United States District Court, D. Arizona
Dominic W. Laiua, United States District Judge.
before the Court is the Republic of Kazakhstan's
(“Kazakhstan”) motion to seal. (Doc. 26.) For the
following reasons, that motion will be granted in part and
denied in part.
October 8, 2019, Kazakhstan initiated this action by filing
an application under 28 U.S.C. § 1782 for a subpoena to
compel William Scott Lawler to testify in, and produce
certain evidence concerning, a pending international
investor-state arbitration. (Doc. 1.) The Court granted a
renewed motion to seal on October 23, 2019. (Doc. 11.)
October 28, 2019, the Court granted Kazakhstan's §
1782 application. (Doc. 16.) Kazakhstan served the subpoena
on Lawler two days later. (Doc. 18.)
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).
December 9, 2019, Kazakhstan filed a redacted response to
Lawler's motion to quash (Doc. 24) and simultaneously
filed a motion to seal an unredacted version of that response
and its attached exhibits (Doc. 26).
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).
initial matter, Kazakhstan 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. 26.) The
publicly-filed declaration of Kazakhstan's counsel
contains no redactions (Doc. 24-1) but the publicly-filed
response to the motion to quash and supporting exhibits both
contain significant redactions (Docs. 24, 24-2, and 24-3).
Court has carefully reviewed the response to the motion to
quash (Doc. 24) and has determined that nearly all the
redactions are appropriate. The redactions primarily relate
to arguments made before the tribunal, findings of the
tribunal, and communications between Lawler and his counsel.
In some cases, the redactions are so minor that they do not
interfere with public understanding. These redactions meet
the Kamakana standard because the interest in
maintaining confidentiality of 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 tend
to outweigh the public policy favoring disclosure. However,
the first redaction on page six of the response (quoting from
Lawler's motion to quash) does not meet the
Kamakana standard: this quotation is taken from the
publicly available portion of Lawler's motion filed in
this Court (Doc. 19 at 10, lines 7-8), and there's no
reason to hide something that's already in plain view.
Additionally, the formatting of footnotes seven, ten, and
twelve as uploaded to the Electronic Case Filing system make
it impossible for the Court to assess what has been redacted.
Given the strong presumption in favor of disclosure, the
Court cannot presume the redactions are appropriate.
the exhibits, the Court finds that the redactions appearing
in Doc. 24-2 (letter from Big Sky's counsel to the
tribunal) and Doc. 24-3 (another letter from Big Sky's
counsel to the tribunal) meet the Kamakana standard.
Neither of these documents is publicly available and both are
subject to the tribunal's ongoing confidentiality order.
(Doc. 26 at 3-4.) Further, the interest in maintaining
confidentiality of both Kazakhstan and Big Sky and the fact
these redactions do not interfere with the public's
ability to evaluate and understand these proceedings
collectively outweigh the public interest in disclosure.
IT IS ORDERED that Kazakhstan's motion
for leave to file documents under seal (Doc. 26) is
granted in part and denied in part. The
Clerk of Court shall file under seal the exhibits at Docs.
25-1 and 25-2 (these are the unredacted versions of the
documents appearing at Docs. 24-2 and 24-3).
IS FURTHER ORDERED that Kazakhstan's unredacted
response to the motion to quash (Doc. 25) will not be filed
at this time. Instead, pursuant to LRCiv 5.6(e), Kazakhstan
may resubmit a new version of the redacted response to the
motion to quash (Doc. 24) that omits any redaction on page
six, line five, and clarifies the scope of redaction in
footnotes seven, ten, and twelve. When such a new version is
resubmitted, the Court will review the redaction in footnotes
seven, ten, and twelve to determine whether it meets the
Kamakana standard. If so, the Court will then, by
separate order, instruct the Clerk of Court to file the
unredacted response to the motion to quash (Doc. 25) under