-PAL U-Haul Co. of Nevada et al v. Gregory J. Kamer, Ltd. et al, No. 2:2006cv00618 - Document 135 (D. Nev. 2011)

Court Description: PROTECTIVE ORDER Granting Stipulation for Protective Order Governing Confidentiality of Documents and Other Information. Signed by Magistrate Judge Peggy A. Leen on 10/20/11. (Copies have been distributed pursuant to the NEF - ASB)

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-PAL U-Haul Co. of Nevada et al v. Gregory J. Kamer, Ltd. et al Doc. 135 Case 2:06-cv-00618-RCJ -PAL Document 120-3 1 2 3 4 5 6 7 Filed 09/28/11 Page 2 of 16 Dennis L. Kennedy Nevada Bar No. 1462 Kimberly R. McGhee Nevada Bar No. 9728 BAILEY˜KENNEDY 8984 Spanish Ridge Avenue Las Vegas, NV 89148-1302 Phone: (702) 562-8820 Fax: (702) 562-8821 dkennedy@baileykennedy.com kmcghee@baileykennedy.com 11 Scot L. Claus Arizona Bar No. 014999 MARISCAL, WEEKS, McINTYRE & FRIEDLANDER, P.A. 2901 North Central Avenue, Suite 200 Phoenix, Arizona 85012-2705 Phone: (602) 285-5000 Fax: (602) 285-5100 scot.claus@mwmf.com 12 Attorneys for Plaintiffs 8 9 10 13 UNITED STATES DISTRICT COURT 14 DISTRICT OF NEVADA 15 16 17 18 19 20 21 22 23 24 ) ) ) ) ) Plaintiffs, ) ) vs. ) ) GREGORY J. KAMER, LTD. d/b/a KAMER ZUCKER & ABBOTT, a Nevada ) ) professional corporation; DEBRA WILCHER, a Nevada resident; NATHAN ) ) W. ALBRIGHT, a Virginia resident; ) STEVEN WAMSER, a Nevada resident; ) DOES 1-10, inclusive; and ROE ) CORPORATIONS 1-10, inclusive, ) ) Defendants. ) ) U-HAUL CO. OF NEVADA, INC., a Nevada corporation; and U-HAUL INTERNATIONAL, INC., a Nevada corporation, Case No.: 2:06-cv-618-RCJ-PAL STIPULATION AND PROTECTIVE ORDER GOVERNING CONFIDENTIALITY OF DOCUMENTS AND OTHER INFORMATION 25 BAILEY KENNEDY 8984 SPANISH RIDGE AVENUE LAS VEGAS, NEVADA 89148 1 PHONE (702) 562-8820 FAX (702) 562-8821 Dockets.Justia.com Case 2:06-cv-00618-RCJ -PAL Document 120-3 Filed 09/28/11 Page 3 of 16 1 The parties by and through their respective undersigned counsel do hereby stipulate and 2 agree that the Court may enter a Protective Order Governing Confidentiality of Documents and 3 Other Information to expedite the flow of discovery material, facilitate the prompt resolution of 4 disputes over confidentiality; protect adequately material entitled to be kept confidential and 5 privileged as proprietary or otherwise considered confidential or privileged company policies 6 and procedures and to ensure that protection is afforded only to material or information so 7 entitled. 8 9 10 It is, pursuant to the Court’s authority under F.R.C.P. 26(c) and with the consent of the parties, hereby stipulated and agreed that the following terms and conditions applicable to discovery in this matter be entered by order of the Court: 11 A. 12 Except with the prior written consent of the party or other person originally designating a NONDISCLOSURE OF STAMPED CONFIDENTIAL DOCUMENTS. 13 document to be stamped as a confidential document, or as hereinafter provided under this order, 14 no stamped confidential document may be disclosed to any person, except as authorized by this 15 Order. 16 A “stamped confidential document” means any document which bears the legend or 17 which shall otherwise have had the legend recorded upon it in any way that brings to the 18 attention of a reasonable examiner. “Confidential-Subject to Protective Order” signifies that the 19 document so marked contains the information believed to be subject to a protection under 20 Federal Rules of Civil Procedure 26(c), under the various policies of the affected companies or 21 agencies whose documents or information is being produced, or otherwise under federal or state 22 law. For purposes of this order, the term “document” means all written, recorded or graphic 23 material, whether produced or created by a party or another person pursuant to Rule 34, 24 subpoena, by agreement or otherwise. Interrogatory answers, responses to requests for 25 admissions, deposition transcripts and exhibits, pleadings, motions, affidavits and briefs that BAILEY KENNEDY 8984 SPANISH RIDGE AVENUE LAS VEGAS, NEVADA 89148 PHONE (702) 562-8820 FAX (702) 562-8821 2 Case 2:06-cv-00618-RCJ -PAL Document 120-3 Filed 09/28/11 Page 4 of 16 1 summarize or contain materials entitled to protection that may be accorded status as a stamped 2 confidential document, but, to the extent feasible, shall be prepared in such a manner that the 3 confidential information is bound separately from that not entitled to protection. In the event a 4 party examines or inspects the processes or equipment operations of a company, the notes, data 5 compilations, photographs, videotaping or other type of recordation shall be deemed a document 6 as defined herein. 