Ballard Marine Construction, Inc. v. EHW Constructors et al

Filing 42

ORDER granting 36 Joint Stipulated Motion to Seal Controlled Nuclear Information and Order Thereon; signed by Judge Ronald B. Leighton.(DN)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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BALLARD MARINE CONSTRUCTION,
INC.,

No. 3:16-cv-05633-RBL
Plaintiff,

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The Honorable Ronald B. Leighton

v.
EHW CONSTRUCTORS, a Joint Venture;
SKANSKA USA CIVIL, INC.;
AMERICAN BRIDGE COMPANY; and
NOVA GROUP, INC.,

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STIPULATED MOTION TO SEAL
CONTROLLED NUCLEAR
INFORMATION AND ORDER
THEREON

Defendants.

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I.

CLERK’S ACTION REQUESTED

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The Clerk is requested to replace Dkt. #25 in this cause of action and all

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attachments thereto with the redacted version of Dkt. #25 attached to the Declaration of

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Scott MacDonald filed herewith as Exhibit B. The Clerk is further requested to redact

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Exhibit A to the Declaration of Scott MacDonald from the public record, and retain the

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unredacted version of Exhibit A under seal.
II.

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RELIEF REQUESTED

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Defendant EHW Constructors (“EHW”) and Plaintiff Ballard Marine

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Construction, Inc. (“BMC”) respectfully request that this Court replace BMC’s Motion

STIPULATED MOTION AND ORDER TO SEAL
CONTROLLED NUCLEAR INFORMATION – 1
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for Partial Summary Judgment and attachments filed thereto (Dkt. #25) with the

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redacted version of Dkt. #25 attached as Exhibit B to the Declaration of

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Scott MacDonald filed herewith, as well as redact Exhibit A to the Declaration of Scott

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MacDonald from the public record while retaining the unredacted version of Exhibit A

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under seal.

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The Prime Contract documents at issue in this dispute have been designated by

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the United Stated Department of Defense (“DoD”) as Unclassified Controlled Nuclear

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Information (“UCNI”) pursuant to 10 U.S.C. § 128 and 32 CFR § 223.6. Portions of

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the Prime Contract are excerpted in part and attached in full at Dkt. #25. The

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Declaration of Scott MacDonald filed herewith also appends a portion of the Prime

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Contract, attached as Exhibit A. UCNI material can only be accessed by United States

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citizens after signing a certificate of non-disclosure, and may not be posted on-line for

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viewing by the general public. Decl. of Scott MacDonald (“MacDonald Decl.”), Ex. A

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at Section 00800(7.1).
II.

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A.

STATEMENT OF FACTS

UCNI Designation.

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The construction Project at issue in this matter is the MCON P-990 Explosives

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Handling Wharf project. The Prime Contract states that the Project is classified as DoD

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UCNI. MacDonald Decl., Ex. A § 00800(7.1). Accordingly, access to Prime Contract

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documents is restricted to “United States Citizens with a need-to-know” and requires

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the signing of a certificate of non-disclosure. Id. The Subcontract references the UCNI

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designations and protections required thereby.1 UCNI materials cannot be placed online

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or in the public domain for unrestricted access by the general public.

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Dkt. #15-1 (the “Subcontract”) Appx. A “General Requirements” ¶ 19.

STIPULATED MOTION AND ORDER TO SEAL
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III.

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Whether Dkt. #25 and Exhibit A to the Declaration of Scott MacDonald filed

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herewith should be sealed to avoid dissemination of UCNI materials.
IV.

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the Declaration of Scott MacDonald filed herewith.
V.

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EVIDENCE RELIED UPON

Plaintiff and Defendant jointly rely upon the pleadings and filings on record and

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ISSUES PRESENTED

A.

ARGUMENT AND AUTHORITY

Standard and Justification to Seal.

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LCR 5(g) recognizes the “strong presumption of public access to the court’s

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files.” To override the presumption, a party must cite a “statute, rule, or prior court

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order expressly authoriz[ing]” the document to be filed under seal,” and provide “a

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specific statement of the applicable legal standard and the reasons for keeping a

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document under seal, including an explanation of: (i) the legitimate . . . public interests

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that warrant the relief sought; (ii) the injury that will result if the relief sought is not

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granted; and (ii) why a less restrictive alternative to the relief sought is not sufficient.”

