Filed: Apr. 21, 2016
Latest Update: Apr. 21, 2016
Summary: ORDER GRANTING IN PART AND DENYING IN PART INTUITIVE'S MOTION TO FILE UNDER SEAL Re: ECF No. 144 JON S. TIGAR , District Judge . Intuitive Surgical, Inc. ("Intuitive") moves to file under seal portions of its Opposition to Illinois Union Insurance Company's ("Illinois Union") and Navigators Specialty Insurance Company's ("Navigators") motions for summary judgment, as well as portions of the exhibits attached to Intuitive's opposition briefs. ECF No. 144. Intuitive and Ironshore Specialty In
Summary: ORDER GRANTING IN PART AND DENYING IN PART INTUITIVE'S MOTION TO FILE UNDER SEAL Re: ECF No. 144 JON S. TIGAR , District Judge . Intuitive Surgical, Inc. ("Intuitive") moves to file under seal portions of its Opposition to Illinois Union Insurance Company's ("Illinois Union") and Navigators Specialty Insurance Company's ("Navigators") motions for summary judgment, as well as portions of the exhibits attached to Intuitive's opposition briefs. ECF No. 144. Intuitive and Ironshore Specialty Ins..
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ORDER GRANTING IN PART AND DENYING IN PART INTUITIVE'S MOTION TO FILE UNDER SEAL Re: ECF No. 144
JON S. TIGAR, District Judge.
Intuitive Surgical, Inc. ("Intuitive") moves to file under seal portions of its Opposition to Illinois Union Insurance Company's ("Illinois Union") and Navigators Specialty Insurance Company's ("Navigators") motions for summary judgment, as well as portions of the exhibits attached to Intuitive's opposition briefs. ECF No. 144. Intuitive and Ironshore Specialty Insurance Company ("Ironshore") have filed declarations in support of sealing. ECF Nos. 144-1, 149. The Court grants the motion in part and denies the motion in part.
A party seeking to seal a document filed with the court must (1) comply with Civil Local Rule 79-5; and (2) rebut the "a strong presumption in favor of access" that applies to all documents other than grand jury transcripts or pre-indictment warrant materials. Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citation and internal quotations omitted).
With respect to the first prong, Local Rule 79-5 requires, as a threshold, a request that (1) "establishes that the document, or portions thereof, are privileged, protectable as a trade secret or otherwise entitled to protection under the law"; and (2) is "narrowly tailored to seek sealing only of sealable material." Civil L.R. 79-5(b). An administrative motion to seal must also fulfill the requirements of Civil Local Rule 79-5(d). "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." Civil L.R. 79-5(d)(1)(A).
With respect to the second prong, the showing required for overcoming the strong presumption of access depends on the type of motion to which the document is attached. "[A] `compelling reasons' standard applies to most judicial records.1 This standard derives from the common law right `to inspect and copy public records and documents, including judicial records and documents.'" Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 678 (9th Cir. 2010) (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 n.7 (1978)). To overcome this strong presumption, the party seeking to seal a judicial record must "articulate compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure." Kamakana, 447 F.3d at 1178-79 (internal citations omitted).
After reviewing Intuitive's motion to file under seal, the parties' declarations in support of sealing, and the redacted and unredacted versions of the underlying exhibits, the Court concludes that only certain portions of the attached exhibits are properly sealable, as outlined in the table below. Regarding the portions that the Court has concluded are properly sealable, the Court finds that Intuitive's requests are "narrowly tailored to seek sealing only of sealable material." Civil L.R. 79-5(b). The Court also finds that Intuitive and/or Ironshore have articulated "compelling reasons" for sealing these portions. See ECF Nos. 144-1, 149.