7 B. 8 Notwithstanding paragraph A, stamped confidential documents may be disclosed to the 9 PERMISSABLE DISCLOSURES. parties and counsel for the parties in the action who are effectively engaged in the conduct of this 10 litigation; to the partners, associates, secretaries, paralegals, assistants and employees of such 11 counsel to the extent reasonably necessary to render professional services in the litigation; to 12 persons with prior knowledge of the documents or the confidential information contained 13 therein, and their agents; and to Court officials involved in this litigation (including Court 14 reporters, persons operating video recording equipment at depositions, and any special master 15 appointed by the Court). Subject to the provisions of paragraph (c) below, such documents may 16 also be disclosed: 17 (a) 18 19 To any person designated by the Court in the interest of justice, upon such terms as the Court may deem proper; (b) To persons noticed for depositions or designated as trial witnesses to the 20 extent reasonably necessary in preparing to testify; to outside consultants or experts retained for 21 the purpose of assisting counsel in litigation; to employees and parties involved solely in one or 22 more aspects of organizing, filing, coding, converting, storing, or retrieving data or designating 23 programs for data connected with these actions, including the performance of such duties in 24 relation to a computerized litigation support system; and to employees at third-party contracts to 25 BAILEY KENNEDY 8984 SPANISH RIDGE AVENUE LAS VEGAS, NEVADA 89148 PHONE (702) 562-8820 FAX (702) 562-8821 3 Case 2:06-cv-00618-RCJ -PAL Document 120-3 Filed 09/28/11 Page 5 of 16 1 perform one or more of these functions; provided, however, that in all such cases the individual 2 to whom disclosure is to be made has signed and filed with the Court a form containing: 3 (1) a recital that the signatory has read and understands this order; 4 (2) a recital that the signatory understands that unauthorized 5 disclosures of the stamped confidential documents constitute contempt of Court; 6 7 (3) jurisdiction of this Court for enforcement of this stipulation and order. 8 9 a statement that the signatory consents to submit to the personal (c) Before disclosing a stamped confidential document to any person listed in subparagraph (a) or (b), the party wishing to make such disclosure shall give at least ten (10) 10 days advanced notice in writing to the counsel who has designated the information as 11 confidential, stating the names and addresses to the persons to whom the disclosure will be made 12 [however, if the disclosure is to be made to a consulting expert whose identity need not be 13 disclosed, counsel will so advise that an undisclosed consulting expert is going to receive the 14 documents or information, and make sure that the undisclosed consulting expert is bound by this 15 stipulation and order, by maintaining a signed affidavit by the consulting expert that he or she 16 will abide by all terms and conditions of this stipulation and order], identifying with particularly 17 the document to be disclosed and stating the purpose of such disclosure. If within the ten (10) 18 day period a motion is filed objecting to the proposed disclosure, the proposal is not permissible 19 until the Court has denied such motion. The Court will deny the motion unless the objecting 20 party shows good cause why the proposed disclosure should not be permitted. 21 C. 22 The parties shall meet and confer in a good faith effort to resolve any dispute concerning DECLASSIFICATION. 23 the propriety of marking documents as Confidential-Subject to Protective Order without court 24 intervention. However, if the parties are unable to agree, a party (or entity permitted by the Court 25 to intervene for such purposes) may apply to the Court for a ruling that a document (or categories BAILEY KENNEDY 8984 SPANISH RIDGE AVENUE LAS VEGAS, NEVADA 89148 PHONE (702) 562-8820 FAX (702) 562-8821 4 Case 2:06-cv-00618-RCJ -PAL Document 120-3 Filed 09/28/11 Page 6 of 16 1 of documents) stamped as confidential is not entitled such status and protection. The party or 2 other person that designated the document as confidential shall be given notice of the application 3 and an opportunity to respond. To maintain confidential status, the proponent of the 4 confidentiality shall, by a preponderance of evidence, establish that there is good cause for the 5 document to have such protection. 