Continental Casualty Company v. Culver ( 2022 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Continental Casualty Company, et al., No. CV-21-01251-PHX-DLR 10 Plaintiffs, ORDER 11 v. 12 Nancy Culver, et al., 13 Defendants. 14 15 16 The parties have submitted a stipulation for the entry of a protective order. (Doc. 17 64.) The proposed protective order requires discovery materials to be kept confidential by 18 the parties and filed with the Court under seal. (Doc. 64-1 ¶ 8.) The Court will not enter 19 an order that gives advance authorization to file documents under seal merely because they 20 were designated by one party or the other as confidential during discovery. See LRCiv 21 5.6(b). Instead, a party seeking to file a document under seal must comply with prevailing 22 Ninth Circuit standards for obtaining such relief. 23 The public has a right to access judicial records. San Jose Mercury News, Inc. v. 24 U.S. Dist. Court—N. Dist. (San Jose), 187 F.3d 1096, 1100, 1101 (9th Cir. 1999). The 25 Court therefore begins “with a strong presumption in favor of access to court records.” 26 Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). A party 27 seeking to overcome this presumption and file a judicial record under seal generally must 28 provide a compelling reason for doing so. Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 1 F.3d 1092, 1096 (9th Cir. 2016). Examples of compelling reasons “include when a court 2 record might be used to gratify private spite or promote public scandal, to circulate libelous 3 statements, or as sources of business information that might harm a litigant's competitive 4 standing.” Id. (internal quotations and citation omitted). A movant’s reason for seeking to 5 seal a judicial record must be supported by an articulable factual basis, rather than 6 “hypothesis or conjecture.” Id. at 1096-97 (internal quotations and citation omitted). 7 The Ninth Circuit has carved out an exception to this general rule “for sealed 8 materials attached to a discovery motion unrelated to the merits of the case.” Id. at 1097. 9 A party seeking to seal such materials “need only satisfy the less exacting ‘good cause’ 10 standard.” Id. Although earlier decisions from the Ninth Circuit sometimes used the words 11 “dispositive” and “non-dispositive” to describe the dividing line between those records 12 governed by the compelling reasons standard and those governed by the good cause 13 standard, the Ninth Circuit has since clarified that “[t]he focus . . . is on whether the motion 14 at issue is more than tangentially related to the underlying cause of action.” Id. at 1099. 15 Sometimes non-dispositive motions are unrelated or only tangentially related to the merits 16 of a case; other times they “are strongly correlative to the merits of a case.” Id. The 17 exception to the ordinary compelling reasons standard applies only to judicial records that 18 are unrelated or merely tangentially related to the merits of a case. Sealing a record that is 19 more than tangentially related to the merits of a case requires a compelling justification. 20 A party’s designation of a document as confidential pursuant to a protective order 21 is not, without more, a compelling reason or good cause for sealing that document once it 22 is used to support a submission with the Court. See San Jose Mercury News, 187 F.3d at 23 1103 (“Such blanket orders are inherently subject to challenge and modification, as the 24 party resisting disclosure generally has not made a particularized showing of good cause 25 with respect to any individual document.”); Marsteller v. MD Helicopter Inc., No. CV-14- 26 01788-PHX-DLR, 2017 WL 5479927, at *2 (D. Ariz. Nov. 15, 2017) (“Ordinarily ... a 27 party’s designation of a document as confidential is not per se good cause.”). Once a party 28 decides to use a document to support a filing with the Court, the party asserting || confidentiality must show either good cause or compelling reasons (depending on the 2|| nature of the filing) for sealing the record and cannot merely rely on the fact that the party 3 || subjectively believes the document is confidential and has chosen to designate it as such. 4 The parties’ stipulation therefore is denied without prejudice. If they so choose, the 5 || parties may submit for the Court’s approval a proposed protective order that adequately || accounts for LRCiv 5.6(b) and the Ninth Circuit’s standards for filing documents under 7\| seal. If the parties are looking for guidance on how to craft such a provision, LRCiv 5.6(d) 8 || provides some default rules that might prove helpful. 9 IT IS ORDERED that the parties’ stipulation for entry of a protective order (Doc. || 64) is DENIED without prejudice. 11 Dated this 5th day of May, 2022. 12 13 14 {Z, 15 {UO 16 Upited States Dictria Judge 17 18 19 20 21 22 23 24 25 26 27 28 -3-