Plaintiffs have filed an unopposed motion for leave to file three exhibits in support of their Motion for Partial Summary Judgment re: Interstate Commerce under seal. Plaintiffs explain that the three documents at issue consist of a contractual agreement between Albertsons/Safeway and Defendant United States Bakery, a series of documents titled as "invoices" containing specific items and quantities of bread product delivered to the Albertsons in Lewistown, Montana, and an excerpt of a report showing bread deliveries to Albertsons with those that originated at bakeries out-of-state.
The Scheduling Order in this case states that "[i]f the parties can reach an agreement concerning the use of certain confidential and financial commercial information there is no need to seek a protective order from this Court." (Doc. 17 at 7). Plaintiffs represent to the Court that the parties entered into such a stipulated protective order on March 29, 2019. Pursuant to the terms of the stipulated protective order, United States Bakery produced the documents at issue while asserting confidentiality on the basis that they contained trade or proprietary information.
Plaintiffs do not take a position concerning the validity of United States Bakery's assertions of protection, but recognize that it might be a violation of the protective order if they were to file the documents without doing so under seal. Plaintiffs assert that redacting confidential information from the documents is not a feasible alternative because doing so would eliminate the information Plaintiffs seek to offer to the Court.
"Historically, courts have recognized a 'general right to inspect and copy public records and documents, including judicial records and documents.'" Kamakan v. City & County of Honolulu, 447 F.3d 1172, 1178 (9 Cir. 2006) (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 & n.7 (1978)). Consequently, the Ninth Circuit requires a showing of "compelling reasons" to seal documents attached to dispositive motions and other filings relating to the merits of a case. Ground Zero Center for Non-Violent Action v. United States Department of the Navy, 860 F.3d 1244, 1261 (9 Cir. 2017). Documents related to non- dispositive motions or motions unrelated to the merits of a case may be sealed upon a lesser showing of "good cause." Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1097 (9 Cir. 2016). These standards apply even where, as here, the parties have entered into a stipulated protective order. See Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1138 (9 Cir. 2003) (finding that a "blanket protective order" is not a compelling reason for" holding records under seal forever" because it was obtained without making a particularized showing with respect to any individual document).
Because the documents Plaintiffs seek to file under seal relate to a motion for partial summary judgment and to the merits of the case, the "compelling reasons" standard applies. The fact that United States Bakery has designated these documents as confidential pursuant to a stipulated protective order does not, standing alone, establish compelling reasons for filing the documents under seal.
Here, Plaintiffs are seeking leave to file documents under seal that have been designated by United States Bakery as confidential pursuant to the terms of their stipulated protective order. Because it is United States Bakery's interests that are at stake,
IT IS ORDERED that, on or before February 7, 2020, United States Bakery make a showing, by affidavit or otherwise, of compelling reasons why Plaintiffs' Exhibits G, H and I currently lodged with the clerk, shall be filed under seal.
DATED this 31st day of January, 2020.
Kathleen L. DeSoto
United States Magistrate Judge