Erhart v. Bofi Holding Inc.

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA CHARLES MATTHEW ERHART, Case No. 15-cv-02287-BAS-NLS 11 consolidated with Plaintiff, 15-cv-02353-BAS-NLS ORDER DENYING EX PARTE 13 v. APPLICATION TO REMOVE BOFI HOLDING, INC., DOCUMENT FROM THE PUBLIC DOCKET AND FILE IT 15 Defendant. UNDER SEAL (ECF No. 236) And Consolidated Case 19 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.

21 (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.

24 “[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.)

7 IT IS SO ORDERED.

8 .. ) || DATED: August 18, 2021 as dg (Hiphan 10 United States District Judge