Filed: Jul. 01, 2015
Latest Update: Jul. 01, 2015
Summary: OMNIBUS ORDER RE: MOTIONS TO SEAL (Re: Docket Nos. 124, 128, 135, 136, 143, 149, 150, 151, 160) PAUL S. GREWAL , Magistrate Judge . Before the court are nine administrative motions to seal various documents. "Historically, courts have recognized a `general right to inspect and copy public records and documents, including judicial records and documents.'" 1 Accordingly, when considering a sealing request, "a `strong presumption in favor of access' is the starting point." 2 Parties seeking
Summary: OMNIBUS ORDER RE: MOTIONS TO SEAL (Re: Docket Nos. 124, 128, 135, 136, 143, 149, 150, 151, 160) PAUL S. GREWAL , Magistrate Judge . Before the court are nine administrative motions to seal various documents. "Historically, courts have recognized a `general right to inspect and copy public records and documents, including judicial records and documents.'" 1 Accordingly, when considering a sealing request, "a `strong presumption in favor of access' is the starting point." 2 Parties seeking t..
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OMNIBUS ORDER RE: MOTIONS TO SEAL (Re: Docket Nos. 124, 128, 135, 136, 143, 149, 150, 151, 160)
PAUL S. GREWAL, Magistrate Judge.
Before the court are nine administrative motions to seal various documents. "Historically, courts have recognized a `general right to inspect and copy public records and documents, including judicial records and documents.'"1 Accordingly, when considering a sealing request, "a `strong presumption in favor of access' is the starting point."2 Parties seeking to seal judicial records relating to dispositive motions bear the burden of overcoming the presumption with "compelling reasons" that outweigh the general history of access and the public policies favoring disclosure.3
However, "while protecting the public's interest in access to the courts, we must remain mindful of the parties' right to access those same courts upon terms which will not unduly harm their competitive interest."4 Records attached to nondispositive motions therefore are not subject to the strong presumption of access.5 Because the documents attached to nondispositive motions "are often unrelated, or only tangentially related, to the underlying cause of action," parties moving to seal must meet the lower "good cause" standard of Rule 26(c).6 As with dispositive motions, the standard applicable to nondispositive motions requires a "particularized showing"7 that "specific prejudice or harm will result" if the information is disclosed.8 "Broad allegations of harm, unsubstantiated by specific examples of articulated reasoning" will not suffice.9 A protective order sealing the documents during discovery may reflect the court's previous determination that good cause exists to keep the documents sealed,10 but a blanket protective order that allows the parties to designate confidential documents does not provide sufficient judicial scrutiny to determine whether each particular document should remain sealed.11
In addition to making particularized showings of good cause, parties moving to seal documents must comply with the procedures established by Civ. L.R. 79-5. Pursuant to Civ. L.R. 79-5(b), a sealing order is appropriate only upon a request that establishes the document is "sealable," or "privileged or protectable as a trade secret or otherwise entitled to protection under the law." "The request must be narrowly tailored to seek sealing only of sealable material, and must conform with Civil L.R. 79-5(d)."12 "Within 4 days of the filing of the Administrative Motion to File Under Seal, the Designating Party must file a declaration as required by subsection 79-5(d)(1)(A) establishing that all of the designated material is sealable."13
With these standards in mind, the courts rules on the instant motions as follows:
Motion to Document to be Sealed Result Reason/Explanation
Seal
124-5 Exhibit A to Welsh Designations highlighted in Sealed portions
Declaration yellow SEALED. narrowly tailored to
confidential business
information.
124-7 Exhibit E to Welsh SEALED. Sealed portions
Declaration narrowly tailored to
confidential business
information.
124-9 Exhibit F to Welsh Page 2 SEALED; remainder Only sealed portions
Declaration UNSEALED. narrowly tailored to
confidential business
information.
124-11 Exhibit G to Welsh UNSEALED. Not narrowly tailored
Declaration to confidential
business information.
124-13 Exhibit I to Welsh UNSEALED. Not narrowly tailored
Declaration to confidential
business information.
128-4 Novadaq's Opposition to UNSEALED. No supporting
Karl Storz's Motion for declaration filed.
Leave to File Motion for
Reconsideration
128-6 Declaration of Jennifer UNSEALED. No supporting
Lee Taylor declaration filed.
128-8 Exhibit 1 to Taylor UNSEALED. Not narrowly tailored
Declaration to confidential
business information
and no supporting
declaration filed.
128-10 Exhibit 2 to Taylor UNSEALED. Not narrowly tailored
Declaration to confidential
business information
and no supporting
declaration filed.
128-12 Exhibit 3 to Taylor UNSEALED. Not narrowly tailored
Declaration to confidential
business information
and no supporting
declaration filed.
