McMahon v. Whitney ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 | Ryan McMahon, No. 2:23-cv-01972-KJM-JDP 12 Plaintiff, ORDER 13 v. John Whitney, City of Vallejo, and Does 1 15 | through 10, inclusive, 16 Defendants. 17 Plaintiff Ryan McMahon moves the court to strike and/or seal portions of defendant John 18 | Whitney’s opposition to Mr. McMahon’s motion to disqualify counsel and, in addition, to 19 | sanction Mr. McMahon and his attorney. See Mot. Strike or Seal, ECF No. 35; Opp’n Mot. 20 | Disqualify, ECF No. 31. Mr. Whitney has opposed the motion to strike and for sanctions, Opp’n 21 | Mot. Strike or Seal, ECF No. 42, and has filed a notice of request to seal the portions of his 22 | opposition to the motion to disqualify at issue. See Notice Req. Seal, ECF No. 38. In addition, 23 | Mr. McMahon has filed an ex parte application to strike, seal or, in the alternative, restrain a local 24 | news outlet, the Vallejo Sun, from using the contested information. See Ex Parte Appl., ECF 25 | No. 39. Mr. Whitney has responded to the ex parte application stating he does not object to the 26 | motion to seal, opposes the motion to strike and does not take a position regarding the proposed 27 | restraint on the Vallejo Sun. See Response Ex Parte Appl., ECF No. 40. The court takes the 1 matter under submission without holding a hearing. The court grants Mr. McMahon’s motion to 2 seal to the extent explained below. 3 The court begins with Mr. McMahon’s motion to seal. Because the pending request to 4 seal is tied to a “dispositive” motion, it can be granted only if the parties offer “a compelling 5 reason” to keep the information in question from the public. Center for Auto Safety v. Chrysler 6 Group, LLC, 809 F.3d 1092, 1096–97 (9th Cir. 2016) (quoting Kamakana v. City & County of 7 Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)). To decide whether the party requesting a seal 8 has carried that burden, the court balances the reasons for secrecy with the public’s interests in 9 disclosure. See Kamakana, 447 F.3d at 1179. If a court decides to grant a request to seal, it must 10 explain its reasons and may not rely on “hypothesis or conjecture.” Id. (quoting Hagestad v. 11 Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)). In light of the strong presumption in favor of 12 access to court records, and given the frequency and overbreadth of many motions to seal, federal 13 courts deny motions to seal that merely cite “a general category of privilege.” See id. at 1184. A 14 party that wishes to keep its documents secret must point out a “specific linkage” between its 15 interests in secrecy and those documents. See id. “[C]onclusory offerings do not rise to the level 16 of ‘compelling reasons’ sufficiently specific to bar the public access to the documents.” Id. at 17 1182. 18 Though the public has an interest in the content of the contested excerpts, Mr. McMahon 19 provides compelling reasons to seal. He argues and provides evidence showing some of the 20 excerpts “contain[], refer[] or relate[] to records that are generally described as confidential 21 personnel records under the federal qualified privilege, California Penal Code § 832.7, 22 Cal[ifornia] Evid[ence] Code § 954.” Mot. Strike or Seal at 2, 5–10. He also argues some of the 23 excerpts include privileged attorney client communications because Mr. Whitney’s attorney, 24 Alison Berry-Wilkinson, previously represented Mr. McMahon. See id. at 4–10. In his ex parte 25 application, Mr. McMahon suggests the Vallejo Sun intends to run a story on the contents of the 26 contested excerpts. See Ex Parte Appl. at 1–2. The court finds Mr. McMahon has shown more 27 than just “conclusory offerings” and has shown “specific linkage[s]” between the contested 28 excerpts and Mr. McMahon’s interests in secrecy under the federal qualified privilege and 1 | attorney-client privilege. Kamakana, 447 F.3d at 1182, 1184. Moreover, Mr. Whitney does not 2 | object to the motion to seal, see Opp’n Mot. Strike or Seal; Response Ex Parte Appl. at 1, and 3 | agrees with Mr. McMahon regarding portions of the opposition and its exhibits the court should 4 | seal, see Mot. Strike or Seal at 2; Notice Req. Seal at 6—7. 5 For these reasons, the court grants Mr. McMahon’s motion to seal the portions of 6 | Mr. Whitney’s opposition to Mr. McMahon’s motion to disqualify identified in the pending 7 | motion. The court does so on the condition that Mr. Whitney promptly file a version of the 8 | opposition on the public docket that redacts these portions only. Though Mr. McMahon’s 9 | pending motion includes a request for sanctions against Mr. Whitney and his attorney, the court 10 | denies the request for sanctions without prejudice because he does not make an argument in 11 | support of his request. Mot. Strike or Seal at 1-2. Because the motion to seal is granted and 12 | resolves the central issue of removing the contested excerpts from the public docket, the court 13 | denies the motion to strike without prejudice. Mr. Whitney’s notice of request to seal, Notice 14 | Req. Seal, is moot. The court denies Mr. McMahon’s ex parte application request to restrain the 15 | Vallejo Sun and finds the rest of the ex parte application moot. See Ex Parte Appl. The Vallejo 16 | Sun’s application to appear as amicus curae on the matter is moot. Appl. Amicus Curiae, ECF 17 | No. 41. This order resolves ECF Nos. 35, 38, 39 and 41. 18 The court directs the Clerk of Court to seal defendant John Whitney’s opposition to 19 | plaintiffs motion to disqualify counsel, ECF No. 31, and directs defense counsel to resubmit 20 | redacted versions of the same within two days, redacting only what the court has approved in this 21 | order. 22 IT IS SO ORDERED. 23 DATED: January 30, 2024. 24 pete CHIEF ED STATES DISTRICT JUDGE