PlayUp, Inc. v. Mintas, No. 2:2021cv02129 - Document 379 (D. Nev. 2023)
Court Description: ORDER Denying 357 Motion to Seal. Nonetheless, the Clerk's Office is INSTRUCTED to continue sealing the subject material at this time. See Section III.E. Any renewed motion for secrecy must be filed by August 3, 2023. Courtesy copies must be submitted by noon on August 4, 2023. The Court SEALS Docket No. 362 on an interim basis. If PlayUp continues to seek secrecy for any of the information contained therein, it must file a proper motion by August 3, 2023. Signed by Magistrate Judge Nancy J. Koppe on 7/19/2023. (Copies have been distributed pursuant to the NEF - ALZ)
Download PDF
<![CDATA[
PlayUp, Inc. v. Mintas Doc. 379 Case 2:21-cv-02129-GMN-NJK Document 379 Filed 07/19/23 Page 1 of 9 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 PLAYUP, INC., Case No. 2:21-cv-02129-GMN-NJK Plaintiff(s), 7 Order 8 v. 9 DR. LAILA MINTAS, Defendant(s). 10 11 [Docket No. 357] Pending before the Court is a motion to seal and for partial in camera review filed by 12 PlayUp and Daniel Simic.1 Docket No. 357. Mintas filed a response. Docket No. 362. PlayUp 13 filed a reply. Docket No. 367. The Court does not require a hearing. See Local Rule 78-1. For 14 the reasons discussed below, the motion to seal and for partial in camera review is DENIED. 15 Nonetheless, the Clerk’s Office is INSTRUCTED to continue sealing the subject material at this 16 time. See Section III.E. 17 I. BACKGROUND 18 The motion to withdraw as counsel for PlayUp was predicated on the representation that, 19 “[w]ithout violating attorney-client privilege, [PlayUp’s] counsel can represent to the Court that it 20 [sic] has irreconcilable differences with its [sic] Clients that Counsel has attempted to resolve but 21 has not been able to, despite diligent efforts.” Docket No. 317-1 at ¶ 5. When the same counsel 22 later reappeared as the attorneys of record, the papers represented that the withdrawal was 23 motivated by an issue “of a purely economic nature related to financing the litigation.” E.g., 24 Docket No. 341 at 6. The Court issued an order to show cause raising concerns as to these 25 circumstances. See Docket No. 343. PlayUp seeks to seal responses to the second order to show 26 cause and seeks partial in camera treatment of that material. 27 28 1 The Court will refer herein to PlayUp and Simic collectively as “PlayUp.” 1 Dockets.Justia.com Case 2:21-cv-02129-GMN-NJK Document 379 Filed 07/19/23 Page 2 of 9 1 II. STANDARDS 2 A. 3 There is a strong presumption of public access to judicial records. Kamakana v. City & Sealing 4 County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). Parties seeking to keep secret from the 5 public documents filed in relation to non-dispositive motions must make a “particularized 6 showing” of “good cause.” Id. at 1180 (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 7 1122, 1135 (9th Cir. 2003)).2 The Ninth Circuit has made clear that secrecy of judicial filings may 8 be appropriate when the records could become a vehicle for improper purposes, such as the use of 9 the records to gratify private spite, promote public scandal, circulate libelous statements, or release 10 trade secrets. Kamakana, 447 F.3d at 1179. On the other hand, “[t]he mere fact that production 11 of records may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation 12 will not, without more, compel the court to seal its records.” Id. A party seeking to file documents 13 under seal bears the burden of overcoming that presumption. Pintos v. Pac. Creditors Ass’n, 605 14 F.3d 665, 678 (9th Cir. 2010). 15 Any request to seal must also be “narrowly tailored” to remove from the public sphere only 16 material that warrants secrecy. E.g., Ervine v. Warden, 214 F. Supp. 3d 917, 919 (E.D. Cal. 2016) 17 (citing Press-Enterp. Co. v. Superior Court, 464 U.S. 501, 513 (1984)). To the extent any 18 confidential information can be easily redacted while leaving meaningful information available to 19 the public, the Court must order that redacted versions be filed rather than sealing entire 20 documents. See Foltz, 331 F.3d at 1137; see also in re Roman Catholic Archbishop of Portland 21 in Ore., 661 F.3d 417, 425 (9th Cir. 2011). 