1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Terence William McDonough, et al., No. CV-24-00764-PHX-DWL 10 Plaintiffs, ORDER 11 v. 12 Michael J Bidwill, et al., 13 Defendants. 14 15 Pending before the Court is Defendants’ motion to seal exhibits and portions of their 16 motion to compel arbitration. (Doc. 60.) For the reasons stated below, the motion is denied 17 without prejudice. 18 The public has a general right to inspect judicial records and documents, such that 19 a party seeking to seal a judicial record must overcome “a strong presumption in favor of 20 access.” Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). To 21 do so, the party must “articulate compelling reasons supported by specific factual findings 22 that outweigh the general history of access and the public policies favoring 23 disclosure . . . .” Id. at 1178-79 (internal quotation marks and citations omitted). The Court 24 must then “conscientiously balance the competing interests of the public and the party who 25 seeks to keep certain judicial records secret.” Id. at 1179 (internal quotation marks 26 omitted). “After considering these interests, if the court decides to seal certain judicial 27 records, it must base its decision on a compelling reason and articulate the factual basis for 28 its ruling, without relying on hypothesis or conjecture.” Id. (internal quotation marks 1 omitted). The “stringent” compelling reasons standard applies to all filed motions and their 2 attachments where the motion is “more than tangentially related to the merits of a case.” 3 Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096, 1101 (9th Cir. 2016). 4 Defendants move to seal two exhibits to their motion to compel arbitration: Exhibit 5 B, Plaintiff Terence William McDonough’s May 12, 2023 first amended arbitration 6 demand, and Exhibit C, Arbitrator Mishkin’s June 7, 2023 Order on Motion to Join. 7 Defendants state that “compelling reasons exist to maintain the confidentiality of these 8 documents” because “these two documents, while relevant to the Motion to Compel 9 Arbitration, have no bearing on the fact issues to be litigated in this action should the claims 10 proceed in this Court.” (Doc. 60 at 2-3.) 11 As an initial matter, the Court agrees that the compelling reasons standard applies 12 here. See, e.g., Hussain v. Burger King Corp., 2023 WL 2940032, *2 (N.D. Cal. 2023) 13 (“Because the motion to compel arbitration is more than tangentially related to the 14 underlying action, the Court applies the ‘compelling reasons’ standard.”); Orlob-Radford 15 v. Midland Funding LLC, 2016 WL 5859002, *8 (E.D. Wash. 2016) (“Under the Ninth 16 Circuit’s expansive “more than tangentially related” test, the court finds the Loan Sale 17 Agreement and Motion to Compel Arbitration are directly related to the merits of the case. 18 Accordingly, to justify the sealing of the Loan Sale Agreement and documents related to 19 the Motion to Compel Arbitration, it is Defendants’ burden to demonstrate a compelling 20 reason to do so.”). 21 The only reason Defendants have provided to justify their sealing request is the 22 “Consent Confidentiality Order” in which the arbitrator ordered—pursuant to the parties’ 23 agreement—that the parties would maintain “the confidentiality of all communications 24 relating to” the arbitration proceedings. The consent order does not establish that any legal 25 standard for placing those materials or information under seal has been met. Ctr. for Auto 26 Safety, 809 F.3d at 1101. “Defendants suggest that no reasons exist here to remove 27 Arbitrator Mishkin’s confidentiality protection.” (Doc. 60 at 3.) But this suggestion turns 28 the standard on its head—Defendants must provide compelling reasons why the public 1 || should not have access to these materials. The Consent Confidentiality Order does not 2|| alter the Kamakana standard, which presumes a public right of access in the absence of || compelling reasons that “outweigh the general history of access and the public policies 4|| favoring disclosure.” 447 F.3d at 1178. See also Twitch Interactive, Inc. v. FishwoodCo || GmbH, 2023 WL 2026528, *2 (N.D. Cal. 2023) (“The underlying arbitration apparently 6|| was conducted confidentially pursuant to Twitch’s Terms of Service and JAMS || International Arbitration Rules 16.1 and 16.2. However, the fact that the parties agreed to 8 || the confidentiality of the underlying arbitration proceedings does not, standing alone, 9|| provide a compelling reason to keep them under seal. Moreover, the Court has reviewed 10 || the matters that have been provisionally sealed and concludes that there are no compelling 11 || reasons to maintain those materials under seal.”) (citations omitted); Mission Wellness || Pharmacy LLC yv. Caremark LLC, 2022 WL 2488817, *1 (D. Ariz. 2022) (“[T]he parties’ 13 | agreement that their agreement and any arbitration would be confidential does not establish compelling reasons exist.”); Ovonic Battery Company, Inc. v. Sanyo Electric Co., □□□□ □□□□ 15 || WL 2758756, *3 (N.D. Cal. 2014) (rejecting sealing request premised on the bare fact that the arbitration-related materials at issue were “to remain confidential subject to limited 17 || exception according to the governing International Arbitration Rules and order of the 18 || Arbitration Panel’’). 19 Accordingly, 20 IT IS ORDERED that Defendants’ motion to seal (Doc. 60) is denied without prejudice. 22 IT IS FURTHER ORDERED that, pursuant to LRCiv 5.6(e), the lodged 23 || documents will not be filed, but will remain under seal. Defendants shall, within 14 days || of the entry of this Order, (1) file a renewed motion to seal that attempts to satisfy the 25 || compelling reasons standard, (2) file unredacted versions of the motion to compel and all 26 || supporting exhibits in the public record, or (3) withdraw their motion to compel arbitration. 27 Dated this 14th day of August, 2024. 28 fF - (_— Dominic W. Lanza 3. United States District Judge