DEFENDANTS' UNOPPOSED AMENDED MOTION FOR LEAVE TO FILE UNDER SEAL CERTAIN DOCUMENTS RELATING TO THEIR MARCH 6, 2014 MOTION FOR PARTIAL SUMMARY JUDGMENT
ANDREW P. GORDON, District Judge.
MOTION
In response to the Court's March 10, 2014 Order (Dkt. 199), Defendants/Counter-Plaintiffs American Economy Insurance Company and Colorado Casualty Insurance Company (collectively "American Economy") file this unopposed Amended Motion For Leave To File Under Seal Certain Documents Relating To Their March 6, 2014 Motion For Partial Summary Judgment ("Partial Summary Judgment Motion"). Defendants move under L.R. 10-5(b), Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), and this Court's October 24, 2012 Stipulation and Protective Order in this case, Dkt. 38, at 9 (Para.7.3), for leave to file under seal only the following documents relating to their March 6, 2014 Partial Summary Judgment Motion:
a. Exhibit 5 to that Motion (a December 22, 2011 memo prepared by the Holland & Hart firm).
b. Page 22 lines 7-15 of Defendants' March 6, 2014 Motion (which will be filed under seal as a new Exhibit 6, attached hereto).
These two documents should be filed under seal because they contain privileged attorney-client communications that both Plaintiffs and Defendants were entitled to see without a waiver of the privilege. Therefore, to protect against the potential harm and/or prejudice that may result, Defendants request this Court grant them leave to file under seal Exhibit 5 and the new Exhibit 6 to their Motion for Partial Summary Judgment.
To narrow the scope of Exhibit 3 in light of the Kamakana standard, AEI is providing a new version of Exhibit 3 that contains only the pages of Koner Bills' deposition testimony that it cited in its Partial Summary Judgment Motion.
The remaining documents including: the Partial Summary Judgment Motion and Exhibits 1, 2, and 4 can be filed as public documents, rather than under seal.
Therefore, American Economy is filing, as exhibits to this motion, the following documents relating to its March 6, 2014 Partial Summary Judgment Motion that the parties agree can be unsealed:
• Defendants' Partial Summary Judgment Motion filed March 6, 2014, Dkt. 198 (with the text at page 22 lines 7-15 redacted) (attached hereto as Exhibit A).
• Exhibit 1 in support of that Motion: Mediversal's Third Party Administrators Professional Liability Insurance Policies.
• Exhibit 2 in support of that Motion: Network Access and Utilization Management Agreement between Coast Benefits and Mediversal, Inc. (marked as Bills Deposition Exhibit 136).
• Exhibit 3 in support of that Motion (as revised): Koner Bills Deposition Transcript excerpts: only pages cited in Defendants' Partial Summary Judgment Motion (March 27, 2013).
• Exhibit 4 in support of that Motion: David Aspinwall Deposition Excerpts.
Conference with Plaintiffs' counsel
American Economy's counsel conferred with Plaintiffs' counsel by sending a letter to them on March 13, 2014 setting forth the details of this proposal and then speaking with them about this proposal on March 17, 2014. Based on those discussions, American Economy is authorized to state that Plaintiffs' counsel agree to American Economy's request set forth in this amended motion.
MEMORANDUM IN SUPPORT
In support of this Amended Motion, American Economy states as follows:
1 Defendants filed a Motion for Partial Summary Judgment on March 6, 2014 (Dkt. 198).
2. Plaintiffs (collectively "Great-West") have designated large portions of the discovery record in this case as Confidential under the Protective Order this Court entered (Dkt. 38). Therefore, in deference to Great-West's designations of certain documents and deposition testimony as Confidential, American Economy moved for leave to file under seal (Dkt. 197) its Partial Summary Judgment Motion and the supporting exhibits.
3. The parties have conferred further in light of the Court's March 10, 2014 Order denying that motion for leave to file under seal (Dkt. 199). The parties have agreed jointly to request in this amended motion that the Court allow to be filed under seal only the following two documents relating to American Economy's Partial Summary Judgment Motion:
a. Exhibit 5 to that Motion (a privileged December 22, 2011 memo prepared by the Holland & Hart firm).
b. Page 22 lines 7-15 of Defendants' March 6, 2014 Motion (which will be filed as a new Exhibit 6).
4. These two documents should be filed under seal because they contain privileged attorney-client communications that both Plaintiffs and Defendants were entitled to see without effecting a waiver of the privilege. Therefore, to protect against the potential harm and/or prejudice that may result, Defendants request this Court grant them leave to file Exhibit 5 and the new Exhibit 6 to their Motion for Partial Summary Judgment under seal.
5. The parties also agreed to narrow the scope of the Defendants' original Exhibit 3 in light of the Kamakana standard. American Economy is filing with this motion a new version of Exhibit 3 that contains only the pages of Koner Bills' deposition testimony that it cited in its Partial Summary Judgment Motion.
6. The remaining documents including: the Partial Summary Judgment Motion (except for redacted text on page 22) and Exhibits 1, 2, and 4 can be filed as public documents, rather than under seal.