22 B. In Camera Submission 23 An in camera submission impedes not only the public’s right to access judicial filings, but 24 also the adversarial process through which courts function best. See Wiener v. F.B.I., 943 F.2d 25 2 The standard applicable to a motion to seal turns on whether the underlying materials are 26 submitted in conjunction with a dispositive or a non-dispositive motion. Center for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th Cir. 2016). Because PlayUp has not met even the 27 most lenient standard, the Court need not decide at this juncture whether the information may be considered submitted in relation to a dispositive matter. See Docket No. 337 (order to show cause 28 raising potential for case-dispositive sanctions). 2 Case 2:21-cv-02129-GMN-NJK Document 379 Filed 07/19/23 Page 3 of 9 1 972, 979 (9th Cir. 1991); see also Doyle v. F.B.I., 722 F.2d 554, 556 (9th Cir. 1983) (providing 2 overview of the “danger inherent” in relying on ex parte, in camera submissions). Given these 3 concerns, requests for in camera submission are disfavored. Diamond State Ins. Co. v. Rebel Oil 4 Co., 157 F.R.D. 691, 700 (D. Nev. 1994). A request for in camera review must be supported by 5 “compelling reasons,” which is a stringent standard that is not easily met. Cf. Maxson v. Mosaic 6 Sales Sols. U.S. Op’g Co., 2015 WL 4661981, at *1 (D. Nev. July 29, 2015).3 Compelling reasons 7 may be established by showing that revealing the subject information to the opposing party and to 8 the public would irreparably harm the movant. See, e.g., Stamicarbon, N.V. v. Am. Cyanamid Co., 9 506 F.2d 532, 540 (2d Cir. 1974) (addressing trade secret material).4 10 III. ANALYSIS 11 The primary thrust of the motion to seal and for partial in camera treatment is that a client’s 12 nonpayment of legal fees is privileged or of such a sensitive nature that it cannot be disclosed to 13 the public or to the opposing party.5 PlayUp has not met its burden to obtain such relief. 14 A. Attorney-Client Privilege 15 The Court begins with the most significant reason advanced in seeking secrecy, that the 16 information is subject to the attorney-client privilege. 17 3 A request for in camera review is seeking three forms of relief: (1) keeping information 18 secret from the public, (2) keeping information off the official docket, and (3) keeping information secret from the opposing counsel and party. Hence, the analysis of the propriety of in camera 19 treatment properly incorporates the standards for sealing (i.e., keeping information secret from the public) and the standards for ex parte submissions (i.e., filings made without notice to the opposing 20 side). See, e.g., Local Rule IA 7-2(a). 21 22 23 24 25 26 27 4 Sealing requests are by design made concurrently with the filing of the sealed information. Local Rule IA 10-5(a). Analyzing the propriety of in camera submission is sometimes done before that information is lodged with the Court. Given the circumstances of this case, the Court instructed the sealed and in camera submissions both be made before a decision was reached as to the propriety of either procedure. Docket No. 354 at 2. As that order made clear—and as PlayUp’s own filings urged—the Court would thereafter determine whether the information would be disclosed to the opposing side and to the public. Id.; see also Docket No. 353 at 5 (PlayUp’s brief indicating that “the Court’s exercise of its discretion to review these documents in camera does no prejudice to Mintas as the Court is free to determine, after its review, that the documents should be disclosed”). As such, the Court here is determining whether the submitted information should remain secret, as opposed to whether it may be submitted in secrecy in the first instance. 5 The Court rules herein on the primary issues advanced for secrecy. As discussed in Section III.E, the Court leaves for another day whether other information is sufficiently sensitive 28 to remain secret. 