Anderson et al v. Trans Union, LLC, No. 2:2022cv01214 - Document 59 (D. Nev. 2023)
Court Description: ORDER Granting in part and Denying in part 42 Motion to Compel. IT IS FURTHER ORDERED that 44 Motion to Seal is Granted. Defendant must produce the requested documents in accordance with this Order by 7/31/2023. Signed by Magistrate Judge Nancy J. Koppe on 7/11/2023. (Copies have been distributed pursuant to the NEF - JQC)
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Anderson et al v. Trans Union, LLC Doc. 59 Case 2:22-cv-01214-GMN-NJK Document 59 Filed 07/11/23 Page 1 of 11 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 ERIKA ANDERSON, et al. 6 Case No. 2:22-cv-01214-GMN-NJK Plaintiffs, 7 Order v. 8 [Docket Nos. 42, 44] TRANS UNION, LLC, 9 Defendant. 10 Pending before the Court is Plaintiffs’ motion to compel. Docket No. 42. Defendant filed 11 12 a response, Docket No 47, and Plaintiffs filed a reply, Docket No. 50. Also pending before the 13 Court is Plaintiffs’ motion to seal. Docket No. 44. Defendant filed a response to the motion to 14 seal. Docket No. 48. For the reasons more fully discussed below, Plaintiffs’ motion to compel is 15 GRANTED in part and DENIED in part. Also for the reasons more fully discussed below, 16 Plaintiffs’ motion to seal is GRANTED. Plaintiffs allege that Defendant violated the Fair Credit Reporting Act by failing to conduct 17 18 reasonable reinvestigations in response to Plaintiffs’ dispute letters. Docket No. 19 at 15. 19 Plaintiffs now move to compel Defendant to respond to several interrogatories and requests for 20 production. Docket No. 42 at 7, 9, 12-14. Plaintiffs seek this discovery both to prove their claims 21 and to respond to Defendant’s drafted but yet-to-be filed motion for Federal Rule of Civil 22 Procedure 11 sanctions.1 Id. at 2. 23 24 25 26 1 In general, discovery relating to motion for sanctions under Federal Rule of Civil Procedure 11 should be allowed only in “extraordinary circumstances.” E.g., Hall v. Marriott Int’l, Inc., 27 2022 WL 3718838, at *3 (S.D. Cal. Aug. 29, 2022) (internal citations omitted). However, because each category of discovery allowed is relevant to either parties’ underlying claims or defenses, the 28 Court need not address whether the instant case constitutes “extraordinary circumstances.” 1 Dockets.Justia.com Case 2:22-cv-01214-GMN-NJK Document 59 Filed 07/11/23 Page 2 of 11 1 I. STANDARDS 2 “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any 3 party’s claim or defense and proportional to the needs of the case ….” Fed. R. Civ. P. 26(b)(1). 4 Relevance during discovery is broader than relevance at trial. E.g., F.T.C. v. AMG Services, Inc., 5 291 F.R.D. 544, 552 (D. Nev. 2013). “The party seeking to avoid discovery bears the burden of 6 showing why that discovery should not be permitted.” V5 Techs. v. Switch, Ltd., 334 F.R.D. 306, 7 309 (D. Nev. 2019). Meeting that burden requires the objecting party to explain “how each of its 8 objections is applicable, by providing the relevant standard for each objection and a meaningfully 9 developed argument as to how the standard has been met.” Hinostroza v. Denny’s Inc., 2018 WL 10 3212014, *1 (D. Nev. June 29, 2018) (citing Green v. Bacca, 226 F.R.D. 624, 653 (C.D. Cal. 11 2005)). “[B]road discretion is vested in the trial court to permit or deny discovery.” Hallett v. 12 Morgan, 296 F.3d 732, 751 (9th Cir. 2002). 13 II. DISCUSSION 14 Plaintiffs seek to compel responses to multiple discovery requests. Docket No. 42 at 7, 10, 15 12-14. Many of these discovery requests overlap with one or multiple other of Plaintiffs’ discovery 16 requests. The discovery requests can be divided into 3 categories: (1) Plaintiffs’ credit reports and 17 related information; (2) the Consumer Data Industry Association Metro 2 Credit Reporting 18 Resource Guide that was operative at the time they submitted their dispute letters; and (3) the 19 identification of cases, deposition transcripts, declarations, and court filings relating to 20 Defendant’s post-bankruptcy discharge reporting and the White v. Experian settlement. Id. Given 21 the discovery requests’ overlapping nature, the Court will address the categories of information 22 sought, rather than each individual discovery request. 