1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA

10 CHARLES MATTHEW ERHART, Case No. 15-cv-02287-BAS-NLS 11 consolidated with Plaintiff, 15-cv-02353-BAS-NLS 12

ORDER DENYING EX PARTE

13 v. APPLICATION TO REMOVE

14 BOFI HOLDING, INC., DOCUMENT FROM THE

PUBLIC DOCKET AND FILE IT

15 Defendant. UNDER SEAL (ECF No. 236)

16 And Consolidated Case 17 18 19 Defendant BofI Holding, Inc. (“BofI”) moves ex parte to remove a declaration 20 and its attachments from the docket to allow BofI to file the information under seal. 21 (ECF No. 236.) BofI’s request is based on orders in a related securities case that do 22 not permit BofI to publicly disclose the identity of certain individuals as “confidential 23 witnesses.” (Id.) Although that may be true, the ex parte application lacks merit. 24 “[T]he cat is out of the bag.” SmithKline Beecham Corp. v. Pentech Pharms., Inc., 25 261 F. Supp. 2d 1002, 1008 (N.D. Ill. 2003) (Posner, J.). The Court will not seal 26 information that is now publicly available. See, e.g., Al Otro Lado v. Wolf, No. 19- 27 56417 (9th Cir. Feb. 24, 2020) (denying request to seal and collecting case law); see 1 || (affirming an unsealing order because the information at issue was “already publicly 2 ||available’’); Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 (2d Cir. 2004) 3 || (“[H]owever confidential it may have been beforehand, subsequent to publication it 4 [i]s confidential no longer... . [A court] simply do[es] not have the power . . . to 5 ||make what has thus become public private again.”). Accordingly, the Court DENIES 6 || the ex parte application. (ECF No. 236.) 7 IT IS SO ORDERED. 8 .. ) 9 || DATED: August 18, 2021 as dg (Hiphan 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28