6 D. 7 CONFIDENTIAL INFORMATION IN DEPOSITIONS. (a) A deponent may during the deposition be shown and examined about 8 stamped confidential documents if the deponent already knows the confidential information 9 contained therein or if the provision of paragraphs B(c) are complied with. Deponents shall not 10 retain or copy portions of a transcript of their depositions that contain confidential information 11 not provided by them or the entities that they represent unless they sign the form described in 12 paragraph B(b). A deponent who is not a party or a representative of a party shall be furnished a 13 copy of this order before being examined about or asked to produce, potentially confidential 14 documents. 15 (b) Parties (and deponents) may, within fifteen (15) days after first receiving a 16 deposition transcript, in any form, including electronic or hard copy, designate pages of the 17 transcript (and exhibits thereto) as confidential. Confidential information within the deposition 18 transcript may be designated by underlining the portions of the pages that are confidential and 19 marking such pages with a following legend: “Confidential Subject to Protection Order.” 20 Absent an agreement otherwise, until expiration of the fifteen (15) day period, the entire 21 deposition will be treated as subject to protection against disclosure under this order. If no party 22 or deponent timely designates confidential information in a deposition, then neither the transcript 23 nor any of the exhibits thereto will be treated as confidential, except that any exhibit to such 24 transcript, if a stamped confidential document prior to the taking of the subject deposition, will 25 remain confidential; if timely designation is made, the confidential portions and exhibits shall be BAILEY KENNEDY 8984 SPANISH RIDGE AVENUE LAS VEGAS, NEVADA 89148 PHONE (702) 562-8820 FAX (702) 562-8821 5 Case 2:06-cv-00618-RCJ -PAL Document 120-3 Filed 09/28/11 Page 7 of 16 1 filed or held under seal separate from the portions and exhibits not so marked. Confidential 2 information at trial subject to Federal rules of evidence, stamped confidential documents and 3 other confidential information may be offered into evidence at trial or any Court hearing, 4 provided the proponent of the evidence gives five (5) days advance notice to the counsel, for the 5 party that designated the information as confidential. Any party may move the Court for an 6 order that the evidence be received in camera or under the conditions to prevent unnecessary 7 disclosure. The Court will then determine whether the proffered evidence should continue to be 8 treated as confidential information and, if so, or what protection, if any, may be afforded to such 9 information at trial. 10 E. 11 If another Court or administrative agency subpoenas or orders production of stamped SUBPOENA BY OTHER COURTS OR AGENCIES. 12 confidential documents that a party has obtained under the terms of this order, such parties shall 13 forthwith promptly notify the counsel for the party who designated the document as confidential 14 of the pendency of such subpoena or order. 15 F. 16 Stamped confidential documents may not be filed with the clerk except when required in FILING. 17 connection with filings or other matters pending before the Court. If filed, they shall be filed 18 under SEAL and shall remain SEALED while in the office of the clerk so long as they retain 19 their status as stamped confidential documents. 20 G. 21 The parties to this action are permitted to examine all confidential documents, but agree 22 CLIENT REVIEW. not to divulge or use the same unless otherwise permitted by this stipulation and order. 23 H. 24 If a document contains information so sensitive that it should not be copied by anyone, 25 BAILEY KENNEDY 8984 SPANISH RIDGE AVENUE LAS VEGAS, NEVADA 89148 PHONE (702) 562-8820 FAX (702) 562-8821 PROHIBITIVE COPYING. including counsel or counsel representatives for the parties, it shall bear the additional legend 6 Case 2:06-cv-00618-RCJ -PAL Document 120-3 Filed 09/28/11 Page 8 of 16 1 “Copying Prohibited.” Application for relief from this restriction against copying may be made 2 to the Court with notice to counsel so designating the document. 