Treasure Island, LLC v. Affiliated FM Insurance Company ( 2021 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 TREASURE ISLAND, LLC, Case No. 2:20-cv-00965-JCM-EJY 5 Plaintiff, 6 v. ORDER 7 AFFILIATED FM INSURANCE COMPANY, 8 Defendant. 9 10 Before the Court is Defendant’s Revised Motion to File Under Seal (ECF No. 189) seeking 11 to file the unredacted version of its Memorandum of Points & Authorities Regarding Attorney-Client 12 Privilege and Declaration of Mark Roberts, including exhibits, under seal (ECF No. 190). Defendant 13 filed a redacted version of its Memorandum of Points & Authorities Regarding Attorney-Client 14 Privilege and Declaration of Mark Roberts, including exhibits, in the public record at ECF No. 188. 15 A sealed version of the Motion at issue was previously filed at ECF No. 181. A comparison of ECF 16 Nos. 181 and 190 shows the Memorandum and Declarations of Mark Roberts are identical; however, 17 Exhibit A to Roberts’ Declarations are not identical. This is a problem. 18 As the party seeking to seal a judicial record, Defendant must meet its burden of overcoming 19 the strong presumption in favor of access and public policies favoring disclosure. Kamakana v. City 20 and Cnty. of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (holding that those who seek to 21 maintain the secrecy of documents attached to dispositive motions must meet the high threshold of 22 showing that “compelling reasons” support secrecy). The mere fact that the production of records 23 may lead to a party’s embarrassment, incrimination, or exposure to further litigation will not alone 24 compel the court to seal its records. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1136 25 (9th Cir. 2003). 26 Here, a review of Defendant’s sealed Memoranda (ECF Nos. 181 and 190) and sealed 27 versions of the Declaration of Mark Roberts (ECF Nos. 181-1 and 190-1) reference confidential and 1 and, as previously stated, ordinary retention letters and terms and conditions of retention are not 2 generally sealed in their entirety. ECF No. 186. The Court therefore holds in abeyance its 3 determination of whether Exhibit A or any portion thereof is properly sealed. 4 Accordingly, IT IS HEREBY ORDERED that Defendant’s Revised Motion to File Under 5 Seal (ECF No. 189) is GRANTED in part. 6 IT IS FURTHER ORDERED that ECF Nos. 190, and 190-1 pages 1 through 3 shall remain 7 sealed. 8 IT IS FURTHER ORDERED that ECF No. 190-1, pages 5-9 shall be temporarily sealed. 9 IT IS FURTHER ORDERED that Defendant shall do one of the following within five days 10 of the date of this Order: (1) file an errata to ECF No. 190-1 such that Exhibit A to the Declaration 11 of Mark Roberts is identical to Exhibit A to the Declaration of Mark Roberts attached to ECF No. 12 181-1; or (2) file a clear and simple explanation for why Exhibit A to the Declarations of Mark 13 Roberts are not identical as attached respectively to ECF Nos. 181-1 and 190-1. Plaintiff shall also 14 identify which Exhibit A is the proper exhibit for the Court to consider. 15 Defendant is further advised that this is not its first error made with respect to filing sealed 16 documents. Careful attention must be paid going forward such that the Court need not ferret out 17 what Defendant has done wrong. 18 DATED this 5th day of August, 2021. 19 20 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27