Cabebe v. Equifax Information Services, LLC

Filing 47

ORDER re 44 Motion to Seal. The Court ORDERS as follows:The Clerk's Office is INSTRUCTED to maintain Exhibit A-9 under seal for the time being at both Docket Nos. 43 and 46 ;Plaintiffs' counsel shall file, by October 11, 2017, a declaration as to why he filed on the public docket at Docket No. 43 what he identifies as a sealed version of the exhibit;Plaintiffs' counsel shall file, by October 11, 2017, a declaration as to why he did not comply with the Court' s mandate regarding the applicable procedures for filing under seal documents designated as confidential by another party;Plaintiffs shall file, by October 11, 2017, a supplemental brief in support of their position that the "compelling reaso ns" standard applies; andDefendant shall file, by October 11, 2017, either (1) a notice that Exhibit A-9 may be unsealed or (2) a brief supported by declaration indicating the standard applicable to the pending motion to seal and evidentiary support as to why that standard is met. Signed by Magistrate Judge Nancy J. Koppe on 10/5/17. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10
ROBERT SUSTRIK, et al.,
11
Plaintiff(s),
12
v.
13
EQUIFAX INFORMATION SERVICES, LLC,
14
Defendant(s).
15

)
)
)
)
)
)
)
)
)
)

Case No. 2:16-cv-02866-RFB-NJK
ORDER

16

Pending before the Court is Plaintiffs’ motion to seal, which is defective in several ways. Docket

17

No. 44. Most significantly, it appears Plaintiffs’ counsel filed publicly the very exhibit at issue. Docket

18

No. 43 (“Attached to this notice is a sealed copy of Exhibit A-9” (emphasis added)). The Court has

19

instructed the Clerk’s Office to seal the document on a temporary basis, but the filing attorney must

20

explain why this document was filed publicly when Plaintiffs are simultaneously arguing that it should

21

be sealed.

22

The motion to seal was also filed in violation of the Court’s order dictating the procedures that

23

must be followed when a party files another party’s material that has been designated as confidential

24

pursuant to their blanket stipulated protective order:

25
26
27
28

If the sole ground for a motion to seal is that the opposing party (or non-party) has
designated a document as subject to protection pursuant to the stipulated protective
order, the movant must notify the opposing party (or non-party) at least seven days prior
to filing the designated document. The designating party must then make a good faith
determination if the relevant standard for sealing is met. To the extent the designating
party does not believe the relevant standard for sealing can be met, it shall indicate that
the document may be filed publicly no later than four days after receiving notice of the

1

4

intended filing. To the extent the designating party believes the relevant standard for
sealing can be met, it shall provide a declaration supporting that assertion no later than
four days after receiving notice of the intended filing. The filing party shall then attach
that declaration to its motion to seal the designated material. If the designating party fails
to provide such a declaration in support of the motion to seal, the filing party shall file
a motion to seal so indicating and the Court may order the document filed in the public
record.

5

Docket No. 22 at 2. The motion to seal does not provide a declaration by Defendant as to why the

6

exhibit should be sealed, nor does it appear that the pre-filing procedures mandated by the Court were

7

followed.1

2
3

8

Lastly, the motion to seal indicates that, “[t]o seal documents attached to a motion to compel,

9

a party must demonstrate a compelling reason to prevent disclosure.” Docket No. 44 at 2. The cases

10

cited by Plaintiffs do not support that position. To the contrary, one of the cases cited addresses

11

discovery motions as an example of instances in which courts will generally review motions to seal

12

under the more lenient “good cause” standard. The Center for Auto Safety v. Chrysler Group, LLC, 809

13

F.3d 1092, 1097 (9th Cir. 2016). Ultimately, however, the title of a motion is not determinative of the

14

applicable standard; instead, the Court must look to whether the particular motion is more than

15

tangentially related to the merits of the case. See id. at 1099.

16

In light of the above, the Court ORDERS as follows:

17

•

18

The Clerk’s Office is INSTRUCTED to maintain Exhibit A-9 under seal for the time
being at both Docket Nos. 43 and 46;

19

•

20

Plaintiffs’ counsel shall file, by October 11, 2017, a declaration as to why he filed on the
public docket at Docket No. 43 what he identifies as a sealed version of the exhibit;

21

•

Plaintiffs’ counsel shall file, by October 11, 2017, a declaration as to why he did not

22

comply with the Court’s mandate regarding the applicable procedures for filing under

23

seal documents designated as confidential by another party;

24
25
26
27
28

1

The fact that Plaintiffs themselves believe Defendant’s document can be sealed does not obviate
the need to analyze the propriety of sealing that document. At bottom, the Court must ensure that the public
has access to court filings unless the appropriate standards have been met, so whether the parties agree to
sealing a document is not dispositive of the sealing request.
2

1

•

2
3

Plaintiffs shall file, by October 11, 2017, a supplemental brief in support of their position
that the “compelling reasons” standard applies; and

•

Defendant shall file, by October 11, 2017, either (1) a notice that Exhibit A-9 may be

4

unsealed or (2) a brief supported by declaration indicating the standard applicable to the

5

pending motion to seal and evidentiary support as to why that standard is met.

6

IT IS SO ORDERED.

7

DATED: October 5, 2017

8

______________________________________
NANCY J. KOPPE
United States Magistrate Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3