1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 CACHIL DEHE BAND OF WINTUN CASE NO. 2:20-CV-1585 AWI SKO

INDIANS OF THE COLUSA INDIAN

9 COMMUNITY a federally recognized ORDER RE: MOTION TO FILE UNDER Indian Colusa, SEAL 10 Plaintiff 11 v. (Doc. 36) 12 STATE OF CALIFORNIA, and GAVIN 13 NEWSOM IN HIS OFFICIAL

CAPACITY AS GOVERNOR OF

14 CALIFORNIA,

15 Defendants

16 17 State Defendants have made a motion to file under seal certain portions of the declaration 18 of Rachelle Ryan in support of their motion for summary judgement. Doc. 36. Related to their 19 motion, State Defendants seek to file redacted versions of the declaration, their brief in support of 20 their summary judgement motion, and statement of undisputed facts in the public docket of the 21 case. They explain that the declaration “contains confidential and sensitive information regarding 22 the finances of the class III gaming facility operated by the plaintiff Cachil Dehe Band of Wintun 23 Indians of the Colusa Indian Community (Tribe). The State Defendants are required by the terms 24 of the tribal-state class III gaming compact to maintain the confidentiality of the subject 25 information.” Doc. 36, 1:26-2:3. The motion was filed ex parte but the State Defendants represent 26 that the Tribal Plaintiff supports this request to file under seal. Doc. 36, 2:9-11. 27 All documents filed with the court are presumptively public. San Jose Mercury News, Inc. 28 v. U.S. Dist. Court, 187 F.3d 1096, 1103 (9th Cir. 1999). “[T]he courts of this country recognize a 1 general right to inspect and copy public records and documents, including judicial records and 2 documents.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016), 3 citations omitted. Two standards generally govern requests to seal documents: “compelling 4 reasons” and “good cause.” “[J]udicial records attached to dispositive motions [are treated] 5 differently from records attached to non-dispositive motions. Those who seek to maintain the 6 secrecy of documents attached to dispositive motions must meet the high threshold of showing 7 that ‘compelling reasons’ support secrecy. A ‘good cause’ showing under Rule 26(c) will suffice 8 to keep sealed records attached to non-dispositive motions.” Kamakana v. City & Cty. of 9 Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006), citations omitted. The declaration the State 10 Defendants seek to file under seal is proffered in support of a motion for summary judgement. 11 Thus, the compelling reasons standard applies. “In general, ‘compelling reasons’ sufficient to 12 outweigh the public’s interest in disclosure and justify sealing court records exist when such ‘court 13 files might have become a vehicle for improper purposes,’ such as the use of records to gratify 14 private spite, promote public scandal, circulate libelous statements, or release trade secrets. The 15 mere fact that the production of records may lead to a litigant’s embarrassment, incrimination, or 16 exposure to further litigation will not, without more, compel the court to seal its records.” Id. at 17 1179. 18 The State Defendants’ request is limited. They seek only to seal those parts of Ryan’s 19 declaration that reveals Tribal Plaintiff’s number of gaming devices, total gaming revenues, and 20 the total contribution to the Special Distribution Fund. See Doc. 35-2, 2:15-25. The State 21 Defendants represent that these numbers are meant to be confidential under the terms of the 1999 22 Compacts. “The existence of a confidentiality provision, without more, does not constitute good 23 cause, let alone a compelling reason, to seal.” Moussouris v. Microsoft Corp., 2018 U.S. Dist. 24 LEXIS 34685, at *26 (W.D. Wash. Feb. 16, 2018). 25 While these numbers might potentially qualify as trade secrets, the State Defendants have 26 not made a sufficient showing to support that conclusion. In the context of commerce, the Ninth 27 Circuit has stated “pricing terms, royalty rates, and guaranteed minimum payment terms….[are] 28 information that plainly falls within the definition of ‘trade secrets.’ A ‘trade secret may consist of 1 | any formula, pattern, device or compilation of information which is used in one’s business, and 2 | which gives him an opportunity to obtain an advantage over competitors who do not know or use 3 | it.’” Elec. Arts, Inc. v. United States Dist. Court, 298 F. App’x 568, 569 (9th Cir. 2008), quoting 4| Restatement of the Law, Torts § 757, cmt. b. The underlying rationale is that “courts have refused 5 | to permit their files to serve...as sources of business information that might harm a litigant’s 6 | competitive standing.” Nixon v. Warner Comme’ns, 435 U.S. 589, 598 (1978). There is no 7 | assertion that the numbers the State Defendants seek to file under seal affect the Plaintiff Tribe’s 8 | competitive position and no legal briefing to that effect. The Ninth Circuit has cautioned that 9 | courts must make their sealing decisions “‘on the basis of articulable facts known to the court, not 10 | on the basis of unsupported hypothesis or conjecture.” Valley Broad. Co. v. United States Dist. 11 | Court, 798 F.2d 1289, 1293 (9th Cir. 1986), quoting United States v. Edwards (In re Video- 12 | Indiana, Inc.), 672 F.2d 1289, 1294 (7th Cir. 1982). “The mere fact that the production of records 13 | may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, 14 | without more, compel the court to seal its records.” Kamakana, 447 F.3d at 1179, citing Foltz v. 15 | State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1136 (9th Cir. 2003). 16 The motion to file under seal (Doc. 36) is DENIED without prejudice. Any renewed 17 | requests to file under seal must be FILED no later than June 25, 2021. Alternatively, the State 18 | Defendants may file unredacted or modified versions of the relevant documents by June 30, 2021. 19 20 IT IS SO ORDERED. 51 | Dated: _June 15, 2021 7 Sz 7 Cb Lec -_-SENIOR DISTRICT JUDGE 22 23 24 25 26 27 28