National Union Fire Insurance Company of Pittsburgh, PA v. Classic Plumbing, Inc. et al, No. 2:2009cv00783 - Document 203 (D. Nev. 2013)

Court Description: ORDER Granting 199 Motion to Seal. The Clerk of Court shall file UNDER SEALthe following Docket Nos.: 197-2, 198-7, 198-8, 198-9, 198-10 and 198-11. FURTHER ORDERED that the Clerk of Court shall attach as EXHIBITS to the Declaration 198 of Rick Ratz in Support of National Fire & Marine Insurance Company's Opposition to Sharp Plumbing, Inc.'s Motion for Summary Judgment, the following Docket Nos.: 197-2, 198-7, 198-8, 198-9, 198-10 and 198-11. Thereafter, the Clerk of Court is directed to SEAL the entire Declaration 198 of Rick Ratz. Signed by Judge Gloria M. Navarro on 2/13/13. (Copies have been distributed pursuant to the NEF - MMM)
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National Union Fire Insurance Company of Pittsburgh, PA v. Classic Plumbing, Inc. et al Doc. 203 1 Dennis L. Kennedy (Nevada Bar No. 1462) Sarah E. Harmon (Nevada Bar No. 8106) 2 BAILEY KENNEDY 8984 Spanish Ridge Avenue 3 Las Vegas, Nevada 89148-1302 Telephone: (702) 562-8820 4 Facsimile: (702) 562-8821 E-mail: dkennedy@baileykennedy.com 5 sharmon@baileykennedy.com 6 Deborah L. Stein (pro hac vice) K. Lucy Atwood (pro hac vice) 7 Peter R. Jordan (pro hac vice) SIMPSON THACHER & BARTLETT LLP 8 1999 Avenue of the Stars, 29th Floor Los Angeles, CA 90067 9 Telephone: (310) 407-7500 Facsimile: (310) 407-7502 10 E-mail: dstein@stblaw.com katwood@stblaw.com 11 pjordan@stblaw.com 12 Attorneys for Third-Party Defendant/Counterclaimant NATIONAL FIRE & MARINE INSURANCE COMPANY 13 14 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 15 16 NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, a 17 Pennsylvania corporation, 18 19 Plaintiff, v. 20 SHARP PLUMBING, INC., a Nevada corporation and DOES 1 through 50, inclusive, 21 Defendants. 22 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:09-cv-00783-GMN-GWF NATIONAL FIRE & MARINE INSURANCE COMPANY’S UNOPPOSED MOTION TO FILE DOCUMENTS UNDER SEAL MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF [PROPOSED] ORDER AND ORDER 23 24 25 26 27 Dockets.Justia.com 1 SHARP PLUMBING, INC., a Nevada corporation, 2 Counter-Claimant, 3 v. 4 NATIONAL UNION FIRE INSURANCE 5 COMPANY OF PITTSBURGH, PA, a Pennsylvania corporation; DOES 1 through 100, 6 inclusive, 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ) ) ) ) ) ) ) ) ) ) ) ) Counter-Defendants, ) ________________________________________ ) SHARP PLUMBING, INC., a Nevada ) corporation, ) ) Third-Party Plaintiff, ) ) v. ) ) NATIONAL FIRE & MARINE INSURANCE ) COMPANY, a Nebraska corporation; DOES 1 ) through 100, inclusive, ) ) Third-Party Defendants. ) ) ) NATIONAL FIRE & MARINE INSURANCE ) COMPANY, a Nebraska corporation, ) ) Counter-Claimant, ) ) v. ) ) SHARP PLUMBING, INC., a Nevada ) corporation, ) ) Counter-Defendant. ) ) ) 1 UNOPPOSED MOTION TO FILE DOCUMENTS UNDER SEAL 2 National Fire & Marine Insurance Company (“National Fire”), by and through its 3 undersigned counsel, respectfully moves pursuant to Rule 5.2(d) of the Federal Rules of Civil 4 Procedure and Docket Numbers 101 and 102, for leave to remove the following documents from 1 5 public view on Pacer and re-file the following documents under seal. This unopposed motion is 6 made on the grounds that the documents are protected by the attorney-client privilege and/or the 7 attorney work product doctrine or constitute protected communications involving settlement 2 8 negotiations: 1. Exhibit 7 to the Declaration of Rick Ratz: a letter from Martin Shives 9 10 to Craig Marquiz and Henry Sharp dated September 22, 2009, produced by National Fire 11 in this litigation and bearing Bates numbers NF 004557 59 (Dkt. No. 198-7); 2. Exhibit 8 to the Declaration of Rick Ratz: a letter from class counsel 12 13 to Martin Shives, dated October 29, 2009, produced by National Fire in this litigation 14 and bearing Bates numbers NF 013734 35 (Dkt. No. 198-8); 3. Exhibit 9 to the Declaration of Rick Ratz: an email from Martin 15 16 Shives to Craig Marquiz, dated November 9, 2009, produced by National Fire in this 17 litigation and bearing Bates numbers NF 013487 89 (Dkt. No. 198-9); 4. Exhibit 10 to the Declaration of Rick Ratz: an email from Charlie Luh 18 19 to Nathan Higgs dated November 9, 2009, produced by National Fire in this litigation 20 and bearing Bates number NF 013482 (Dkt. No. 198-10); 21 22 23 24 25 26 1 Counsel for Sharp Plumbing, Inc. has informed National Fire’s counsel that it does not oppose this request to file certain exhibits under seal. 2 These documents were inadvertently filed on the Court’s CM/ECF system on February 4, 2013. 