Archer Western Contractors, LLC v. The Erection Company, Inc. ( 2021 )

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Archer Western Contractors, LLC, Case No. 2:17-cv-03032-GMN-DJA 6 Plaintiff, 7 Order v. 8 The Erection Company, Inc. 9 And 10 Travelers Casualty and Surety Company of 11 America, 12 Defendants. 13 14 This matter is before the Court on the parties’ stipulation for inadvertent disclosures and 15 clawback (ECF No. 42). The parties request that the Court enter an order to govern the potential 16 inadvertent exchange of privileged information. The parties include a line, taken from Federal 17 Rule of Civil Procedure 26(b)(5)(B) that they “may promptly present the information to the Court 18 under seal for a determination of the [privilege or protection] claim.” However, the parties fail to 19 state the governing standard for filing documents under seal with the Court. This order reminds 20 counsel that there is a presumption of public access to judicial files and records. A party seeking 21 to file a confidential document under seal must file a motion to seal and must comply with the 22 Ninth Circuit’s directives in Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 23 2006) and Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092 (9th Cir. 2016). 24 IT IS THEREFORE ORDERED that the parties’ stipulation for inadvertent disclosures 25 and clawback (ECF No. 42) is granted subject to the following modifications: 26 • The Court has adopted electronic filing procedures. Attorneys must file 27 documents under seal using the Court’s electronic filing procedures. See Local 1 concurrently-filed motion for leave to file those documents under seal. See Local 2 Rule IA 10-5(a). 3 • The Court has approved the instant stipulation to facilitate discovery exchanges, 4 but there has been no showing, and the Court has not found, that any specific 5 documents are secret or confidential. The parties have not provided specific facts 6 supported by declarations or concrete examples to establish that a protective order 7 is required to protect any specific trade secret or other confidential information 8 pursuant to Rule 26(c) or that disclosure would cause an identifiable and 9 significant harm. 10 • All motions to seal shall address the standard articulated in Ctr. for Auto Safety 11 and explain why that standard has been met. 809 F.3d at 1097. 12 • Specifically, a party seeking to seal judicial records bears the burden of meeting 13 the “compelling reasons” standard, as previously articulated in Kamakana. 447 14 F.3d 1172. Under the compelling reasons standard, “a court may seal records only 15 when it finds ‘a compelling reason and articulate[s] the factual basis for its ruling, 16 without relying on hypothesis or conjecture.” Ctr. for Auto Safety, 809 F.3d at 17 1097. (quoting Kamakana, 447 F.3d at 1179). “The court must then 18 ‘conscientiously balance[ ] the competing interests of the public and the party who 19 seeks to keep certain judicial records secret.” Ctr. for Auto Safety, 809 F.3d at 20 1097. 21 • There is an exception to the compelling reasons standard where a party may satisfy 22 the less exacting “good cause” standard for sealed materials attached to a 23 discovery motion unrelated to the merits of the case. Id. “The good cause 24 language comes from Rule 26(c)(1), which governs the issuance of protective 25 orders in the discovery process: ‘The court may, for good cause, issue an order to 26 protect a party or person from annoyance, embarrassment, oppression, or undue 27 burden or expense.’” Id. (citing Fed.R.Civ.P. 26(c)). “For good cause to exist, the 1 will result if no protective order is granted.” Phillips v. General Motors, 307 F.3d 2 1206, 1210-11 (9th Cir. 2002). 3 • The labels of “dispositive” and “nondispositive” will not be the determinative 4 factor for deciding which test to apply because the focal consideration is “whether 5 the motion is more than tangentially related to the merits of a case.” Ctr. for Auto 6 Safety, 809 F.3d at 1101. 7 • The fact that the Court has entered the instant stipulated protective order and that a 8 party has designated a document as confidential pursuant to that protective order 9 does not, standing alone, establish sufficient grounds to seal a filed document. See 10 Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1133 (9th Cir. 2003); see 11 also Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). If 12 the sole ground for a motion to seal is that the opposing party (or non-party) has 13 designated a document as confidential, the designator shall file (within seven days 14 of the filing of the motion to seal) either (1) a declaration establishing sufficient 15 justification for sealing each document at issue or (2) a notice of withdrawal of the 16 designation(s) and consent to unsealing. If neither filing is made, the Court may 17 order the document(s) unsealed without further notice. 18 • To the extent any aspect of the stipulated protective order may conflict with this 19 order or Local Rule IA 10-5, that aspect of the stipulated protective order is hereby 20 superseded with this order. 21 IT IS SO ORDERED. 22 DATED: September 16, 2021 23 DANIEL J. ALBREGTS 24 UNITED STATES MAGISTRATE JUDGE 25 26 27