Opinion
15-cv-02287-BAS-NLS 15-cv-02353-BAS-NLS
08-18-2021
CHARLES MATTHEW ERHART, Plaintiff, v. BOFI HOLDING, INC., Defendant. And Consolidated Case
ORDER DENYING EX PARTE APPLICATION TO REMOVE DOCUMENT FROM THE PUBLIC DOCKET AND FILE IT UNDER SEAL (ECF No. 236)
Hon. Cynthia Bashant United States District Judge
Defendant Bof I Holding, Inc. (“BofI”) moves ex parte to remove a declaration and its attachments from the docket to allow Bof I to file the information under seal. (ECF No. 236.) Bof I's request is based on orders in a related securities case that do not permit Bof I to publicly disclose the identity of certain individuals as “confidential witnesses.” (Id.) Although that may be true, the ex parte application lacks merit. “[T]he cat is out of the bag.” SmithKline Beecham Corp. v. Pentech Pharms., Inc., 261 F.Supp.2d 1002, 1008 (N.D. Ill. 2003) (Posner, J.). The Court will not seal information that is now publicly available. See, e.g., Al Otro Lado v. Wolf, No. 19-56417 (9th Cir. Feb. 24, 2020) (denying request to seal and collecting case law); see also Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1184 (9th Cir. 2006) (affirming an unsealing order because the information at issue was “already publicly available”); Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 (2d Cir. 2004) (“[H]owever confidential it may have been beforehand, subsequent to publication it [i]s confidential no longer . . . . [A court] simply do[es] not have the power . . . to make what has thus become public private again.”). Accordingly, the Court DENIES the ex parte application. (ECF No. 236.)
IT IS SO ORDERED.