3 I. 4 Persons obtaining access to stamped confidential documents under this order shall use the USE. 5 information only for preparation in trial of this specific litigation (including appeals and re- 6 trials), and shall not use such information for any other purpose, including, but not limited to, 7 business, personal, separate litigation, or judicial procedures. 8 J. NON-TERMINATION. 9 The provisions of this order shall not terminate at the conclusion of this action. 10 Within 60 days after the final conclusion of all aspects of this litigation, stamped confidential 11 documents and all copies of the same shall be returned to the counsel for the party that produced 12 such documents, or, at the option of the producer (if it retains at least one copy of the same) 13 destroyed. All counsel of record shall submit certification of compliance herewith and shall 14 deliver the same to counsel for the party who produced the documents, not more than 60 days 15 after the final termination of this litigation. 16 K. 17 Nothing in this order shall prevent any party or other person seeking modification of this 18 MODIFICATION PERMITTED. order or from objecting to discovery that it believes to be otherwise improper. 19 L. 20 The attorneys of record are responsible for employing reasonable measures, consistent RESPONSIBILITY OF ATTORNEYS. 21 with this order, to control duplication of, access to, and distribution of copies of stamped 22 confidential documents. Parties shall not duplicate any stamped confidential documents except 23 for working copies, copies for deposition exhibits and copies for filing with the Court under 24 SEAL. 25 /// BAILEY KENNEDY 8984 SPANISH RIDGE AVENUE LAS VEGAS, NEVADA 89148 PHONE (702) 562-8820 FAX (702) 562-8821 7 Case 2:06-cv-00618-RCJ -PAL Document 120-3 1 M. 2 Filed 09/28/11 Page 9 of 16 NO WAIVER. (a) Review of confidential documents and information by any persons 3 pursuant to this Order shall not waive the confidentiality of the documents or objections to 4 production. 5 (b) The inadvertent, unintentional, or in camera disclosure of confidential 6 documents and information shall not, under any circumstances, be deemed a waiver in whole or 7 in part, of any persons claim of confidentiality. 8 N. 9 Nothing contained in this confidentiality order and no action taken pursuant to it shall OBJECTIONS RESERVED. 10 prejudice the right to any party to contest alleged relevancy, admissibility, or discoverability of 11 confidential documents and information sought. 12 13 DATED this 28th day of September, 2011. 14 BACKUS, CARRANZA & BURDEN 15 By: 16 17 18 19 20 21 /s/ Leland Eugene Backus Leland Eugene Backus, Esq. Nevada Bar No. 473 Edgar Carranza, Esq. Nevada Bar No. 5902 James J. Conway, Esq. Nevada Bar No. 11789 3050 South Durango Drive Las Vegas, Nevada 89117 Attorneys for Defendants Gregory J. Kamer, Ltd. d/b/a Kamer Zucker Abbott 22 23 /// 24 /// 25 /// BAILEY KENNEDY 8984 SPANISH RIDGE AVENUE LAS VEGAS, NEVADA 89148 PHONE (702) 562-8820 FAX (702) 562-8821 8 Case 2:06-cv-00618-RCJ -PAL Document 120-3 1 Filed 09/28/11 Page 10 of 16 DATED this 28th day of September, 2011. 2 BAILEY˜KENNEDY 3 By: 4 5 6 7 8 DATED this 28th day of September, 2011. 9 MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER, P.A. 10 11 By: 12 13 14 15 /s/ Kimberly McGhee Dennis Kennedy, Esq. Kimberly McGhee, Esq. 8984 Spanish Ridge Avenue Las Vegas, NV 89148-1302 Attorneys for Plaintiffs /s/ Scot Claus Scot L. Claus, Esq. 2901 N. Central Avenue, Suite 200 Phoenix, AZ 85012-2705 Attorneys for Plaintiffs DATED this 28th day of September, 2011. ALVERSON TAYLOR MORTENSEN & SANDERS 16 17 By: 18 19 20 /s/ Nathan Reinmiller Nathan R. Reinmiller, Esq. Sabrina G. Mansanas, Esq. 7401 W. Charleston Blvd. Las Vegas, NV 89117-1401 Attorneys for Defendant Debra Wilcher 21 22 23 /// 24 /// 25 /// BAILEY KENNEDY 8984 SPANISH RIDGE AVENUE LAS VEGAS, NEVADA 89148 PHONE (702) 562-8820 FAX (702) 562-8821 9 Case 2:06-cv-00618-RCJ -PAL Document 120-3 1 2 Filed 09/28/11 Page 11 of 16 DATED this 28th day of September, 2011. NORMAN KIRSHMAN, P.C. 3 4 5 6 7 By: /s/ Norman Kirshman Norman Kirshman, Esq. 