135-4 Karl Storz's Reply to Designations highlighted in Sealed portions
Motion for Leave to File yellow SEALED. narrowly tailored to
Motion for confidential business
Reconsideration information.
135-6 Declaration of Walter B. Designations highlighted in Only sealed portions
Welsh yellow at 1:13-15 SEALED; narrowly tailored to
remainder UNSEALED. confidential business
information.
135-8 Exhibit K to Welsh UNSEALED. Not narrowly tailored
Declaration to confidential
business information.
136-3 Novadaq's Opposition to UNSEALED. No supporting
Karl Storz's Motion for declaration filed.
Leave to File Motion for
Reconsideration
136-5 Exhibit A to Taylor UNSEALED. No supporting
Declaration declaration filed.
143-4 Novadaq's Opposition to UNSEALED. No supporting
Karl Storz's Motion to declaration filed.
Extend Time
143-6 Exhibit L to Taylor UNSEALED. No supporting
Declaration declaration filed.
143-8 Exhibit M to Taylor UNSEALED. No supporting
Declaration declaration filed.
149-4 KS' Motion to Compel UNSEALED. Not narrowly tailored
Depositions to confidential
business information.
149-6 Exhibit A to Welsh UNSEALED. Not narrowly tailored
Declaration to confidential
business information.
149-8 Exhibit L to Welsh UNSEALED. Not narrowly tailored
Declaration to confidential
business information.
149-10 Exhibit O to Welsh UNSEALED. Not narrowly tailored
Declaration to confidential
business information.
149-12 Exhibit P to Welsh UNSEALED. Not narrowly tailored
Declaration to confidential
business information.
149-14 Exhibit T to Welsh UNSEALED. Not narrowly tailored
Declaration to confidential
business information.
149-16 Exhibit U to Welsh UNSEALED. Not narrowly tailored
Declaration to confidential
business information.
150-4 Novadaq's Motion for Designations highlighted in Sealed portions
Rule 37(b)(2) Sanctions yellow SEALED. narrowly tailored to
for Defendants' Violation confidential business
of Four Discovery Orders information.
150-6 [PROPOSED] Order Designations highlighted in Sealed portions
Granting Novadaq's yellow SEALED. narrowly tailored to
Motion for Rule 37(b)(2) confidential business
Sanctions for Defendants' information.
Violation of Four
Discovery Orders
151-1 Declaration of Jennifer Designations highlighted in Sealed portions
Lee Taylor in support of yellow SEALED. narrowly tailored to
Novadaq's Motion for confidential business
Rule 37(b)(2) Sanctions information.
for Defendants' Violation
of Four Discovery Orders
151-2 Exhibit H to Taylor Designations redacted in black Sealed portions
Declaration at Docket No. 169-3 SEALED. narrowly tailored to
confidential business
information.
151-3 Exhibit I to Taylor Designations redacted in black Sealed portions
Declaration at Docket No. 169-4 SEALED. narrowly tailored to
confidential business
information.
151-5 Declaration of Joyce Liou UNSEALED. Not narrowly tailored
in support of Novadaq's to confidential
Motion for Rule 37(b)(2) business information.
Sanctions for Defendants'
Violation of Four
Discovery Orders
151-6 Exhibit A to Liou UNSEALED. No supporting
Declaration declaration filed.
151-7 Exhibit B to Liou UNSEALED. No supporting
Declaration declaration filed.
151-8 Exhibit C to Liou UNSEALED. No supporting
Declaration declaration filed.
151-9 Exhibit D to Liou UNSEALED. No supporting
Declaration declaration filed.
151-10 Exhibit F to Liou UNSEALED. No supporting
Declaration declaration filed.
151-11 Exhibit G to Liou SEALED. Sealed portions
Declaration narrowly tailored to
confidential business
information.
151-12 Exhibit H to Liou SEALED. Sealed portions
Declaration narrowly tailored to
confidential business
information.
151-14 Exhibit K to Liou Designations highlighted in Sealed portions
Declaration yellow SEALED. narrowly tailored to
confidential business
information.
151-15 Exhibit O to Liou UNSEALED. Not narrowly tailored
Declaration to confidential
business information;
Novadaq shall re-file
with highlights to
more narrowly tailor
by July 8, 2015.
151-16 Exhibit P to Liou UNSEALED. Not narrowly tailored
Declaration to confidential
business information;
Novadaq shall re-file
with highlights to
more narrowly tailor
by July 8, 2015.
151-17 Exhibit T to Liou UNSEALED. Not narrowly tailored
Declaration to confidential
business information;
Novadaq will re-file
with highlights to
more narrowly tailor
by July 8, 2015.
151-18 Exhibit U to Liou UNSEALED. Not narrowly tailored
Declaration to confidential
business information;
Novadaq shall re-file
with highlights to
more narrowly tailor
by July 8, 2015.