3 Case 2:21-cv-02129-GMN-NJK Document 379 Filed 07/19/23 Page 4 of 9 1 The party seeking to claim a privilege bears the burden of establishing its elements. In re 2 Grand Jury Investigation, 974 F.2d 1068, 1070-71 (9th Cir. 1992). That information pertains to 3 the attorney-client relationship does not render it automatically privileged. See Howard v. State, 4 291 P.3d 137, 144 (Nev. 2012).6 Mere facts are not privileged, but rather only the communications 5 about facts may be privileged. Wynn Resorts, Ltd. v. Eighth Jud. Dist. Ct., 399 P.3d 334, 341 6 (Nev. 2017). Moreover, the attorney-client privilege protects confidential communications 7 “[m]ade for the purpose of facilitating the rendition of professional legal services to the client.” 8 N.R.S. 49.095. It is well-settled law that “fee information generally is not privileged” because the 9 “[p]ayment of fees is incidental to the attorney-client relationship, and does not usually involve 10 disclosure of confidential communications arising from the professional relationship.” Tornay v. 11 United States, 840 F.2d 1424, 1426 (9th Cir. 1988). The Ninth Circuit has summarily rejected the 12 contention that fee amounts owed by clients, as well as the pertinent dates and details of payments, 13 falls within the attorney-client privilege under Nevada law. United States v. Cromer, 483 F.2d 99, 14 101-02 (9th Cir. 1973).7 15 16 6 In diversity cases, the Court applies state law as to the existence of the attorney-client privilege. Fed. R. Evid. 501. When the Nevada Supreme Court has not spoken on a particular 17 issue regarding privilege, judges look primarily to decisional law by the Ninth Circuit and district courts within the Ninth Circuit. Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 627 (D. Nev. 2013). 18 7 In seeking secrecy now, PlayUp makes an overarching argument that courts should be 19 mindful to not intrude unnecessarily regarding the details underlying a motion to withdraw as counsel. See, e.g., Docket No. 351 at 2. The case law cited does not hold, however, that the Court 20 may never inquire as to the reasons for the withdrawal. The caselaw cited is instructive. In one such case, the withdrawing counsel represented that there had been no communication with the 21 client, which made prosecution of the case impossible, in addition to attesting to “a permanent and irreparable break in the attorney-client relationship.” Alvarez v. Bimbo Bakeries USA, Inc., 2019 22 WL 7875050, at *1-2 (C.D. Cal. Oct. 8, 2019). Although the short period of non-communication was deemed insufficient to allow withdrawal, the Alvarez judge took counsel at their word as to 23 the breakdown of the relationship because he had “no reason to doubt Counsel’s assertion that there was a breakdown in the attorney-client relationship.” Id. at *2 (emphasis added). 24 The Court did precisely the same thing here. It granted the motion to withdraw upon the 25 representation that an irreconcilable difference had arisen, the details of which were not being provided to protect attorney-client privileged information. Docket No. 323. At that time, the Court 26 had “no reason to doubt” the representation being made, so it inquired no further. But the subsequent reappearance of the same counsel, particularly given the statements made concurrently 27 therewith and the posture of the case, gave the Court reason to doubt. The Court is plainly permitted to require PlayUp to explain itself in this circumstance and to provide a justifiable basis 28 for seeking secrecy for the explanation it does provide. 4 Case 2:21-cv-02129-GMN-NJK Document 379 Filed 07/19/23 Page 5 of 9 1 PlayUp has now had three opportunities to substantiate its position that its nonpayment of 2 legal fees is privileged. Docket Nos. 347, 351, 347. It has not done so. As controlling Ninth 3 Circuit authority applying Nevada law makes perfectly clear, the nonpayment of fees is a fact, not 4 a privileged communication. Cromer, 483 F.2d at 101-02 (“[w]e fail to see how the specific 5 information requested can be considered a confidential communication”). Indeed, PlayUp itself 6 has already made clear that the withdrawal of counsel stemmed from a “purely economic” issue. 7 Docket No. 341 at 6.8 In addition, “[n]o privilege exists if the communications are accessible to 8 the general public in other manners, because the communications are therefore not confidential.” 