1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GREEN RENEWABLE ORGANIC AND Case No. 21-cv-07181-HSG WATER HOLDINGS, LLC, et al., 8 ORDER GRANTING IN PART AND Plaintiffs, DENYING IN PART PLAINTIFF’S 9 ADMINISTRATIVE MOTION TO v. SEAL 10 BLOOMFIELD INVESTMENTS, LLC, Re: Dkt. No. 25 11 Defendant. 12 13 Pending before the Court is Plaintiff’s administrative motion to file under seal certain 14 exhibits to, and portions of, its Amended Complaint, Dkt. No. 22. For the reasons below, the 15 Court GRANTS in part and DENIES in part the motion, Dkt. No. 25. 16 I. LEGAL STANDARD 17 Courts generally apply a “compelling reasons” standard when considering motions to seal 18 documents. Pintos v. Pac. Creditors Ass’n,

(9th Cir. 2010) (quoting Kamakana 19 v. City & Cty. of Honolulu,

, 1178 (9th Cir. 2006)). “This standard derives from the 20 common law right ‘to inspect and copy public records and documents, including judicial records 21 and documents.’” Id. (quoting Kamakana, 447 F.3d at 1178). “[A] strong presumption in favor of 22 access is the starting point.” Kamakana, 447 F.3d at 1178 (quotations omitted). To overcome this 23 strong presumption, the party seeking to seal a judicial record attached to a dispositive motion 24 must “articulate compelling reasons supported by specific factual findings that outweigh the 25 general history of access and the public policies favoring disclosure, such as the public interest in 26 understanding the judicial process” and “significant public events.” Id. at 1178–79 (quotations 27 omitted). “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in 1 vehicle for improper purposes,’ such as the use of records to gratify private spite, promote public 2 scandal, circulate libelous statements, or release trade secrets.” Id. at 1179 (quoting Nixon v. 3 Warner Commc’ns, Inc.,

(1978)). “The mere fact that the production of records 4 may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, 5 without more, compel the court to seal its records.”

6 The Court must “balance[] the competing interests of the public and the party who seeks to 7 keep certain judicial records secret. After considering these interests, if the court decides to seal 8 certain judicial records, it must base its decision on a compelling reason and articulate the factual 9 basis for its ruling, without relying on hypothesis or conjecture.”

Civil Local Rule 79-5 10 supplements the compelling reasons standard set forth in Kamakana: the party seeking to file a 11 document or portions of it under seal “must explore all reasonable alternatives to filing documents 12 under seal, minimize the number of documents filed under seal, and avoid wherever possible 13 sealing entire documents . . . .” Civil L.R. 79-5(a). The party must further explain the interests 14 that warrant sealing, the injury that will result if sealing is declined, and why a less restrictive 15 alternative to sealing is not sufficient. See Civil L.R. 79-5(c). 16 Records attached to nondispositive motions must meet the lower “good cause” standard of 17 Rule 26(c) of the Federal Rules of Civil Procedure, as such records “are often unrelated, or only 18 tangentially related, to the underlying cause of action.” See Kamakana, 447 F.3d at 1179–80 19 (quotations omitted). This requires a “particularized showing” that “specific prejudice or harm 20 will result” if the information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 21

, 1210–11 (9th Cir. 2002); see also Fed. R. Civ. P. 26(c). “Broad allegations of 22 harm, unsubstantiated by specific examples of articulated reasoning” will not suffice. Beckman 23 Indus., Inc. v. Int’l Ins. Co.,

(9th Cir. 1992) (quotation omitted). 24 II. DISCUSSION 25 Because the complaint is the pleading on which this action is based and clearly more than 26 tangentially related to the underlying cause of action, the Court applies a “compelling reasons” 27 standard to the motion. See, e.g., Align Tech., Inc. v. SmileDirectClub, LLC, No. 23-CV-00023- 1 be compelling reasons to seal any portion thereof because ‘a complaint is the foundation of a 2 lawsuit.’”); Space Data Corp. v. Alphabet Inc., No. 16-CV-03260-BLF,

(N.D. 3 Cal. Aug. 31, 2018); In re Google Inc. Gmail Litig., No. 13-MD-02430-LHK,

4 at *2 (N.D. Cal. Sept. 25, 2013). 5 By their motion, Plaintiff requests that this Court seal two exhibits attached to their 6 amended complaint (Dkt. No. 22-1 at 234 [Exhibit C, Capital Provision Agreement], 276 [Exhibit 7 D, Amended and Restated Capital Provision Agreement]) because, as capital provision 8 agreements, they “contain commercially sensitive financing terms and are marked ‘private and 9 confidential’ and ‘subject to confidentiality agreement.’” Dkt. No 25 at 2. Plaintiffs additionally 10 request to seal around a dozen portions of the Amended Complaint, Dkt. No. 22, that “depict 11 information contained” in the confidential exhibits.