151-19 Exhibit Y to Liou UNSEALED. Not narrowly tailored
Declaration to confidential
business information.
160-4 Novadaq's Opposition to Designations highlighted in Sealed portions
(originally Defendants' Motion for yellow SEALED. narrowly tailored to
filed at Protective Order confidential business
100-3) Regarding Dr. Storz information.
160-6 Exhibit 4 to Foran Designations highlighted in Sealed portions
(originally Declaration yellow SEALED. narrowly tailored to
filed at confidential business
100-8) information.
160-8 Exhibit 7 to Foran Designations highlighted in Sealed portions
(originally Declaration yellow SEALED. narrowly tailored to
filed at confidential business
100-11) information.
160-10 Exhibit 8 to Foran Designations highlighted in Sealed portions
(originally Declaration yellow SEALED. narrowly tailored to
filed confidential business
at 100-12) information.
160-12 Exhibit 10 to Foran Designations highlighted in Sealed portions
(originally Declaration yellow SEALED. narrowly tailored to
filed confidential business
at 100-14) information.
160-14 Exhibit 11 to Foran Designations highlighted in Sealed portions
(originally Declaration yellow SEALED. narrowly tailored to
filed at confidential business
100-15) information.
160-16 Exhibit 12 to Foran Designations highlighted in Sealed portions
(originally Declaration yellow SEALED. narrowly tailored to
filed at confidential business
100-16) information.
160-23 Exhibit 20 to Foran SEALED. Sealed portions
(originally Declaration narrowly tailored to
filed at confidential business
100-21) information.
160-24 Exhibit 20 to Foran SEALED. Sealed portions
(originally Declaration narrowly tailored to
filed at confidential business
100-21) information.
160-25 Exhibit 20 to Foran SEALED. Sealed portions
(originally Declaration narrowly tailored to
filed at confidential business
100-21) information.
160-26 Exhibit 20 to Foran SEALED. Sealed portions
(originally Declaration narrowly tailored to
filed at confidential business
100-21) information.
160-27 Exhibit 20 to Foran SEALED. Sealed portions
(originally Declaration narrowly tailored to
filed at confidential business
100-21) information.
160-28 Exhibit 20 to Foran SEALED. Sealed portions
(originally Declaration narrowly tailored to
filed at confidential business
100-21) information.
160-30 Exhibit 21 to Foran Designations highlighted in Sealed portions
(originally Declaration yellow SEALED. narrowly tailored to
filed at confidential business
100-22) information.
160-32 Exhibit 22 to Foran Designations highlighted in Sealed portions
(originally Declaration yellow SEALED. narrowly tailored to
filed at confidential business
100-23) information.
160-34 Exhibit 23 to Foran Designations highlighted in Sealed portions
(originally Declaration yellow SEALED. narrowly tailored to
filed at confidential business
100-24) information.
160-36 Exhibit 24 to Foran Designations highlighted in Sealed portions
(originally Declaration yellow SEALED. narrowly tailored to
filed at confidential business
100-25) information.
160-38 Exhibit 26 to Foran Designations highlighted in Sealed portions
(originally Declaration yellow SEALED. narrowly tailored to
filed at confidential business
100-27) information.
160-40 Exhibit 28 to Foran Designations highlighted in Sealed portions
(originally Declaration yellow SEALED. narrowly tailored to
filed at confidential business
100-29) information.
SO ORDERED.
FootNotes
1. Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 & n. 7 (1978)).
2. Id. (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)).
3. Id. at 1178-79.
4. Apple Inc. v. Samsung Electronics Co., Ltd., 727 F.3d 1214, 1228-29 (Fed. Cir. 2013).
5. See id. at 1180.
6. Id. at 1179 (internal quotations and citations omitted).
7. Id.
8. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); see Fed. R. Civ. P. 26(c).
9. Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992).
10. See Kamakana, 447 F.3d at 1179-80.
11. See Civ. L.R. 79-5(d)(1)(A) ("Reference to a stipulation or protective order that allows a party to designate certain documents as confidential is not sufficient to establish that a document, or portions thereof, are sealable.").
12. Civ. L.R. 79-5(b). In part, Civ. L.R. 79-5(d) requires the submitting party to attach a "proposed order that is narrowly tailored to seal only the sealable material" which "lists in table format each document or portion thereof that is sought to be sealed," Civ. L.R. 79-5(d)(1)(b), and an "unredacted version of the document" that indicates "by highlighting or other clear method, the portions of the document that have been omitted from the redacted version." Civ. L.R. 79-5(d)(1)(d).
13. Civ. L.R. 79-5(e)(1). The Civil Local Rules have recently been amended shortening the time available to the designating party to file a supporting declaration from seven days to four days. As this rule change was only recently implemented the court applies the prior form of Civ. L.R. 79-5 for the purposes of this order.