9 Wynn, 399 P.3d at 374. PlayUp’s counsel served a notice of attorney’s lien identifying 10 $359,541.50 in outstanding legal fees and costs for services rendered. Docket No. 342-2 at 3. 11 PlayUp has expressly acknowledged this nonpayment of fees on the public docket, as well as 12 Mintas’ knowledge of that fact. Docket No. 351 at 5 n.2 (PlayUp’s briefing that “Defendant knew 13 of the fee dispute as Movants served Defendants’ counsel with a copy of their lien on the case for 14 nonpayment of fees” (italics in original, underlying added)). PlayUp’s nonpayment of legal fees 15 is not even “confidential” at this juncture; the cat is out of the bag. At bottom, the Court has been 16 presented with no legal authority or meaningfully developed argument that the facts of a client’s 17 nonpayment of legal fees could possibly constitute a confidential communication made for the 18 purposes of facilitating legal services. 19 In short, PlayUp has not met its burden of establishing the attorney-client privilege. 20 B. 21 PlayUp’s motion also rests in part on the contention that the details of the information Potential Misuse of Information 22 provided may be used improperly, pointing to an earlier filing by Mintas. Docket No. 357 at 3. 23 The Ninth Circuit has made clear that secrecy of judicial filings may be appropriate when the 24 records could become a vehicle for improper purposes, such as the use of the records to gratify 25 8 PlayUp’s quotation to caselaw is telling. See Docket No. 357 at 5. For example, the 26 Ninth Circuit explained that legal billing records may be privileged if they reflect information that “reveal[s] the motive of the client in seeking representation, litigation strategy, or the specific 27 nature of the services provided, such as researching particular areas of the law.” United States v. Amlani, 169 F.3d 1189, 1195 (9th Cir. 1999). PlayUp has not revealed any such information being 28 disclosed in divulging that its client failed to pay outstanding fees for services rendered. 5 Case 2:21-cv-02129-GMN-NJK Document 379 Filed 07/19/23 Page 6 of 9 1 private spite, promote public scandal, circulate libelous statements, or release trade secrets. 2 Kamakana, 447 F.3d at 1179. On the other hand, “[t]he mere fact that production of records may 3 lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, without 4 more, compel the court to seal its records.” Id. 5 The Court is not persuaded by PlayUp’s argument. The Court is well aware of the 6 ubiquitous assertions of alleged wrongdoing flung in both directions in this case, but PlayUp has 7 not made a sufficient factual showing to support this argument.9 At any rate, the core information 8 at issue is already known to Mintas as discussed above, and PlayUp makes not meaningful showing 9 why secrecy is warranted now on this basis for already-known information.10 10 In short, PlayUp has not met its burden of showing secrecy is warranted based on the 11 potential for misuse. 12 C. Sensitive Nature of Information 13 PlayUp next contends that secrecy is warranted given that documents contain “sensitive 14 financial information” that is “highly private” and unrelated to the litigation. Docket No. 357 at 15 3-4. As to the information regarding the fact of PlayUp’s nonpayment of its legal fees and the 16 decision to withdraw based on nonpayment, the Court is not persuaded by this argument. At the 17 risk of repetition, PlayUp’s counsel served a notice of attorney’s lien identifying $359,541.50 in 18 outstanding costs and fees for services rendered. Docket No. 342-2 at 3. At any rate, particularly 19 in the context of a motion to withdraw as counsel, the nonpayment of legal fees is not generally 20 considered sufficiently sensitive or private to warrant secrecy. To the contrary, courts routinely 21 note in public orders addressing motions to withdraw that the reason for the withdrawal was 22 nonpayment of fees. See, e.g., Sanford v. Maid-Rite Corp., 816 F.3d 546, 550 (8th Cir. 2016); 23 24 9 Mintas redacted and sought to seal the subject information in responding to the order to show cause, see Docket Nos. 363-64, but she included in her publicly-filed response to the motion 25 to seal quotations from the declarations that were filed under seal, see Docket No. 362 at 6. Mintas’ counsel must be more careful moving forward and are CAUTIONED for this shortcoming. 