Schertzer v. Bank of America, N.A.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KRISTEN SCHERTZER, et al., on behalf Case No.: 19cv264 JM(MSB) of themselves and all others similarly 12 situated, ORDER ON MOTION TO SEAL 13 AND EX-PARTE MOTION TO Plaintiffs, INTERVENE 14 v. 15 BANK OF AMERICA, N.A, et al., 16 Defendants. 17 18 When Plaintiffs Kristen Schertzer, Meagan Hicks and Brittany Covell initially filed 19 their motion for class certification1, they sought to seal portions of the Memorandum of 20 Points and Authorities in Support of their Motion for Class Certification and 21 43 accompanying exhibits simply because Defendants had designated certain information 22 as “CONFIDENTIAL” and for “ATTORNEYS’ EYES ONLY.” (Doc. No. 196.) The 23 court denied the motion without prejudice because the request was neither narrowly 24 tailored nor sufficiently justified. (Doc. No. 206.) In its order, the court informed Plaintiffs 25 that they could re-apply for a sealing order on or before November 1, 2021. (Id.) This 26 27 1 When the initial motion to seal was filed on October 15, 2021, Cardtronics was still a 28 1 court also informed Plaintiffs that, should they elect to do so, they must meet and confer 2 with Defendants and agree on the narrowest possible sealing order. (Id.) 3 Clearly the court’s instructions were followed with limited success. Plaintiffs 4 successfully met and conferred with Bank of America, who have now conceded that 5 documents previously lodged under seal may be filed publicly. (Doc. No. 208 at 2; Doc. 6 No. 208-4.) Meet and confer efforts with two of the other concerned parties did not fare 7 so well. (Doc. No. 208 at 2-3; see also Doc. No. 208-1.) Cardtronics, Inc., continues to 8 stand by its position that 32 of the exhibits attached to the class certification motion need 9 to be filed under seal. (See Doc. No. 207-1 at 4-5; Doc. No. 207-2; Doc. No. 208-3; Doc. 10 No. 208-5.) Defendant FCTI has not responded to Plaintiffs’ meet and confer efforts. 11 (Doc. No. 208 at 3; Doc. No. 208-6.) The result being that the court is now presented with 12 a renewed Motion to Seal from Plaintiffs, (Doc. No. 208), and an ex-parte Motion to 13 Intervene filed by Cardtronics, Inc., (Doc. No. 207) related to Plaintiffs’ Motion to seal. 14 Plaintiffs oppose the ex-parte application. (Doc. No. 209). Both motions were filed on 15 November 1, 2021. 16 The court spent considerable time reviewing each of the exhibits in question2 and 17 does not find the vast majority of the exhibits worthy of sealing simply because they were 18 designated: “CONFIDENTIAL” and for “ATTORNEYS’ EYES ONLY” during 19 discovery. See, e.g., Wasito v. City of San Diego, No. 19-CV-2395 JLS (JLB), 2019 WL 20 6877554, at *2 (S.D. Cal. Dec. 16, 2019) (quoting Ervine v. Warden, 214 F. Supp. 3d 917, 21 919 (E.D. Cal. 2016)). (“Any order sealing documents should be ‘narrowly tailored’ to 22 remove from public view only the material that is protected.”) The fact that some of the 23 documents may contain admissions, embarrassing statements or material regarding the 24 potentially confusing effects surrounding the usage of better balance inquiry prompts 25 26 27 2 The court declines to review an entire deposition transcript to determine what parts are sealable, although common sense dictates that not everything Mr. David McCrary said 28 1 provides no basis for sealing. See Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 2 1178 (9th Cir. 2006) (“The mere fact that the production of records may lead to a litigant’s 3 embarrassment, incrimination, or exposure to further litigation will not, without more, 4 compel the court to seal its records.”). Furthermore, the argument for sealing such 5 information grows less persuasive as a majority of the documents were generated between 6 four to six years ago. See, e.g., FTC v. Abbvie Prods. LLC, 713 F.3d 54, 69 (11th Cir. 7 2013) (affirming unsealing of financial information because risk of business injury was 8 “ameliorated over time.”); Pac. Marine Propellers, Inc. v. Wartsila Def., Inc., No. 17-cv- 9 555-L-NLS, 2018 WL 6601671, *2 (S.D. Cal. Dec. 14, 2018) (motion to seal denied 10 because “[d]efendants have not shown why this outdated [financial] information would 11 have any effect on [its] competitive standing at the present”). 12 However, out of an abundance of caution, this court will allow the sealing of four 13 exhibits because they contain sensitive business and financial information that could be 14 viewed as proprietary and/or confidential. Accordingly, the Clerk of Court is ordered to 15 file the following under seal: 16 • Document Number 198-20, lodged under seal as document number 197-8. 17 • Document Number 198-28, lodged under seal as document number 197-15. 18 • Document Number 198-33, lodged under seal as document number 197-20. 19 • Document Number 198-59, lodged under seal as document number 197-40. 20 21 All other documents are to be filed on the public docket in unredacted form by 22 November 5, 2021. Furthermore, the court finds it unnecessary to redact such a large 23 portion of the points and authorities related to Plaintiffs’ class certification. Accordingly, 24 Plaintiffs have until November 5, 2021, to refile the public version of their motion for class 25 certification, redacting only those portions necessary to comport with this order. 26 In accordance with the foregoing, Plaintiffs’ motion to seal is GRANTED IN PART 27 and DENIED IN PART. (Doc. No. 208.) Further, Cardtronic Inc,’s ex parte motion to 28 intervene is DENIED. (Doc. No. 207.) 1 The parties are advised that the court expects the parties to meaningfully meet and 2 ||confer, and narrowly tailor, before filing, any future requests to seal. 3 IT IS SO ORDERED. 4 || Dated: November 3, 2021 ; —N\y)

6 n.Jéffrey Miller wt States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28