PORTIONS SOUGHT TO BE
DOCUMENT SEALED GRANTED/DENIED
Lines 3:14-15; 7:10; 7:14-16; Denied: not supported by a
Intuitive's Opposition to 8:17-18; 8:21-22; 8:27-28; 9:1- declaration
Illinois Union Motion 2; 9:3-4; 9:6-7; 9:10-16; 10:1-
4; 10:16-18; 11:6-9; 11:12-15;
11:17-24; 11:26; 12:1; 13:15-19;
14:22-23; 14:25-28; 25:9-14
Lines 7:6 Denied: not supported by a
declaration
Lines 7:7-8 Denied: not supported by a
declaration
Intuitive's Opposition to Lines 4:17-19 Granted
Navigators Motion Lines 11:3-5 Denied: not supported by a
declaration
Line 11:26 Granted
Lines 17:27-28 Granted
Lines 19:18-21 Granted
Lines 4:12-17 Denied: not supported by a
Declaration of Erika E. declaration
Schmidt In Support of Lines 6:1-2 Denied: not supported by a
Intuitive's Oppositions declaration
to Illinois Union's and Lines 15:4-7, 15:9-12; 15:14- Denied: not supported by a
Navigators' Motions 16; 15:18-19; 15:21-23; 15:25-27 declaration
("Schmidt Declaration") Lines 17:12-14 Denied: purported reasons for
sealing do not apply
Lines 19:17-19 Denied: not supported by a
declaration
Lines 32:7-8 Denied: not supported by a
declaration
Ex. 4 to Schmidt Pages 107 and 188 of excerpts Granted
from the certified deposition
Declaration transcript of Mark Cheffo
Ex. 6 to Schmidt Entire Exhibit Granted
Declaration Page 43 of excerpts from the Granted
certified deposition transcript
of Sara Hua Forum
Ex. 8 to Schmidt Pages 88 and 89 of excerpts Granted
from the certified deposition
Declaration transcript of Mark Cheffo
Ex. 11 to Schmidt Pages 88 and 89 of excerpts Granted
from the certified deposition
Declaration transcript of Mark Cheffo
Ex. 12 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 13 to Schmidt Entire Exhibit Granted as to pages 14-21, 47-Ex.
48; denied as to the remainder as
Declaration not supported by a declaration
Deposition Exhibit 27 Granted as to IRONSHORE-
(IRONSHORE-SBP0000909; SBP0000912-929; denied as to
IRONSHORE-SBP0000912- IRONSHORE-SBP0000909 as
929) not supported by Intuitive's
declaration
Ex. 14 to Schmidt Excerpt at ISI-IRNSHR- Granted
136610
Declaration ISI-IRNSHR-136621 & ISI- Granted
IRNSHR-136632
Ex. 15 to Schmidt All excerpts from the certified Granted as to page 14-21, 42-43,
deposition transcript of Alicia 47-49; denied as to all other
Declaration Bromfield portions as not supported by
Ironshore's declaration
Pages 48-49 of excerpts from Granted
the certified deposition
transcript of Alicia Bromfield
Deposition Exhibit 56 Denied: not supported by a
(IRONSHORE0002638 — declaration
IRONSHORE0002654)
IRONSHORE0004860 — Granted
IRONSHORE0002871
Ex. 16 to Schmidt All excerpts from the certified Denied: not supported by a
deposition transcript of James declaration
Declaration Silas
Deposition Exhibit 323 Granted
(IUIC011660 — IUIC011661)
Ex. 17 to Schmidt WS-NAV00106 — WS- Granted
NAV00143
Declaration
Ex. 18 to Schmidt Pages 211 — 213, and 226 — Granted
229 of excerpts from the
Declaration certified deposition transcript
of Regina Roque
Ex. 19 to Schmidt Deposition Exhibit 125 (WS— Granted
ACE00111 — WS-ACE00151)
Declaration
Ex. 20 to Schmidt Redactions throughout entire Granted
exhibit
Declaration
Ex. 21 to Schmidt Deposition Exhibit 125 (WS— Granted
ACE00111 — WS-ACE00151)
Declaration Redactions throughout Granted
Deposition Exhibit 101 (WS-ACE00857
— WS-ACE00872)
Redactions throughout Granted
Deposition Exhibit 126 (IUIC
000634 — IUIC 000634 — A13)
Deposition Exhibit 127 (IUIC Granted
000625 — IUIC 000626)
Deposition Exhibit 129 (IUIC Granted
001597 — IUIC 001605)
All excerpts from the certified Denied: not supported by a
deposition transcript of James declaration
Silas and Laura Sunderlin
Ex. 22 to Schmidt Deposition Exhibit 139 (IUIC Granted
001750 — IUIC 001757)
Declaration Redactions throughout Granted
Deposition Exhibit 101 (WS-ACE00857
— WS-ACE00872)
Ex. 23 to Schmidt All excerpts from the certified Denied: not supported by a
deposition transcript of Robert declaration
Declaration Romeo; all excerpts from the
certified deposition transcript
of Andrew Barrengos
Deposition Exhibit 19 Granted as to Ironshore-SBP
(IRONSHORE-SBP0001081 — 1084; denied as to remainder as
IRONSHORE-SBP0001120) not supported by a declaration
Ex. 24 to Schmidt Deposition Exhibit 125 (WS— Granted
ACE00111 — WS-ACE00151)
Declaration
Ex. 26 to Schmidt All excerpts from the certified Denied: not supported by a
deposition transcript of declaration
Declaration Andrew Barrengos
Ex. 27 to Schmidt Entire Exhibit Granted as to the insurance
application; denied as to the
Declaration deposition transcript as not
supported by a declaration
Ex. 28 to Schmidt Deposition Exhibit Silas 349 Denied: not supported by a
(IUCI007878 — IUIC007955) declaration