26 Nonetheless, a sufficient showing has not been made that information cannot be shared with Mintas out of concern that it will be used publicly to, inter alia, gratify private spite. 27 10 If PlayUp is relying on the fact that the subject documents contain additional “details” 28 of the nonpayment of fees, see Docket No. 357 at 3, it fails to meaningfully develop that argument. 6 Case 2:21-cv-02129-GMN-NJK Document 379 Filed 07/19/23 Page 7 of 9 1 Brandon v. Blech, 560 F.3d 536, 539 (6th Cir. 2009); T1 Payments LLC v. Beyond Wealth Pte 2 LLC, 2021 WL 408089, at *2 (D. Nev. Feb. 5, 2021); Bank of N.Y. Mellon v. Ravenstar Invs., LLC, 3 2018 U.S. Dist. Lexis 52691, at *2 (D. Nev. Mar. 29, 2018); Travelers Cas. & Sur. Co. of Am. v. 4 Williams Bros., Inc., 2014 U.S. Dist. Lexis 44547, at *4 (D. Nev. Mar. 31, 2014); Travelers Cas. 5 & Sur. Co. of Am. v. Big Town Mech., LLC, 2013 U.S. Dist. Lexis 122923, at *4 (D. Nev. Aug. 6 27, 2013); 21st Century Cmtys. v. Muzlink, LLC, 2013 U.S. Dist. Lexis 84721, at *2 (D. Nev. June 7 17, 2013); Chan v. Pan Western Corp., 2011 WL 2976793, at *1 (D. Nev. July 21, 2011). Indeed, 8 PlayUp is plainly aware that such information may be disclosed publicly and to the opposing party 9 given its own quotations of case law stating on the public record that the client failed to pay for 10 the legal services rendered. See, e.g., Docket No. 351 at 3-4. 11 The fact of PlayUp’s nonpayment of its legal fees and the decision to withdraw based on 12 nonpayment will not be sealed based on this ground. 13 D. Secrecy Requested for Public Information 14 PlayUp’s request for secrecy is otherwise plainly overbroad to the extent it seeks secrecy 15 as to public information. As an example, PlayUp seeks in camera consideration (i.e., secrecy from 16 both Mintas and the public) for a statement regarding “well-publicized” facts, Docket No. 360 at 17 ¶ 23, and for a statement as to what is already “on the public record,” id. at ¶ 43. PlayUp also 18 seeks sealing for information that it has filed elsewhere on the public docket. E.g., compare Docket 19 No. 341-2 at ¶ 8 (declaration filed publicly regarding reconciliation efforts) with Docket No. 361 20 at ¶ 47 (declaration filed under seal regarding same information); compare Docket No. 369 at ¶ 62 21 (declaration filed publicly describing discussions) with Docket No. 360 at ¶ 40 (declaration seeking 22 in camera treatment for same information); compare Docket No. 351 at 5 (motion filed publicly 23 referencing legal proceeding) with Docket No. 360 at ¶ 47 (declaration seeking in camera 24 treatment for same information); see also Docket No. 356 (providing on the public docket 25 extensive discussion and summaries of information contained in declarations filed under seal). It 26 27 28 7 Case 2:21-cv-02129-GMN-NJK Document 379 Filed 07/19/23 Page 8 of 9 1 is axiomatic that secrecy in judicial filings is not warranted for public information. Victory Sports 2 & Ent., LLC v. Pedraza, 2019 WL 2578767, at *2 (D. Nev. June 24, 2019) (collecting cases).11 3 E. Additional Information 4 In light of the above, the Court concludes that PlayUp failed to meet its burden that the 5 information submitted is privileged. The Court also concludes that the core information at issue 6 (the nonpayment of fees) is not sealable. There are also wide swaths of additional information that 7 will not meet the standards for sealing or in camera review.12 Based on the Court’s independent 8 review of the materials, however, there is certain discrete information within the submissions for 9 which secrecy might be warranted. See, e.g., Docket No. 361 at 13-17 (board minutes); id. at ¶¶ 10 52, 67 (discussing efforts to raise funds). Nonetheless, the Court lacks basic information specific 11 to that information. As an example, PlayUp did not file a declaration that the board minutes are 12 generally kept confidential or that their disclosure would cause competitive harm. Cf. Henderson 13 v. Aria Resort & Casino Holdings, LLC, 2023 WL 4288830, at *2 (D. Nev. June 29, 2023). It is 14 the movant’s responsibility, not the Court’s, to make a particularized showing for relief. 