May 14, 2004
William H. Stockton, Brisbee Stockton, Hillsboro, Oregon, Gerald A. Margolis, Matthew P. Kanny, Diana N. Iketani, Manatt, Phelps Phillips, Los Angeles, California, Attorneys for plaintiff.
Brian A. Rishwain, Neville L. Johnson, Douglas L. Johnson, Johnson Rishwain, Los Angeles, California, Michael A. Cohen, Patchen M. Haggerty, Schwabe, Williamson Wyatt, Portland, Oregon, Attorneys for defendants/cross-complainants.
OPINION AND ORDER
Plaintiff moves the court for an order 1) confirming that documents and information produced in discovery in this case are subject to and protected by the Stipulation and Protective Order executed on November 30, 2001; and 2) sealing the record with respect to trial exhibits and testimony pertaining to financial information about Allegro.
The exhibits in question are 79-86 (submitted by Allegro but not received into evidence at trial), 590 and 591 (used during trial) 592 and 593 (received into evidence but not used during trial), 803-805 (not received into evidence at trial) and 850-855 (received but not used at trial). Allegro asserts, through the testimony of Vincent Micallef, that the documents have been marked "Confidential" pursuant to the protective order, and that the public disclosure of all this information would be damaging to Allegro's business because it constitutes sensitive financial information.
DiscussionThe court has discretion to lift or modify a protective order.Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002). For the documents that were not received into evidence at the trial, or not used during the trial, the court will order that the November 30, 1999 protective order remain binding on the parties, their principals and agents, and their counsel until after the new trial.
However, the documents that were used at trial, Exhibits 590 and 591, must be treated differently. The public has rights, under the First Amendment and common law, to access evidence that is part of the trial record. See, e.g., Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978); Phillips, 307 F.3d at 1212. The common law right "creates a strong presumption in favor of access" to judicial documents which "can be overcome" only by showing "sufficiently important countervailing interests." Phillips, 307 F.3d at 1212. In deciding whether sufficient countervailing interests exist, the courts will look to the "public interest in understanding the judicial process and whether disclosure of the material could result in improper use of the material for scandalous or libelous purposes or infringement upon trade secrets." Phillips, 307 F.3d at 1213, quoting Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995).
Allegro has submitted an affidavit from Vincent Micallef stating that the documents in question contain sensitive information about Allegro's sales, earnings, salaries, and profit margins, the disclosure of which to Allegro's competitors or others "could be highly damaging to Allegro's business." Micallef states that on information and belief, ONAM and their counsel have disclosed information about Allegro's retailers and distributors in order to file an action, now settled, in California.
Mr. Micallef's affidavit is insufficiently specific to overcome the presumption of public access to Exhibits 591 and 592. However, those exhibits, like all the other original trial exhibits and chambers copies of the trial exhibits, remain in court custody, and are not stored in the clerk's office. Thus, as a practical matter, any member of the public wishing to have access to these exhibits must apply to my staff to obtain it. That access will not, however, be denied.
Allegro's motion (doc. # 371) is GRANTED in part and DENIED in part. With respect to Exhibits 79-86, 592-593, 803-805, and 850-855, the Protective Order of November 30, 1999 remains in effect and the record is sealed. Exhibits 590 and 591 are not sealed, but the protective order still binds counsel and all others previously subject to that order.
IT IS SO ORDERED.