Declaration
Ex. 30 to Schmidt Page 159 of excerpts from the Granted
certified deposition transcript
Declaration of Brian Gawle
WS-NAV00106 — WS- Granted
NAV00143
Ex. 33 to Schmidt Pages 88 and 89 of excerpts Granted
from the certified deposition
Declaration transcript of Mark Cheffo
Ex. 36 to Schmidt All excerpts from the certified Granted
deposition transcript of Sara
Declaration Roitman
Ex. 39 to Schmidt Page 159 of excerpts from the Granted
certified deposition transcript
Declaration of Brian Gawle
Ex. 41 to Schmidt All excerpts from the certified Denied: not supported by a
deposition transcript of James declaration
Declaration Silas
All excerpts from the certified Denied: not supported by a
deposition transcript of declaration
Andrew Barrengos
Ex. 42 to Schmidt All excerpts from the certified Denied: not supported by a
deposition transcript of James declaration
Declaration Silas
Ex. 44 to Schmidt IRONSHORE-SBP0000203 Granted
IRONSHORE0006895 Denied: not supported by a
Declaration declaration
Ex. 45 to Schmidt Entire Exhibit Granted as to pages 7-8, 14-18,
167-168, and 234 of the Linda
Declaration McLaughlin deposition transcript;
denied as to the remainder of the
exhibit as not supported by a
declaration
Pages 167 from the certified Granted as to pages 7-8, 14-18,
deposition transcript of Linda 167-168, and 234 of the Linda
McLaughlin McLaughlin deposition transcript;
denied as to the remainder of the
exhibit as not supported by a
declaration
Pages 168, 234 from the Granted as to pages 7-8, 14-18,
certified deposition transcript 167-168, and 234 of Linda
of Linda McLaughlin McLaughlin deposition transcript;
denied as to the remainder of the
exhibit as not supported by a
declaration
Ex. 46 to Schmidt All excerpts from the certified Denied: not supported by a
deposition transcript of declaration
Declaration Andrew Barrengos
IRONSHORE0006895 Denied: not supported by a
declaration
IRONSHORE0007150 Granted
All excerpts from the certified Granted as to pages 7-8 and 14-deposition
transcript of Linda 18
McLaughlin
Deposition Exhibit 18 (WS- Granted
NAV00631 — WS-NAV00632)
Ex. 47 to Schmidt All excerpts from the certified Denied: not supported by a
deposition transcript of declaration
Declaration Andrew Barrengos
Ex. 48 to Schmidt All excerpts from the certified Denied: not supported by a
deposition transcript of James declaration
Declaration Silas
Ex. 49 to Schmidt All excerpts from the certified Denied: not supported by a
deposition transcript of Laura declaration
Declaration Sunderlin
Redactions throughout Granted
Deposition Exhibit 126 (IUIC
000634 — IUIC 000634 — A13)
Deposition Exhibit 127 (IUIC Granted
000625 — IUIC 000626)
Deposition Exhibit 139 (IUIC Granted
001750 — IUIC 001757)
Ex. 51 to Schmidt Deposition Exhibit 110 (IUIC Granted
000666 — 000666 A2)
Declaration
Ex. 52 to Schmidt Entire Exhibit Denied for failure to narrowly
tailor portions sought to be sealed
Declaration
Ex. 55 to Schmidt Pages 50-53 of excerpts from Denied: not supported by a
the certified deposition declaration
Declaration transcript of Tristan Gabriel
(30(b)(6) witness)
Ex. 56 to Schmidt All excerpts from the certified Denied: not supported by a
deposition transcript of James declaration
Declaration Silas
Pages 131-132 of excerpts Denied: not supported by a
from the certified transcript of declaration
Tristan Gabriel
WS-ACE00823 — WS- Granted
ACE00844
Ex. 57 to Schmidt Pages 50-53 of excerpts from Denied: not supported by a
the certified deposition declaration
Declaration transcript of Tristan Gabriel
(30(b)(6) witness)
WS-ACE00823 — WS- Granted
ACE00844
Ex. 59 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 60 to Schmidt Pages 131-132 of excerpts Denied: not supported by a
from the certified deposition declaration
Declaration transcript of Tristan Gabriel
All excerpts from the certified Denied: not supported by a
deposition transcript of James declaration
Silas
Ex. 61 to Schmidt Pages 131-132 of excerpts Denied: not supported by a
from the certified deposition declaration
Declaration transcript of Tristan Gabriel
All excerpts from the certified Denied: not supported by a
deposition transcript of James declaration
Silas
Ex. 62 to Schmidt Pages 50-53 of excerpts from Denied: not supported by a
the certified deposition declaration
Declaration transcript of Tristan Gabriel
(30(b)(6) witness)
Deposition Exhibit 393 Granted
(IUIC020789 — IUIC020798)
Ex. 63 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration Deposition Exhibit 321 Granted
(IUIC011077 — IUIC011083)
Ex. 64 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration Deposition Exhibit 323 Granted
(IUIC011660)
Ex. 65 to Schmidt Pages 58-61 of excerpts from Denied: not supported by a
