Kenny v. Pacific Investment Management Company LLC et al

Filing 82

ORDER granting 64 Motion to Seal by Judge Ricardo S Martinez.(SSM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ROBERT KENNY ,
Plaintiff,

Case No. C14-1987 RSM
ORDER GRANTING MOTION TO SEAL

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v.
PACIFIC INVESTMENT MANAGEMENT
COMPANY LLC, a Delaware limited liability
company; PIMCO INVESTMENTS LLC,
Defendants.
This matter comes before the Court on Plaintiff Robert Kenny’s Motion to Seal. Dkt.

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#64. The Motion was noted for consideration on June 10, 2016. No Response brief was filed
by Defendants. Plaintiff’s Motion to Seal states:
Pursuant to Local Rule 5(g), Plaintiff files this Motion to Seal and
respectfully requests the Court provisionally seal six of the fifteen
exhibits accompanying the Declaration of Tana Lin in support of
Plaintiff’s contemporaneously-filed Motion to Compel PIMCO
Defendants to Produce Documents, as well as an unredacted copy
of the Motion to Compel itself that recites portions of these
exhibits. Defendants and non-party William Popejoy have
respectively produced and designated these documents as
confidential pursuant to the Stipulated Protective Order (Dkt. No.
55). Plaintiff takes no position as to whether these documents
should be kept under seal but provisionally files them under seal. It
falls to Defendants and Mr. Popejoy to justify any continued
sealing.
…
Plaintiff takes no position as to whether the six documents that he
has provisionally filed under seal should be maintained under seal.
Under Local Rule 5(g), Defendants and Mr. Popejoy bear the
burden to justify the maintenance of the documents Plaintiff has
filed under seal.
ORDER GRANTING MOTION TO SEAL - 1

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Dkt. #64 at 1. On June 15, 2016, the Court issued an Order to Show Cause why this Motion

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should not be denied and the documents at issue unsealed. Dkt. #72. On June 22, 2016,

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Defendants submitted a Response to this Order and supporting declaration, arguing in favor of

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sealing the documents at issue with the “specific statement” required under LCR 5(g)(3)(B).

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Dkt #74. Defendants argue that there is “ample reason for this material to be protected from

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public disclosure” because “as to materials reflecting the deliberations of the PIMCO Funds

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Board of Trustees and the detailed financial and commercial information underlying those

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deliberations, there is substantial risk of competitive harm to PIMCO and of a chilling effect on

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Board deliberations if such materials were open to public scrutiny,” and “as to materials relating

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to a dispute regarding a Trustee’s departure from the Board, good cause exists based on the non-

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party Trustees’ interests in maintaining the privacy of Board determinations regarding its

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makeup.” Dkt. #74 at 2. Defendants argue that certain documents at issue were produced by

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William Popejoy, a former PIMCO Funds independent trustee, pursuant to a subpoena from

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Plaintiff, and that Mr. Popejoy designated the documents as confidential pursuant to the

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Stipulated Protective Order, Dkt. #55. Id. at 5. Defendants state that they “regret[] not making

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a timely submission regarding the Motion to Seal pursuant to LCR 5(g)(3)(B),” but that they

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intended to respond to this Motion contemporaneous with filing a response to the underlying

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Motion to Compel. Id. Defendants apologize for not making this intention clear in their prior

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stipulation to extend the deadline to respond to the Motion to Compel. Id. Defendants attach a

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declaration supporting these arguments, and nonparty witness William Popejoy has filed a

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Joinder in support of Defendants’ position. See Dkt. ## 75, 79.

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“There is a strong presumption of public access to the court’s files.” LCR 5(g). “Only
in rare circumstances should a party file a motion, opposition, or reply under seal.” LCR

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ORDER GRANTING MOTION TO SEAL - 2

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5(g)(5). Normally the moving party must include “a specific statement of the applicable legal

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standard and the reasons for keeping a document under seal, with evidentiary support from

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declarations where necessary.” LCR 5(g)(3)(B). However:

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Where parties have entered a litigation agreement or stipulated
protective order (see LCR 26(c)(2)) governing the exchange in
discovery of documents that a party deems confidential, a party
wishing to file a confidential document it obtained from another
party in discovery may file a motion to seal but need not satisfy
subpart (3)(B) above. Instead, the party who designated the
document confidential must satisfy subpart (3)(B) in its response to
the motion to seal or in a stipulated motion.
LCR 5(g)(3). A “good cause” showing under Rule 26(c) will suffice to keep sealed records

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attached to non-dispositive motions. Kamakana v. City & County of Honolulu, 447 F.3d 1172,

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1180 (9th Cir. 2006) (internal citations omitted). Plaintiff has already stated that he takes no

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position on whether the materials at issue should remain sealed. Dkt. #64 at 1. The Court has

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reviewed the documents at issue, finds that they contain sensitive financial and commercial

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information and board deliberations regarding the same, and that public disclosure of such

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information could harm Defendants. The Court therefore finds that good cause exists to seal.

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Having reviewed the relevant pleadings, the declarations and exhibits attached thereto,
and the remainder of the record, the Court hereby finds and ORDERS that Plaintiff Robert

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Kenny’s Motion to Seal (Dkt. #64) is GRANTED. Dkt. #66 and exhibits 7, 10, 11, 12, 14, and
15 to Dkt. #67 shall remain SEALED.
DATED this 27th day of June 2016.

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A

RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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ORDER GRANTING MOTION TO SEAL - 3