United States District Court, D. Arizona
ORDER
H.
Russel Holland United States District Judge.
Motion
to Unseal
Intervenor
United Policyholders moves to unseal the minute entry at
Docket No. 170 and the order at Docket No. 171.[1] The motion to
unseal is opposed.[2] Oral argument was requested but is not
deemed necessary.
Background
Plaintiff
Karen Cosgrove asserted breach of contract and bad faith
claims against defendant. Plaintiff and defendant cross-moved
for partial summary judgment, and at oral argument on April
7, 2017, the court resolved the motions.[3] On April 10,
2017, the court entered a written order in which it provided
a detailed explanation of its oral rulings.[4] Both the minute
entry at Docket No. 170 and the court's written order at
Docket No. 171 were filed publically on the docket and the
court's written order at Docket No. 171 was flagged as a
“written decision” pursuant to the EGovernment
Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899,
2913 (codified as amended at 44 U.S.C. § 3501 note
(2006)), so that it would be reported.
On May
4, 2017, the parties formally notified the court that they
had reached a settlement.[5] As part of their settlement, the
parties requested that the court vacate and seal its orders
on the cross-motions for partial summary judgment (Docket
Nos. 170 and 171).[6]Defendant's attorney avers that the
settlement agreement “was expressly conditioned on the
vacating and sealing of” the partial summary judgment
orders and that “[t]his was a material term of the
Agreement. . . .”[7] On May 5, 2017, the court entered an
order vacating and sealing the documents at Docket Nos. 170
and 171.[8] On May 9, 2017, the parties filed a
stipulation of dismissal, [9] which the court granted on May 10,
2017, dismissing this case in its entirety, with
prejudice.[10]
On
November 3, 2017, United Policyholders moved to intervene for
the limited purposes of unsealing and reinstating the
court's orders resolving the cross-motions for partial
summary judgment.[11] On January 18, 2018, the court denied
United Policyholders' motion to intervene.[12] United
Policyholders appealed. On May 6, 2019, the Ninth Circuit
affirmed in part and vacated and remanded in
part.[13] The Ninth Circuit affirmed this
court's denial of United Policyholders' motion to
intervene for the purpose of reinstating the vacated
orders.[14]The Ninth Circuit, however, held that
this court erred in denying United Policyholders' motion
to intervene for the purpose of unsealing the vacated
orders.[15] The Ninth Circuit instructed this court,
on remand, to “balanc[e] the public interest with
potential prejudice to the parties and the other factors to
be considered in deciding a permissive intervention
motion.”[16]
On
remand, this court granted United Policyholders' motion
to intervene for the limited purpose of seeking to unseal the
court's orders resolving the cross-motions for partial
summary judgment.[17] Thereafter, United Policyholders timely
filed its motion to unseal the minute entry at Docket No. 170
and the court's written order at Docket No. 171 (referred
to herein collectively as the “subject
documents”).
Discussion
“‘It
is clear that the courts of this country recognize a general
right to inspect and copy public records and documents,
including judicial records and documents.'”
Center for Auto Safety v. Chrysler Group, LLC, 809
F.3d 1092, 1096 (9th Cir. 2016) (quoting Nixon v. Warner
Commnc'ns, Inc., 435 U.S. 589, 597 (1978)). But,
“[t]he common law right of access . . . is not absolute
and can be overridden given sufficiently compelling reasons
for doing so.” Foltz v. State Farm Mut. Auto. Ins.
Co., 331 F.3d 1122, 1135 (9th Cir. 2003). In deciding a
motion to unseal, “[t]he judge need not document
compelling reasons to unseal; rather the proponent of sealing
bears the burden with respect to sealing.” Kamakana
v. City and County of Honolulu, 447 F.3d 1172, 1182 (9th
Cir. 2006). “A failure to meet that burden means that
the default posture of public access prevails.”
Id. “Examples” of compelling reasons to
seal “include when a court record might be used to
‘gratify private spite or promote public scandal,'
to circulate ‘libelous' statements, or ‘as
sources of business information that might harm a
litigant's competitive standing.'” Center
for Auto Safety, 809 F.3d at 1097 (quoting
Nixon, 435 U.S. at 598-99).
United
Policyholders and defendant agree that the subject documents
do not contain libelous or scandalous information nor do they
contain trade secrets. But, they disagree as to whether there
are other compelling reasons for sealing the subject
documents.
United
Policyholders argues that the only reason defendant gave for
sealing the subject documents was that it purchased the right
to do so from plaintiff as part of the parties'
settlement. But, United Policyholders argues that
“[t]he right of access to court documents belongs to
the public, and the [parties] were in no position to bargain
that right away.” San Jose Mercury News, Inc. v.
U.S. Dist. Court--Northern Dist. (San Jose), 187 F.3d
1096, 1101 (9th Cir. 1999).
Defendant,
however, argues that there are other compelling reasons for
sealing the subject documents and that these reasons were
explained to the court in an April 11, 2017 conference call.
Defense counsel avers that during that conference call, he
explained the reasons and need for the request to vacate and
seal the rulings, including the impact the fact[s] found and
legal principles adopted . . . may have on a third party
involved in the underlying lawsuit who was referenced in the
MPSJ ...