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8 UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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12 BRIAN MILLER, Case No. 19-CV-02114-LHK

13 Plaintiff, ORDER DENYING ADMINISTRATIVE

MOTIONS TO FILE UNDER SEAL

14 v. WITHOUT PREJUDICE

15 RP ON-SITE, LLC, Re: Dkt. No. 53, 55, 56 16 Defendant. 17 18 Before the Court are the parties’ administrative motions to file under seal filed in 19 connection with Plaintiff’s motion for class certification. Specifically, Plaintiff moves to file under 20 seal the deposition transcript of Defendant’s corporate designee and exhibits to that deposition. 21 ECF No. 53 (“Plaintiff’s sealing motion”). Defendant moves to file under seal parts of its 22 opposition to Plaintiff’s motion for class certification, ECF No. 55, and parts of Plaintiff’s motion 23 for class certification, ECF No. 56 (together, “Defendant’s sealing motion”). For the following 24 reasons, the Court DENIES the parties sealing motions without prejudice. 25 I. LEGAL STANDARD 26 “Historically, courts have recognized a ‘general right to inspect and copy public records 27 and documents, including judicial records and documents.’” Kamakana v. City & Cty. Of 1 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 2 589, 597 & n.7 (1978)). Accordingly, when considering a sealing request, a “strong presumption in 3 favor of access is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 4 1122, 1135 (9th Cir. 2003)). In the Ninth Circuit, documents that are more than “tangentially 5 related . . . to the underlying cause of action” are not sealable unless the Court agrees that 6 “compelling reasons” exist to overcome the presumption of access. See id. at 1179. 7 Here, the documents that the parties seek to seal are related to a motion for class 8 certification. “A class certification motion ‘generally involves considerations that are enmeshed in 9 the factual and legal issues comprising plaintiff's cause of action,’ which require a district court to 10 engage in a ‘rigorous analysis’ that ‘entail[s] some overlap with the merits of the plaintiff's 11 underlying claims.’” McCurley v. Royal Seas Cruises, Inc., 2018 WL 3629945, at *2 (S.D. Cal. 12 July 31, 2018) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351, 352 (2011)). Indeed, 13 most district courts to consider the question have found that motions for class certification are 14 “more than tangentially related to the underlying cause of action” and therefore apply the 15 “compelling reasons” standard. Philips v. Ford Motor Co., 2016 WL 7374214, at *2 (N.D. Cal. 16 Dec. 20, 2016) (collecting cases). Accordingly, the compelling reasons standard applies to the 17 parties' sealing motions. See, e.g., Hadley v. Kellogg Sales Co., No. 16-CV-04955-LHK, 2018 WL 18 7814785, at *2 (N.D. Cal. Sept. 5, 2018) (applying compelling reasons standard). 19 Compelling reasons justifying the sealing of court records generally exist “when such 20 ‘court files might have become a vehicle for improper purposes,’ such as the use of records to 21 gratify private spite, promote public scandal, circulate libelous statements, or release trade 22 secrets.” Id. (quoting Nixon, 435 U.S. at 598). However, “[t]he mere fact that the production of 23 records may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will 24 not, without more, compel the court to seal its records.” Id. 25 In addition, parties moving to seal documents must comply with the procedures established 26 by Civil Local Rule 79-5. Pursuant to that rule, a sealing order is appropriate only upon a request 27 that establishes the document is “sealable,” or “privileged, protectable as a trade secret or 1 otherwise entitled to protection under the law.” Civ. L.R. 79-5(b). “The request must be narrowly 2 tailored to seek sealing only of sealable material, and must conform with Civil L.R. 79-5(d).” Id. 3 Civil Local Rule 79-5(d), in turn, requires the submitting party to attach a “declaration 4 establishing that the document sought to be filed under seal, or portions thereof, are sealable,” a 5 “proposed order that is narrowly tailored to seal only the sealable material,” and a proposed order 6 that “lists in table format each document or portion thereof that is sought to be sealed,” as well as 7 an “unredacted version of the document” that “indicate[s], by highlighting or other clear method, 8 the portions of the document that have been omitted from the redacted version.” Id. 9 II. DISCUSSION 10 The Court now turns to the merits of the instant sealing