700 S. Third St. Las Vegas, NV 89101 Attorneys for Defendant, Jennifer Ann Cory, as Executrix of the Estate of Nathan W. Albright 8 9 ORDER 10 The parties jointly submitted a Stipulation and Proposed Protective Order Governing 11 Confidential Documents and Other Information the terms and conditions of which the Court 12 reviewed and does hereby approve and order adopted under F.R.C.P. 26(c). This order modifies 13 the parties’ stipulated protective order with respect to any documents filed or submitted with any 14 dispositive motions filed in this case, and with respect to any documents the parties seek to 15 maintain as confidential for purposes of identification in the joint pretrial order. 16 The Court has approved the parties’ blanket protective order to facilitate the parties’ 17 discovery exchanges. However, the parties have not made an individualized showing that a 18 protective order is necessary to protect their secret or other confidential information or 19 established that disclosure would cause an identifiable, significant harm. The Ninth Circuit has 20 recently examined the presumption of public access to judicial files and records and held that 21 parties seeking to maintain the secrecy of presumption of public access. See Kamakana v. City 22 and County of Honolulu 447 F.3d 1172, 1180 (9th Cir. 2006). Accordingly, the Court has 23 approved the parties’ stipulation, but will require that any party seeking to seal attachments to a 24 motion for summary judgment or other dispositive motion or documents identified in the joint 25 pretrial order shall be required to seek further leave of Court. BAILEY KENNEDY 8984 SPANISH RIDGE AVENUE LAS VEGAS, NEVADA 89148 PHONE (702) 562-8820 FAX (702) 562-8821 10 Case 2:06-cv-00618-RCJ -PAL Document 120-3 Filed 09/28/11 Page 12 of 16 1 A. Protective Orders 2 Fed. R. Civ. P. 26(c) permits the Court in which an action is pending to “make any order 3 which justice requires to protect the party or person from annoyance, embarrassment, oppression 4 or undue burden or expense” upon motion by a party or a person from whom discovery is sought. 5 The burden of persuasion under Fed. R. Civ. P. 26(c) is on the party seeking the protective order. 6 Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121, (3d Cir. 1986). To meet that burden of 7 persuasion, the party seeking the protective order must show good cause by demonstrating a 8 particular need for the protection sought. Beckman Indus., Inc., v. Int’l. Ins. Co., 966 F.2d 470, 9 476 (9th Cir. 1992). Rule 26(c) requires more than “broad allegations of harm, unsubstantiated 10 by specific examples or articulated reasoning.” Id., citing Cipollone v. Liggett. “A party 11 asserting good cause bears the burden, for each particular document it seeks to protect, of 12 showing that prejudice or harm will result if no protective order is granted.” Foltz v. State Farm, 13 331 F.3d 1122, 1130 (9th Cir. 2003), citing San Jose Mercury News, Inc., v. District Court, 187 14 F3d 1096, 1102 (9th Cir. 1999). 15 In Seattle Time Co. v. Rhinehart, the Supreme Court interpreted the language of Fed. R. 16 Civ. P. 26(c) as conferring “broad discretion on the trial Court to decide when a protective order 17 is appropriate and what degree of protection is required.” 467 U.S. 20, 36 (1984). The Supreme 18 Court acknowledged that the “trial Court is in the best position to weigh fairly the competing 19 needs and interests of the parties affected by discovery. The unique character of the discovery 20 process requires that the trial Court have substantial latitude to fashion protective orders.” Id. 21 Although the trial Court has broad discretion in fashioning protective orders, the Supreme Court 22 has also recognized “a general right to inspect and copy public records and documents, including 23 judicial records and documents.” Nixon v. Warner Communications, 435 U.S. 589, 597 (1978). 