27 1 1 5. Exhibit 11 to the Declaration of Rick Ratz: an email from Bill 2 Coulthard dated January 28, 2010, produced by National Fire in this litigation and 3 bearing Bates numbers NF 006957 59 (Dkt. No. 198-11); 4 6. Exhibit B to the Declaration of Peter Jordan: an excerpt from the 5 transcript of the August 29, 2012 deposition of Martin Shives (Dkt. No. 197-2). 6 (Collectively, the “Exhibits.”) 7 This motion is based upon the accompanying memorandum of points and 8 authorities and the papers and pleadings on file in this case including the parties’ 9 Stipulated Protective Order (Dkt. No. 101) and the Court’s Protective Order Governing 10 the Confidentiality of Documents (Dkt. No. 102). 11 12 MEMORANDUM OF POINTS & AUTHORITIES On August 24, 2011, the Court entered the parties’ Stipulated Protective Order (Dkt. No. 13 101) and also issued a Protective Order Governing the Confidentiality of Documents (Dkt. No. 14 102). Pursuant to these Orders, National Fire respectfully moves to remove the Exhibits from 15 public view on Pacer and refile under seal. 16 Pursuant to Federal Rule of Civil Procedure 5.2(d), “[t]he court may order that a filing be 17 made under seal without redaction.” “[A]lthough the common law right creates a strong 18 presumption in favor of access, the presumption can be overcome by sufficiently important 19 countervailing interests.” San Jose Mercury News, Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1102 (9th 20 Cir. 1999). A party seeking to seal a judicial document must “articulate compelling reasons 21 supported by specific factual findings that outweigh the general history of access and the public 22 policies favoring disclosure.” Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th 23 Cir. 2006) (citations omitted) (internal quotation marks omitted). 24 The Exhibits relate to National Fire’s Opposition to Sharp’s Motion for Summary 25 Judgment (Dkt. No. 196). Thus, under Kamakana, a “compelling reason” must be provided to file 26 the documents under seal. The Exhibits disclose, reveal, or otherwise relate to information 27 2 1 protected by the attorney-client privilege and attorney work product doctrine. Courts in this 2 District have previously held that protection of “the attorney-client privilege and the work-product 3 doctrine outweighs the public interest in accessing the courts” and constitutes a compelling need. 4 See Asdale v. Int'l Game Tech., No. 3:04-CV-703-RAM, 2010 WL 2161930 (D. Nev. May 28, 5 2010) (granting motion to maintain the seal of documents protected by the attorney-client privilege 6 and attorney work product doctrine). See also Phillips ex rel. Estates of Byrd v. Gen. Motors 7 Corp., 307 F.3d 1206, 1212 (9th Cir. 2002) (recognizing that “courts have consistently granted 8 protective orders that prevent disclosure . . . under the attorney-client privilege.”). 9 Likewise, under both federal and Nevada law, communications relating to settlement 10 negotiation are protected communications. See NRS 48.105; see also Fed. R. Evid. 408. “‘By 11 preventing settlement negotiations from being admitted as evidence, full and open disclosure is 12 encouraged, thereby furthering the policy toward settlement.’” Microsoft Corp. v. Motorola, Inc., 13 No. C10-1823JLR, 2012 WL 5476846 (W.D. Wash. Nov. 12, 2012) (quoting United States v. 14 Contra Costa Cnty. Water Dist., 678 F.2d 90, 92 (9th Cir. 1982)). The court in Microsoft 15 concluded “the importance of encouraging frank settlement negotiations outweighs the public's 16 interest in knowing what was discussed in those settlement negotiations” and ordered that 17 documents containing settlement negotiation be sealed. Id. See also Seals v. Mitchell, No. CV 0418 3764 NJV, 2011 WL 1233650 (N.D. Cal. Mar. 30, 2011) (sealing settlement discussions). 19 As such, National Fire submits that the Exhibits should be filed under seal. Moreover, the 20 parties to this action have entered into a Protective Order in which it was understood that all 21 documents protected by the attorney-client privilege, attorney work product doctrine, or 22 communications reflecting settlement negotiations would be protected from public disclosure. 