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LCR 5(g)(3)(B).

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i.

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Congress granted the DoD authority to designate certain sensitive nuclear-

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related documents as UCNI to keep them from public access. 10 U.S.C. § 128. The

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DoD exercised that statutory grant of authority to enact 32 CFR § 223.6, promulgating

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standards for the use of its regulatory authority in designating UCNI. Under this

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statutory and regulatory authority, DoD declared all Prime Contract documents related

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to the Project at issue to be UCNI, and by that determination ruled that such materials

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must be withheld from public access. MacDonald Decl., Ex. A at Section 00800(7.1).

Statute or Rule Authorizing Sealing

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STIPULATED MOTION AND ORDER TO SEAL
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That same grant of authority justifies and necessitates the sealing of Dkt. #25 and the

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Declaration of Scott MacDonald filed herewith.

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ii.

Applicable Legal Standard

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As Dkt. #25 is a dispositive motion, the applicable legal standard is the

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“compelling reasons” standard. Center for Auto Safety v. Chrysler Group, LLC, 809

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F.3d 1092, 1096-97 (9th Cir. 2016). Under the “compelling reasons” standard, a court

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may seal records when it finds “a compelling reason and articulates the factual basis for

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its ruling, without relying on hypothesis or conjecture.” Id. (internal citations omitted

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throughout). “What constitutes a compelling reason is best left to the sound discretion

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of the trial court.” Id. Here, there is a compelling reason to seal UCNI documents in

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light of Congress’s acknowledgement and DoD’s finding as to the specific documents

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sought to be sealed that “unauthorized dissemination of [the Prime Contract

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Documents] could reasonably be expected to result in a significant adverse effect on

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the health and safety of the public or the common defense and security” by

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“significantly increasing the likelihood of (i) illegal production of nuclear weapons, or

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(ii) theft, diversion, or sabotage of nuclear materials, equipment, or facilities.” 10

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U.S.C. § 128(a)(4)(B); 32 CFR § 223.6. Such heightened concerns over nuclear and

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national security serve as a compelling reason to seal the requested documents.

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iii.

Reasons for Sealing the Requested Documents per LCR 5(g)(3)(B)

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First, legitimate public interests warrant sealing the requested documents.

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Congress delegated authority to the DoD to determine what materials constitute UCNI.

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10 U.S.C. § 128(a)(1). The DoD and Department of the Navy determined that the

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Prime Contract documents are UCNI materials. By virtue of that determination, the

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DoD necessarily determined that “unauthorized dissemination of such information

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could reasonably be expected to result in a significant adverse effect on the health and

STIPULATED MOTION AND ORDER TO SEAL
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safety of the public or the common defense and security . . . .” 10 U.S.C.

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§ 128(a)(4)(B). Thus, sealing the unauthorized dissemination of UCNI materials is

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necessary to protect the health and safety of the public, thereby serving the legitimate

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public interest. LCR 5(g).

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Second, by classifying the Prime Contract documents as UCNI, the DoD

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necessarily determined the injury that would result from unauthorized dissemination of

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such materials. Specifically, unauthorized dissemination “significantly increase[es] the

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likelihood of (i) illegal production of nuclear weapons, or (ii) theft, diversion, or

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sabotage of nuclear materials, equipment, or facilities.” 10 U.S.C. § 128(a)(4)(B). Such

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injury is sufficiently serious to override the presumption of public access to these

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materials. LCR 5(g).

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Finally, the redacted version of Dkt. #25 and redacting Exhibit A to the

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Declaration of Scott MacDonald from the public record represent the least restrictive

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method of meeting UCNI standards. Redaction occurs in the proposed document only

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where provisions of the Prime Contract are attached or excerpted in full. There is no

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lesser alternative to redaction authorized in these court rules or by the DoD, therefore

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these documents must either be placed into the public record in full, or redacted as

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presented in this stipulated motion.

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It should be noted that sealing the requested materials will not unduly restrict

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the Parties’ ability to argue their respective cases or otherwise cite or rely upon the

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Prime Contract Documents, and there are no First Amendment concerns attached to the

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sealing of these documents. At the same time, sealing the Plaintiff’s Motion will not

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unduly burden the public’s interest in the open administration of justice, as the other

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filings relevant to the dispositive Motion, including facts and legal authority in

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response and reply thereto, remain unsealed and open for public review.

