Eyetalk365, LLC v. Zmodo Technology Corporation Limited

Filing 88

ORDER re ECF No. 84 Motion to Seal. The Sealed Exhibit (ECF No. 85 ), in Case No. 3:17-cv-00686, and Sealed Exhibit (ECF No. 179), in Case No. 2:17-cv-02714, referenced in Zmodos motions shall remain under seal until August 23, 2018. See order for further details and instructions. Signed by Magistrate Judge Peggy A. Leen on 8/15/2018. (Copies have been distributed pursuant to the NEF - LH)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 EYETALK365, LLC, 8 v. 9 Case No. 3:17-cv-00686-RCJ-PAL Plaintiff, 10 ZMODO TECHNOLOGY CORPORATION LIMITED, 11 ORDER Defendant. 12 (Mot. to Seal – ECF No. 84) EYETALK365, LLC 13 Case No. 2:17-cv-02714-RCJ-PAL Plaintiff, 14 v. 15 ORDER ZMODO TECHNOLOGY CORPORATION LIMITED, 16 (Mot. to Seal – ECF No. 177) Defendant. 17 18 These matters are before the court on Defendant Zmodo Technology Corporation Limited’s 19 (“Zmodo”) Motion to Seal (ECF No. 84) in Case No. 3:17-cv-00686, and Motion to Seal (ECF 20 No. 177) in Case No. 2:17-cv-02714.1 These motions are referred to the undersigned pursuant to 21 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice. 22 The motions seek leave to file under seal Plaintiff’s Eyetalk365, LLC’s (“Eyetalk”) 23 Objections and Answers to Zmodo’s First Set of Requests for Production, served August 1, 2018. 24 This document is submitted to the court as Exhibit B to Zmodo’s Motion to Compel Discovery 25 Relating to Plaintiff’s Motion to Disqualify, which is filed in both cases. See Sealed Exhibit (ECF 26 No. 85), Case No. 3:17-cv-00686; Sealed Exhibit (ECF No. 179), Case No. 2:17-cv-02714. 27 Zmodo filed Exhibit B under seal because counsel for Eyetalk designated the document as “Highly 28 1 Case No. 2:17-cv-02714 was transferred to this district from the Western District of North Carolina. 1 1 Confidential – Attorneys’ Eyes Only” pursuant to the protective orders entered in these cases. 2 Protective Order (ECF No. 33), Case No. 3:17-cv-00686; Protective Order (ECF No. 109), Case 3 No. 2:17-cv-02714. Zmodo expressed no position regarding the confidentiality of the document. 4 As the party who designated Exhibit B confidential, Eyetalk is required to meet the 5 standards articulated by the Ninth Circuit in Kamakana v. City and County of Honolulu, 447 F.3d 6 1172 (9th Cir. 2006), to overcome the presumption of public access to judicial files, records, 7 motions, and any exhibits. See also Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092 8 (9th Cir. 2016) (finding that the standards courts apply to sealing requests turn on the relevance of 9 the documents to the substantive merits of a case—not on the relief sought). Under Kamakana 10 and its progeny, a party must make a particularized showing to overcome the presumption of public 11 accessibility. The mere fact that one party designated information as confidential under a 12 protective order does not satisfy this standard. Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 13 475–76 (9th Cir. 1992) (explaining that blanket protective orders are over inclusive by nature and 14 do not include a finding of “good cause”). 15 Additionally, if a sealing order is permitted, it must be narrowly tailored. Press-Enterprise 16 Co. v. Superior Ct. of Cal., 464 U.S. 501, 512 (1984). Only those portions of a motion and/or 17 exhibit that contain specific reference to confidential documents or information may be filed under 18 seal. See In re Roman Catholic Archbishop of Portland, 661 F.3d 417, 425 (9th Cir. 2011); Foltz 19 v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1137 (9th Cir. 2003). The remainder of the 20 motion and other exhibits that do not contain confidential information, must be filed as publicly- 21 accessible documents. See LR IA 10-5(b) (“The court may direct the unsealing of papers filed 22 under seal, with or without redactions, after notice to all parties and an opportunity to be heard.”). 23 Pursuant to Kamakana and LR 10-5, the party designating any document(s) as confidential must 24 submit a memorandum of points and authorities presenting articulable facts that identify the 25 interests in favor of a document’s continued secrecy, and showing that these specific interests 26 outweigh the public’s interests in transparency. 27 Here, Zmodo seeks leave to file Exhibit B under seal because Eyetalk has marked the 28 document “Highly Confidential – Attorneys’ Eyes Only.” However, this statement alone does not 2 1 overcome the presumption of public access. The court appreciates that the motions were filed to 2 comply with Zmodo’s obligation to treat documents designated by opposing counsel as 3 confidential, but the mere statement that Eyetalk designated the documents as confidential does 4 not establish a particularized showing for sealing. As the party who designated the document 5 confidential, Eyetalk is required to meet the standards articulated in Kamakana and its progeny. 6 The court will allow Exhibit B to remain sealed temporarily so the parties and their counsel 7 may confer about what, if any, portion of the document should be sealed. If Eyetalk determines 8 that Exhibit B should remain sealed, Eyetalk must file an appropriate memorandum of points 9 and authorities on or before August 23, 2018, making a particularized showing why the 10 documents should remain under seal. If Eyetalk determines that only a portion of Exhibit B 11 warrants sealing, Eyetalk must file a redacted version along with its memorandum of points and 12 authorities. Pursuant to Kamakana and its progeny, any memorandum of points and authorities 13 or motion to file under seal must set forth either good cause or compelling reasons to support the 14 sealing Accordingly, request. 15 IT IS ORDERED: 16 1. The Sealed Exhibit (ECF No. 85), in Case No. 3:17-cv-00686, and Sealed Exhibit (ECF 17 No. 179), in Case No. 2:17-cv-02714, referenced in Zmodo’s motions shall remain 18 under seal until August 23, 2018. 19 2. With respect to filing documents under seal, the parties must comply with: (i) the Local 20 Rules of Practice regarding electronic filing and filing under seal, (ii) the Ninth 21 Circuit’s opinions in Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th 22 Cir. 2006), and its progeny, and (iii) the appropriate CM/ECF filing procedures. 23 3. As the designating party, Eyetalk shall have until August 23, 2018, to review Exhibit 24 B and FILE either: (i) an appropriate memorandum of points and authorities 25 indicating the document should remain under seal, or (ii) a notice indicating that the 26 document does not require sealing. 27 4. To support any sealing request, a memorandum of points and authorities must make a 28 particularized showing why the document(s) or portion thereof should remain under 3 1 seal. If only a portion of the document(s) warrants sealing, the memorandum must 2 attach a proposed redacted version. The memorandum may also include a supporting 3 declaration or affidavit and/or proposed order granting the motion to seal. 4 5. If no memorandum of points and authorities is timely filed in compliance with this 5 Order, the Clerk of the Court will be directed to unseal the documents to make them 6 available on the public docket. 7 DATED this 15th day of August, 2018. 8 9 PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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