24 However, the common law right to inspect and copy judicial records is not absolute. Id. Thus, 25 the Supreme Court concluded, “[e]very Court has supervisory power of its own records and files, BAILEY KENNEDY 8984 SPANISH RIDGE AVENUE LAS VEGAS, NEVADA 89148 PHONE (702) 562-8820 FAX (702) 562-8821 11 Case 2:06-cv-00618-RCJ -PAL Document 120-3 Filed 09/28/11 Page 13 of 16 1 and access has been denied where the Court files might have become a vehicle for improper 2 purpose.” Id. 3 B. The Presumption of Public Access 4 Unless Court records are of the type “traditionally kept secret” the Ninth Circuit 5 recognizes a “strong presumption in favor of access.” Foltz v. State Farm Mutual Auto 6 Insurance Company, 331 F.3d 1122, 1135 (citing Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th 7 Cir. 1995)). Grand jury transcripts and warrant materials involved in pre-indictment 8 investigations are two categories of documents and records which have “traditionally been kept 9 secret for important policy reasons.” Times Mirror Co. v. United States, 873 F.2d 1210, 1219 10 (9th Cir. 1989). Although the federal common law right of access exists, it “does not mandate 11 disclosure in all cases.” San Jose Mercury News, Inc., 187 F.3d at 1102. The strong 12 presumption in favor of public access recognized by the Ninth Circuit “can be overcome by 13 sufficiently important countervailing interest.” Id. 14 15 1. Pretrial Discovery In the Ninth Circuit, “[i]t is well-established that the fruits of pretrial discovery are, in the 16 absence of a Court order to the contrary, presumptively public.” San Jose Mercury News v. 17 United States District Court, 187 F.3d 1096, 1103 (9th Cir. 1999). Thus, the Ninth Circuit 18 concluded “[g]enerally, the public can gain access to litigation documents and information 19 produced during discovery unless the party opposing disclosure shows ‘good cause’ why a 20 protective order is necessary.” Phillips v. General Motors, 307 F.3d 1206, 1210 (9th Cir. 2002). 21 “For good cause to exist, the party seeking protection bears the burden of showing specific 22 prejudice or harm will result if no protective order is granted.” Id. at 1210-11. Or, as the Ninth 23 Circuit articulated the standard in Foltz, “[t]he burden is on the party requesting a protective 24 order to demonstrate that (1) the material in question is a trade secret or other confidential 25 information within the scope of Rule 26(c), and (2) disclosure would cause an identifiable, BAILEY KENNEDY 8984 SPANISH RIDGE AVENUE LAS VEGAS, NEVADA 89148 PHONE (702) 562-8820 FAX (702) 562-8821 12 Case 2:06-cv-00618-RCJ -PAL Document 120-3 Filed 09/28/11 Page 14 of 16 1 significant harm.” Foltz at 1131, quoting Deford v. Schmid Prods. Co., 120 F.R.D. 648, 653 (D. 2 Md. 1987). “If a Court finds particularized harm will result from disclosure of information to the 3 public, then it balances the public and private interests to decide whether a protective order is 4 necessary.” Id. at 1211 (citing Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 5 1995)). 6 7 2. Sealed Discovery Documents In Phillips, the Ninth Circuit carved out an exception to the presumption of public access, 8 holding that the presumption does not apply to materials filed with the Court under seal subject 9 to a valid protective order. 307 F. 3d at 1213. The Phillips decision relied on the Seattle Times 10 decision in concluding that protective orders restricting disclosure of discovery materials which 11 are not admitted in evidence do not violate the public right of access to traditionally public 12 sources of information. Id. at 1213 (quoting, Seattle Times, 467 U.S. at 33). The Ninth Circuit 13 reasoned that the presumption of public access was rebutted because a district Court had already 14 determined that good cause existed to protect the information from public disclosure by 15 balancing the need for discovery against the need for confidentiality in issuing the protective 16 order. Id. Therefore, “when a party attaches a sealed discovery document to a non-dispositive 17 motion, the usual presumption of the public’s right of access is rebutted.” 18 19 3. Materials Attached to Dispositive Motions The Ninth Circuit recently and comprehensively examined the presumption of public 20 access to judicial files and records in Kamakana v. City and County of Honolulu, 447 F.3d 1172 21 (9th Cir. 2006). There, the Court recognized that different interests are at stake in preserving the 22 secrecy of materials produced during discovery, and materials attached to dispositive motions. 23 Citing Phillips and Foltz, the Kamakana decision reiterated that a protective order issued under 24 the Rule 26(c) may be issued once a particularized showing of good cause exists for preserving 25 the secrecy of discovery materials. “Rule 26(c) give the district Court much flexibility in BAILEY KENNEDY 8984 SPANISH RIDGE AVENUE LAS VEGAS, NEVADA 89148 PHONE (702) 562-8820 FAX (702) 562-8821 13 Case 2:06-cv-00618-RCJ -PAL Document 120-3 Filed 09/28/11 Page 15 of 16 1 balancing and protecting the interests of private parties.” 