15 Kamakana, 447 F.3d at 1180. Since PlayUp has clearly failed to make the required showing, the 16 Court would be justified in disclosing on the public docket the entirety of the submissions 17 presented. As a courtesy to PlayUp to protect any legitimately sensitive information, however, the 18 Court will provide one final opportunity to make the showings necessary. On an interim basis, the 19 Court will allow the filings to remain sealed and in camera. 20 21 11 24 12 This does not mean, of course, that a litigant can thwart an opponent’s sealing options by itself filing the information publicly. See Motogolf.com, LLC v. Top Shelf Golf, LLC, 2021 WL 22 5761770, at *2 (D. Nev. Dec. 3, 2021); Garcia v. Serv. Emps. Int’l Union, 2019 WL 8750273, at *2 (D. Nev. May 23, 2019); Ashcraft v. Welk Resort Grp., 2017 WL 4038397, at *2 n.2 (D. Nev. 23 Sept. 12, 2017). 25 26 27 28 The Court has not endeavored to catalogue all of the information that is plainly beyond the scope of a properly sealable or in camera submission. There are abundant examples of other information that is not properly kept secret, including the professional background of counsel, see, e.g., Docket No. 358 at ¶¶ 1-17, and recitation of docketed information, id. at ¶¶ 78-79. Requests to seal must also be “narrowly tailored” to remove from the public sphere only material that warrants secrecy. E.g., Ervine, 214 F. Supp. 3d at 919. To the extent any confidential information can be easily redacted while leaving meaningful information available to the public, the Court must order that redacted versions be filed rather than sealing entire documents. See Foltz, 331 F.3d at 1137; see also Roman Catholic Archbishop, 661 F.3d at 425. 8 Case 2:21-cv-02129-GMN-NJK Document 379 Filed 07/19/23 Page 9 of 9 1 To the extent PlayUp continues to seek such relief, it must file a motion with robust 2 argument making a particularized showing that is supported by evidence (e.g., a declaration 3 attesting to why the specific information must be shielded from the public and/or from Mintas). 4 This showing must be made on a line-by-line basis. Cf. in re Yahoo! Inc. Customer Data Security 5 Breach Litig., 2018 WL 9651897, at *3 (N.D. Cal. Jan. 3, 2018). Any request for in camera 6 treatment must be accompanied by a declaration that the subject information is not already known 7 or available to Mintas or her counsel. Any request for sealing must be accompanied by a 8 declaration that the subject information is not already known or available to the public. The motion 9 cannot incorporate by reference arguments or evidence filed elsewhere. Lescinsky v. Clark Cnty. 10 Sch. Dist., 539 F. Supp. 3d 1121, 1129 n.8 (D. Nev. 2021).13 A courtesy copy must be provided 11 to the undersigned’s box highlighting redactions for secrecy in yellow and highlighting redactions 12 for in camera treatment in blue. 13 IV. CONCLUSION 14 For the reasons discussed above, PlayUp has not met its burden of establishing the attorney- 15 client privilege and it has otherwise not met its burden of showing that secrecy is warranted. 16 Accordingly, the motion to seal and for partial in camera review is DENIED. Nonetheless, the 17 Clerk’s Office is INSTRUCTED to continue sealing the subject material at this time. See Section 18 III.E. Any renewed motion for secrecy must be filed by August 3, 2023. Courtesy copies must be 19 submitted by noon on August 4, 2023. 20 The Court SEALS Docket No. 362 on an interim basis. If PlayUp continues to seek secrecy 21 for any of the information contained therein, it must file a proper motion by August 3, 2023. 22 IT IS SO ORDERED. 23 Dated: July 19, 2023 ______________________________ Nancy J. Koppe United States Magistrate Judge 24 25 26 27 13 It appears that the current motion includes a request to incorporate by reference. See Docket No. 357 at 2 (referring to Docket No. 351). The Court reviewed the cited filing in preparing 28 this order, but it will not allow incorporation by reference moving forward. 9
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