23 1. Plaintiffs’ credit information 24 Plaintiffs ask the Court to compel the production of various portions of their credit 25 information maintained by Defendant. Defendant primarily archives copies of transmitted credit 26 reports in the “Fixed File Inquiry” (“FFI”) and “Fixed File Return” (“FFR”) formats. Id. at 9. 27 Plaintiffs are seeking all FFIs/FFRs pertaining to them transmitted by Defendant since 30 days 28 after Plaintiffs first sent their respective demand letters, as well as identification of any unarchived 2 Case 2:22-cv-01214-GMN-NJK Document 59 Filed 07/11/23 Page 3 of 11 1 transmitted credit reports and any “soft inquiries” for the same time period. 2 Id. at 10. Plaintiffs 2 further seek to compel Defendant to identify the type of credit reporting product attributable to 3 each FFI/FFR. Id. Defendant submits that producing every FFI/FFR for each Plaintiff during the relevant time 4 5 period would be cumulative and disproportionately burdensome. 3 Docket No. 47 at 7-8. 6 Defendant submits that producing every relevant FFI/FFR would be cumulative because it has 7 already produced two representative FFIs/FFRs for each plaintiff. Id. Plaintiffs submit that 8 complete production of the relevant FFIs/FFRs would not be cumulative because each FFI/FFR is 9 needed to fully evaluate Plaintiffs’ damages. Docket No. 42 at 17. Plaintiffs further submit that 10 relying on Defendant’s representative FFIs/FFRs would allow Defendant to pick and choose what 11 evidence it produces. Docket No. 50 at 6-8. Absent a protective order, a party must produce all 12 documents responsive to a request for production that are in the party’s “possession, custody, or 13 control.” Fed. R. Civ. P. 34(a)(1); see also Fed. R. Civ. P. 26(c). Further, each FFI/FFR may 14 contain new information relevant to Plaintiffs’ damages. Producing each FFI/FFR for Plaintiffs 15 during the relevant time period is, therefore, not cumulative. Defendant further submits that this request is overly burdensome because “collecting 16 17 FFIs/FFRs is a manual, multi-step process which requires individualized research into a specific 18 consumer and specific inquiry” and that “[l]ocating and producing each of these FFIs/FFRs would 19 take a significant number of resources and time which would be disproportionate to the needs of 20 this case.” Docket No. 47 at 8. Defendant does not articulate why obtaining each FFI/FFR would 21 be disproportionately burdensome beyond this generalized statement. Conclusory or generalized 22 assertions are not enough to support a claim that sought discovery is disproportionately 23 burdensome. See V5 Techs., 334 F.R.D. at 309 (citing AMG Servs., Inc., 291 F.R.D. at 553). 24 25 2 More specifically, “[t]he relevant time period for this request are [Plaintiff] Bagnate’s 26 inquiries after January 9, 2022; [Plaintiff] Brewster’s inquiries after [] January 20, 2022; and [Plaintiff] Wade’s inquiries after January 29, 2022.” Docket No. 42 at 16. 27 3 Defendant, by producing two FFIs/FFRs for each Plaintiff, has conceded the relevancy of 28 the FFIs/FFRs. See Docket Nos. 42 at 16-17; 47 at 7. 3 Case 2:22-cv-01214-GMN-NJK Document 59 Filed 07/11/23 Page 4 of 11 1 Plaintiffs further seek the identification of the applicable credit reporting product for each 2 produced FFI/FFR. Docket No. 42 at 18. Plaintiffs submit this information is relevant and 3 necessary because, although they have a copy of Defendant’s User Guide which is necessary to 4 decode the FFIs/FFRs, the User Guide contains decoding instructions for multiple different credit 5 reporting products. Id. Consequently, Plaintiffs cannot know which instructions to follow for any 6 particular FFI/FFR, rendering any produced FFIs/FFRs useless. Defendant submits that Plaintiffs’ 7 request for the applicable credit reporting products “is emblematic of a prohibited fishing 8 expedition.” Docket No. 47 at 9. It submits that, because Defendant alleges that it never discloses 9 balances of discharged accounts, the applicable credit reporting information is irrelevant to the 10 instant case. 11 As discussed above, the contents of each FFI/FFR are relevant to either party’s claims or 12 defenses. Moreover, Federal Rule of Civil Procedure 34(a)(1)(A) requires that produced discovery 13 be provided in a “reasonably usable form.” See also Fed. R. Civ. P. 34(b)(2)(E) (providing further 14 requirements for producing electronically stored information). Indeed, the