Houston Municipal Employees Pension System v. BofI Holding, Inc.
- Proceeding
- district
- Area
- civil
- Panel
- Karen S. Crawford (author)
Analysis
The parties jointly moved to seal an audit-related document and portions of their discovery motions that quoted from it, asserting the bank examination privilege. The court granted the motion to seal, finding that the parties made a particularized showing of good cause and proposed narrowly tailored redactions.
| What the court decided | The model |
|---|---|
Motion to Seal [Doc. No. 303] granted“Accordingly, the Court GRANTS Motion to Seal [Doc. No. 303].” | agree with court The court correctly applied the Ninth Circuit's standard for sealing documents attached to non-dispositive motions, requiring a 'particularized showing' of 'good cause.' The court noted that the parties proposed narrowly tailored redactions and that sealing was prudent while the privilege dispute was pending, without making a final determination on the privilege itself. This follows the logic of Kamakana v. City & Cty. of Honolulu and In re Roman Catholic Archbishop of Portland in Or. |
The order itself: sound — The order is procedurally sound. It correctly identifies the applicable legal standard from binding Ninth Circuit precedent (Kamakana) and applies it to the specific facts of a joint motion to seal a document subject to a pending privilege dispute. The court appropriately declined to make a final ruling on the privilege but granted the seal as a prudent interim measure, citing the parties' proposed redactions.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 In re B of I HOLDING, INC. Case No.: 15-cv-2324-GPC-KSC SECURITIES LITIGATION 12 ORDER GRANTING MOTION TO 13 SEAL 14 [Doc. No. 303] 15 16 The parties have recently filed two joint discovery motions related to defendants’ 17 assertion of the bank examination privilege on behalf of the Office of the Comptroller of 18 the Currency. See Doc. Nos. 300, 301. The parties also jointly move to seal one exhibit 19 referenced in those motions, and the portions of the motions that quote from or reveal the 20 exhibit’s content (the “Motion to Seal”). See Doc. No. 303. For the reasons set forth 21 below, the Court GRANTS the Motion to Seal. 22 The right of the public “‘to inspect and copy … judicial records and documents’” is 23 well established. Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 24 2006) (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). The Court starts 25 with “a ‘strong presumption in favor of access,’” which the party seeking sealing “bears 26 the burden of overcoming.” Id. Where, as here, the documents to be sealed are attached to 27 a non-dispositive discovery motion, the party requesting sealing must make a 28 “‘particularized showing’” of “‘good cause.’” Id. at 1180 (citation omitted). The Court has | previously cautioned the parties that, pursuant to Ninth Circuit authority, designation of 2 documents or testimony under the operative Second Amended Protective Order [Doc. No. 3 || 286] is not in itself sufficient to demonstrate good cause for sealing. Doc. No. 297 at 9-10. 4 ||Rather, the party seeking sealing must provide the Court with sufficient information to 5 ||make “an individualized determination” that a particular document or information should 6 ||be sealed. Jd. (citing Kamakana, 447 F.3d at 1183); see also Anderson v. Marsh, 312 7 || F.R.D. 584, 594 (E.D. Cal. 2015) (stating that the “party seeking protection” must “show 8 || that specific prejudice or harm will result” if sealing is not permitted). 9 The Motion to Seal now before the Court concerns an audit-related document that 10 defendants assert is protected by the bank examination privilege that was purportedly 11 || produced inadvertently. Doc. No. 303 at 2-3. Without making any findings as to whether 12 ||the document is, in fact, privileged, the Court agrees with the parties that due to the 13 assertion of privilege, it would be prudent to seal this document at least “while the dispute 14 [regarding defendants’ clawback request] is pending.” J/d. The Court also finds that the 15 || parties have proposed narrowly tailored redactions to the two motions which quote from 16 document that obscure only the information necessary to protect against the disclosure 17 || of privileged information. Doc. No. 300 at 11; Doc. No. 301 at 8; accord In re Roman 18 || Catholic Archbishop of Portland in Or., 661 F.3d 417, 425 (9th Cir. 2011) (in determining 19 || whether to seal documents, “‘a court must still consider whether redacting portions of the 20 || discovery material will nevertheless allow disclosure”). Accordingly, the Court GRANTS 21 Motion to Seal [Doc. No. 303]. 22 || IT ISSO ORDERED. 23 ||Dated: December 20, 2021 Mh iy i; ) 24 WU LA SSS 5 Hori. Karen S. Crawford United States Magistrate Judge 26 27 28