Archer Western Contractors, LLC v. The Erection Company, Inc. et al

Filing 43

ORDER - The parties 42 Stipulation for inadvertent disclosures and clawback is granted subject to the modifications outlined in the Order. Signed by Magistrate Judge Daniel J. Albregts on 9/16/2021. (Copies have been distributed pursuant to the NEF - DRS)

Case 2:17-cv-03032-GMN-DJA Document 43 Filed 09/16/21 Page 1 of 3

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Archer Western Contractors, LLC,
Plaintiff,

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v.

Case No. 2:17-cv-03032-GMN-DJA
Order

The Erection Company, Inc.
And
Travelers Casualty and Surety Company of
America,

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Defendants.

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This matter is before the Court on the parties’ stipulation for inadvertent disclosures and

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clawback (ECF No. 42). The parties request that the Court enter an order to govern the potential

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inadvertent exchange of privileged information. The parties include a line, taken from Federal

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Rule of Civil Procedure 26(b)(5)(B) that they “may promptly present the information to the Court

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under seal for a determination of the [privilege or protection] claim.” However, the parties fail to

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state the governing standard for filing documents under seal with the Court. This order reminds

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counsel that there is a presumption of public access to judicial files and records. A party seeking

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to file a confidential document under seal must file a motion to seal and must comply with the

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Ninth Circuit’s directives in Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir.

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2006) and Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092 (9th Cir. 2016).

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IT IS THEREFORE ORDERED that the parties’ stipulation for inadvertent disclosures
and clawback (ECF No. 42) is granted subject to the following modifications:
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The Court has adopted electronic filing procedures. Attorneys must file

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documents under seal using the Court’s electronic filing procedures. See Local

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Rule IA 10-5. Papers filed with the Court under seal must be accompanied with a

Case 2:17-cv-03032-GMN-DJA Document 43 Filed 09/16/21 Page 2 of 3

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concurrently-filed motion for leave to file those documents under seal. See Local

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Rule IA 10-5(a).

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•

The Court has approved the instant stipulation to facilitate discovery exchanges,

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but there has been no showing, and the Court has not found, that any specific

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documents are secret or confidential. The parties have not provided specific facts

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supported by declarations or concrete examples to establish that a protective order

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is required to protect any specific trade secret or other confidential information

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

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significant harm.

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•

and explain why that standard has been met. 809 F.3d at 1097.

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All motions to seal shall address the standard articulated in Ctr. for Auto Safety

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Specifically, a party seeking to seal judicial records bears the burden of meeting

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the “compelling reasons” standard, as previously articulated in Kamakana. 447

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F.3d 1172. Under the compelling reasons standard, “a court may seal records only

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when it finds ‘a compelling reason and articulate[s] the factual basis for its ruling,

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without relying on hypothesis or conjecture.” Ctr. for Auto Safety, 809 F.3d at

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1097. (quoting Kamakana, 447 F.3d at 1179). “The court must then

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‘conscientiously balance[ ] the competing interests of the public and the party who

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seeks to keep certain judicial records secret.” Ctr. for Auto Safety, 809 F.3d at

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1097.

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There is an exception to the compelling reasons standard where a party may satisfy

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the less exacting “good cause” standard for sealed materials attached to a

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discovery motion unrelated to the merits of the case. Id. “The good cause

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language comes from Rule 26(c)(1), which governs the issuance of protective

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orders in the discovery process: ‘The court may, for good cause, issue an order to

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protect a party or person from annoyance, embarrassment, oppression, or undue

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burden or expense.’” Id. (citing Fed.R.Civ.P. 26(c)). “For good cause to exist, the

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party seeking protection bears the burden of showing specific prejudice or harm
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Case 2:17-cv-03032-GMN-DJA Document 43 Filed 09/16/21 Page 3 of 3

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will result if no protective order is granted.” Phillips v. General Motors, 307 F.3d

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1206, 1210-11 (9th Cir. 2002).

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The labels of “dispositive” and “nondispositive” will not be the determinative

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factor for deciding which test to apply because the focal consideration is “whether

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the motion is more than tangentially related to the merits of a case.” Ctr. for Auto

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Safety, 809 F.3d at 1101.

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•

The fact that the Court has entered the instant stipulated protective order and that a

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party has designated a document as confidential pursuant to that protective order

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does not, standing alone, establish sufficient grounds to seal a filed document. See

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Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1133 (9th Cir. 2003); see

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also Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). If

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

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designated a document as confidential, the designator shall file (within seven days

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of the filing of the motion to seal) either (1) a declaration establishing sufficient

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justification for sealing each document at issue or (2) a notice of withdrawal of the

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designation(s) and consent to unsealing. If neither filing is made, the Court may

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order the document(s) unsealed without further notice.

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•

To the extent any aspect of the stipulated protective order may conflict with this

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order or Local Rule IA 10-5, that aspect of the stipulated protective order is hereby

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superseded with this order.

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IT IS SO ORDERED.
DATED: September 16, 2021
DANIEL J. ALBREGTS
UNITED STATES MAGISTRATE JUDGE

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