Doud et al v. Yellow Cab of Reno, Inc.

Filing 99

ORDER denying Plaintiffs' 97 motion; directing Clerk to leave 98 document under seal; directing Plaintiff to file a new opposition re 95 Motion to Enforce Settlement within 5 days (see order for details). Defendant's reply due 6/22/2015. Signed by Magistrate Judge William G. Cobb on 6/11/2015. (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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JAMES DOUD and MELODIE DOUD,

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Plaintiffs,
v.

3:13-cv-00664-WGC
ORDER
Re: Doc. # 97-Pls.’ Mtn. for Leave to File
Pls.’ Oppo. to Def.’s Mtn. to Enforce
Settlement Agreement Under Seal

YELLOW CAB OF RENO, INC.,
Defendant.

Before the court is Plaintiffs’ Motion to File Opposition to Defendant’s Motion to

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Enforce Settlement Agreement Under Seal. (Doc. # 97.) Plaintiffs seek leave to file their

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opposition (Doc. # 98) to Defendant’s motion to enforce the settlement agreement (Doc. # 95)

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under seal because the opposition “concerns matters that were discussed in confidential

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mediation discussions with the Ninth Circuit and also references conversations related to such

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confidential discussions.” (Doc. # 97 at 1.)

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

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

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

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“‘Throughout our history, the open courtroom has been a fundamental feature of the American

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judicial system. Basic principles have emerged to guide judicial discretion respecting public

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access to judicial proceedings. These principles apply as well to the determination of whether to

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permit access to information contained in court documents because court records often provide

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important, sometimes the only, bases or explanations for a court’s decision.’” Oliner v.

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Kontrabecki, 745 F.3d 1024, 1025(9th Cir. Mar. 20, 2014) (quoting Brown & Williamson

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Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1177 (6th Cir. 1983)).

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Documents that have been traditionally kept secret, including grand jury transcripts and
warrant materials in a pre-indictment investigation, come within an exception to the general right

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

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access is the starting point.” Id. (internal quotation marks and citation omitted). A motion to seal

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documents that are part of the judicial record, or filed in connection with a dispositive motion,

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must meet the “compelling reasons” standard outlined in Kamakana.

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Thus, a party seeking to seal judicial records must show that “compelling reasons

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supported by specific factual findings...outweigh the general history of access and the public

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policies favoring disclosure.” Kamakana, 447 F.3d at 1178-79. The trial court must weigh

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relevant factors including “the public interest in understanding the judicial process and whether

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disclosure of the material could result in improper use of the material for scandalous or libelous

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purposes or infringement upon trade secrets.” Pintos v. Pacific Creditors Ass’n, 605 F.3d 665,

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679 n. 6 (9th Cir. 2010) (internal quotation marks and citation omitted). While the decision to

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grant or deny a motion to seal is within the trial court’s discretion, the trial court must articulate

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its reasoning in deciding a motion to seal. Pintos, 605 F.3d at 679.

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First, the court finds that this motion is filed in connection with Defendant’s motion to

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enforce a settlement agreement which is potentially case dispositive; therefore, Plaintiffs are

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required to set forth compelling reasons for sealing their opposition to the motion.

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Second, the court does not find that compelling reasons exist for sealing Plaintiffs’ entire

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opposition. The reason given for sealing the opposition is that it concerns matters discussed in

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confidential mediation discussions with the Ninth Circuit and references conversations related to

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those discussions. Ninth Circuit Rule 33-1 provides that persons participating in the Ninth

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Circuit’s Mediation Program “must maintain the confidentiality of the settlement process” and its

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confidentiality provisions “apply to any communication made at any time in the Ninth Circuit

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mediation process” and cover communications made by a “Circuit Mediator, any party, attorney,

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or other participant in the settlement discussions.” Circuit Rule 33-1(c)(4). In fact, the Circuit

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Rules provide that these persons cannot disclose communications from the mediation “to anyone

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who is not a participant in the mediation[.]” Circuit Rule 33-1(c)(4)(B).

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The court has reviewed Plaintiff’s opposition, and out of thirty pages, only one page
makes substantive reference to communications concerning the Ninth Circuit mediation process.

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(Doc. # 98 at 4:3-4, 10-12, 15-19.) Two exhibits to the opposition also reference an offer

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conveyed in connection with the Ninth Circuit mediation and communications with the Ninth

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Circuit Mediator. (Doc. # 98 at 41, 67.)

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There is no basis for sealing the entirety of the opposition when only one page of the

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documents and portions of two exhibits reference confidential communications made in

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connection with the Ninth Circuit mediation. More importantly, pursuant to Ninth Circuit Rule

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33-1, these communications should have been kept confidential and should not have been

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disclosed to any one not a part of the mediation, including this court. Additionally, these

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communications are extraneous to Defendant’s motion to enforce a settlement agreement which

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is based on a demand made entirely separate from that advanced during the mediation, and to

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which Plaintiffs’ response is that separate demand was revoked prior to acceptance.

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Therefore, Plaintiffs’ motion (Doc. # 97) is DENIED. Because the opposition contains

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confidential communications that are precluded by Circuit Rule 33-1 from dissemination to the

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public, the Clerk shall leave that document (Doc. # 98) UNDER SEAL; however, Plaintiff shall

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file WITHIN FIVE DAYS OF THE DATE OF THIS ORDER a new opposition to the motion

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which will be available to the public with no changes except that what is currently set forth at

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Doc. # 98, page 4, lines 3 through 19 of the opposition, Doc. # 98 at 41, and the two lines

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referencing an offer made in connection with the Ninth Circuit mediation at Doc. # 98 at 67 shall

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be REDACTED. As there are no substantive changes to the opposition, Defendant’s reply brief

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is still due, pursuant to Local Rule 7-2(c), on or before JUNE 22, 2015, taking into account that

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the opposition was served by mail. See Fed. R. Civ. P. 6(a)(1), (d).

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IT IS SO ORDERED.

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Dated: June 11, 2015.

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__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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