Defendant did not oppose the motion. 12 However, in Defendant’s subsequent Motion to Confirm Foreign Arbitral Awards, Defendant 13 recited some of the basic features of the agreement that Plaintiff had sought to seal in its 14 complaint. Dkt. No. 33. When Plaintiff opposed the motion, it did not object to Defendant’s 15 reference to this provisionally sealed information. Dkt. No. 39. And in its order staying the cases 16 and holding Defendant’s motion in abeyance, the Court referred specifically to some of the 17 features of the agreement that Defendant had articulated. Dkt. No. 68. A few months after this 18 order, the parties stipulated to dismissal without the Court ever ruling on Defendant’s motion, or 19 any other substantive motions in the matter. Dkt. No. 75. 20 The Court finds that the nature of the capital provision agreements attached to the 21 Amended Complaint supports sealing, particularly because the Court did not ultimately rely on 22 them before the case closed. Where the court does not consider materials that a party has 23 requested to seal, the public’s interest their disclosure is minimal since they do not aid the public’s 24 understanding of judicial proceedings. See In re iPhone Application Litig., No. 11-MD-02250- 25 LHK,

, at *2 (N.D. Cal. Nov. 25, 2013) (“The public’s interest in accessing 26 these documents is even further diminished in light of the fact that the Court will not have 27 occasion to rule on [the relevant motion].”); see also See Economus v. City & Cty. of San 1 compelling reason to seal because the sealing request divulges sensitive information no longer 2 related to the case); In re iPhone,

(same); Doe v. City of San Diego, No. 12- 3 CV-689-MMA-DHB,

, at *4 (S.D. Cal. May 14, 2014) (exhibit’s disclosure of 4 personal information and irrelevance to the matter are compelling reasons to seal the exhibit). 5 Such is the case here. Accordingly, the Court GRANTS Plaintiff’s request to seal Exhibits C and 6 D to its Amended Complaint. 7 The Court consequently finds a compelling basis to seal, per Plaintiff’s request, some 8 allegations in the Amended Complaint that convey details about the confidential exhibits’ 9 contents, but will not grant Plaintiff’s request in full. In particular, the Court declines to seal 10 allegations in the complaint containing information that ultimately came to light during the 11 litigation, and upon which this Court relied. For example, Plaintiff moves to seal allegations 12 relating to the amount of funds at issue in the capital agreements, the choice of law provisions, and 13 the mandate to arrive at a “commercially reasonable” settlement, but these and other features of 14 the agreement emerged in (or were readily inferable from) subsequent filings, particularly 15 Defendant’s Motion to Confirm Foreign Arbitral Awards. Dkt. No. 33. That Plaintiff did not 16 object to the recitation of this information at that juncture suggests that disclosure is not injurious, 17 and significantly undercuts Plaintiff’s argument that compelling reasons exist to justify sealing the 18 allegations. Accordingly, the Court GRANTS Plaintiff’s administrative motion to seal portions of 19 its Amended Complaint only as to the requests identified (by page:line) at the following 20 coordinates, and DENIES it as to all others:

21 • 4:6-8 22 o However, these excerpts in that range are not subject to sealing: “Their agreement included two key features.” [line 6]; “Second, the” [line 8]. 23 • 9:15-16 o However, these excerpts in that range are not subject to sealing: “Pursuant 24 to the CPA, Bloomfield advanced $15 million to Grow Land and KCV” [line 15] and “Pursuant to the Amended and Restated Capital Provision” 25 [line 16]. 26 • 9:26-10:15 • 14:15-19 27 o Consistent with the proposed redaction. 1 o Consistent with the proposed redaction. 4 Il. CONCLUSION 3 The Court GRANTS in part and DENIES in part Plaintiff's administrative motion to 4 seal, Dkt. No. 25. Plaintiff is DIRECTED to file an amended complaint on the docket with 5 redactions consistent with this order by November 30, 2023. 6 IT IS SO ORDERED. 7 Dated: 11/8/2023 | 8 HAYWOOD S. GILLIAM, JR. 9 United States District Judge 10 11 12

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