Ballard Marine Construction, Inc. v. EHW Constructors et al, No. 3:2016cv05633 - Document 42 (W.D. Wash. 2017)
Court Description: ORDER granting 36 Joint Stipulated Motion to Seal Controlled Nuclear Information and Order Thereon; signed by Judge Ronald B. Leighton.(DN)
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Ballard Marine Construction, Inc. v. EHW Constructors et al Doc. 42 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 9 10 BALLARD MARINE CONSTRUCTION, INC., No. 3:16-cv-05633-RBL Plaintiff, 11 12 13 14 The Honorable Ronald B. Leighton v. EHW CONSTRUCTORS, a Joint Venture; SKANSKA USA CIVIL, INC.; AMERICAN BRIDGE COMPANY; and NOVA GROUP, INC., 15 STIPULATED MOTION TO SEAL CONTROLLED NUCLEAR INFORMATION AND ORDER THEREON Defendants. 16 17 I. CLERK’S ACTION REQUESTED 18 The Clerk is requested to replace Dkt. #25 in this cause of action and all 19 attachments thereto with the redacted version of Dkt. #25 attached to the Declaration of 20 Scott MacDonald filed herewith as Exhibit B. The Clerk is further requested to redact 21 Exhibit A to the Declaration of Scott MacDonald from the public record, and retain the 22 unredacted version of Exhibit A under seal. II. 23 RELIEF REQUESTED 24 Defendant EHW Constructors (“EHW”) and Plaintiff Ballard Marine 25 Construction, Inc. (“BMC”) respectfully request that this Court replace BMC’s Motion STIPULATED MOTION AND ORDER TO SEAL CONTROLLED NUCLEAR INFORMATION – 1 166964.1 | 100482.11 | 6266376.1 Dockets.Justia.com 1 for Partial Summary Judgment and attachments filed thereto (Dkt. #25) with the 2 redacted version of Dkt. #25 attached as Exhibit B to the Declaration of 3 Scott MacDonald filed herewith, as well as redact Exhibit A to the Declaration of Scott 4 MacDonald from the public record while retaining the unredacted version of Exhibit A 5 under seal. 6 The Prime Contract documents at issue in this dispute have been designated by 7 the United Stated Department of Defense (“DoD”) as Unclassified Controlled Nuclear 8 Information (“UCNI”) pursuant to 10 U.S.C. § 128 and 32 CFR § 223.6. Portions of 9 the Prime Contract are excerpted in part and attached in full at Dkt. #25. The 10 Declaration of Scott MacDonald filed herewith also appends a portion of the Prime 11 Contract, attached as Exhibit A. UCNI material can only be accessed by United States 12 citizens after signing a certificate of non-disclosure, and may not be posted on-line for 13 viewing by the general public. Decl. of Scott MacDonald (“MacDonald Decl.”), Ex. A 14 at Section 00800(7.1). II. 15 16 A. STATEMENT OF FACTS UCNI Designation. 17 The construction Project at issue in this matter is the MCON P-990 Explosives 18 Handling Wharf project. The Prime Contract states that the Project is classified as DoD 19 UCNI. MacDonald Decl., Ex. A § 00800(7.1). Accordingly, access to Prime Contract 20 documents is restricted to “United States Citizens with a need-to-know” and requires 21 the signing of a certificate of non-disclosure. Id. The Subcontract references the UCNI 22 designations and protections required thereby.1 UCNI materials cannot be placed online 23 or in the public domain for unrestricted access by the general public. 24 25 1 Dkt. #15-1 (the “Subcontract”) Appx. A “General Requirements” ¶ 19. STIPULATED MOTION AND ORDER TO SEAL CONTROLLED NUCLEAR INFORMATION – 2 166964.1 | 100482.11 | 6266376.1 III. 1 Whether Dkt. #25 and Exhibit A to the Declaration of Scott MacDonald filed 2 3 herewith should be sealed to avoid dissemination of UCNI materials. IV. 4 the Declaration of Scott MacDonald filed herewith. V. 7 8 EVIDENCE RELIED UPON Plaintiff and Defendant jointly rely upon the pleadings and filings on record and 5 6 ISSUES PRESENTED A. ARGUMENT AND AUTHORITY Standard and Justification to Seal. 9 LCR 5(g) recognizes the “strong presumption of public access to the court’s 10 files.” To override the presumption, a party must cite a “statute, rule, or prior court 11 order expressly authoriz[ing]” the document to be filed under seal,” and provide “a 12 specific statement of the applicable legal standard and the reasons for keeping a 13 document under seal, including an explanation of: (i) the legitimate . . . public interests 14 that warrant the relief sought; (ii) the injury that will result if the relief sought is not 15 granted; and (ii) why a less restrictive alternative to the relief sought is not sufficient.” 