William v. Morrison & Foerster LLP ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SHERRY A. WILLIAM, et al., Case No. 18-cv-02542-JSC 8 Plaintiffs, ORDER RE: JOINT DISCOVERY 9 v. LETTER BRIEF AND ADMINISTRATIVE MOTION TO 10 MORRISON & FOERSTER LLP, SEAL SAME 11 Defendant. Re: Dkt. No. 137 12 13 The parties’ joint discovery letter brief regarding a privilege dispute is now pending before 14 the Court. (Dkt. No. 137.) The parties have filed a “consent administrative motion to seal” the 15 discovery letter brief and all the exhibits thereto arguing that the letter brief and exhibits are 16 sealable because the dispute involves a claim of attorney-client privilege and the attorney work 17 product doctrine and the dispute is “highly sensitive.” (Dkt. No. 137 at 2.) Neither is a proper 18 basis for sealing. 19 “[T]he courts of this country recognize a general right to inspect and copy public records 20 and documents, including judicial records and documents.” Nixon v. Warner Comm’ns, Inc., 435 21 U.S. 589, 597 n.7 (1978); see also Foltz v. State Farm Mutual Auto Ins. Co., 331 F.3d 1122, 1134 22 (9th Cir. 2003) (“In this circuit, we start with a strong presumption in favor of access to court 23 records.”). Access to motions and their attachments that are “more than tangentially related to the 24 merits of a case” may be sealed only upon a showing of “compelling reasons” for sealing; 25 however, filings that are only tangentially related to the merits may be sealed upon a lesser 26 showing of “good cause.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1097, 1101- 27 02 (9th Cir. 2016). The parties’ motion to seal applies the compelling reasons standard and so the 1 standard the reasons must “outweigh the general history of access and the public policies favoring 2 disclosure.” Kamakana v. City and Cty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). 3 (internal quotation marks and citations omitted). Such compelling reasons include “the use of 4 records to gratify private spite, promote public scandal, circulate libelous statements, or release 5 trade secrets.” Id. (internal quotation marks and citation omitted). “The mere fact that the 6 production of records may lead to a litigant’s embarrassment, incrimination, or exposure to further 7 litigation will not, without more, compel the court to seal its records.” Id. 8 Under Civil Local Rule 79–5, sealing is only permitted where the parties have 9 “establishe[d] that the document or portions thereof is privileged or protectable as a trade secret or 10 otherwise entitled to protection under the law.” Civ. L.R. 79–5(b). It requires the parties to 11 “narrowly tailor” their requests only to the sealable material. Id. at 79–5(d). Thus, although 12 sometimes it may be appropriate to seal a document in its entirety, whenever possible a party must 13 redact. See Kamakana, 447 F.3d at 1183 (noting a preference for redactions so long as they “have 14 the virtue of being limited and clear”). 15 While “[c]ourts generally accept attorney-client privilege and the work-product doctrine as 16 a ‘compelling reason’ justifying a motion to seal,” the fact that the parties’ discovery dispute 17 involves a claim of privilege does not in and of itself establish that the parties’ dispute regarding 18 the claim of privilege and documents regarding the same (other than the allegedly privileged 19 documents) are confidential or properly sealable in their entirety. WatchGuard Techs., Inc. v. 20 iValue Infosolutions Pvt. Ltd., No. C15-1697-BAT, 2017 WL 3581624, at *2 (W.D. Wash. Aug. 21 18, 2017) (collecting cases granting motions to seal redacted filings based on a claim of privilege); 22 see also Diamond X Ranch LLC v. Atl. Richfield Co., No. 13-00570, 2016 WL 3176577, at *4 (D. 23 Nev. June 3, 2016) (“the briefing that accompanies the information subject to the claim of 24 privilege or protection may be filed under seal, but only the information that is subject to that 25 claim of privilege or protection.”). Accordingly, the consent administrative motion to seal is 26 DENIED as it is not narrowly tailored to only seek sealing of properly sealable information. 27 Further, in connection with the joint discovery letter brief Defendant submitted the 1 who were the recipient and author of the at-issue communications. It is unclear why these 2 || declarations were submitted for in camera review and not attached to the joint discovery letter 3 brief. Indeed, as with the other attachments to the joint discovery letter brief, it is unclear why the 4 || declarations should not be filed on the public docket. 5 Accordingly, Defendant shall provide Plaintiffs’ counsel with the two declarations 6 submitted in camera by Monday, August 24, 2020. After reviewing the declarations, Plaintiffs 7 may file a supplement to their portion of the joint discovery letter brief. Plaintiffs’ submission 8 shall be no more than 2-pages exclusive of attachments and shall be filed by August 28, 2020. 9 In addition, within 7 days of this Order, the parties shall either publicly file the documents 10 || which were the subject to their administrative motion to seal or file a renewed narrowly tailored ll administrative motion to seal in accordance with Civil Local Rule 79-5(b). 12 This Order disposes of Docket No. 137. IT IS SO ORDERED. 15 Dated: August 20, 2020 , FrgutiSte 8 ACQUELINE SCOTT COR United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28