Sempier v. Baker ( 2020 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 JOEL ROSS SEMPIER, Case No. 3:18-cv-00465-RCJ-WGC 7 Petitioner, v. ORDER 8 RENEE BAKER, et al., 9 Respondents. 10 11 Before the Court is Respondents’ Motion for Leave to File Documents Under Seal (ECF 12 No. 23). Petitioner Joel Ross Sempier did not file a response and the deadline for doing so has 13 expired. For the reasons discussed below, the motion is granted in part and denied in part. 14 Respondents’ motion seeks leave to file under seal a total of five exhibits: (1) Transcripts 15 of Proceedings of Preliminary Hearing, Ex. 2 (ECF No. 24-1); (2) various ex parte motions for 16 payment of attorney fees, notices regarding payment of attorney fees, and orders for payment of 17 attorney fees, Ex. 8 (ECF No. 24-2); (3) Pre-sentence Investigation Report (“PSI”), Ex. 32 (ECF 18 No. 24-3); (4) Psychosexual Evaluation, Ex. 33 (ECF No. 24-4); and (5) Recommendation and 19 Order Granting Transcript at Public Expense, Ex. 85 (ECF No. 24-5.) 20 Under Nevada law, the PSI is “confidential and must not be made a part of any public 21 record.” Nev. Rev. Stat. § 176.156(5). Likewise, Sempier’s psychosexual evaluation contains 22 confidential information. Thus, there are compelling reasons to seal the reports. The remaining 23 exhibits were filed under seal in the state trial court. Respondents seek to comply with the actions 24 of the trial court and ask this Court to seal the same documents. Compelling reasons purportedly 25 exist for sealing the exhibits because the trial court never made the filings public. 26 Having reviewed and considered the matter in accordance with the Ninth Circuit’s 27 1 directives set forth in Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), 2 and its progeny, the Court finds that a compelling need to protect Sempier’s privacy and/or 3 personal identifying information in his PSI outweighs the public interest in open access to court 4 records. Respondents have met their burden of establishing compelling reasons for the PSI and 5 psychosexual evaluation to remain sealed. However, Respondents have not made a particularized 6 showing for the remaining exhibits. 7 In general, compelling reasons for sealing exist when court records might become a vehicle 8 for improper purposes, such as “to gratify private spite, promote public scandal, circulate libelous 9 statements, or release trade secrets.” Demaree v. Pederson, 887 F.3d 870, 884 (9th Cir. 2018) 10 (quoting Kamakana, 447 F.3d at 1179). Under Kamakana, a party must make a particularized 11 showing to overcome the presumption of public accessibility. Parties are required to set forth 12 compelling reasons to seal for each exhibit. San Jose Mercury News v. U.S. Dist. Court, 187 F.3d 13 1096, 1103 (9th Cir. 1999). 14 Respondents claim the remaining exhibits should be sealed because the trial court 15 previously sealed the same documents. Although it appears the records were sealed because they 16 were filed ex parte, Respondents do not set forth the trial court’s basis for sealing. The exhibits 17 do not display any personal data identifiers such as social security numbers, date of birth, financial 18 account numbers, etc. E.g., LR IC 6-1(a); Fed. R. Civ. P. 5.2. The trial court’s unexplained sealing 19 of these documents does not provide compelling reasons for this Court to do the same. 20 Courts routinely grant protection orders and seal materials qualifying as privileged under 21 the doctrine of attorney-client privilege. E.g., Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 22 1122, 1138 (9th Cir. 2003). Respondents do not assert that the remaining exhibits are privileged. 23 Nevertheless, the Court has reviewed the exhibits, which include multiple motions by Sempier’s 24 trial counsel seeking payment of attorney’s fees and costs, as well as orders and notices related to 25 those motions. The motions provide summaries of counsel’s time and expenses and include 26 descriptions of typical attorney tasks. The descriptions do not reveal sensitive information or 27 confidential case strategy or identify material protected by the attorney-client privilege doctrine. 1 || Furthermore, Sempier likely waived any applicable privilege by asserting claims for ineffective 2 || assistance of counsel. E.g., Lambright v. Ryan, 698 F.3d 808, 813 (9th Cir. 2012) (noting that “a 3 || habeas petitioner waives his attorney-client privilege in a proceeding raising an ineffective 4 || assistance of counsel claim, but that such waiver is narrow and limited to what is necessary to 5 || allow the state to fairly defend against such claim’). The same rule applies to the work product 6 || privilege. Bittaker v. Woodford, 331 F.3d 715, 722 n.6 (9th Cir. 2003) (“Although our decision is 7 || couched in terms of the attorney-client privilege, it applies equally to the work product privilege, 8 || acomplementary rule that protects many of the same interests.) (en banc). Accordingly, the Court 9 || finds no compelling reasons why the remaining exhibits should be sealed on the basis of privilege. 10 IT IS THEREFORE ORDERED: 11 1. Respondents’ Motion for Leave to File Documents Under Seal (ECF No. 23) is 12 GRANTED IN PART AND DENIED IN PART. 13 2. Exhibit 32 (ECF No. 24-3) and Exhibit 33 (ECF No. 24-4) are considered properly filed 14 under seal. 15 3. The Clerk of Court is directed to UNSEAL Exhibit 2 (ECF No. 24-1); Exhibit 8 (ECF 16 No. 24-2); and Exhibit 85 (ECF No. 24-5.) 17 DATED: this 22nd day of September, 2020. 18 19 é oom ERT C. J@INES 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28