Bank of America, N.A., v. Desert Pine Villas Homeowners Association et al

Filing 64

ORDER. IT IS ORDERED that counsel shall comply with the requirements of Local Rule IA 10-5, the Ninth Circuits decision in Kamakana, 447 F.3d 1172, and the procedures outlined above, with respect to any documents filed under seal. To the e xtent any aspect of the stipulated protective order may conflict with this order or Local Rule IA 10-5, that aspect of the stipulated protective order is hereby superseded with this order. Signed by Magistrate Judge Nancy J. Koppe on 11/17/16. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BANK OF AMERICA, N.A.,
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Plaintiff(s),
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vs.
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DESERT PINE VILLAS HOMEOWNERS
ASSOCIATION, et al.,
Defendant(s).

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Case No. 2:16-cv-00725-JCM-NJK
ORDER

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Pending before the Court is a Stipulated Protective Order (Docket No. 61), which the Court

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approved to facilitate discovery in this case. This order reminds counsel that there is a presumption

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

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seal 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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The Court has adopted electronic filing procedures. Attorneys must file documents under

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seal using the Court’s electronic filing procedures. See Local Rule IA 10-5. Papers filed with the

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Court under seal must be accompanied with a concurrently-filed motion for leave to file those

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documents under seal. See Local Rule IA 10-5(a).

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The Court has approved the blanket protective order to facilitate discovery exchanges. But

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there has been no showing, and the Court has not found, that any specific documents are secret

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or confidential. The parties have not provided specific facts supported by declarations or concrete

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examples to establish that a protective order is required to protect any specific trade secret or other

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

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significant harm. The Ninth Circuit has held that there is a presumption of public access to judicial

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files and records, and that parties seeking to maintain the confidentiality of documents attached to

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nondispositive motions must show good cause exists to overcome the presumption of public access.

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See Kamakana 447 F.3d at 1179. Parties seeking to maintain the secrecy of documents attached to

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dispositive motions must show compelling reasons sufficient to overcome the presumption of public

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access. Id. at 1180. All motions to seal must address the applicable standard and explain why

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that standard has been met. The fact that a court has entered a blanket stipulated protective order

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and that a party has designated a document as confidential pursuant to that protective order does not,

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standing alone, establish sufficient grounds to seal a filed document. See Foltz v. State Farm Mut.

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Auto. Ins. Co., 331 F.3d 1122, 1133 (9th Cir. 2003); see also Beckman Indus., Inc. v. Int’l Ins. Co.,

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966 F.2d 470, 476 (9th Cir. 1992).

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

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a document as subject to protection pursuant to the stipulated protective order, the movant must

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notify the opposing party (or non-party) at least seven days prior to filing the designated document.

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The designating party must then make a good faith determination if the relevant standard for sealing

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is met. To the extent the designating party does not believe the relevant standard for sealing can be

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met, it shall indicate that the document may be filed publicly no later than four days after receiving

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notice of the intended filing. To the extent the designating party believes the relevant standard for

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sealing can be met, it shall provide a declaration supporting that assertion no later than four days

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after receiving notice of the intended filing. The filing party shall then attach that declaration to its

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motion to seal the designated material. If the designating party fails to provide such a declaration

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in support of the motion to seal, the filing party shall file a motion to seal so indicating and the Court

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may order the document filed in the public record.1

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In the event of an emergency motion, the above procedures shall not apply. Instead, the
movant shall file a motion to seal and the designating party shall file a declaration in support of that
motion to seal within three days of its filing. If the designating party fails to timely file such a

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IT IS ORDERED that counsel shall comply with the requirements of Local Rule IA 10-5,

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the Ninth Circuit’s decision in Kamakana, 447 F.3d 1172, and the procedures outlined above, with

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respect to any documents filed under seal. To the extent any aspect of the stipulated protective order

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may conflict with this order or Local Rule IA 10-5, that aspect of the stipulated protective order is

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hereby superseded with this order.

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IT IS SO ORDERED.

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DATED: November 17, 2016

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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declaration, the Court may order the document filed in the public record.
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