United States District Court, D. Arizona
ORDER
Douglas L. Rayes United States District Judge.
Following
a trial in this insurance bad faith action, the jury returned
a verdict in favor of Plaintiff and against Defendants. (Doc.
344.) Shortly after the jury returned its verdict, the
parties negotiated a settlement. (Doc. 356.) In accordance
with that settlement and the parties' stipulation, the
Court dismissed this action with prejudice on June 1, 2018.
(Docs. 362, 365.)
Four
days later, Plaintiff filed a Motion to Unseal Trial Exhibits
(Doc. 366), which now is fully briefed (Docs. 367, 368).
Plaintiff asks the Court “to unseal the exhibits
admitted into evidence at trial (Doc. 347).” (Doc. 366
at 8.) Docket entry 347 is a copy of Plaintiff's trial
exhibit list. None of these exhibits, however, were admitted
under seal at trial, a fact Plaintiff acknowledges in his
motion.[1] (Doc. 366 at 1 (“[W]hen Plaintiff
indicated in the parties' Joint Pretrial Statement that
he intended to use some of those documents at trial, Zurich
did not object or seek to prevent their disclosure in open
court. Nor did it move to seal them once they were admitted,
or at any point thereafter.”).) The Court cannot unseal
trial exhibits that were not sealed in the first place.
Instead, the Court construes Plaintiff's motion as
challenging Defendant's designation of these exhibits as
confidential and seeking relief from the July 7, 2016
Protective Order's restrictions on the disclosure of
confidential material produced during discovery. (Doc. 36.)
So framed, Plaintiff's motion is granted.
I.
Overview of Protective Order
On
July 5, 2016, the parties jointly moved for the entry of a
protective order designed to facilitate discovery and reduce
discovery disputes. (Doc. 35.) The Court granted the motion
and issued the Protective Order on July 7, 2016. (Doc. 36.)
The Protective Order allows either party to designate
material sought during discovery as “confidential,
” defined as:
such material or matter used by [the designating party] in,
or pertaining to, its business, which matter is not generally
known and which the party would normally not reveal to third
parties or would cause third parties to maintain in
confidence and/or . . . constitute such personal material
which matter is not generally known and which the party would
normally not real to third parties or would cause third
parties to maintain in confidence.
(¶ 2.) The Protective Order also restricts the
disclosure of information designated as confidential.
(¶¶ 3-5.)
Pursuant
to Paragraph 8 of the Protective Order:
before filing any “CONFIDENTIAL INFORMATION” with
the Court, the submitting party must confer with the
designating party to determine whether or not the designated
material must be filed under seal, and if so, whether the
parties can agree on a stipulation to have the
“CONFIDENTIAL INFORMATION” filed under seal. Any
stipulation must set forth the facts and legal authority that
justify filing the “CONFIDENTIAL INFORMATION”
under seal. If the parties cannot agree on a stipulation, the
submitting party must lodge the “CONFIDENTIAL
INFORMATION” under seal and file and serve a notice of
lodging summarizing the parties' dispute and setting
forth the submitting party's position, accompanied by a
certification that the parties have conferred in good faith
and were unable to agree about whether the
“CONFIDENTIAL INFORMATION” should be filed under
seal. Within 14 days after service of the notice, the
designating party must file and serve either a notice
withdrawing the confidentiality designation or a motion to
seal and a supporting memorandum that sets forth the facts
and legal authority justifying the filing of the
“CONFIDENTIAL INFORMATION” under seal. If the
designating party does not file a motion or notice, the Court
may enter an order making the “CONFIDENTIAL
INFORMATION” part of the public record.
(¶ 8.) Moreover,
[i]n the event that any “CONFIDENTIAL
INFORMATION” is used in any court proceeding in
connection with this litigation in accordance with the terms
of this Order, it will not lose its “CONFIDENTIAL
INFORMATION” status through the use, and the parties
will take all steps reasonably required to protect its
confidentiality during the use.
(¶ 11.)
The
Protective Order does not require a party to challenge the
propriety of a confidentiality designation at the time it is
made, nor does failure to do so “preclude a subsequent
challenge during the pendency of this litigation.”
(¶ 9.) If a dispute over the propriety of a
confidentiality designation arises, “[t]he burden of
proving ...