16 LCR 5(g)(3)(B). 17 i. 18 Congress granted the DoD authority to designate certain sensitive nuclear- 19 related documents as UCNI to keep them from public access. 10 U.S.C. § 128. The 20 DoD exercised that statutory grant of authority to enact 32 CFR § 223.6, promulgating 21 standards for the use of its regulatory authority in designating UCNI. Under this 22 statutory and regulatory authority, DoD declared all Prime Contract documents related 23 to the Project at issue to be UCNI, and by that determination ruled that such materials 24 must be withheld from public access. MacDonald Decl., Ex. A at Section 00800(7.1). Statute or Rule Authorizing Sealing 25 STIPULATED MOTION AND ORDER TO SEAL CONTROLLED NUCLEAR INFORMATION – 3 166964.1 | 100482.11 | 6266376.1 1 That same grant of authority justifies and necessitates the sealing of Dkt. #25 and the 2 Declaration of Scott MacDonald filed herewith. 3 ii. Applicable Legal Standard 4 As Dkt. #25 is a dispositive motion, the applicable legal standard is the 5 “compelling reasons” standard. Center for Auto Safety v. Chrysler Group, LLC, 809 6 F.3d 1092, 1096-97 (9th Cir. 2016). Under the “compelling reasons” standard, a court 7 may seal records when it finds “a compelling reason and articulates the factual basis for 8 its ruling, without relying on hypothesis or conjecture.” Id. (internal citations omitted 9 throughout). “What constitutes a compelling reason is best left to the sound discretion 10 of the trial court.” Id. Here, there is a compelling reason to seal UCNI documents in 11 light of Congress’s acknowledgement and DoD’s finding as to the specific documents 12 sought to be sealed that “unauthorized dissemination of [the Prime Contract 13 Documents] could reasonably be expected to result in a significant adverse effect on 14 the health and safety of the public or the common defense and security” by 15 “significantly increasing the likelihood of (i) illegal production of nuclear weapons, or 16 (ii) theft, diversion, or sabotage of nuclear materials, equipment, or facilities.” 10 17 U.S.C. § 128(a)(4)(B); 32 CFR § 223.6. Such heightened concerns over nuclear and 18 national security serve as a compelling reason to seal the requested documents. 19 iii. Reasons for Sealing the Requested Documents per LCR 5(g)(3)(B) 20 First, legitimate public interests warrant sealing the requested documents. 21 Congress delegated authority to the DoD to determine what materials constitute UCNI. 22 10 U.S.C. § 128(a)(1). The DoD and Department of the Navy determined that the 23 Prime Contract documents are UCNI materials. By virtue of that determination, the 24 DoD necessarily determined that “unauthorized dissemination of such information 25 could reasonably be expected to result in a significant adverse effect on the health and STIPULATED MOTION AND ORDER TO SEAL CONTROLLED NUCLEAR INFORMATION – 4 166964.1 | 100482.11 | 6266376.1 1 safety of the public or the common defense and security . . . .” 10 U.S.C. 2 § 128(a)(4)(B). Thus, sealing the unauthorized dissemination of UCNI materials is 3 necessary to protect the health and safety of the public, thereby serving the legitimate 4 public interest. LCR 5(g). 5 Second, by classifying the Prime Contract documents as UCNI, the DoD 6 necessarily determined the injury that would result from unauthorized dissemination of 7 such materials. Specifically, unauthorized dissemination “significantly increase[es] the 8 likelihood of (i) illegal production of nuclear weapons, or (ii) theft, diversion, or 9 sabotage of nuclear materials, equipment, or facilities.” 10 U.S.C. § 128(a)(4)(B). Such 10 injury is sufficiently serious to override the presumption of public access to these 11 materials. LCR 5(g). 12 Finally, the redacted version of Dkt. #25 and redacting Exhibit A to the 13 Declaration of Scott MacDonald from the public record represent the least restrictive 14 method of meeting UCNI standards. Redaction occurs in the proposed document only 15 where provisions of the Prime Contract are attached or excerpted in full. There is no 16 lesser alternative to redaction authorized in these court rules or by the DoD, therefore 17 these documents must either be placed into the public record in full, or redacted as 18 presented in this stipulated motion. 