Erhart v. Bofi Holding Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

CHARLES MATTHEW ERHART, Case No. 15-cv-02287-BAS-NLS consolidated with

Plaintiff, 15-cv-02353-BAS-NLS

ORDER DENYING EX PARTE v. APPLICATION TO REMOVE

BOFI HOLDING, INC., DOCUMENT FROM THE

PUBLIC DOCKET AND FILE IT Defendant. UNDER SEAL (ECF No. 236)

And Consolidated Case

Defendant BofI Holding, Inc. (“BofI”) moves ex parte to remove a declaration and its attachments from the docket to allow BofI to file the information under seal. (ECF No. 236.) BofI’s request is based on orders in a related securities case that do not permit BofI to publicly disclose the identity of certain individuals as “confidential witnesses.” (Id.) Although that may be true, the ex parte application lacks merit. “[T]he cat is out of the bag.” SmithKline Beecham Corp. v. Pentech Pharms., Inc., 261 F. Supp. 2d 1002, 1008 (N.D. Ill. 2003) (Posner, J.). The Court will not seal information that is now publicly available. See, e.g., Al Otro Lado v. Wolf, No. 19- 56417 (9th Cir. Feb. 24, 2020) (denying request to seal and collecting case law); see (affirming an unsealing order because the information at issue was “already publicly available’’); Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 (2d Cir. 2004) (“[H]owever confidential it may have been beforehand, subsequent to publication it [i]s confidential no longer... . [A court] simply do[es] not have the power . . . to make what has thus become public private again.”). Accordingly, the Court DENIES the ex parte application. (ECF No. 236.)

IT IS SO ORDERED. .. ) DATED: August 18, 2021 as dg (Hiphan United States District Judge