motions. In short, the motions 11 violate Civil Local Rule 79-5 and apply the wrong legal standard for sealing. The Court addresses 12 Defendant’s sealing motion and Plaintiff’s sealing motion in turn. 13 Defendant moves to seal information that may cause Defendant competitive harm if 14 disclosed. Specifically, Defendant moves to seal certain (1) lines from its opposition to class 15 certification; (2) paragraphs in its declaration in support of that opposition; and (3) lines and 16 exhibits in Plaintiff’s motion for class certification. ECF No. 55 at 2; ECF No. 56 at 2. By 17 designating specific lines for sealing and not adopting Plaintiff’s requests for sealing wholesale, 18 Defendant’s sealing motion makes an effort to narrowly tailor sealing requests. However, 19 Defendant’s sealing motion violates Civil Local Rule 79-5 in three important ways: 20 • 1) Civil Local Rule 79-5(d)(1)(A) requires that the moving party to file a “declaration establishing that the document sought to be filed under seal, or portions thereof, are 21 sealable.” Moreover, where Plaintiff seeks to file documents designated by Defendant as 22 confidential under a protective order, Defendant must file a declaration pursuant to Civil L.R. 79-5(e). Here, Defendant has failed to file any declaration supporting Defendant’s 23 own sealing motion, ECF No. 55, or supporting Plaintiff’s request to seal certain 24 documents designated by Defendant as confidential under a protective order, ECF No. 56. 25 • 2) Civil Local Rule 79-5(d)(1)(B) requires the moving party to file a “proposed order that is narrowly tailored to seal only the sealable material, and which lists in table format each 26 document or portion thereof that is sought to be sealed.” Here, Defendant has failed to 27 “list[] in table format each document or portion thereof that is sought to be sealed.” See ECF No. 55-3 (proposed order). 1 • 3) Civil Local Rule 79-5(d)(1)(D) requires that the unredacted version of the document to 2 be sealed “must indicate, by highlighting or other clear method, the portions of the 3 document that have been omitted from the redacted version.” Here, Defendant has failed to highlight redactions. As a result, the Court would only be able to determine what material 4 is contended to be sealable by cross-referencing redacted exhibits with unredacted exhibits. 5 Such a procedure creates an unreasonable burden on the Court. 6 As for the legal standard for sealing, Defendant erroneously states that the “good cause” 7 standard for sealing applies. ECF No. 55 at 3. This Court, like most district courts, applies the 8 “compelling reasons” standard for sealing to documents related to a motion for class certification. 9 See, e.g., Hadley, 2018 WL 7814785, at *2 (collecting cases). 10 Next, Plaintiff’s sealing motion makes many of the same mistakes as Defendant’s sealing 11 motion. Plaintiff also fails to file a proposed order that complies with Civil Local Rule 79- 12 5(d)(1)(B). ECF No. 53-1 (proposed order). Plaintiff also erroneously applies the “good cause” 13 standard for sealing. Id. 14 In addition, Plaintiff’s sealing requests are overbroad and lack support. Plaintiff moves to 15 seal, in their entirety, 10 of 11 exhibits to the deposition of Defendant’s corporate designee. 16 Plaintiff supports his sealing motion with the declaration of Plaintiff’s counsel. Yet the declaration 17 offers the same conclusory boilerplate assertion for sealing each exhibit: that the exhibit contains 18 “confidential private information.” Treglio Decl., ECF No. 53. Plaintiff’s counsel makes this 19 assertion even for documents that plainly do not contain “confidential private information,” such 20 as Plaintiff’s notice of Rule 30(b)(6) deposition served on Defendant. 21 Accordingly, the Court DENIES Plaintiff’s sealing motion and Defendant’s sealing motion 22 without prejudice. By December 11, 2020, each party shall file a renewed sealing motion (or a 23 joint sealing motion) that complies with Civil Local Rule 79-5 and applies the “compelling 24 reasons” standard to narrowly tailored sealing requests. See generally Hadley, 2018 WL 7814785, 25 at *2–3 (applying compelling reasons standard). The Court warns that “[i]f a sealing request is 26 properly narrowly tailored, it will be relatively rare that an entire document will be sealable.” Id. at 27 *3. 1 IT IS SO ORDERED. 2 3 Dated: November 25, 2020 4 ‘ wicvet KOH 5 United States District Judge 6 7 8 9 10 11 = 12

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19 20 21 22 23 24 25 26 27 28 Case No. 19-CV-07670-LHK