19 It should be noted that sealing the requested materials will not unduly restrict 20 the Parties’ ability to argue their respective cases or otherwise cite or rely upon the 21 Prime Contract Documents, and there are no First Amendment concerns attached to the 22 sealing of these documents. At the same time, sealing the Plaintiff’s Motion will not 23 unduly burden the public’s interest in the open administration of justice, as the other 24 filings relevant to the dispositive Motion, including facts and legal authority in 25 response and reply thereto, remain unsealed and open for public review. STIPULATED MOTION AND ORDER TO SEAL CONTROLLED NUCLEAR INFORMATION – 5 166964.1 | 100482.11 | 6266376.1 VI. 1 CONCLUSION 2 For the foregoing reasons, EHW and BMC jointly request that the Court seal 3 the un-redacted version of Dkt. #25 and its attachments, to be replaced in the public 4 record with the redacted version at Exhibit B to the Declaration of Scott MacDonald, as 5 well as redact Exhibit A to the Declaration of Scott MacDonald filed herewith from 6 public record, as requested above. 7 VII. CERTIFICATION PURSUANT TO LCR 5(g)(3)(a) 8 By signing below, both Parties’ certify that they met and conferred on 9 October 26, 2017 by email between Dan A. Brown, Meredith E. Dishaw, James R. 10 Lynch, and Scott D. MacDonald, and again on November 10, 2017 by telephone 11 between Meredith E. Dishaw, James R. Lynch, and Scott D. MacDonald, and reached 12 agreement on the need to redact portions of Dkt. #25 and Exhibit A to the Declaration 13 of Scott MacDonald filed herewith. The Parties’ agreement is embodied in this 14 Stipulated request, and the requested relief represents what the Parties believe is the 15 least amount of material that can be filed under seal. 16 17 RESPECTFULLY SUBMITTED this 15th day of December, 2017. AHLERS CRESSMAN & SLEIGHT PLLC WILLIAMS, KASTNER & GIBBS PLLC By: /s/James R. Lynch John P. Ahlers, WSBA #13070 John.ahlers@acslawyers.com James R. Lynch, WSBA #39274 james.lynch@acslawyers.com Scott D. MacDonald, WSBA #51192 scott.macdonald@acslawyers.com Ahlers Cressman & Sleight PLLC 999 Third Avenue, Suite 3800 Seattle, WA 98104 Phone: (206) 287-9900 Fax: (206) 287-9902 Attorneys for Defendants By: /s/Daniel A. Brown per email authorization Daniel A. Brown, WSBA #22028 dbrown@williamskastner.com Meredith E. Dishaw, WSBA #43206 mdishaw@williamskastner.com Williams, Kastner & Gibbs PLLC 601 Union Street, Suite 4100 Seattle, WA 98101-2380 Phone: (206) 628-6600 Fax: (206) 628-6611 Attorneys for Plaintiff 18 19 20 21 22 23 24 25 STIPULATED MOTION AND ORDER TO SEAL CONTROLLED NUCLEAR INFORMATION – 6 166964.1 | 100482.11 | 6266376.1 VIII. ORDER 1 2 This matter having come before the Court upon the above Stipulated Motion of 3 the Parties, and with the Court having reviewed the Stipulated Motion and the records 4 and files herein, and otherwise deeming itself fully advised in the premises, it is now, 5 therefore, 6 ORDERED, ADJUDGED AND DECREED that, pursuant to LCR 5(g), 7 Dkt. #25 and the attachments thereto shall be replaced in the public record with the 8 redacted version of Dkt. #25 attached as Exhibit B to the Declaration of 9 Scott MacDonald, that the unredacted version of Dkt. #25 shall be kept for the Court’s 10 eyes only, and the redacted version of the Declaration of Scott MacDonald shall be 11 filed in the public record under seal. 12 13 DONE IN OPEN COURT this 21st day of December, 2017. A 14 15 Ronald B. Leighton United States District Judge 16 17 Jointly Presented By; Notice of Presentation Waived: 18 AHLERS CRESSMAN & SLEIGHT PLLC WILLIAMS, KASTNER & GIBBS PLLC By: /s/James R. Lynch John P. Ahlers, WSBA #13070 James R. Lynch, WSBA #39274 Scott D. MacDonald, WSBA #51192 Ahlers Cressman & Sleight PLLC 999 Third Avenue, Suite 3800 Seattle, WA 98104 Phone: (206) 287-9900 Fax: (206) 287-9902 Attorneys for Defendants By: /s/Daniel A. Brown per email authorization Daniel A. Brown, WSBA #22028 Meredith E. Dishaw, WSBA #43206 Williams, Kastner & Gibbs PLLC 601 Union Street, Suite 4100 Seattle, WA 98101-2380 Phone: (206) 628-6600 Fax: (206) 628-6611 Attorneys for Plaintiff 19 20 21 22 23 24 25 STIPULATED MOTION AND ORDER TO SEAL CONTROLLED NUCLEAR INFORMATION – 7 166964.1 | 100482.11 | 6266376.1
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