Cevasco v. Allegiant Travel Company ( 2023 )

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 ROBERT CEVASCO, on behalf of Case No. 2:22-cv-01741-JAD-DJA 6 Allegiant 401(k) Retirement Plan, individually and on behalf of all others 7 similarly situated, ORDER 8 Plaintiffs, 9 v. 10 ALLEGIANT TRAVEL COMPAY, 11 Defendant. 12 13 This matter is before the Court on the parties’ Stipulated Protective Order (ECF No. 48), 14 filed on September 15, 2023. The parties request that the Court enter a protective order to govern 15 their exchange of confidential information. However, the parties fail to state the governing 16 standard for filing documents under seal with the Court. This order reminds counsel that there is 17 a presumption of public access to judicial files and records. A party seeking to file a confidential 18 document under seal must file a motion to seal and must comply with the Ninth Circuit’s 19 directives in Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006) and 20 Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1097 (9th Cir. 2016). 21 IT IS THEREFORE ORDERED that the parties’ Stipulated Protective Order (ECF No. 22 48) is granted subject to the following modifications: 23 • The Court has adopted electronic filing procedures. Attorneys must file 24 documents under seal using the Court’s electronic filing procedures. See Local 25 Rule IA 10-5. Papers filed with the Court under seal must be accompanied with a 26 concurrently-filed motion for leave to file those documents under seal. See Local 27 Rule IA 10-5(a). 1 • The Court has approved the instant protective order to facilitate discovery 2 exchanges, but there has been no showing, and the Court has not found, that any 3 specific documents are secret or confidential. The parties have not provided 4 specific facts supported by declarations or concrete examples to establish that a 5 protective order is required to protect any specific trade secret or other confidential 6 information pursuant to Rule 26(c) or that disclosure would cause an identifiable 7 and significant harm. 8 • All motions to seal shall address the standard articulated in Ctr. for Auto Safety 9 and explain why that standard has been met. 809 F.3d at 1097. 10 • Specifically, a party seeking to seal judicial records bears the burden of meeting 11 the “compelling reasons” standard, as previously articulated in Kamakana. 447 12 F.3d 1172. Under the compelling reasons standard, “a court may seal records only 13 when it finds ‘a compelling reason and articulate[s] the factual basis for its ruling, 14 without relying on hypothesis or conjecture.” Ctr. for Auto Safety, 809 F.3d at 15 1097. (quoting Kamakana, 447 F.3d at 1179). “The court must then 16 ‘conscientiously balance[ ] the competing interests of the public and the party who 17 seeks to keep certain judicial records secret.” Ctr. for Auto Safety, 809 F.3d at 18 1097. 19 • There is an exception to the compelling reasons standard where a party may satisfy 20 the less exacting “good cause” standard for sealed materials attached to a 21 discovery motion unrelated to the merits of the case. Id. “The good cause 22 language comes from Rule 26(c)(1), which governs the issuance of protective 23 orders in the discovery process: ‘The court may, for good cause, issue an order to 24 protect a party or person from annoyance, embarrassment, oppression, or undue 25 burden or expense.’” Id. (citing Fed.R.Civ.P. 26(c)). “For good cause to exist, the 26 party seeking protection bears the burden of showing specific prejudice or harm 27 will result if no protective order is granted.” Phillips v. General Motors, 307 F.3d 1 • The labels of “dispositive” and “nondispositive” will not be the determinative 2 factor for deciding which test to apply because the focal consideration is “whether 3 the motion is more than tangentially related to the merits of a case.” Ctr. for Auto 4 Safety, 809 F.3d at 1101. 5 • The fact that the Court has entered the instant stipulated protective order and that a 6 party has designated a document as confidential pursuant to that protective order 7 does not, standing alone, establish sufficient grounds to seal a filed document. See 8 Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1133 (9th Cir. 2003); see 9 also Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). If 10 the sole ground for a motion to seal is that the opposing party (or non-party) has 11 designated a document as confidential, the designator shall file (within seven days 12 of the filing of the motion to seal) either (1) a declaration establishing sufficient 13 justification for sealing each document at issue or (2) a notice of withdrawal of the 14 designation(s) and consent to unsealing. If neither filing is made, the Court may 15 order the document(s) unsealed without further notice. 16 • To the extent any aspect of the stipulated protective order may conflict with this 17 order or Local Rule IA 10-5, that aspect of the stipulated protective order is hereby 18 superseded with this order. 19 IT IS SO ORDERED. 20 DATED: September 19, 2023. 21 DANIEL J. ALBREGTS 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27