective Order 48 , as modified and signed by the court, is APPROVED. Signed by Magistrate Judge Cam Ferenbach on 2/1/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MORGAN RUSSELL,
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Plaintiff,
2:16–cv–00458–JCM–VCF

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vs.
NISSAN MOTOR CO., LTD., et al.,

ORDER

Defendants.

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Before the court is the parties’ Stipulated Confidentiality Agreement and Protective Order (ECF

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No. 48), which the court approves with the exception of paragraph 6. This order reminds counsel that there

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is a presumption of public access to judicial files and records. Paragraph 6 will be changed as follows:

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In the event that counsel files or lodges with the Court any Confidential Information, all
documents attaching, quoting from, or otherwise revealing the content of Confidential
Information shall be filed under seal in accordance with Local Rule IA 10-5 [and the Ninth
Circuit decision in Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir.
2006)], or as otherwise required by the Court.
A party seeking to file a confidential document or utilize a confidential document at trial must
comply with the Ninth Circuit’s directives in Kamakana:
Unless a particular court record is one “traditionally kept secret,” a “strong presumption in
favor of access” is the starting point. ... A party seeking to seal a judicial record then bears
the burden of overcoming this strong presumption by meeting the “compelling reasons”
standard. ... that is, the party must “articulate[ ] compelling reasons supported by specific
factual findings,” that outweigh the general history of access and the public policies
favoring disclosure. ¶ In general, “compelling reasons” sufficient to outweigh the public’s
interest in disclosure and justify sealing court records exist when such “court files might
have become a vehicle for improper purposes,” such as the use of records to gratify private
spite, promote public scandal, circulate libelous statements, or release trade secrets. ... The
mere fact that the production of records may lead to a litigant’s embarrassment,
incrimination, or exposure to further litigation will not, without more, compel the court to
seal its records.

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Id. at 1178-79 (citations omitted).

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To justify the sealing of discovery materials attached to non-dispositive motions, a particularized

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showing of good cause is required. Id. at 1180. To justify the sealing of discovery materials attached to

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dispositive motions or used at trial, however, a higher threshold is required: a particularized showing that

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compelling reasons support secrecy. Id. “A ‘good cause’ showing will not, without more, satisfy a

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‘compelling reasons’ test.” Id. When private discovery materials are attached to a dispositive motion (or

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response or reply) or used at trial, such materials become a part of a judicial record, and as such “are public

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documents almost by definition, and the public is entitled to access by default.” Id.
ACCORDINGLY, and for good cause shown,

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IT IS ORDERED that:

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1.

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Paragraph 6 of the parties’ Stipulated Confidentiality Agreement and Protective Order

(ECF No. 48) is NOT APPROVED.
2.

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The parties shall comply with the requirements of Local Rule IA 10-5(b) and the Ninth

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Circuit’s decision in Kamakana, 447 F.3d 1172, with respect to any documents filed under seal or used at

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trial.

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3.

The parties’ Stipulated Confidentiality Agreement and Protective Order (ECF No. 48), as

modified and signed by the court, is APPROVED.
DATED this 1st day of February, 2017.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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2-2-2017