Cottle v. Nevada Department Of Corrections et al

Filing 160

ORDER granting # 159 Motion to Seal Transcript. Signed by Magistrate Judge William G. Cobb on 4/21/2016. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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SEAN DAVID COTTLE,

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Plaintiff,
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vs.
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NEVADA DEPARTMENT OF
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CORRECTIONS, et al.,
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Defendants.
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______________________________________)

3:12-cv-00645-MMD-WGC
ORDER GRANTING
MOTION TO SEAL
ECF Nos. 159

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Before the court is Plaintiff’s motion to seal ECF No. 158, a transcript of the February 2, 2016

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motion hearing. (ECF No. 159.) Plaintiff states the transcript contains certain specific references and

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facts concerning Plaintiff’s medical history and should be sealed to protect his medical privacy. (Id.)

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“Historically, courts have recognized a general right to inspect and copy public records and

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documents, including judicial records and documents.” See Kamakana v. City and County of Honolulu,

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447 F.3d 1172, 1178 (9th Cir. 2006) (internal quotation marks and citation omitted). Documents that

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have been traditionally kept secret, including grand jury transcripts and warrant materials in a pre-

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indictment investigation, come within an exception to the general right of public access. See id.

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Otherwise, “a strong presumption in favor of access is the starting point.” Id. (internal quotation marks

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and citation omitted).

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When a motion to seal documents is filed in connection with a non-dispositive motion, “the usual

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presumption of the public’s right of access is rebutted[,]” and requires only a showing of “good cause.”

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Kamakana, 447 F.3d at 1180 (“A ‘good cause’ showing under Rule 26(c) will suffice to keep sealed

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records attached to non-dispositive motions.”).

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The court recognizes that the need to protect medical privacy has qualified as a “compelling

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reason,” for sealing records, and therefore, satisfies the “good cause” standard for documents filed in

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connection with a non-dispositive motion. See, e.g., San Ramon Regional Med. Ctr., Inc. v. Principal

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Life Ins. Co., 2011 WL89931, at *n.1 (N.D. Cal. Jan. 10, 2011); Abbey v. Hawaii Employers Mut. Ins.

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Co., 2010 WL4715793, at * 1-2 (D. HI. Nov. 15, 2010); G. v. Hawaii, 2010 WL 267483, at *1-2 (D. HI.

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June 25, 2010); Wilkins v. Ahern, 2010 WL3755654 (N.D. Cal. Sept. 24, 2010); Lombardi v. TriWest

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Healthcare Alliance Corp., 2009 WL 1212170, at * 1 (D.Ariz. May 4, 2009).

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Documents that have been traditionally kept secret, including grand jury transcripts and warrant

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materials in a pre-indictment investigation, come within an exception to the general right of public

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access. See Kamakana, 447 F.3d at 1178. Otherwise, “a strong presumption in favor of access is the

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starting point.” Id. (internal quotation marks and citation omitted).

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“A party seeking to seal a judicial record then bears the burden of overcoming this strong

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presumption by meeting the ‘compelling reasons’ standard,” which means the party must “ articulate[]

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compelling reasons supported by specific factual findings ... that outweigh the general history of access

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and the public policies favoring disclosure[.]” Kamakana, 447 F.3d at 1178 (internal quotation marks

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and citations omitted). “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in

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disclosure and justify sealing court records exist when such ‘court files might have become a vehicle for

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improper purposes,’ such as the use of records to gratify private spite, promote public scandal, circulate

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libelous statements, or release trade secrets.” Kamakana, 447 F.3d at 1179 (citing Nixon, 435 U.S. at

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598).

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The Ninth Circuit has applied the lesser “good cause” showing from Federal Rule of Civil

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Procedure 26(c) in some circumstances, such as when a party seeks to seal materials filed in connection

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with a discovery motion. See id. at 1179-80. Federal Rule of Civil Procedure 26(c) governs protective

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orders issued in the discovery process and provides: “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 burden or expense....”

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Fed. R. Civ. P. 26(c).

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Many courts within the Ninth Circuit, including this one, previously determined whether to apply

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the “compelling reasons” standard or the lesser “good cause” standard by looking at whether a motion
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was dispositive or non-dispositive. See Kamakana, 447 F.3d at 1179; see also Center for Auto Safety v.

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Chrysler Group, LLC, 809 F.3d 1092, 1097 (9th Cir. 2016).

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The Ninth Circuit recently clarified, however, that the key in determining which standard to apply

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is not whether the proposed sealed documents accompany a dispositive or non-dispositive motion.

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Center for Auto Safety, 809 F.3d at 1101. “Rather, public access will turn on whether the motion is more

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than tangentially related to the merits of a case.” Id.

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Here, Plaintiff seeks to seal the transcript of a motion hearing relating to terms of a settlement

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agreement and involved a discussion of Plaintiff’s medical records, which tangentially relates to the

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merits of the case. Therefore, the court must apply the “compelling reasons” standard to determine

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whether or not the public should have access to the transcript.

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This court, and others within the Ninth Circuit, have recognized on various occasions that the

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need to protect medical privacy qualifies as a “compelling reason” for sealing records. See, e.g., San

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Ramon Regional Med. Ctr., Inc. v. Principal Life Ins. Co., 2011 WL89931, at *n.1 (N.D. Cal. Jan. 10,

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2011); Abbey v. Hawaii Employers Mut. Ins. Co., 2010 WL4715793, at * 1-2 (D. HI. Nov. 15, 2010);

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G. v. Hawaii, 2010 WL 267483, at *1-2 (D.HI. June 25, 2010); Wilkins v. Ahern, 2010 WL3755654

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(N.D. Cal. Sept. 24, 2010); Lombardi v. TriWest Healthcare Alliance Corp., 2009 WL 1212170, at * 1

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(D.Ariz. May 4, 2009).

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Balancing the need for the public’s access to information regarding Plaintiff’s medical history,

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treatment, and condition against the need to maintain the confidentiality of Plaintiff’s condition weighs

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in favor of sealing the transcript (ECF No. 158). Therefore, Plaintiff’s motion (ECF No. 159) is

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GRANTED.

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IT IS SO ORDERED.

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DATED: April 21, 2016

___________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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