23 1. Exhibit 7 to the Declaration of Rick Ratz: a letter from Martin Shives 24 to Craig Marquiz and Henry Sharp dated September 22, 2009, produced by National Fire 25 in this litigation and bearing Bates numbers NF 004557 59 (Dkt. No. 198-7). This 26 27 3 1 communication constitutes a protected settlement communication involving settlement 2 negotiation. 3 2. Exhibit 8 to the Declaration of Rick Ratz: a letter from class counsel 4 to Martin Shives, dated October 29, 2009, produced by National Fire in this litigation 5 and bearing Bates numbers NF 013734 35 (Dkt. No. 198-8). This communication 6 constitutes a protected settlement communication involving settlement negotiation. 7 3. Exhibit 9 to the Declaration of Rick Ratz: an email from Martin 8 Shives to Craig Marquiz, dated November 9, 2009, produced by National Fire in this 9 litigation and bearing Bates numbers NF 013487 89 (Dkt. No. 198-9). This 10 communication constitutes a protected settlement communication involving settlement 11 negotiation. 12 4. Exhibit 10 to the Declaration of Rick Ratz: an email from Charlie Luh 13 to Nathan Higgs dated November 9, 2009, produced by National Fire in this litigation 14 and bearing Bates number NF 013482 (Dkt. No. 198-10). This is a communication 15 between an attorney and a client protected by the attorney-client privilege and contains 16 attorney work product. 17 5. Exhibit 11 to the Declaration of Rick Ratz: an email from Bill 18 Coulthard dated January 28, 2010, produced by National Fire in this litigation and 19 bearing Bates numbers NF 006957 59 (Dkt. No. 198-11). This communication 20 constitutes a protected settlement communication involving settlement negotiation. 21 6. Exhibit B to the Declaration of Peter Jordan: excerpts from the 22 transcript of the August 29, 2012 deposition of Martin Shives (Dkt. No. 197-2). These 23 excerpts contain deposition testimony of an attorney concerning protected settlement 24 negotiations communications between counsel. 25 26 27 4 CONCLUSION 1 2 Based on the foregoing, National Fire respectfully requests that this Motion be granted. 3 Specifically, National Fire requests that the Court instruct the clerk to remove Docket numbers 4 197-2, 198-7, 198-8, 198-9, 198-10, and 198-11 from public view on Pacer and authorize those 5 exhibits to the Declaration of Rick Ratz to be filed under seal as they contain information protected 6 by the attorney-client privilege and/or the attorney work product doctrine or constitute a protected 7 communication involving settlement negotiations. 8 9 DATED this 7th day of February, 2013 10 Respectfully submitted, BAILEY KENNEDY 11 12 13 14 15 16 17 18 19 20 21 22 23 24 By: /s/ Dennis L. Kennedy . Dennis L. Kennedy (Nevada Bar No. 1462) Sarah E. Harmon (Nevada Bar No. 8106) 8984 Spanish Ridge Avenue Las Vegas, Nevada 89148-1302 Telephone: (702) 562-8820 Facsimile: (702) 562-8821 E-mail: dkennedy@baileykennedy.com sharmon@baileykennedy.com -andDeborah L. Stein (pro hac vice) K. Lucy Atwood (pro hac vice) Peter R. Jordan (pro hac vice) SIMPSON THACHER & BARTLETT LLP 1999 Avenue of the Stars, 29th Floor Los Angeles, CA 90067 Telephone: (310) 407-7500 Facsimile: (310) 407-7502 E-mail: dstein@stblaw.com katwood@stblaw.com pjordan@stblaw.com Attorneys for Third-Party Defendant and Counterclaimant National Fire & Marine Insurance Company 25 26 27 5 1 2 ORDER [PROPOSED] ORDER IT IS HEREBY ORDEREDORDER Clerk of Court shall file UNDER SEAL that the IT IS HEREBY ORDERED: 3 the following Docket Nos.: 197-2, 198-7, 198-8, 198-9, 198-10 and 198-11. 4 The clerk is instructed to remove Docket numbers 197-2, 198-7, 198-8, 198-9, 198-10, and IT IS FURTHER ORDERED that the Clerk of Court shall attach as EXHIBITS to the Declaration and refile these exhibits to the Declaration of Rick Ratz under 5 198-11 from public view on Pacer[198] of Rick Ratz in Support of National Fire & Marine Insurance Company's Opposition to Sharp Plumbing, Inc.'s Motion for Summary 6 seal. Judgment, the following Docket Nos.: 197-2, 198-7, 198-8, 198-9, 198-10 and 198-11. 7 Thereafter, the Clerk of Court is directed to SEAL the entire Declaration [198] of Rick Ratz. 8 9 IT IS SO ORDERED this 13th day of February, 2013. Dated _____________________ ____________________________________ UNITED STATES DISTRICT JUDGE 10 ________________________________ Gloria M. Navarro United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 6