drafters of Rule 34 15 contemplated that a responding party may have to go beyond the face of the request for production 16 to ensure produced discovery is usable. Fed. R. Civ. P. 34, Advisory Committee Notes (2006) 17 (“Under some circumstances, the responding party may need to provide some reasonable amount 18 of technical support, information on application software, or other reasonable assistance to enable 19 the requesting party to use the information”). Accordingly, Defendant must identify the credit 20 reporting product applicable to each produced FFI/FFR. 21 Plaintiffs further seek to compel the production of any “soft inquiries” into their credit 22 report and the identification of any inquiries that were not archived. Docket No. 42 at 17-18. 23 Defendant does not challenge the relevancy of this category of discovery. See Docket No. 47 at 24 7-8. Defendant submits, however, that this request is cumulative of the other discovery requests 25 relating to Plaintiffs’ credit reports. Docket No. 47 at 7-8. As discussed above, the contents of 26 every one of Plaintiffs’ credit reports disclosed to third parties is relevant to the action. 27 Accordingly, production of “soft inquiries” into Plaintiffs’ credit history is not cumulative. 28 4 Case 2:22-cv-01214-GMN-NJK Document 59 Filed 07/11/23 Page 5 of 11 1 Defendant makes one passing comment that Plaintiffs are seeking “undefined records of 2 ‘soft inquiries.’” Docket No. 47 at 8. Plaintiffs use the term “soft inquiry” in relation to how the 3 term is used in Defendant’s User Guide. See Docket No. 42 at 17. “[E]pistomolgical nit-picking” 4 is not a valid reason to avoid discovery. Alvarado-Herrera v. Acuity, 2022 WL 18108429, at *2 5 (D. Nev. Nov. 8, 2022) (citing Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 580 6 (9th Cir. 1992), and F.D.I.C. v. Lewis, 2014 WL 7330931, at *4 (D. Nev. Dec. 18, 2014)). Further, 7 conclusory arguments are insufficient to avoid discovery. See V5 Techs., 334 F.R.D. at 309 (citing 8 AMG Servs., Inc., 291 F.R.D. at 553). Because Plaintiffs use the term “soft inquiries” in reference 9 to a document drafted by Defendant, Defendant cannot avoid this discovery on vagueness grounds. 10 Accordingly, Defendant must produce every “soft inquiry” for Plaintiffs from the relevant time 11 period. Additionally, to the extent it can identify such transmission, Defendant must identify any 12 transmissions made during the relevant time period for which it does not have full archival 13 information. This discovery is relevant to Plaintiffs’ damages and whether Defendant destroyed 14 evidence of its transmittal of inaccurate post-bankruptcy discharge account information to third 15 parties. 16 2. Metro 2 Guidelines 17 Plaintiffs seek to compel the production of the Metro 2 Credit Reporting Resource Guide 18 that was operative at the time they submitted their dispute letters (“Metro 2 guidelines” or 19 “guidelines”). Docket No. 42 at 18-19. The Metro 2 guidelines are maintained by the Consumer 20 Data Industry Association and are an industry standard for transmitting consumer credit data. Id. 21 at 18. Defendant contributed to the Metro 2 guidelines along with other credit reporting agencies 22 and stakeholders in the consumer credit reporting industry. Id. Plaintiffs submit that Defendant 23 must produce the Metro 2 guidelines because they are necessary to determine whether Defendant’s 24 reinvestigation was reasonable under the FCRA and to refute portions of Defendant’s threatened 25 Rule 11 motion. Docket No. 42 at 18-19. Defendant submits that it should not be compelled to 26 produce the Metro 2 guidelines because they are not relevant, Plaintiffs already possess a copy of 27 the Metro 2 guidelines, and the guidelines are not in Defendant’s possession and control because 28 only the Consumer Data Industry Association, not Defendant, has the authority to disclose the 5 Case 2:22-cv-01214-GMN-NJK Document 59 Filed 07/11/23 Page 6 of 11 1 guidelines. Docket No. 47 at 9. Plaintiffs reply that the copy of the Metro 2 guidelines in their 2 possession predates their dispute letters and alleged inaccurate reports and is therefore not the 3 operative copy of the guidelines for their claims. Docket No. 50 at 9-10. Plaintiffs further submit 4 that the guidelines are routinely produced in other lawsuits. Docket Nos. 42 at 18; 50 at 10. 