STIPULATED MOTION AND ORDER TO SEAL
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VI.

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CONCLUSION

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For the foregoing reasons, EHW and BMC jointly request that the Court seal

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the un-redacted version of Dkt. #25 and its attachments, to be replaced in the public

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record with the redacted version at Exhibit B to the Declaration of Scott MacDonald, as

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well as redact Exhibit A to the Declaration of Scott MacDonald filed herewith from

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public record, as requested above.

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VII.

CERTIFICATION PURSUANT TO LCR 5(g)(3)(a)

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By signing below, both Parties’ certify that they met and conferred on

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October 26, 2017 by email between Dan A. Brown, Meredith E. Dishaw, James R.

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Lynch, and Scott D. MacDonald, and again on November 10, 2017 by telephone

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between Meredith E. Dishaw, James R. Lynch, and Scott D. MacDonald, and reached

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agreement on the need to redact portions of Dkt. #25 and Exhibit A to the Declaration

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of Scott MacDonald filed herewith. The Parties’ agreement is embodied in this

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Stipulated request, and the requested relief represents what the Parties believe is the

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least amount of material that can be filed under seal.

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RESPECTFULLY SUBMITTED this 15th day of December, 2017.
AHLERS CRESSMAN & SLEIGHT PLLC

WILLIAMS, KASTNER & GIBBS PLLC

By: /s/James R. Lynch
John P. Ahlers, WSBA #13070
[e-mail]
James R. Lynch, WSBA #39274
[e-mail]
Scott D. MacDonald, WSBA #51192
[e-mail]
Ahlers Cressman & Sleight PLLC
999 Third Avenue, Suite 3800
Seattle, WA 98104
Phone: [phone]
Fax:
[phone]
Attorneys for Defendants

By: /s/Daniel A. Brown
per email authorization
Daniel A. Brown, WSBA #22028
[e-mail]
Meredith E. Dishaw, WSBA #43206
[e-mail]
Williams, Kastner & Gibbs PLLC
601 Union Street, Suite 4100
Seattle, WA 98101-2380
Phone: [phone]
Fax:
[phone]
Attorneys for Plaintiff

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STIPULATED MOTION AND ORDER TO SEAL
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VIII. ORDER

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This matter having come before the Court upon the above Stipulated Motion of

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the Parties, and with the Court having reviewed the Stipulated Motion and the records

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and files herein, and otherwise deeming itself fully advised in the premises, it is now,

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therefore,

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ORDERED, ADJUDGED AND DECREED that, pursuant to LCR 5(g),

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Dkt. #25 and the attachments thereto shall be replaced in the public record with the

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redacted version of Dkt. #25 attached as Exhibit B to the Declaration of

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Scott MacDonald, that the unredacted version of Dkt. #25 shall be kept for the Court’s

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eyes only, and the redacted version of the Declaration of Scott MacDonald shall be

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filed in the public record under seal.

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DONE IN OPEN COURT this 21st day of December, 2017.

A

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Ronald B. Leighton
United States District Judge

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Jointly Presented By;
Notice of Presentation Waived:

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AHLERS CRESSMAN & SLEIGHT PLLC

WILLIAMS, KASTNER & GIBBS PLLC

By: /s/James R. Lynch
John P. Ahlers, WSBA #13070
James R. Lynch, WSBA #39274
Scott D. MacDonald, WSBA #51192
Ahlers Cressman & Sleight PLLC
999 Third Avenue, Suite 3800
Seattle, WA 98104
Phone: [phone]
Fax:
[phone]
Attorneys for Defendants

By: /s/Daniel A. Brown
per email authorization
Daniel A. Brown, WSBA #22028
Meredith E. Dishaw, WSBA #43206
Williams, Kastner & Gibbs PLLC
601 Union Street, Suite 4100
Seattle, WA 98101-2380
Phone: [phone]
Fax:
[phone]
Attorneys for Plaintiff

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STIPULATED MOTION AND ORDER TO SEAL
CONTROLLED NUCLEAR INFORMATION – 7
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