447 F.3d at 1180. The Kamakana 2 Court, therefore, held that a “good cause” showing is sufficient to seal documents produced in 3 discovery. Id. 4 However, the Kamakana decision also held that a showing of “compelling reasons” is 5 needed to support the secrecy of documents attached to dispositive motions. A showing of 6 “good cause” does not, without more, satisfy the “compelling reasons” test required to maintain 7 the secrecy of documents attached to dispositive motions. Id. The Court found that: 8 13 Different interests are at stake with the right of access than with Rule 26(c); with the former, the private interests of the litigants are not the only weights on the scale. Unlike private materials unearthed during discovery, judicial records are public documents almost by definition, and the public is entitled to access by default. (Citation omitted). This fact sharply tips the balance in favor of production when a document formally sealed for good cause under Rule 26(c) becomes part of the judicial record. Thus, a “good cause” showing alone will not suffice to fulfill the “compelling reasons” standard that a party must meet to rebut the presumption of access to dispositive pleadings and attachments. 14 Id. Kamakana recognized that “compelling reasons” sufficient to outweigh the public’s interests 15 in disclosure and justify sealing records exist when our records may be used to gratify private 16 spite, permit public scandal, circulate libelous statements, or release trade secrets. Id. at 1179 17 (internal quotations omitted). However, “[t]he mere fact that the production of records may lead 18 to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, without 19 more, compel the Court to seal its records.” Id, citing, Foltz, 331 F.3d at 1136. To justify 20 sealing documents attached to dispositive motions, a party is required to present articulable facts 21 identifying the interests favoring continuing secrecy, and show that these specific interests 22 overcome the presumption of public access by outweighing the public’s interests in 23 understanding the judicial process. Id. at 1181 (internal citations and quotations omitted). 24 /// 25 /// 9 10 11 12 BAILEY KENNEDY 8984 SPANISH RIDGE AVENUE LAS VEGAS, NEVADA 89148 PHONE (702) 562-8820 FAX (702) 562-8821 14 Case 2:06-cv-00618-RCJ -PAL Document 120-3 1 2 Filed 09/28/11 Page 16 of 16 For all of the foregoing reasons, IT IS ORDERED: 3 1. No documents which are filed with the Court as attachments to a summary judgment 4 or other dispositive motion, or documents which are identified in the joint pretrial 5 order, may be filed under seal unless the proponent seeking protected status of the 6 document(s) establishes “compelling reasons” to rebut the presumption of public 7 access. 8 9 2. Any party seeking to seal attachments to a motion for summary judgment or other dispositive motion filed with the Court, or documents which are identified in the joint 10 pretrial order, shall submit a separate memorandum of points and authorities which 11 presents articulable facts identifying the interests favoring continuing the secrecy of 12 the attachments, and shows that these specific interests outweigh the public’s interests 13 in disclosure sufficient to overcome the presumption of public access to dispositive 14 pleadings and attachments. 15 3. Any application to seal documents attached to a motion for summary judgment or 16 other dispositive motion, or documents identified in the joint pretrial order, shall be 17 served on opposing counsel together with the documents proposed to be filed under 18 seal. Opposing counsel shall have fifteen days from service of any application to 19 seal documents attached to a motion for summary judgment or other dispositive 20 motion, or documents identified in the joint pretrial order, in which to file a response. 21 October Dated this 20th day of day _____________, 2011. _____ 22 23 24 ______________________________ PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE 25 BAILEY KENNEDY 8984 SPANISH RIDGE AVENUE LAS VEGAS, NEVADA 89148 PHONE (702) 562-8820 FAX (702) 562-8821 15

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