Grizzle v. San Diego, County of

2\| 3 .

6 .

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA || ELLIOT SCOTT GRIZZLE, Case No.: 17-cv-00813-JLS-RBM 12 Plaintiff, ORDER: || V. So (1) DENYING WITHOUT COUNTY OF SAN DIEGO, et al., PREJUDICE DEFENDANTS’ _ 15 Defendants.| EX PARTE APPLICATION TO FILE 16 ~ DOCUMENTS UNDER SEAL IN SUPPORT OF MOTION FOR 17 SUMMARY JUDGMENT; AND 18 oe (2) DENYING WITHOUT 19 PREJUDICE DEFENDANTS’ EX PARTE APPLICATION TO FILE DOCUMENTS UNDER SEAL IN 21 SUPPORT OF SUPPLEMENTAL 9 MOTION FOR SUMMARY JUDGMENT 24 [Docs. 146, 151] 25 . .

26 Defendants, County of San Diego, William Gore, Lena Lovelace, and Aaron \|Boorman (collectively, “Defendants”) have filed two ex parte applications to file ||documents under seal which support Defendants’ motion for summary judgment and || supplemental briefing (collectively “MSJ”).! The first ex parte application was filed on January 5, 2022 (“First Motion”). (Docs. 146, 148, 151, 153.) The second ex parte || application was filed on January 24, 2022 (“Second Motion”). (Doc. 151.) Defendants 4 to file under seal “portions of the Undisputed Material Facts, the Points and || Authorities, and the entirety of Exhibit A [Plaintiff's deposition]” in support of Defendants’ || MSJ. (Doc. 146 at 1; Doc. 151 at 1-2.) Defendants allege Plaintiffs deposition is marked 7 “confidential” under the protective order filed on December 2, 2020 (Doc. 126), “which ||requires the parties to request filing under seal.” (Doc. 146 at 1.) Plaintiffs counsel has || not filed a brief in opposition to Defendants’ First Motion or Second Motion to seal.

10 For the reasons outlined below, Defendants’ First Motion and Second Motion to file 11 documents under seal are DENIED WITHOUT PREJUDICE.

12 “(T]he courts of this country recognize a general right to inspect and copy public ||records and documents, including judicial records and documents.” Nixon v. Warner ||Commce’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one || ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.”

16 || Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz ||v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption |lof access is ‘based on the need for federal courts, although independent—indeed, || particularly because they are independent—to have a measure of accountability and for the || public to have confidence in the administration of justice.’” Ctr. for Auto Safety v. Chrysler || Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting U.S. v. Amodeo, 71 F.3d 1044, || 1048 (2d Cir. 1995)).

23 When a party moves to file under seal a motion or documents attached to a motion, ||the focus is on the underlying motion and whether it is “more than tangentially related to ll) The undersigned’s January 10, 2022 order denying Defendants’ motion for bifurcation || provided Defendants fourteen (14) calendar days to file supplemental briefing in support 38 their motion for summary judgment, if any, on the issue of exhaustion. (Doc. 150 at ||the merits of the case.” Ctr. for Auto Safety, 809 F.3d at 1102. Ifthe underlying motion is ||more than tangentially related to the merits, like here, the movant must show “compelling ||reasons” for overcoming the presumption in favor of public access. Id. at 1096-98.

4 Here, Defendants move to file under seal the entirety of Exhibit A and portions of 5 Defendants’ MSJ, which reference Exhibit A. Because Defendants’ underlying motion is || more than tangentially related to the merits of the instant case, Defendants must “articulate || reasons supported by specific factual findings” to warrant sealing supporting documents ||related to a dispositive motion, such as a motion for summary judgment. See Kamakana, ||447 F.3d at 1178; see also Vaughn v. Parker, No.: 18-cv-2098-JAH-MDD, 2019 WL 10 4393716, at *2 (S.D. Cal. Sept. 12, 2019) (finding that the movant must articulate ||}compelling reasons where the underlying motion was a motion for summary judgment).

Defendants’ First Motion and Second Motion do not comply with the law of this || circuit, requiring the party moving for a sealing order to make a particularized showing of compelling reasons. Kamakana, 447 F.3d at 1172; Mendell v. Am. Med. Response Inc., ||No. 19-cv-01227-BAS-KSC, 2021 WL 398486, at *2 (S.D. Cal. Feb. 3, 2021); || Krommenhock v. Post Foods, LLC, 334 F.R.D. 552, 586 (N.D. Cal. Mar. 9, 2020).

17 Defendants’ one-page motions solely rely on the parties’ December 2, 2020 protective |) order (Docs. 126, 146, 151) to support their contention that sealing is appropriate; the 19 motions do not identify or explain why any particular statements or portions of Exhibit A ||may warrant sealing. A protective order itself is insufficient to supply “a legal basis to || curtail the public’s access to judicial records.” See Mendell, 2021 WL 398486, at *2 (court _ 22 || denied the parties’ motion to file documents under seal where the parties solely relied on a || stipulated protective order and non-opposition by opposing counsel); see also In re Ferrero || Litig., No. 11-cv-205 H(CAB), 2011 WL 3360443, at *2 (SD. Cal. Aug. 3, 2011) (court ||denied motion to file under seal holding that protective order itself does not satisfy the ||standard for a sealing order). Therefore, Defendants have not met their burden to show compelling reasons that would support their motions to file documents under seal.

28 Accordingly, Defendants’ First Motion and Second Motion to file documents under ||seal in support of their MSJ are DENIED WITHOUT PREJUDICE. The parties may ||reapply for a sealing order on or before March 1, 2022. Should the parties elect to do so, ||the parties must meet and confer to coordinate any request to seal the same material and ||avoid duplicative filings. Any motion for a sealing order must fully address the ||“compelling reasons” supporting the sealing of the relevant information.

IT ISSO ORDERED.

7 ||Dated: February 8, 2022 8 fh g z 5 : 9 . HON. RUTH BE ON GRO 10 UNITED STATES MAGISTRATE JUDGE

23 .