United States District Court, D. Arizona
ORDER
Dominic W. Lanza United States District Judge.
Pending
before the Court is the Republic of Kazakhstan's Motion
for Leave to File Documents Under Seal. (Doc. 4.) For the
reasons stated below, the motion is denied without prejudice.
The
public has a general right to inspect judicial records and
documents, such that a party seeking to seal a judicial
record must overcome “a strong presumption in favor of
access.” Kamakana v. City & Cty. of
Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). To do so,
the party must “articulate compelling reasons supported
by specific factual findings that outweigh the general
history of access and the public policies favoring disclosure
. . . .” Id. at 1178-79 (internal quotation
marks and citations omitted). The Court must then
“conscientiously balance the competing interests of the
public and the party who seeks to keep certain judicial
records secret.” Id. at 1179 (internal
quotation marks omitted). “After considering these
interests, if the court decides to seal certain judicial
records, it must base its decision on a compelling reason and
articulate the factual basis for its ruling, without relying
on hypothesis or conjecture.” Id. (internal
quotation marks omitted). The “stringent”
compelling reasons standard applies to all filed motions and
their attachments where the motion is “more than
tangentially related to the merits of a case.” Ctr.
for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092,
1096, 1101 (9th Cir. 2016).
The
Republic of Kazakhstan initiated this case by filing an
application under 28 U.S.C. § 1782 for a subpoena to
compel an Arizona resident to testify in, and produce certain
evidence concerning, a pending international investor-state
arbitration. (Doc. 1.) That application, however, is heavily
redacted. (Id.) In the motion to seal, the Republic
of Kazakhstan seeks to seal the unredacted version of the
application and its 14 exhibits, which together total 273
pages. (Doc. 4.) The motion is very short and identifies, in
perfunctory fashion, two reasons why sealing is appropriate:
(1) the arbitration is confidential and (2) the documents are
“sensitive.” (Doc. 4 at 2.)
These
arguments are insufficient. Whatever the nature of the
underlying arbitration, the Court must determine whether the
documents sought to be sealed in this case,
currently pending before the Court-indeed, the application
that forms the basis of the case and its supporting
exhibits-meet the Kamakana standard. The Republic of
Kazakhstan has not attempted to “articulate
compelling reasons supported by specific factual
findings that outweigh the general history of access and
the public policies favoring disclosure . . . .”
Kamakana, 447 F.3d at 1178-79 (emphasis added);
see also LRCiv 5.6(b) (“Any motion or
stipulation to file a document under seal must set forth a
clear statement of the facts and legal authority justifying
the filing of the document under seal . . . .”).
Indeed, multiple courts have recognized that
arbitration-related documents should not automatically be
allowed to be filed under seal simply because the underlying
proceeding is, in some sense, confidential. See, e.g.,
Ovonic Battery Co., Inc. v. Sanyo Elec. Co., Ltd., 2014
WL 2758756, *3 (N.D. Cal. 2014) (“OBC also seeks to
seal the interim and final arbitration awards . . . [because]
the awards are to remain confidential subject to limited
exception according to the governing International
Arbitration Rules and order of the Arbitration Panel. The
fact that parties agreed to the confidentiality of certain
documents, however, does not alone constitute a compelling
reason to seal them. . . . OBC's motion to seal the
interim and final arbitration awards is denied without
prejudice.”) (citations omitted); Markel Am. Ins.
Co. v. Internet Brands, Inc., 2017 WL 10433991, *5 (CD.
Cal. 2017) (“Defendants assert that the substance of
the underlying arbitration proceedings, including the
findings of the arbitrator, were kept strictly private by all
parties involved, and thus should not be made public in this
action. Essentially, Defendants' position boils down to
the assertion that because the matter is a business matter
that thus far has been kept secret, it should continue to be
so. But Defendants do not explain why the material
should be kept secret. There is no indication, for example,
that permitting the Complaint to be unsealed will hurt their
competitive standing by revealing trade secrets. And this
Court is not bound by the decisions of the arbitrators and
Delaware Chancery court as to whether the action should be
kept under seal.”).
Thus,
the motion is denied without prejudice. To the extent that
the Republic of Kazakhstan wishes to try again, it must
include-for each document it wishes to file under seal-a
specific description of the document and compelling reasons
for sealing that document, supported by specific facts. The
more specific and compelling the reasons and facts provided
are, the more likely it is that the Court will find that
compelling reasons justify sealing the documents.
Accordingly,
IT IS ORDERED denying without prejudice the
Republic of Kazakhstan's Motion for Leave to ...