United States District Court, D. Arizona
ORDER
DOMINIC W. LANZA UNITED STATES DISTRICT JUDGE
Pending
before the Court is William Scott Lawler's motion to
seal. (Doc. 38.) For the following reasons, that motion will
be granted.
On
October 8, 2019, 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.) The Court granted a renewed motion to
seal on October 23, 2019. (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
attached exhibits (Doc. 20).[1]
On
December 9, 2019, Kazakhstan filed a redacted response to
Lawler's motion to quash (Doc. 24) and simultaneously
filed a motion to seal (Doc. 26). The Court granted
Kazakhstan's renewed motion to seal on December 16, 2019.
(Doc. 35.)
On
December 16, 2019, shortly after the Court granted
Kazakhstan's renewed motion to seal, Lawler filed a reply
(Doc. 37) and an accompanying motion to seal (Doc. 38).
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).
To
begin with, 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. 38.) The
publicly-filed declaration of Lawler's counsel (Doc.
37-1) and one of the exhibits (Doc. 37-5) contain no
redactions. The publicly-filed reply to Kazakhstan's
response (Doc. 37) and the other attached exhibits (Docs.
37-2, 37-3, and 37-4) are substantially redacted.
The
Court has carefully reviewed Lawler's reply and has
determined that all of the redactions are appropriate. The
redactions relate to arguments made before the tribunal,
findings of the tribunal, actions taken (or not taken) by the
tribunal. 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 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 tend to outweigh the public policy
favoring disclosure. Additionally, the increasingly
voluminous nature of the motions to seal in this case mean
that the Court has elsewhere approved redaction of much of
the language redacted from this reply.
Turning
to the exhibits, the Court finds that the redactions
appearing in Doc. 37-2 (letter from Kazakhstan's counsel
to the tribunal), Doc. 37-3 (letter from Big Sky's
counsel to the tribunal), and Doc. 37-4 (findings made by the
tribunal) meet the Kamakana standard. None of these
documents are publicly available and all are subject to the
tribunal's ongoing confidentiality order. 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. 38) is
granted. The Clerk of Court shall file under
seal the exhibits at Docs. 39, 39-1, 39-2, and 39-3 (these
are the unredacted versions of the documents appearing at
Docs. 37, 37-2, 37-3, and 37-4).
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