the certified deposition declaration
Declaration transcript of Steven DiLiberto
Deposition Exhibit 350 Denied: not supported by a
(IUIC014675 — 14678) declaration
Deposition Exhibit 324 Denied: not supported by a
(IUIC012349 — 12353) declaration
Deposition Exhibit 356 Denied: not supported by a
(IUIC014697 — 14701) declaration
Deposition Exhibit 357 Denied: not supported by a
(IUIC014702 — 14707) declaration
Deposition Exhibit 358 Denied: not supported by a
(IUIC014712 — 14716) declaration
Deposition Exhibit 359 Denied: not supported by a
(IUIC014708 — 14711) declaration
All excerpts from the certified Denied: not supported by a
deposition transcripts of James declaration
Silas and Robert Romeo
Ex. 66 to Schmidt Deposition Exhibit 326 Granted
(IUIC010958 — IUIC01096)
Declaration Deposition Exhibit 361 Granted
(IUIC014519 — IUIC014521)
Ex. 67 to Schmidt Pages 226 — 229 of excerpts Granted
from the certified deposition
Declaration transcript of Regina Roque
Ex. 69 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 70 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 71 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 72 to Schmidt All excerpts from the certified Denied: not supported by a
deposition transcript of James declaration
Declaration Silas
Ex. 74 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 75 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 76 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 77 to Schmidt Page 74 of excerpts from the Granted
certified deposition transcript
Declaration of Laura Sunderlin
Pages 20-21 of excerpts from Denied: not supported by a
the certified deposition declaration
transcript of Tristan Gabriel
All excerpts from the certified Denied: not supported by a
deposition transcript of James declaration
Silas
Ex. 78 to Schmidt Page 74 of excerpts from the Granted
certified deposition transcript
Declaration of Laura Sunderlin
All excerpts from the certified Denied: not supported by a
deposition transcript of James declaration
Silas
Ex. 79 to Schmidt All excerpts from the certified Denied: not supported by a
deposition transcript of James declaration
Declaration Silas
Ex. 80 to Schmidt Page 115 and 117 of excerpts Granted
from the certified deposition
Declaration transcript of Laura Sunderlin
Ex. 82 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 83 to Schmidt All excerpts from the certified Denied: not supported by a
deposition transcript of James declaration
Declaration Silas
Ex. 85 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 86 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 87 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 89 to Schmidt All excerpts from the certified Denied: not supported by a
deposition transcript of Tristan declaration
Declaration Gabriel and James Silas
Ex. 90 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 91 to Schmidt Entire Exhibit Denied for failure to narrowly
tailor portions sought to be sealed
Declaration
Ex. 92 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 94 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 95 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 96 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 97 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 98 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 99 to Schmidt IUIC014742 — IUIC014755 Denied: not supported by a
declaration
Declaration
Ex. 100 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 102 to Schmidt Pages 138-140 of excerpts Denied: not supported by a
from the certified deposition declaration
transcript of Tristan Gabriel
Declaration
Ex. 103 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 105 to Schmidt IUIC014717 — IUIC014741 Denied: not supported by a
declaration
Declaration
Ex. 109 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 110 to Schmidt Page 88 of excerpts from the Denied: not supported by a
certified deposition transcript declaration
Declaration of Steven DiLiberto
Ex. 118 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 119 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 121 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 122 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 123 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 124 to Schmidt Entire Exhibit Denied for failure to narrowly
tailor portions sought to be sealed
Declaration
Ex. 125 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration Deposition Exhibit 402 Denied for failure to narrowly
(IUIC017666) tailor portions sought to be sealed
Ex. 126 to Schmidt All excerpts from the certified Denied: not supported by a
deposition transcript of Steven declaration
Declaration DiLiberto.
