United States District Court, D. Arizona
A. Teilborg Senior United States District Judge.
before the Court is Plaintiffs' motion to seal the entire
response to Defendants' motion for summary judgment, and
a further motion to seal various exhibits to the response. In
this Circuit, the Court cannot conduct summary judgment
proceeding as a whole (which are a substitute for the trial
if the motion is granted) under seal barring a very high
showing by the movant. See Foltz v. State Farm, 331
F.3d 1122, 1135-36 (9th Cir. 2003). As a further matter, in
this Circuit, the existence of a protective order from early
in the case does not justify filing summary judgment under
seal. San Jose Mercury News, Inc. v. U.S. District Court
- - Northern District (San Jose), 187 F.3d 1096, 1103
(9th Cir. 1999). Finally, in this Circuit, to
overcome the strong presumption of public access to Court
records, the party seeking to file under seal must show
“compelling reasons.” Kamakana v. City and
County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006).
The Court of Appeals explained:
In general, “compelling reasons” sufficient to
outweigh the public's interest in disclosure and justify
sealing court records exist when such “court files
might have become a vehicle for improper purposes, ”
such as the use of records to gratify private spite, promote
public scandal, circulate libelous statements, or release
trade secrets. Nixon, 435 U.S. at 598, 98 S.Ct.
1306; accord Valley Broadcasting Co., 798 F.2d at
1294. The mere fact that the production of records may lead
to a litigant's embarrassment, incrimination, or exposure
to further litigation will not, without more, compel the
court to seal its records. Foltz, 331 F.3d at 1136.
case, the motions to seal fail to make any showing, much less
show compelling reasons on a document by document basis, for
filing under seal. Id. at 1183-85. Accordingly, this
Court could not possibly make the required findings to seal
anything in this case. See Ctr. for Auto Safety v.
Chrysler Grp., LLC, 809 F.3d 1092, 1096-97 (9th Cir.),
cert. denied sub nom. FCA U.S. LLC v. Ctr. for Auto
Safety, 137 S.Ct. 38, 196 L.Ed.2d 26 (2016)
(“Under this stringent standard, a court may seal
records only when it finds a compelling reason and
articulates the factual basis for its ruling, without relying
on hypothesis or conjecture.” (quotations and citations
the Court has reviewed the lodged memorandum and notes that
significant portions of it are argument regarding the
governing law. (Doc. 174). The Court can imagine no
justification for filing case citations under seal.
on the motions, the Court is inclined to unseal everything.
However, Local Rule Civil 5.6(e) gives the offering party the
opportunity to withdraw the document, if they so choose,
rather than have it unsealed. On this record, the Court does
not know if the documents sought to be sealed by Plaintiff
were designated confidential by Plaintiffs or Defendants. As
to Plaintiffs' own documents, consistent with the Local
Rule, Plaintiff will be given 5 (calendar) days to file the
documents unsealed. As to Defendants' documents,
Plaintiffs' counsel and Defense counsel must speak
(actually talk to each other, NOT exchange written
correspondence) and determine whether Defendants will
withdraw the confidential designations.
Defendants will not withdraw the designations, then, within 5
calendar days, Plaintiff shall refile the response and
exhibits, unsealed, and shall redact ONLY the items subject
to a confidential designation (this redacted filing is due by
noon). Also within 5 days, Defendants shall file a motion to
seal the information redacted by Plaintiffs, and shall make a
compelling reasons showing on a document by document or
sentence by sentence basis (this motion is due by 5:00 p.m.).
Defendants shall lodge, under seal, Plaintiffs'
unredacted response and unredacted exhibits with
Defendants' motion to seal. If the Court grants the
motion to seal, the Court will file the lodged documents
under seal. If the Court denies the motion, the Court WILL
FILE THE DOCUMENTS IN THE PUBLIC RECORD rather than deny
Plaintiffs the opportunity to use the documents based on
Defendants' unsupported confidential
on the foregoing, IT IS ORDERED that the
Motions to Seal (Docs. 172 and 173) are denied. The lodged
documents at Docs. 174, 175, 176, and 177 are stricken but
may remain under seal.
IS FURTHER ORDERED that the parties shall comply
with this Order by Monday, November 13, 2017.
 Further, like the Court in Kamakana,
this Court does not find reliance on the protective order to
be a basis for filing under seal as the parties were well
aware that this case would be returned from the MDL to the
Ninth Circuit. Kamakana, 447 F.3d at 1183 (“…we
have held that [ ] reliance on a blanket protective order is
unreasonable and is not ...