Emerson et al v. TMBC, LLC. et al

Filing 29

ORDERED: 1. The TMBC Defendants Motion to Seal (ECF No. 19 ) is DENIED without prejudice. 2. The party or parties designating the dealer agreement as confidential shall have until September 9, 2016, in which to file a memorandum of points and authorities why the dealer agreement should be sealed. Signed by Magistrate Judge Peggy A. Leen on 8/26/2016. (Copies have been distributed pursuant to the NEF - DRM) Modified on 8/26/2016 to activate hyperlink (DRM).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JAMES ELVIS EMERSON, et al.,

Case No. 2:16-cv-01229-MMD-PAL

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Plaintiffs,
v.

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ORDER

ARCTIC CAT SPORT, INC., et al.,

(Mot. to Seal – ECF No. 19)

Defendants.

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This matter is before the court on the Motion to Seal (ECF No. 19) filed July 14, 2016, by

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Defendants TMBC, LLC, Reiner R. Hall and Lauren Pastor (jointly, the “TMBC Defendants”).

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This Motion is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3

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of the Local Rules of Practice. The court has considered the Motion and Defendant Arctic Cat

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Inc.’s1 Notice of Non-Opposition (ECF No. 20), filed July 15, 2016.

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On July 13, 2016, the TMBC Defendants filed a Motion for Leave to Amend their

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Answer to Assert a Third-Party Claim Against Arctic Cat Sales, Inc. (ECF No. 18). Attached to

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this motion was Exhibit B, a dealer agreement between Defendants TMBC, LLC and Arctic Cat

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Inc.

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disclosure. Counsel for the TMBC Defendants failed to realize at the time of filing that the

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agreement contained a confidentiality clause. Defendant Arctic Cat does not oppose sealing the

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agreement.

The agreement contains a confidentiality clause requiring three days’ notice prior to

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As a general matter, there is a strong presumption of access to judicial records.

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Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). “In keeping with

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the strong public policy favoring access to court records, most judicial records may be sealed

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In its notice, Defendant Arctic Cat Inc. indicates that it was erroneously sued as Arctic Cat Sport, Inc.

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only if the court finds ‘compelling reasons’.” Oliner v. Kontrabecki, 745 F.3d 1024, 1025–26

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(9th Cir. 2014) (citing Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677–78 (9th Cir. 2010)).

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However, public “access to judicial records is not absolute.” Kamakana, 447 F.3d at 1178.

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The Ninth Circuit has carved out an exception to the strong presumption of access for

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certain discovery materials where the movant makes a particularized showing of “good cause”

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under Rule 26(c) of the Federal Rules of Civil Procedure that rebuts the public’s right of access.

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See Foltz v. State Farm Mut. Ins. Co., 331 F.3d 1122, 1135, 1138 (9th Cir. 2003); Phillips v.

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Gen. Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002) see also Fed. R. Civ. P. 26(c) (a district

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court may issue a protective order “to protect a party or person from annoyance, embarrassment,

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oppression, undue burden or expense”). The “less exacting ‘good cause’ standard” applies to (1)

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“private materials unearthed during discovery” as such documents are not part of the judicial

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record, and (2) “previously sealed discovery” attached to non-dispositive motions. Oliner, 745

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F.3d at 1026 (citing Pintos, 605 F.3d at 678). Broad allegations of harm, unsubstantiated by

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specific examples or articulated reasoning do not satisfy the Rule 26(c) test.” Foltz, 331 F.3d at

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1130 (citing Beckman Ind., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992)). “The mere

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fact that the production of records may lead to a litigant’s embarrassment, incrimination, or

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exposure to further litigation will not, without more, compel the court to seal its records.”

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Kamakana, 447 F.3d at 1179; see also Oliner, 745 F.3d at 1026.

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The TMBC Defendants’ conclusory statement that the confidentiality clause requires

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three days’ notice prior to disclosure is insufficient to meet their burden of making a

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particularized showing of good cause for each item they seek to file under seal. See Kamakana,

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447 F.3d at 1178–79. The TMBC Defendants have not asserted or shown specific harm or

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prejudice that it expects will result from disclosure of the dealer agreement. For example, the

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TMBC Defendants did not assert that the dealer agreement contains trade secrets or research and

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development. The court appreciates that the Motion to Seal was filed to comply with the dealer

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agreement’s confidentiality clause, but a statement that counsel failed to realize that the

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agreement contained a confidentiality clause at the time of filing does not establish good cause

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for sealing documents attached to a non-dispositive motion.
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Additionally, the court notes that the Motion for Leave to Amend the Answer (ECF No.

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18) and its exhibits failed to comply with the Local Rules’ requirements that: (1) a document be

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filed as a Portable Document Format (PDF) and word-searchable,2 see LR IC 2-2(a)(1); and (2)

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exhibits or attachments “be attached as separate files.” LR IC 2-2(a)(3)(A). Electronic filers are

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prohibited from combining a motion, memorandum of points and authorities, declaration, and/or

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exhibits into one PDF document and then filing that single PDF as the “main document” in

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CM/ECF’s document upload screen.

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document in the electronic filing system”). This practice makes it impossible for the Clerk of the

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Court to seal or unseal specific documents as needed because the docketing clerks cannot

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separate the pages for sealing purposes. See LR IA 10-5(b). Instead, the Local Rules require

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litigants to save each document or exhibit they want sealed as a separate PDF document and then

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file each PDF in CM/ECF’s document upload screen as “attachments” to a main document.3

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Counsel are responsible for informing themselves and instructing their staff regarding the correct

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electronic filing procedures.4

Id. (exhibits “must not be filed as part of the base

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The shortcut of filing only one PDF inevitably causes additional work for the court,

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docketing clerks, and the parties. Should leave to file under seal be granted for some but not all

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documents, the court must then order litigants to refile the sealed and unsealed documents

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separately, rather than simply instructing the docketing clerks to seal or unseal the documents in

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accordance with the court’s findings. Failure to follow the Local Rules of Practice and CM/ECF

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filing requirements will delay and complicate the court’s review of the docket. The parties are

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cautioned that the court may strike from the record any prospective filings that fail to comply

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with the Local Rules.

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Searchable PDF documents may be created directly from a word processing file or by utilizing optical
character recognition (OCR).

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The court is not attempting to nitpick counsel for what may seem, at first blush, a minor noncompliance issue. Ironically, given the nature of the sealing motion now before the court, one of the
reasons for these rules is to facilitate sealing requests.

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The parties are encouraged to contact the CM/ECF Helpdesk at [phone] prior to filing should
they have any technical questions. For additional direction, the parties may also refer to the updated
procedures in CM/ECF Version 4.0 Enhancements and Changes, which is available on the court’s
website.

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Accordingly,

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IT IS ORDERED:

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1. The TMBC Defendants’ Motion to Seal (ECF No. 19) is DENIED without prejudice.

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2. The party or parties designating the dealer agreement as confidential shall have until

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September 9, 2016, in which to file a memorandum of points and authorities and any

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supporting declaration or affidavit to make a particularized showing of good cause

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why the dealer agreement should be sealed.

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Dated this 26th day of August, 2016.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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