Fernandez v. Duarte

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FRANK J. FERNANDEZ, Case No. 22-cv-0446-BAS-VET 12 Plaintiff, ORDER DENYING DEFENDANT’S 13 v. MOTION TO RENEW DISPOSITIVE MOTION AND MOTION TO SEAL 14 E. DUARTE, ISU Sergeant, (ECF No. 146) 15 Defendant. 16 17 Defendant previously moved to seal portions of his Motion for Summary Judgment, 18 along with some of the supporting evidence. (ECF No. 136.) However, Defendant asked 19 the Court to shield this material not only from public view, but also from Plaintiff, who is 20 appearing pro per. (ECF No. 136.) In denying the Motion to Seal, the Court explained, 21 “Requesting that the Court rely on facts, while hamstringing Plaintiff from responding to 22 those facts, violates the very essence of due process.” (Id.) 23 Now before the Court is Defendant’s Motion to Renew Dispositive Motion and 24 Motion to Seal (“Renewed Motion”). (ECF No. 146.) Defendant devotes much of his 25 Renewed Motion to explaining why there are compelling reasons that justify sealing the 26 material. This effort misses the mark. The Court accepts Defendant’s representations that 27 publicly revealing this information would jeopardize prison security, and the Court is 28 prepared to allow Defendant to shield this information from the public. 1 Where the Renewed Motion comes up short, however, is addressing the Court’s due 2 process concerns. Defendant continues to suggest that it would be appropriate to use 3 concealed facts to rule against a litigant without letting the litigant address that evidence. 4 (See Ramos Decl. ¶¶ 11–19.) Indeed, Defendant cites garden-variety caselaw on motions 5 to seal, but fails to recognize that those authorities do not address sealing material from an 6 opponent’s eyes. 7 For example, Defendant cites Pintos v. Pacific Creditors Association, 605 F.3d 665 8 (9th Cir. 2010). (Renewed Mot. 2:5–16.) There, the plaintiffs wanted to seal “several 9 Experian documents detailing the company’s internal procedures for complying with its 10 [credit reporting] obligations.” Pintos, 605 F.3d at 679. Experian was a defendant. Id. 11 That means both parties had access to the evidence at issue, and this citation is inapposite. 12 Defendant also cites Foltz v. State Farm Mutual Auto. Insurance Co., 331 F.3d 1122 13 (9th Cir. 2003). (Renewed Mot. 2:5–16.) That case is even less helpful. It involved 14 “intervenors representing the public” who “moved for public access to sealed court records 15 from” a lawsuit. Foltz, 331 F.3d at 1127. So, the case did not concern a litigant’s access 16 to the other party’s evidence. 17 Accordingly, the Court will deny without prejudice the Renewed Motion. Defendant 18 has two options to proceed. First, he can file a renewed motion to seal. If that renewed 19 motion continues to seek to hide the information from Plaintiff’s eyes, then the motion 20 must cite to authorities from federal law, including the Supreme Court, the Ninth Circuit, 21 or district courts in the Ninth Circuit, that address analogous circumstances. Generalized 22 authorities are unacceptable. 23 For example, Defendant may wish to consider Federal Rule of Civil Procedure 26(a) 24 as a starting point. That rule requires the automatic exchange of “all documents . . . that 25 the disclosing party may use to support its claims or defenses” to the other side, which 26 reflects the view that surprise evidence is incompatible with modern civil practice. Further, 27 even evidentiary privileges cannot be used “as both a shield and a sword” in litigation. 28 Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir. 2003). If, however, Defendant concedes | || that Plaintiff can view the material, then he may seek to seal the information from public 2 || view and propose other conditions to limit further disclosure or use of the information by 3 || Plaintiff beyond this litigation. 4 Alternatively, Defendant must withdraw his Motion for Summary Judgment and file 5 |}a revised motion that does not rely on the materials that he wishes to hide from Plaintiff. 6 Accordingly, the Court DENIES WITHOUT PREJUDICE the Renewed Motion. 7 || (ECF No. 146.) Defendant must either: (1) file a renewed motion to seal that adequately 8 ||addresses the Court’s concerns, or (2) withdraw his Motion for Summary Judgment and 9 || file a revised motion. Defendant must do so no later than July 23, 2025. 10 IT IS SO ORDERED. 11 12 || DATED: July 16, 2025 yatta Bahar 13 H¢én. Cynthia Bashant, Chief Judge 4 United States District Court 15 16 17 18 19 20 21 22 23 24 25 26 27 28 □□□