BGC Partners, Inc. v. Avison Young (Canada), Inc.

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * NEWMARK GROUP, INC., G&E Case No. 2:15-cv-00531-RFB-EJY ACQUISITION COMPANY, LLC and BGC REAL ESTATE OF NEVADA, LLC 6 Plaintiff, ORDER 7 v. AVISON YOUNG (CANADA) INC.; AVISON YOUNG (USA) INC.; AVISON YOUNG-NEVADA, LLC, MARK ROSE, THE NEVADA COMMERCIAL GROUP, JOHN PINJUV, and JOSEPH KUPIEC; DOES through 5; and ROE BUSINESS ENTITIES 6 through 10, 12 Defendants.

14 Pending before the Court is Plaintiffs’ Motion for Leave to Seal Exhibits to, and Redact Sections of, Plaintiffs’ Motion to Exclude Portions of Carlyn Irwin’s Expert Testimony. ECF No. 656.

17 As the party seeking to seal a judicial record, Plaintiffs must meet its burden of overcoming the strong presumption in favor of access and public policies favoring disclosure. Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178–79 (9th Cir. 2006) (holding that those who seek to maintain the secrecy of documents attached to dispositive motions must meet the high threshold of showing that “compelling reasons” support secrecy). Where a party seeks to seal documents attached to a non-dispositive motion, the “public policies that support the right of access to dispositive motions … do not apply with equal force … .” Id. at 1179 (citation omitted).

24 The mere fact that the production of records may lead to a party’s embarrassment, incrimination, or exposure to further litigation will not alone compel the court to seal its records.

26 Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1136 (9th Cir. 2003). Compelling reasons require a demonstration of something more, such as when court files have become a vehicle for disseminate libelous statements, or circulate trade secrets. Nixon v. Warner Commc’ns, 435 U.S. 2 589, 598 (1978). Further, a party “may not simply rely on the Stipulated Protective Order … to justify sealing documents filed in the record under seal.” Heath v. Tristar Products, Inc., Case No. 2:17-cv-02869-GMN-PAL, 2019 WL 12311995, at *1 (D. Nev. Apr. 17, 2019) discussing and citing Foltz, 331 F.3d at 1133 (reliance on a blanket protective order, without more, will not make a showing of good cause); Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 475-76 (9th Cir. 1992) (blanket stipulated protective orders are over inclusive by nature and do not include a finding of “good cause”).

9 The Court reviewed the Motion to Seal, the exhibits sought to be sealed, and the redactions.

10 The Court finds Exhibits 1, 3, 4, 6, 7, and 8 to Plaintiffs’ Motion to Exclude Portions of Carlyn Irwin’s Expert Testimony contain confidential and proprietary information that is properly sealed.

12 The Court also finds the redactions in the publicly filed Motion are proper as they refer to the exhibits the Court agrees should be sealed.

14 Accordingly, IT IS HEREBY ORDERED that the Plaintiffs’ Motion for Leave to Seal Exhibits to, and Redact Sections of, Plaintiffs’ Motion to Exclude Portions of Carlyn Irwin’s Expert Testimony (ECF No. 656) is GRANTED.

17 IT IS FURTHER ORDERED that Exhibits 1, 3, 4, 6, 7, and 8 to Plaintiffs’ Motion to Exclude Portions of Carlyn Irwin’s Expert Testimony and the Motion itself, found at ECF No. 655, are and shall remain sealed.

20 Dated this 28th day of April, 2023.

ELAYNA J. YOUCHAH 23 UNITED STATES MAGISTRATE JUDGE