United States District Court, D. Arizona
G. Campbell, United States District Judge
25, 2018, the Court issued an order denying Defendants'
motion to seal certain exhibits used in the Booker trial.
Docs. 11010, 11642. Defendants have filed a motion for
reconsideration of that order. Doc. 11766. Plaintiffs have
filed a response. Doc. 11922. The motion will be granted in
part and denied in part.
for reconsideration are disfavored and should be granted only
in rare circumstances. See Ross v. Arpaio, No.
CV-05-4177-PHX-MHM, 2008 WL 1776502, at *2 (D. Ariz. Apr. 15,
2008). A motion for reconsideration will be granted where the
Court has overlooked or misapprehended matters or otherwise
has committed manifest error. See LRCiv 7.2(g)(1);
Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir.
Waiver of the Right to File a Motion to Seal.
Court found in part that Defendants had waived the right to
have trial exhibits sealed because they did not file a motion
to seal before trial pursuant to Local Rule 5.6. Doc. 11642
at 2. Defendants argue that this finding was in error. Doc.
11766 at 2-3. The Court agrees in part.
issue of sealing exhibits was raised in the final pretrial
order. Doc. 10255 at 62. Defendants noted that although many
of the documents listed as exhibits had been produced subject
to the parties' stipulated protective order, that order
does not cover the use of exhibits at trial. Id.;
see Doc. 269 at 12-13. Defendants requested that
trial exhibits be maintained by the courtroom clerk and
“not made publicly available throughout the trial and
until the Court rules on any motion to seal.” Doc.
10255 at 62. Defendants further requested that the Court set
a “post-trial briefing schedule on a motion to
seal.” Id. Plaintiffs took the position that
unless an exhibit is sealed before trial under this
Circuit's “compelling reasons” standard, the
exhibit becomes a “public record at the time admitted
into evidence.” Id. (citing Kamakana v.
City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th
issue was further discussed at the pretrial conference. The
Court inquired about the need for sealing given that exhibits
admitted at trial do not become part of the Court's
docket. Doc. 11766-1 at 5. Counsel for Defendants stated that
they sought “to preserve [Defendants'] right to
move to seal exhibits and/or portions of the transcript after
the trial[.]” Id. at 6. Defendants made clear
that they “wanted to make sure that [they] weren't
in some way waiving that [right] by asking to address it at
the conclusion of the trial[.]” Id. The Court
responded: “That issue's preserved. You have not
waived it. . . . So if you decide we need to address it
later, we can do that.” Id.
this exchange, it is clear that Defendants preserved the
right to file a post- trial motion to seal. The Court
therefore reverses its ruling that Defendants waived the
right to file such a motion. The motion for reconsideration
is granted in this regard.
Waiver of the Right to Have Trial Exhibits Sealed.
may have preserved the right to file a post-trial motion to
seal, but they have not shown that any particular trial
exhibit should be sealed. As the Court explained in its prior
order, “‘the release of information in open court
is a publication of that information and . . . operates as a
waiver of any rights a party had to restrict its future
use.'” Doc. 11642 at 2 (quoting Carnegie Mellon
Univ. v. Marvell Tech. Grp., Ltd., No. CIV.A. 09-290,
2013 WL 1336204, at *5 (W.D. Pa. Mar. 29, 2013)). Thus, to
the extent an exhibit was not merely admitted into evidence
but also was published or discussed in open court, the
exhibit is no longer confidential and Defendants have waived
the right to have the exhibit sealed. See In re Google
Inc. Gmail Litig., No. 13-MD-02430-LHK, 2014 WL
10537440, at *6 (N.D. Cal. Aug. 6, 2014) (“[W]here, as
here, the parties did not request closure of the courtroom .
. . and the disclosures were not inadvertent, the Court will
not permit an ex post facto redaction of statements made in
open court[.]”); Fleming v. Escort, Inc., No.
CV 09-105-S-BLW, 2013 WL 1290418, at *4 (D. Idaho Mar. 27,
2013) (denying motion to seal where the “matters were
discussed on the record during the public trial”);
Pfizer, Inc. v. Teva Pharm. USA, Inc., No. 08-1331,
2010 WL 2710566, at *4 (D.N.J. July 7, 2010) (“Once a
hearing is conducted in open court, information placed on the
record is just that: information that is on the
record. Ex-post facto sealing should not generally be
permitted.” (emphasis in original)).
Circuit, there is a strong presumption in favor of public
access to judicial records that are not traditionally kept
secret. See Kamakana, 447 F.3d at 1178. This
presumption is the starting point in deciding whether a
judicial record should be sealed. Id. Where the
record already has been disclosed in open court, however,
“there is no longer a favorable presumption of
public access; rather, there is public
access.” TriQuint Semiconductor, Inc. v. Avago
Techs. Ltd., No. CV-09-1531-PHX-JAT, 2012 WL 1432519, at
*7 (D. Ariz. Apr. 25, 2012) (emphasis in original).
were well aware of the presumption in favor of public access
to judicial records and Plaintiffs' position that
disclosure of an exhibit in open court would result in a
waiver of the right to later have the exhibit sealed.
See Docs. 10255 at 62, 11766-3 at 5-7; Phillips
v. C.R. Bard, Inc., No. 3:12-CV-00344-RCJ, 2015 WL
3485039, at *2 (D. Nev. June 1, 2015) (finding waiver where
Bard did not seek to have exhibits sealed before using them
at trial). And yet Defendants sought only to ...