Erhart v. Bofi Holding Inc.
- Proceeding
- district
- Area
- civil
- Panel
- Cynthia Ann Bashant (author)
Analysis
Defendant BofI Holding, Inc. filed an ex parte application to remove a declaration and attachments from the public docket and file them under seal, citing confidentiality orders from a related case. The court denied the application, reasoning that the information was already publicly available and therefore could not be sealed.
| What the court decided | The model |
|---|---|
Denial of ex parte application to remove document from public docket and file under seal“Accordingly, the Court DENIES the ex parte application. (ECF No. 236.)” | agree with court The court correctly applied the well-established principle that courts generally lack the authority to seal information that has already been made public. The order cites binding Ninth Circuit authority (Al Otro Lado v. Wolf) and persuasive Second Circuit authority (Gambale v. Deutsche Bank AG) supporting the proposition that once information is public, it cannot be made private again. The court's reliance on the fact that the information was 'now publicly available' provides a sufficient basis for denial, as sealing is typically reserved for information not yet in the public domain. |
The order itself: sound — The order is concise but legally sound. It correctly identifies the key legal barrier to sealing: the information is already public. It cites appropriate authority, including a recent Ninth Circuit decision, to support the denial. The reasoning directly addresses the motion and applies the correct legal standard for sealing public documents.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 CHARLES MATTHEW ERHART, Case No. 15-cv-02287-BAS-NLS 11 consolidated with Plaintiff, 15-cv-02353-BAS-NLS 12 ORDER DENYING EX PARTE 13 v. APPLICATION TO REMOVE 14 BOFI HOLDING, INC., DOCUMENT FROM THE PUBLIC DOCKET AND FILE IT 15 Defendant. UNDER SEAL (ECF No. 236)
16 And Consolidated Case 17 18 19 Defendant BofI Holding, Inc. (“BofI”) moves ex parte to remove a declaration 20 and its attachments from the docket to allow BofI to file the information under seal. 21 (ECF No. 236.) BofI’s request is based on orders in a related securities case that do 22 not permit BofI to publicly disclose the identity of certain individuals as “confidential 23 witnesses.” (Id.) Although that may be true, the ex parte application lacks merit. 24 “[T]he cat is out of the bag.” SmithKline Beecham Corp. v. Pentech Pharms., Inc., 25 261 F. Supp. 2d 1002, 1008 (N.D. Ill. 2003) (Posner, J.). The Court will not seal 26 information that is now publicly available. See, e.g., Al Otro Lado v. Wolf, No. 19- 27 56417 (9th Cir. Feb. 24, 2020) (denying request to seal and collecting case law); see 1 || (affirming an unsealing order because the information at issue was “already publicly 2 ||available’’); Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 (2d Cir. 2004) 3 || (“[H]owever confidential it may have been beforehand, subsequent to publication it 4 [i]s confidential no longer... . [A court] simply do[es] not have the power . . . to 5 ||make what has thus become public private again.”). Accordingly, the Court DENIES 6 || the ex parte application. (ECF No. 236.) 7 IT IS SO ORDERED. 8 .. ) 9 || DATED: August 18, 2021 as dg (Hiphan 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28