United States District Court, D. Arizona
DAVID G. CAMPBEL, District Judge.
I. Motions for Leave to File DVD.
TSI has filed two motions for leave to file a DVD (Docs. 187, 206). Both DVDs contain video footage that is relevant to this case. The Court will grant both motions.
II. Motion to Strike.
TSI has moved to strike exhibits attached to BioVigilant's reply brief in support of its motion for summary judgment. (Doc. 198). The motion is fully briefed and no party has requested oral argument. The Court will deny the motion.
A party moving for summary judgment may not introduce new facts or exhibits in its reply. See Parker v. Arizona, No. CV 08-656-TUC-AWT, 2013 WL 3286414, at *8 (D. Ariz. June 28, 2013) ("District courts in Arizona have uniformly held that the Local Rules of Civil Procedure do not permit a party moving for summary judgment to file a supplemental statement of facts or attached exhibits with its reply." Although a party may object to facts introduced by the non-moving party in its opposition, the reply " may not introduce new facts or evidence. " EEOC v. Swissport Fueling, Inc., 916 F.Supp.2d 1005, 1016 (D. Ariz. Jan 7, 2013) (citation omitted) (emphasis in original).
TSI argues that BioVigilant violated the local rules by introducing 11 new exhibits in its reply and making new arguments relating to the 11 new exhibits. Doc. 198 at 3. TSI asserts that it would be prejudiced if the new evidence or arguments were considered because it has not been given an opportunity to address them. Id. TSI insists that BioVigilant has engaged in a strategy of "lying in the weeds" by "strategically withhold[ing] evidence that contradicts its arguments from its opening papers, wait[ing] to see if [TSI] responds by citing that contradictory evidence, and then, with its reply, rais[ing] arguments and evidence regarding that contradictory evidence so as to prevent [TSI] from having an opportunity to reply." Doc. 218 at 6. BioVigilant rejoins that it merely attached the exhibits to "rebut or controvert arguments raised in TSI's voluminous opposition" and that this practice is permitted in the District of Arizona. Doc. 211 at 3; Saguaro Med. Assocs., P.C. v. Banner Health, No. CV-08-1386 PHX-DGC, 2009 U.S. Dist. LEXIS 103432, at *23-24 n.9 (D. Ariz. Nov. 6, 2009) (noting that a declaration submitted for the first time in the reply was permitted because it was "rebuttal evidence" that responded to allegations made in the opposition
While a party may not file "new" evidence with a reply, it may file "rebuttal" evidence to contravene arguments first raised by the non-moving party in its opposition. E.E.O.C. v. Creative Networks, LLC, No. CV-05-3032-PHX-SMM, 2008 WL 5225807, at *2 (D. Ariz. Dec. 15, 2008). After examining the challenged exhibits, the Court concludes that they constitute rebuttal evidence, not new evidence. TSI makes much of the fact that BioVigilant possessed all 11 exhibits at the time it originally filed its motion for summary judgment and that it could have included these exhibits with its motion. District of Arizona precedent is clear, however, that it is immaterial that BioVigilant already had this evidence in its possession at the time it filed is motion for summary judgment, so long as it is rebuttal evidence. Id. The Court will therefore deny TSI's motion.
III. Motions to Seal.
Pursuant to the Court's February 3, 2014 order (Doc. 200), the parties have filed two motions to seal. Docs. 201, 212. The Court will address both motions below.
A. Legal Standard.
Two standards generally govern requests to seal documents. "First, a compelling reasons' standard applies to most judicial records." Pintos v. P. Creditors Ass'n, 504 F.3d 792, 801 (9th Cir. 2007) (citing Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). "This standard derives from the common law right to inspect and copy public records and documents, including judicial records and documents.'" Id. (quoting Kamakana, 447 F.3d at 1178) (alteration and internal citations omitted
The second standard applies to discovery materials. "Private materials unearthed during discovery' are not part of the judicial record." Id. (quoting Kamakana, 447 F.3d at 1189 (alteration omited). The "good cause" standard set forth in Rule 26(c) of the Federal Rules of Civil Procedure applies to this category of documents. See id. ; San Jose Mercury News, Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1103 (9th Cir. 1999). This standard also applies to documents attached to non-dispositive motions because those documents are often "unrelated, or only tangentially related, to the underlying cause of action.'" Phillips v. G.M. Corp., 307 F.3d 1206, 1213 (9th Cir. 2002); see Pintos, 504 F.3d at 802.
Documents attached to dispositive motions are governed by the compelling reasons standard. See San Jose Mercury News, 187 F.3d at 1102; Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1136 (9th Cir. 2003). This standard applies because the resolution of a dispute on the merits "is at the heart of the interest in ensuring the public's understanding of the ...