Fortis Advisors LLC v. NuVasive (Aust/Nz) Pty Ltd

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FORTIS ADVISORS LLC, Case No.: 3:25-cv-00470-RBM-SBC 12 Plaintiff, ORDER: 13 v. (1) DENYING PLAINTIFF’S 14 NUVASIVE (AUST/NZ) PTY LTD, MOTION TO FILE PORTIONS OF 15 Defendant. COMPLAINT UNDER SEAL 16 (2) SETTING DEADLINE FOR 17 DEFENDANT TO FILE A MOTION TO SEAL 18 19 (3) DIRECTING CLERK TO 20 MAINTAIN DOCUMENTS UNDER SEAL 21 22 [Doc. 3] 23 24 On February 28, 2025, Plaintiff Fortis Advisors LLC (“Plaintiff”) commenced this 25 case by filing a redacted Complaint with a Motion to File Portions of Complaint Under 26 Seal (“Motion to Seal”). (Doc. 1 (Complaint); Doc. 3 (Motion to Seal).) For the reasons 27 discussed below, Plaintiff’s Motion to Seal (Doc. 3) is DENIED with leave for Defendant 28 NuVasive (Aust/Nz) Pty Ltd. (“Defendant”) to file a renewed motion to seal. 1 I. LEGAL STANDARD 2 “[T]he courts of this country recognize a general right to inspect and copy public 3 records and documents, including judicial records and documents.” Nixon v. Warner 4 Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one 5 ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” 6 Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz 7 v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption 8 of access is ‘based on the need for federal courts, although independent—indeed, 9 particularly because they are independent—to have a measure of accountability and for the 10 public to have confidence in the administration of justice.’” Ctr. for Auto Safety v. Chrysler 11 Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 12 1044, 1048 (2d Cir. 1995)). 13 A party seeking to seal a judicial record bears the burden of overcoming the strong 14 presumption of public access. Foltz, 331 F.3d at 1135. The showing required to meet this 15 burden depends upon whether the documents to be sealed relate to a motion that is “more 16 than tangentially related to the merits of the case.” Ctr. for Auto Safety, 809 F.3d at 1102. 17 When the underlying motion is more than tangentially related to the merits, the 18 “compelling reasons” standard applies. Id. at 1096–98. If the underlying motion does not 19 surpass the tangential relevance threshold, the “good cause” standard applies. Id. 20 Additionally, in accordance with Section IV of this Court’s Civil Chamber Rules, 21 “[t]he fact that both sides agree to seal a document or that a stipulated protective order was 22 issued is insufficient cause for sealing.” See The Hon. Ruth Bermudez Montenegro Civ. 23 Chambers R. IV.A. Any motion to seal predicated solely on the opposing party’s 24 designation of the document as confidential must be accompanied by a response from the 25 designating party within seven days of the motion filing date, demonstrating that the 26 sealing standard has been satisfied for the document or information at issue. See id. at 27 Section IV.B. 28 /// 1 II. DISCUSSION 2 In the Motion to Seal, Plaintiff requests portions of the Complaint and Exhibit A to 3 the Complaint be filed under seal because they “contain information that Plaintiff believes 4 Defendant may assert is confidential pursuant to a written agreement with Defendant.” 5 (Doc. 3-1 at 2 (citing Declaration of Lloyd Winawer (“Winawer Decl.”) ¶ 2).) On March 6 6, 2025, shortly after this case was transferred to Chief Judge Cynthia Bashant, Plaintiff 7 filed a Table Requirement in Support of Fortis Advisors LLC’s Motion to File Portions of 8 the Complaint Under Seal to comply with her Standing Rules. (Doc. 6.) In this filing, 9 Plaintiff provides cites for the portions of the Complaint that it seeks to file under seal with 10 justifications for sealing those portions. (Id at 2–4.) The justification provided is similar 11 to Plaintiff’s Motion to Seal, indicating that Plaintiff and Defendant “are parties to a written 12 agreement attached as Exhibit A to the Complaint that Fortis filed on February 28, 2025” 13 and portions of the agreement “provide certain information is to be treated as confidential.” 14 (Id.) Plaintiff goes on to specify that the “redactions are intended to avoid any contention 15 that it breached any obligations under the written agreement” and that Plaintiff “does not 16 assert a confidentiality interest in the redacted allegations of the Complaint.” (Id.) 17 In a May 7, 2025 Order granting a Joint Motion to extend the time for Defendant to 18 respond to the Complaint, Judge Bashant indicated that “to the extent Defendant wishes to 19 respond to Plaintiff’s Motion to Seal information Defendant had previously designated as 20 confidential, Defendant is ORDERED to file its response in opposition or support of the 21 Motion to Seal” on May 31, 2025. (Doc. 12 at 1–2 (emphasis in original).) 22 Defendant has not filed a response in opposition or support of the pending Motion 23 to Seal. While the Court is mindful that Plaintiff is attempting to comply with the Parties’ 24 agreement regarding confidentiality, the Parties’ agreement that a document or information 25 will be treated as confidential is not sufficient on its own to overcome the strong 26 presumption in favor of public access. See Kamakana, 447 F.3d at 1178 (explaining 27 presumption in favor of public access). 28 1 Accordingly, Plaintiff's Motion to Seal (Doc. 3) is DENIED. However, Defendant 2 ||may file a renewed motion to seal in accordance with Section IV of this Court’s Civil 3 || Chamber Rules on or before June 12, 2025. Any renewed motion to seal must explain in 4 ||detail why the portions of the Complaint and the attached Exhibit, currently redacted 5 ||(Doc.1) should be sealed. If Defendant does not seek to have the redacted portions of the 6 ||Complaint and the attached Exhibit filed under seal, the Parties shall file a joint motion on 7 || or before June 12, 2025 so indicating. 8 The Clerk is DIRECTED to maintain the unredacted Complaint and Exhibit (Doc. 9 ||4) under seal in the interim. If Defendant does not file a renewed motion by June 12, 2025, 10 || the Clerk is DIRECTED to file the unredacted Complaint and Exhibit (Doc. 4) on June 11 2025. 12 IT IS SO ORDERED. 13 Dated: June 6, 2025 FR Bo Gs ? L fs > HON. RUTH BERMUDEZ MONTENEGRO 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28