Russell v. Samec

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 10 ROBERT RUSSELL, CASE NO. 2:20-cv-00263-RSM-JRC 11 Plaintiff, ORDER GRANTING MOTION TO 12 v. SEAL 13 JOSEPH SAMEC, et al., 14 Defendants.

16 This matter is before the undersigned on referral from the District Court and on plaintiff’s motion to seal certain exhibits offered in support of his motion for preliminary injunction. See Dkt. 22. For the reasons discussed below, the motion to seal is granted.

19 I. Parties’ Arguments 20 In support of his pending motion for a preliminary injunction, plaintiff has submitted under seal 12 images that are the subject of this litigation. See Dkt. 27. Plaintiff requests that these images be kept under seal because they contain “offensive, outrageous, and defamatory materials published by Defendants Joseph Samec and Sean Bishop on various social media accounts.” Dkt. 22, at 1. Defendant Samec opposes the motion on the basis of his contentions that (1) the images are not attributable to him and (2) the embarrassing nature of the images alone is not good cause to seal them. See Dkt. 30. Defendant Bishop has not filed any response to the motion to seal.

5 II. Procedural Requirements for a Motion to Seal 6 Local Civil Rule 5(g) allows the court to seal documents and other evidence upon a showing that a party cannot avoid filing a document under seal and a statute, rule, or prior court order expressly authorizes the party to file the document under seal or a party files a motion or stipulated motion to seal before or at the same time the party files the sealed document. LCR 5(g)(1)–(2). Plaintiff was allowed to provisionally file the videos under seal pending a Court order on the motion to seal. See LCR 5(g)(2)(B).

12 Regarding the procedural requirements for a motion to seal, plaintiff certifies that he met and conferred with defendant Samec but that they could not reach an agreement regarding the motion to seal. Dkt. 23, at 2. The Court notes that LCR 5(g) requires meeting and conferring with “all” parties but finds good cause to excuse the failure to meet and confer with defendant Bishop, who was in default at the time. See Dkt. 13. Plaintiff takes the position that less restrictive means are not available. See Dkt. 23, at 6.

18 III. Substantive Requirements for a Motion to Seal 19 Even if a party meets the procedural requirements for a motion to seal, the party must overcome the strong presumption of public access to judicial records. See Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). To overcome that presumption when a party seeks to file a document under seal in conjunction with a dispositive motion, the moving party must show a “compelling reason” to support maintaining the secrecy of the document. Id. at 1180.

3 The parties rely on various cases in support of their respective positions, but the Court finds that Kamakana v. City and County of Honolulu resolves this issue. In that case, the Ninth Circuit held that although mere “embarrassment” from production of records was not a compelling reason to seal records, that the records “might” become a vehicle to “circulate libelous statements” would be a compelling reason. See 447 F.3d at 1179. Here, of course, the Court has not found that the images are defamatory, outrageous, or otherwise tortious—that is the subject of the litigation. Nevertheless, because the Court “might” find that the images are defamatory, such is a compelling reason to seal them in this litigation. See also Ultimate Timing, L.L.C. v. Simms, No. C08-1632 MJP, 2010 WL 786021, at *1–*2 & n.1 (W.D. Wash. Mar. 4, 2010) (in an action for trade secret misappropriation, sealing records regarding the alleged trade secrets under Kamakana despite that “the Court may [yet] have to decide whether the information is actually a trade secret.”).

15 Nothing in this Order shall be interpreted as a ruling on the merits of whether the images at issue are, in fact, defamatory or otherwise tortious. Because plaintiff has shown a compelling reason to seal the records, the motion to seal (Dkt. 22) is granted.

18 Dated this 1st day of July, 2020.

A J. Richard Creatura United States Magistrate Judge