United States District Court, D. Arizona
ORDER
Dominic W. Lanza United States District Judge.
Pending
before the Court is Respondent William Lawler's motion to
seal. (Doc. 20.) For the following reasons, the motion will
be granted in part and denied in part.
The
Republic of Kazakhstan (“Kazakhstan”) initiated
this action by filing an application under 28 U.S.C. §
1782 for a subpoena to compel Lawler to testify in, and
produce certain evidence concerning, a pending international
investor-state arbitration. (Doc. 1.)
On
October 23, 2019, the Court granted Kazakhstan's renewed
motion to seal. (Doc. 11.)
On
October 28, 2019, the Court granted Kazakhstan's §
1782 application. (Doc. 16.) Kazakhstan served the subpoena
on Lawler two days later. (Doc. 18.)
On
November 22, 2019, Lawler filed a redacted motion to quash
the subpoena (Doc. 19) and simultaneously filed a motion to
file, under seal, an unredacted version of the motion and its
attached exhibits (Doc. 20).
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).
As an
initial matter, Lawler has complied with LRCiv 5.6(b)'s
procedural requirement of “set[ting] forth a clear
statement of the facts and legal authority justifying the
filing of the document under seal.” (Doc. 20.) The
publicly-filed declaration of Lawler's counsel contains
no redactions (Doc. 19-1) but the publicly-filed motion to
quash and supporting exhibits are all substantially redacted
(Docs. 19, 19-2, 19-3, 19-4, 19-5, 19-6, 19-7, and 19-8).
The
Court has reviewed the motion to quash (Doc. 19) and has
determined that nearly all of the redactions are appropriate.
The redaction of the factual background, procedural history
of the arbitration, findings made by the tribunal, and
arguments made before the tribunal meets the
Kamakana standard. The interest in maintaining
confidentiality for both Kazakhstan and Big Sky, the
confidentiality order by the tribunal, and the fact these
redactions do not interfere with the public's ability to
evaluate and understand these proceedings collectively
outweigh the public policy favoring disclosure. However, the
redaction of the first complete sentence on page 16 of the
motion (concerning Lawler's alternative request to delay
the Court's decision) renders that request
incomprehensible to the public. (Doc. 19 at 17.) It does not
go to the merits of any argument made before the arbitration
tribunal or identify any finding made by the tribunal, and
it's difficult to see how disclosing it would prejudice
either party. The Court recognizes that the parties have been
ordered by the tribunal to maintain confidentiality, but a
party “may not establish that . . . documents are
sealable simply by showing that they are subject to a
protective order.” Powertech Tech. Inc. v. Tessera,
Inc., 2012 WL 3283421, *2 (N.D. Cal. 2012). As to this
particular redaction, the motion to seal is denied.
Turning
to the exhibits, the Court finds that the redactions
appearing in Doc. 19-2 (the tribunal's ruling on a
document production request), Doc. 19-3 (arbitration request
for production of documents), Doc. 19-4 (letter from tribunal
to the parties), Docs. 19-5, 19-6, and 19-8 (letters from
counsel to the tribunal), and 19-7 (tribunal decision on
request for bifurcation) meet the Kamakana standard.
None of these documents are publicly available and all are
subject to the tribunal's confidentiality order. (Doc. 20
at 5-8.) Further, the interest in maintaining confidentiality
for both Kazakhstan and Big Sky and the fact that these
redactions do not interfere with the public's ability to
evaluate and understand these proceedings collectively
outweigh the public interest in disclosure.
Accordingly,
IT IS ORDERED that Lawler's motion for
leave to file documents under seal (Doc. 20) is
granted in part and denied in part. The
Clerk of Court shall file under seal the exhibits at Docs.
21-1, 21-2, 21-3, 21-4, 21-5, 21-6, and 21-7 (these are the
unredacted versions of the documents appearing at Docs. 19-2,
19-3, 19-4, 19-5, 19-6, 19-7, and 19-8).
IT
IS FURTHER ORDERED that the unredacted motion to
quash (Doc. 21) will not be filed at this time. Instead,
pursuant to LRCiv 5.6(e), Lawler may resubmit a new version
of the redacted motion to quash (Doc. 19) that omits any
redaction on page 16, lines 2-4. If and when such a new
version is ...