5 Plaintiffs submit that the Metro 2 guidelines are relevant to their claim that Defendant 6 failed to reasonably reinvestigate their credit report disputes and to respond to Defendant’s Rule 7 11 letter. Docket No. 42 at 18-19. Defendant does not dispute this submission. See Docket No. 8 47. Defendant instead submits that the guidelines are irrelevant because it “has produced the actual 9 data transmitted in a credit report to third parties which shows that no balances were reported.” Id. 10 at 9 (emphasis omitted). Whether the balances reported by Defendant were accurate is an issue 11 not now before the Court. What is before the Court is whether the Metro 2 guidelines are “relevant 12 to any claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). 13 Plaintiffs’ complaint claims that Defendant failed to reasonably reinvestigate their disputed credit 14 reports. Docket No. 19 at 15-16. The Metro 2 guidelines are, therefore, relevant to either parties’ 15 claims or defenses and cannot be withheld on relevancy grounds. 16 Defendant submits that the Metro 2 guidelines are maintained by the Consumer Data 17 Industry Association and that only the association can grant access to the guidelines. Docket Nos. 18 42-12 at 2-3; 42-14 at 1; 47 at 9. To support this contention, Defendant references the fact that 19 “the CDIA website clearly states that only approved individuals can access the guidelines.” 20 Docket No. 47 at 9. Defendant, however, provides no further support for the submission that only 21 the Consumer Data Industry Association can produce the guidelines in relation to a lawsuit. Had 22 Defendant provided a confidentiality agreement outlining the consequences it would face for 23 producing the guidelines in response to a court order or subpoena, the Court might be able to 24 analyze the burden Defendant could face in producing the guidelines. Absent that, the Court is 25 left with the fact that the guidelines have been produced under seal in other cases in this District. 26 See Docket No. 42 at 19; 42-13 at 3. In light of this, Defendant has failed to meet the high standard 27 needed to show why relevant discovery should be avoided. 28 6 Case 2:22-cv-01214-GMN-NJK Document 59 Filed 07/11/23 Page 7 of 11 1 Moreover, a party responding to a request for production must produce any responsive 2 documents within the “party’s possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). The case 3 law “clearly provides that documents are deemed to be within the possession, custody or control 4 of a party and subject to a request for production if the party has actual possession, custody or 5 control or has the legal right to obtain the documents on demand.” Apple Inc. v. Wi-LAN Inc., 6 2017 WL 11680855, at *4 (S.D. Cal. Nov. 28, 2017) (quoting TetraVue, Inc. v. St. Paul Fire & 7 Marine Ins. Co., 2017 WL 1008788, at *4 (S.D. Cal. Mar. 17, 2017)). Defendant, as a user of the 8 Metro 2 guidelines, by necessity must have the guidelines in its custody or producible to it on 9 demand. The Metro 2 guidelines are, therefore, discoverable under Rule 34. 10 Defendant has suggested that Plaintiff can obtain the Metro 2 Guideline by subpoenaing 11 the Consumer Data Industry Association. Docket No. 42-14 at 2. This suggestion is without merit. 12 “As a party to this case, case law dictates that [Defendant] bear the burden of production, rather 13 than a third party.” Id. (quoting VirnetX, Inc. v. Apple Inc., 2014 WL 6979427, at *4 (N.D. Cal. 14 Mar. 21, 2014)). Defendant further submits that it need not produce the Metro 2 guidelines because 15 Plaintiffs already possess the guidelines. Docket No. 47 at 9. Plaintiffs, however, possess a copy 16 of the guidelines that predates their dispute letters. Docket No. 50 at 9. What Plaintiffs seek to 17 compel are the guidelines that were operative at the time they submitted their dispute letters. 18 Docket Nos. 42 at 18-19; 50 at 9-10. Plaintiffs, therefore, do not possess the iteration of the Metro 19 2 guidelines they seek from Defendant. Defendant must, therefore, produce the copy of the Metro 20 2 guidelines that was operative at the time Plaintiffs submitted their dispute letters to Defendant. 