Sandoval v. Albertsons, LLC

Filing 29

ORDER re ECF No. 28 Motion for Adverse Presumption or Inference Due to Defendant's Spoliation of Evidence: Motion to Seal due by 3/26/2018. See order for further details. Signed by Magistrate Judge Peggy A. Leen on 3/12/2018. (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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***

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SILVIA SANDOVAL,

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v.

Case No. 2:17-cv-00959-APG-PAL
Plaintiff,
ORDER

ALBERTSONS, LLC, d/b/a ALBERTSONS,
Defendant.

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Plaintiff Silvia Sandoval filed her Motion for Adverse Presumption or Inference Due to

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Defendant’s Spoliation of Evidence (ECF No. 28). Both the motion and attached exhibits were

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filed under seal on March 9, 2018. However, Plaintiff did not request leave to file the documents

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under seal, or justify why the motion and supporting exhibits should be filed under seal. Pursuant

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to LR 10-5 of the Local Rules of Practice, attorneys must file documents under seal using the

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court’s electronic filing procedures:

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Unless otherwise permitted by statute, rule, or prior court order, papers filed with
the court under seal must be accompanied by a motion for leave to file those
documents under seal. If papers are filed under seal under prior court order, the
papers must state on the first page, directly under the case number: “FILED
UNDER SEAL UNDER COURT ORDER (ECF No. ___).” All papers filed under
seal will remain sealed until the court either denies the motion to seal or enters an
order unsealing them.

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LR IA 10-5(a). Additionally, the standards articulated by the Ninth Circuit in Kamakana v. City

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and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), must be met to overcome the presumption

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of public access to judicial files, records, motions, and any exhibits. Generally, the public has a

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right to inspect and copy judicial records, and these records are presumptively accessible to the

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public. Id. at 1178. Thus, a party seeking to seal a judicial record bears the burden of overcoming

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this strong presumption. Id.

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Plaintiff sealed her entire motion and attached exhibits without any explanation as to why

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these filings should be sealed. Under Kamakana, a party must make a particularized showing to

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overcome the presumption of public accessibility. No protective order governing confidentiality

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of documents exchanged in discovery was entered in this case. However, even if one was entered

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to facilitate the parties’ discovery exchanges, the mere fact that one party designated information

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as confidential under a protective order does not satisfy Kamakana standard. Only those portions

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of a motion that contain specific reference to confidential documents or information, and the

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exhibits that contain such confidential information, may be filed under seal. See In re Roman

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Catholic Archbishop of Portland, 661 F.3d 417, 425 (9th Cir. 2011); Foltz v. State Farm Mut.

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Auto. Ins. Co., 331 F.3d 1122, 1137 (9th Cir. 2003). The remainder of the motion, and other

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exhibits that do not contain confidential information, must be filed as publicly-accessible

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documents. See LR IA 10-5(b) (“The court may direct the unsealing of papers filed under seal,

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with or without redactions, after notice to all parties and an opportunity to be heard.”).

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In a cursory review of the motion the court could not determine any basis for the motion

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or its supporting exhibits to be sealed. However, the motion and attached exhibits will remain

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temporarily sealed to enable the parties to confer about what, if any, portions of the motion or

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exhibits should be sealed. Each side shall have until March 26, 2018, to file an appropriate

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memorandum of points and authorities making a particularized showing why the documents

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should remain under seal.

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Accordingly,

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IT IS ORDERED:

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1. The parties must comply with: (i) the Local Rules of Practice regarding electronic filing

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and filing under seal, (ii) the Ninth Circuit’s opinions in Kamakana v. City and County

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of Honolulu, 447 F.3d 1172 (9th Cir. 2006) and its progeny, and (iii) the appropriate

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CM/ECF filing procedures.

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2. The parties must confer about what, if any, portions of the motion, exhibits, etc., should

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remain sealed. If any party determines that a portion of the filing should remain sealed,

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that party must file a motion to seal making a particularized showing why the

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document(s) or redacted portion thereof should remain under seal.

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3. Any request for sealing must comply with the Ninth Circuit’s standards in Kamakana,

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and must include a memorandum of points and authorities making a particularized

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showing why the document(s) should be sealed or redacted. The motion should also

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include a supporting declaration or affidavit, a proposed order granting the motion to

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seal, and, if applicable, a proposed redacted version of the filing.

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4. Plaintiff Silvia Sandoval’s Motion for Adverse Presumption or Inference Due to

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Defendant’s Spoliation of Evidence (ECF No. 28) and attached exhibits will remain

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sealed until the court either denies the motion to seal or enters an order unsealing them.

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5. The party asserting confidentiality has the burden of overcoming the presumption of

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public access and must file a motion to seal on or before March 26, 2018. If no motion

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to seal is timely filed in compliance with this order, the Clerk of the Court will be

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directed to unseal the motion and supporting exhibits to make them available on the

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public docket.

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Dated this 12th day of March, 2018.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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