Coalview Centralia, LLC v. Transalta Centralia Mining LLC

1 The Honorable Ronald B. Leighton

UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA COALVIEW CENTRALIA, LLC, a Delaware NO. 3:18-CV-05639-RBL 10 limited liability company, STIPULATED MOTION FOR Plaintiff, ORDER TO SEAL v. TRANSALTA CENTRALIA MINING LLC, a Washington limited liability company, and 15 TRANSALTA CORPORATION, a Canadian corporation, Defendants.

S B &W 1 I. INTRODUCTION 2 In accordance with LCR 5(g), and LCR 7(d)(1), and the Stipulated Protective Order (ECF No. 110), Plaintiff Coalview Centralia, LLC (“Plaintiff” or “Coalview”) and Defendants TransAlta Centralia Mining, LLC and TransAlta Corporation (“Defendants” or “TransAlta”) move to seal certain portions of: 6 (1) Exhibits B and C to the previously filed Declaration of Garrett M. Wilson (ECF 7 No. 165); 8 (2) TransAlta Centralia Mining, LLC’s Motion for Partial Summary Judgment 9 Regarding Termination; 10 (3) Declaration of Lorraine Barrick in Support of TransAlta Centralia Mining, 11 LLC’s Motion for Partial Summary Judgment Regarding Termination and 12 Exhibit F and I thereto; 13 (4) Declaration of Bob Nelson in Support of TransAlta Centralia Mining, LLC’s 14 Motion for Partial Summary Judgment Regarding Termination and Exhibit A 15 thereto; and 16 (5) TransAlta Centralia Mining, LLC’s Opposition to Coalview Centralia, LLC’s 17 Second Motion for Preliminary Injunction.

18 II. STATEMENT OF FACTS A. The Stipulated Protective Order.

20 On April 5, 2019, this Court entered a Stipulated Protective Order. (ECF No. 110).

21 Among other things, the Protective Order permits a party to designate documents produced in discovery as “Confidential.” (See, e.g., ¶ 5.) The Stipulated Protective Order provides that, if a party wishes to submit to the Court information or materials that have been designated as “Confidential,” then such party shall meet and confer in an effort to determine if the “Confidential” designation may be removed and—if the designation(s) are not removed, then file a Motion to Seal. (Id. ¶ 4.3.)

S B &W B. The Confidential Material.

2 Defendants wish to file documents Bates stamped COALVIEW_000001– COALVIEW_000028, a list of Coalview’s unpaid bills as of July 31, 2019, vendor balance detail as of August 1, 2019, and 2019 financial statements. Defendants also wish to file COALVIEW_000596–COALVIEW_000607, a deck regarding Coalview’s presentation of its 2018 budget to its bondholders. These documents are designated as “Confidential” by Coalview pursuant to paragraph 2 of the Stipulated Protective Order.

8 On August 19, 2019, the Mine Safety and Health Administration (“MSHA”) provided Coalview and TransAlta with a copy of a draft report documenting its findings with respect to the sinking of Coalview’s dredge and the related fatality in December 2018. However, the report has not yet been published and may be subject to revision. While Coalview opposes Defendants’ filing or reliance on the draft MSHA report, in deference to the agency’s investigation and reporting process, the parties agree that to the extent the report is filed or considered by the Court, it should be kept confidential.

15 Coalview would also like to seal Exhibits B and C attached to its Declaration of Garrett M. Wilson, which was filed on July 29, 2019. (ECF No. 165.) Coalview contends that these exhibits contain financial information regarding Coalview’s operations, which is confidential and not publicly available.

19 Counsel for the parties have conferred via email on August 26, 2019 and determined that the parties are not willing to remove these assertions of confidentiality, that redaction is not a workable alternative, and that the referenced documents should be filed under seal.

22 III. ARGUMENT AND AUTHORITIES 23 Fed. R. Civ. P. 26(c) authorizes a federal district court, upon showing of good cause, to issue a protective order governing disclosures during the discovery process. Pursuant to Rule 26(c), the Court entered a Stipulated Protective Order on April 5, 2019. (ECF No. 110.)

26 In accordance with the Stipulated Protective Order and LCR 5(g)(3), Plaintiff and Defendants submit this Motion to Seal. LCR 5(g)(3)(B) provides that, in the ordinary course, a S B &W party filing a motion to seal must provide “a specific statement of the applicable legal standard and the reasons for keeping a document under seal, with evidentiary support from declarations where necessary.” But where “a party wish[es] to file a confidential document it obtained from another party in discovery,” that party “may file a motion to seal but need not satisfy subpart (3)(B)[.]” Instead, “the party who designated the document confidential must satisfy subpart (3)(B) in its response to the motion to seal or in a stipulated motion.”

7 Plaintiff’s statement of the applicable legal standard and the reasons for keeping COALVIEW_000001–COALVIEW_000028, COALVIEW_000596–COALVIEW_000607, and Exhibits B and C to the Declaration of Mr. Wilson under seal are as follows: 10 These types of documents were specifically stipulated by the parties to be confidential under paragraph 2 of the Stipulated Protective Order. D.E. 110; see also J.R. Simplot Co. v. Washington Potato Co., C16-1851RSM, 2016 WL 11066581, at *1 (W.D. Wash. Dec. 29, 2016) (compelling reasons existed to file under seal document that contained information about debt ratios and contained consolidated balance sheet because public release of confidential financial information put defendants at competitive disadvantage when negotiating future loan terms, contracts with customers, and business opportunities). Coalview has a legitimate interest in keeping its finances out of the public record, and injury could result absent the documents being filed under seal. Id. As redaction is not a workable alternative, and Defendants are unwilling not to file the referenced documents, a less restrictive alternative is not sufficient.

21 As for the MSHA Report, while Coalview opposes Defendants’ filing or reliance on the draft MSHA report, the parties agree that given that the report is not yet published and that it ought to be left to MSHA to determine when the report should be made publicly available. The Report arguably constitutes a deliberative, predecisional document under NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975). See also Carter v. U.S. Dep't of Commerce, 307 26 F.3d 1084, 1089 (9th Cir. 2002) (draft government documents “predecisional”).

S B &W 1 IV. CONCLUSION 2 As required by the Stipulated Protective Order and LCR 5(g), Plaintiff and Defendants file this Stipulated Motion for Order to Seal and request the Court to file under seal the referenced documents.

5 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

SAVITT BRUCE & WILLEY LLP KLUGER, KAPLAN, SILVERMAN, 7 KATZEN & LEVINE, P.L.

8 By s/Miles A. Yanick By s/Steve I. Silverman Miles A. Yanick, WSBA #26603 Steve I. Silverman, Fla. Bar No. 516831 Duncan E. Manville, WSBA #30304 Miami Center, 27th Floor 10 Sarah Gohmann Bigelow, WSBA #43634 201 South Biscayne Boulevard 1425 Fourth Avenue Suite 800 Miami, FL 33131 11 Seattle, Washington 98101-2272 Telephone: (305) 379-9000 Telephone: 206.749.0500 Fax: (305) 379-3428 12 Facsimile: 206.749.0600 Email: [email protected] Attorneys for Plaintiff Coalview Centralia, Email: [email protected] LLC (Admitted Pro Hac Vice) Email: [email protected] 14 Email: [email protected] 15 Attorneys for Defendants TransAlta Centralia Mining, LLC and TransAlta 16 Corporation ORDER PURSUANT TO STIPULATION, IT IS SO ORDERED.

DATED this 27th day of Augustm 2019.

21 A Ronald B. Leighton 23 United States District Judge S B &W