Deposition Exhibit 402 Denied for failure to narrowly
(IUIC017666) tailor portions sought to be sealed
Ex. 141 to Schmidt Redactions throughout entire Granted
exhibit
Declaration
Ex. 142 to Schmidt Page 5:24-6:2; 6:16-23; 9:14; Granted
10:2-5; 10:21-24
Declaration
Ex. 143 to Schmidt WS-NAV00028 — WS- Granted
NAV00068
Declaration
Ex. 144 to Schmidt Pages 105-107 of excerpts Denied: not supported by a
from the certified deposition declaration
Declaration transcript of Jeff Mayes
Ex. 145 to Schmidt Entire Exhibit Granted
Declaration
Ex. 146 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Ex. 149 to Schmidt All excerpts from the certified Denied: not supported by a
deposition transcripts of declaration
Declaration Regina Roque and Andrew
Barrengos
Pages 74-81 of excerpts from Granted
the certified deposition
transcripts of Regina Roque.
Ex. 150 to Schmidt Page 127 of excerpts from the Granted
certified deposition transcript
Declaration of Nicky Espinosa Hayes
Ex. 152 to Schmidt Redactions throughout Granted
Deposition Exhibit 101 (WS-
Declaration ACE00857 — WS-ACE00872)
Page 78 of excerpts from the Denied: not supported by a
certified deposition transcript declaration
of Robert Romeo
Ex. 157 to Schmidt Pages 26-33 of excerpts from Granted
the certified deposition
Declaration transcript of Regina Roque
Ex. 158 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration Deposition Exhibit 153 (WS- Granted
NAV00607 — WS-NAV00608)
Deposition Exhibit 157 (WS- Granted
ACE00331-WS-ACE00335)
Page 139 of excerpts from the Granted
certified deposition transcript
of Andrew Barrengos
All excerpts from the certified Denied for failure to narrowly
deposition transcript of Regina tailor portions sought to be sealed
Roque
159 to Schmidt Entire Exhibit Granted as to pages 7-8 and 14-Ex.
18 of the Linda McLaughlin
Declaration deposition transcript; denied as to
the remainder of the exhibit as not
supported by a declaration
Page 101 of excerpts from the Granted
certified deposition transcript
of Linda McLaughlin
Ex. 160 to Schmidt Entire Exhibit Denied: not supported by a
declaration
Declaration
Regarding the documents for which the Court has granted Intuitive's motion to seal, "the document filed under seal will remain under seal and the public will have access only to the redacted version, if any, accompanying the motion." Civil L. R. 79-5(f)(1).
With respect to many of the documents above, Intuitive sought to file the document under seal because another party designated the material as confidential. Local Rule 79-5 requires that, within four days of the filing of the administrative motion to file under seal, the designating party file a declaration establishing that the designated material is sealable. Only Ironshore filed such a declaration. ECF No. 149. With respect to those exhibits for which no supporting declaration was filed, the Court has denied Intuitive's motion noting that the exhibit was "not supported by a declaration." Should any party other than Ironshore wish to file a supporting declaration, the Court will reconsider Intuitive's motion with respect to those exhibits identified in the newly filed declaration(s). If no such declaration is filed within seven days of the filing date of this Order, Intuitive may file the documents in the public record.
The Court will not consider those portions of the documents for which the Court has denied Intuitive's motion to seal unless Intuitive files the document in the public record without the redactions the Court has rejected, in conformance with this Order, within fourteen days from the date of this Order.
IT IS SO ORDERED.