21 3. Identification of cases, deposition transcripts, and declarations relating to Defendant’s 22 post-bankruptcy reporting and the White v. Experian settlement 23 Plaintiffs further seek to compel Defendant to identify and produce any deposition 24 transcripts, testimony, or declarations of Defendant’s representative Mr. Orlowski. Docket No. 42 25 at 20-21. Plaintiffs also seek to compel Defendants to identify and produce any briefs or 26 communications regarding a settlement Defendant agreed to in the case White v. Experian. Id. at 27 21-23. The Court declines to compel Defendant to identify or produce these categories of 28 discovery. 7 Case 2:22-cv-01214-GMN-NJK Document 59 Filed 07/11/23 Page 8 of 11 1 As an initial matter, Plaintiffs’ claims are not based around any collective action theory. 2 Each claim is particular to each plaintiff. Given that each case presents a distinct set of facts from 3 any other case, Mr. Orlowski’s or Defendant’s testimony, briefs, or communications relating to 4 other cases cannot be relevant to Plaintiffs’ claims. See Turner v. The Paul Revere Life Ins. Co., 5 No. 2:14-cv-1205-JCM-VCF, 2015 WL 5097805, at *2 (D. Nev. Aug. 28, 2015). 6 Plaintiffs submit, however, that these categories of discovery are necessary to respond to 7 Defendant's forthcoming Rule 11 motion. Docket No. 42 at 20-23. To support this assertion, 8 Plaintiffs cite to other cases where Mr. Orlowski or Defendant offered testimony or adopted a legal 9 position that contradicts the representations made in this case. See id. These citations, however, 10 show that these categories of discovery requests are duplicative. Plaintiffs already possess 11 documents and authorities that contain the information they hope to glean from these categories of 12 discovery. Accordingly, Defendant need not identify and produce any deposition transcripts, 13 testimony, or declarations of Defendant’s representative Mr. Orlowski or identify and produce any 14 briefs or communications regarding a settlement Defendant agreed to in the case White v. Experian. 15 III. MOTION TO SEAL 16 Plaintiffs seek to seal Exhibits 7A, 7B, 7C, 8B, 9, 10, 11A, 11B, and 11C to their motion 17 to compel. Docket No. 44 at 2-3. See also Docket Nos. 42 (motion to compel); 43 (exhibits filed 18 under seal). Plaintiffs submit that Exhibits 7A, 7B, 7C, and 8B contain Plaintiffs’ confidential 19 financial and personal identifying information. Docket No. 44 at 3. Plaintiff submits that Exhibits 20 9, 10, 11A, 11B, and 11C have been designated as “Confidential” by Defendant. Id. Plaintiffs do 21 not oppose the sealing of Exhibits 9, 11A, 11B, and 11C. Id. Notwithstanding their submission 22 for why Exhibit 10 should be sealed, Plaintiffs oppose the sealing of this exhibit. Id. Plaintiffs 23 submit that Exhibit 10 should be unsealed because it contains information similar to documents 24 which have been publicly filed in other cases and because there is a public interest in having the 25 contents of Exhibit 10 accessible to consumers. Id. at 3-5. Pursuant to this Court’s orders, Docket 26 Nos. 17 at 2; 45, Defendant filed a response to Plaintiffs’ motion to seal, explaining why Exhibits 27 9, 10, 11A, 11B, and 11C are properly sealed. Docket No. 48. Defendant submits that Exhibits 28 11A, 11B, and 11C are properly sealed because they contain Plaintiffs’ confidential financial and 8 Case 2:22-cv-01214-GMN-NJK Document 59 Filed 07/11/23 Page 9 of 11 1 personal identifying information as well as Defendant’s trade secrets. Id. at 8. Defendant further 2 submits that Exhibits 9 and 10 are properly sealed because they contain Defendant’s confidential 3 business information, the public disclosure of which would harm Defendant’s competitive 4 standing. Id. at 4-7. 5 The general presumption is that the public has the right to access judicial filings. See, e.g., 6 Nixon v. Warner Commc’ns Inc., 435 U.S. 589, 597 (1978). Certain types of documents are 7 exempt from this presumption and have traditionally been kept secret. Kamakana v. City & Cnty. 8 of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). Ninth Circuit “case law has identified two 9 categories of documents that fall in this category: grand jury transcripts and warrant materials in 10 the midst of a pre-indictment investigation.” Id. The presumption of public access can, however, 11 be overcome for documents not traditionally kept secret. San Jose Mercury News, Inc. v. U.S. 12 Dist. Ct., 187 F.3d 1096, 1102 (9th Cir. 1999). 