7. Under the Kamakana standard, there are compelling reasons to file privileged documents under seal such as Exhibit 5 and the new Exhibit 6 to Defendants Partial Summary Judgment Motion. This case involves a dispute between concerning the settlement and final resolution of the underlying lawsuit, Huynh v. Mediversal (the "Huynh Lawsuit"). American Economy believes that in order to have this Court decide some aspects of the merits of the current dispute on a motion for summary judgment, the Court needs to be able to review some of the privileged communications concerning the Huynh Lawsuit between the defense counsel for the insured (Mediversal) and American Economy. Mediversal's insurers were authorized to receive such privileged information without that disclosure creating a waiver of the attorney-client privilege or work product doctrine. See Nevada Yellow Cab Corp. v. Eighth Judicial Dist. Court, 152 P.3d 737, 742 (Nev. 2007). Mediversal has not consented to the waiver of the privilege for these attorney-client communications.
8. Under the Kamakana standard: "For a document filed with a dispositive motion, `compelling reasons' must be shown to justify sealing the document." Colato v. LeGrand, No. 3:10-cv-00470-RCJ-VPC, 2011 WL 2651571 at *1 (D. Nev. July 5, 2011). "To the extent any confidential information can be easily redacted while leaving meaningful information available to the public, the Court must order that redacted versions be filed rather than sealing entire documents." Aevoe Corp. v. AE Tech. Co., No. 2:12-cv-00053-GMN-NJK, 2014 WL 551563 (D. Nev. Feb. 7, 2014); see also Allstate Insurance Company v. Balle, No. 2:10-cv-02205-APG-NGK (D. Nev. Nov. 19, 2013) (same).
9. Compelling reasons exist for filing privileged documents under seal. See, e.g., National Union Fire Ins. Co. v. Sharp Plumbing, Inc., No. 2:09-cv-00783-GMN-GWF (D. Nev. Feb. 13, 2013) (Navarro, J.) (granting unopposed motion to file privileged documents under seal that were filed in connection with a summary judgment motion); Neumont Univ., LLC v. Little Bizzy, LLC, No. 2:12-cv-01395-GMN-PAL (D. Nev. June 19, 2013) (Navarro, J.) (granting motion for leave to file privileged attorney billing records under seal as exhibit to motion for default judgment). The attorney-client privilege and work-product doctrine outweigh the public interest noted in Kamakana for accessing court records and constitute a compelling need. See Asdale v. Int'l Game Tech., No. 3:04-CV-703-RAM, 2010 WL 2161930 at *4, *5 (D. Nev. May 28, 2010) (McQuaid, J.) (court granted motion to seal documents protected by the attorney-client privilege and attorney work product doctrine: "The public interest in accessing the courts does not outweigh the compelling need to protect Defendant's proprietary information and the compelling need to honor the attorney-client privilege and the work-product doctrine"). See also Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1212 (9th Cir. 2002) ("courts have consistently granted protective orders that prevent disclosure of many types of information, such as letters protected. under the attorney-client privilege....").
10. It is not feasible to redact the confidential information from Exhibit 5 and file it as a public document because the entire document comprises a privileged attorney-client communication. The information from Exhibit 5 upon which American Economy relies in its Partial Summary Judgment Motion is part of the confidential information in that document.
11. Therefore, based on the analysis above, American Economy requests that the Court not un-seal any of the documents that American Economy filed on March 6, 2014, and instead authorize the following steps:
a. The following documents, which are being filed with this amended motion, will now be public documents:
• Defendants' Partial Summary Judgment Motion filed March 6, 2014, Dkt. 198 (with the text at page 22 lines 7-15 redacted) (attached hereto as Exhibit A).
• Exhibit 1 in support of that Motion: Mediversal's Third Party Administrators Professional Liability Insurance Policies.
• Exhibit 2 in support of that Motion: Network Access and Utilization Management Agreement between Coast Benefits and Mediversal, Inc. (marked as Bills Deposition Exhibit 136).
• Exhibit 3 in support of that Motion (as revised): Koner Bills Deposition Transcript excerpts: only pages cited in Defendants' Partial Summary Judgment Motion (March 27, 2013).
• Exhibit 4 in support of that Motion: David Aspinwall Deposition Excerpts.
b. The Court will allow the following documents relating to Defendants' Partial Summary Judgment Motion to remain under seal or be filed under seal:
• Exhibit 5 in support of that Motion: Pre-mediation Memorandum from Holland & Hart (Dec. 22, 2011): AEIC-4244 to -4259 (marked as Aspinwall Deposition Exhibit 84) (already filed under seal on March 6, 2014 as Exhibit 5 to Dkt. 198).
• Exhibit 6 in support of that Motion: A new exhibit attached hereto and filed under seal, consisting of the unredacted page 22 to Defendants' Partial Summary Judgment Motion.
Wherefore, based on the foregoing, American Economy respectfully requests that the Court:
a. accept for filing as public documents the following documents attached to this amended motion: Defendants' Partial Summary Judgment Motion filed March 6, 2014, Dkt. 198 (with the text at page 22 lines 7-15 redacted) (attached hereto as Exhibit A), and Exhibits 1, 2, 3, and 4 in support of that Motion (attached hereto).
b. grant leave to be filed under seal Exhibit 5 in support of that Partial Summary Judgment Motion (already filed under seal on March 6, 2014 as Exhibit 5 to Dkt. 198), and a new Exhibit 6 (attached hereto), which is the unredacted version of page 22 of American Economy's Partial Summary Judgment Motion.
ORDER
IT IS SO ORDERED.