13 In determining whether to seal documents, the applicable standard “turns on whether the 14 materials are submitted in conjunction with a dispositive or non-dispositive motion.” Victory 15 Sports & Ent., Inc. v. Pedraza, 2019 WL 2578767, *1 (D. Nev. June 24, 2019). The sealing of 16 dispositive motions and related documents is evaluated under a “compelling reasons” standard. 17 Kamakana, 447 F.3d at 1179. Id. A party must support its motion to seal dispositive filings by 18 “articulat[ing] compelling reasons supported by specific factual findings.” Id. at 1178. Sealing 19 nondispositive motions requires a “particularized showing” under a “good cause” standard. Id. at 20 1180 (citing Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1138 (9th Cir. 2003). 21 Exhibits 7A, 7B, and 7C are Plaintiffs’ credit reports. Exhibit 8B is a set of credit denial 22 letters from Plaintiff Kamaliha Brewster. These exhibits contain Plaintiffs’ financial and personal 23 identifying information. The Court finds that these exhibits are, therefore, subject to sealing. See 24 Fed. R. Civ. P. 5.2. Exhibits 11A, 11B, and 11C are FFIs/FFRs for Plaintiffs. Though these 25 exhibits are difficult to interpret, they also contain Plaintiffs’ confidential financial and personal 26 identifying information. Accordingly, the Court finds that good cause exists to seal Exhibits 11A, 27 11B, and 11C. Exhibit 9 is Defendant’s Consumer Dispute and Disclosure policies. Defendant 28 submits that public disclosure of this exhibit would allow its competitors to profit from its 9 Case 2:22-cv-01214-GMN-NJK Document 59 Filed 07/11/23 Page 10 of 11 1 confidential internal procedures and innovations and could potentially enable third parties to 2 manipulate the credit reporting process. Docket No. 48 at 4-5. The Court is persuaded that the 3 public disclosure of Exhibit 9 “could lead to an improper use by competitors, ‘circumvent[ing] the 4 time and resources necessary in developing [the competitor’s] own practices and strategies.’” 5 Baker v. SeaWorld Entm’t, Inc., 2017 WL 5029612, at *5 (S.D. Cal. Nov. 3, 2017) (quoting 6 Algarin v. Maybelline, LLC, 2014 WL 690410, at *3 (S.D. Cal. Feb. 21, 2014)); see also 7 Kamakana, 447 F.3d at 1179 (quoting Nixon, 435 U.S. at 598) (“In general, ‘compelling reasons’ 8 sufficient to outweigh the public’s interest in disclosure and justify sealing court records exist 9 when such ‘court files might have become a vehicle for improper purposes,’ such as the use of 10 records to . . . release trade secrets”). Accordingly, the Court finds that good cause exists to retain 11 Exhibit 9 under seal. 12 Exhibit 10 is Defendant's User Guide, containing information on how to decode 13 Defendant’s FFIs/FFRs. Plaintiffs submit that Exhibit 10 should be unsealed because a similar 14 document from one of Defendant’s competitors has already been placed in the public record in 15 another case. Docket No. 44 at 3. Plaintiffs further submit that Exhibit 10 should be unsealed 16 because it contains information of vital public interest. Id. at 3-5. Defendant submits that a similar 17 document being publicly disclosed in another case does not support unsealing Exhibit 10 because 18 the broader context of the other document’s public disclosure is not known. Docket No. 48 at 7. 19 Defendant further submits that Exhibit 10 should be sealed because its public disclosure could 20 harm Defendant’s competitive standing and enable bad actors to manipulate the credit reporting 21 system. Id. at 6-7. 22 If a court determines that a particularized harm will result from documents being publicly 23 disclosed, the court must then “balance the public and private interests to decide whether” to seal 24 the relevant documents. In re Roman Catholic Archbishop of Portland in Ore., 661 F.3d 417, 424 25 (9th Cir. 2011) (quoting Phillips ex rel. Estate of Byrd v. General Motors Corp., 307 F.3d 1206, 26 1211 (9th Cir. 2002)). Factors to be considered in this balancing process are: 27 28 (1) whether disclosure will violate any privacy interests; (2) whether the information is being sought for a legitimate purpose or for an improper purpose; (3) whether disclosure of the information will cause a party embarrassment; (4) 10 Case 2:22-cv-01214-GMN-NJK Document 59 Filed 07/11/23 Page 11 of 11
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