Opinion
CASE NO. C13-5071JLR
11-20-2013
SKOKOMISH INDIAN TRIBE, Plaintiff, v. PETER GOLDMARK, et al., Defendants.
ORDER GRANTING MOTION
TO SEAL
Before the court is amici curiae the Hoh Tribe and Quileute Tribe's (the "Hoh and Quileute") renewed motion to seal. (Mot. (Dkt. ## 92, 94).) The Hoh and Quileute ask the court to: (1) seal portions of the Skokomish Indian Tribe's (the "Skokomish") response memorandum to the Hoh and Quileute's motion for leave to participate as amici curiae (Skokomish Resp. (Dkt. # 76)); (2) maintain under seal the Hoh and Quileute's unredacted reply memorandum regarding their motion for leave to participate as amici curiae (Dkt. # 80); (3) seal portions of the Skokomish's response memorandum to the Hoh and Quileute's first motion to seal (Resp. 1 (Dkt. # 82)); (4) maintain under seal the Hoh and Quileute's unredacted reply memorandum regarding their first motion to seal (Dkt. # 88); (5) maintain under seal the Hoh and Quileute's unredacted renewed motion to seal (Mot. (Dkt. # 94)); (6) maintain under seal the unredacted declaration of Lauren King and associated exhibit filed in support of the Hoh and Quileute's renewed motion to seal (King Decl. (Dkt. # 95); id. Ex. A (Dkt. # 95-1)); (7) seal portions of the Skokomish's response memorandum to the Hoh and Quileute's renewed motion to seal and the memorandum's associated exhibits (Resp. 2 (Dkt. # 98); id. Ex. B (Dkt. # 98-2); id. Ex. C (Dkt. # 98-3)); and (8) maintain under seal the Hoh and Quileute's unredacted reply memorandum regarding their renewed motion to seal (Reply (Dkt. # 100)). (See Mot. at 1, 5; Reply at 1-2, 4-5.) Having reviewed the motion, all submissions filed in support of and opposition thereto, the balance of the record, and the applicable law, and considering itself fully advised, the court GRANTS the Hoh and Quileute's renewed motion to seal (Dkt. ## 92, 94).
Under Local Rule LCR 5(g) "[t]here is a strong presumption of public access to the court's files." Local Rules W.D. Wash. LCR 5(g)(3). To rebut this presumption the party seeking to seal a document must file a motion that includes:
(A) a certification that the party has met and conferred with all other parties in an attempt to reach agreement on the need to file the document under seal, to minimize the amount of material filed under seal, and to explore redaction and other alternatives to filing under seal; this certification must list the date, manner, and participants of the conference.Id. This rule places the burden on the moving party to come forward with an applicable legal standard justifying the seal and to produce evidentiary support showing that the standard is met. See id. The Hoh and Quileute's renewed motion to seal satisfies Local Rule LCR 5(g).
(B) a specific statement of the applicable legal standard and the reasons for keeping a document under seal, with evidentiary support from declarations where necessary.
First, the Hoh and Quileute have met and conferred as required by Local Rule LCR 5(g)(A). Their renewed motion certifies that their counsel have "met and conferred with all other parties in an attempt to reach agreement on the need to file the document[s]" at issue under seal, as required by Local Rule LCR 5(g)(3)(A). (See generally Certification of Meet and Confer (Dkt. # 92-1).) The certification details the parties' discussion regarding the documents subject to the renewed motion to seal. (See id. at 1.) The certification also lists the date, manner, and participants of the conference. (See id.) Furthermore, the Skokomish do not refute any part of the Hoh and Quileute's certification. (See generally Resp. 2) Thus, the Hoh and Quileute's renewed motion to seal satisfies Local Rule LCR 5(g)(3)(A).
See Local Rules W.D. Wash. CR 7(b)(2) ("If a party fails to file papers in opposition to a motion, such failure may be considered . . . an admission that the motion has merit.").
Second, as required by Local Rule LCR 5(g)(B), the Hoh and Quileute come forward with an applicable legal standard justifying their renewed motion to seal. The Hoh and Quileute point the court to numerous cases in which courts of the Ninth Circuit have accepted private confidentiality agreements as "good cause" justifying a motion to seal non-dispositive motions and associated documents. (See Mot. at 3 (citing Pike v. Hester, No. 3:12-CV-00283-RCJ, 2013 WL 3491222, at *7 (D. Nev. July 9, 2013); Boucher v. First Am. Title Ins. Co., No. C10-0199RAJ, 2011 WL 5299497, at *5 (W.D. Wash. Nov. 4, 2011); Mesa Bank v. Cincinnati Ins. Co., No. 09-12-PHX-GMS, 2009 WL 247908, at *2 (D. Ariz. Feb. 3, 2009)).) The Hoh and Quileute, through their renewed motion to seal, only request that non-dispositive motions and some associated documents be sealed. (See Mot. at 1, 5; Reply at 1-2, 4-5.) Thus, the standard in Pike, Boucher, and Mesa applies here.
The confidentiality agreement between the Skokomish, Hoh, and Quileute justifies the renewed motion to seal. The Skokomish entered into a confidentiality agreement with the Hoh and Quileute earlier this year. (See King Decl. at 1; id. Ex. A at 7.) The Hoh and Quileute assert that a clause in that agreement binds the "Skokomish, Quileute, and Hoh to continuing duties of confidentiality, including a duty to keep the fact of the existence of the document itself confidential." (Mot. at 1-2.) The Skokomish do not dispute this interpretation. (See generally Resp. 2.)
See Local Rules W.D. Wash. CR 7(b)(2) ("If a party fails to file papers in opposition to a motion, such failure may be considered . . . an admission that the motion has merit.").
Despite the confidentiality agreement, the Skokomish have disclosed and discussed the agreement numerous times in their pleadings, and even prior to this proceeding. (See Skokomish Resp. at 3; Resp. 1 at 1-3; Resp. 2 at 1-4; id. Ex. B at 2; id. Ex. C at 4.) The Skokomish assert that their tribal constitution requires them to disclose the existence of the agreement, and that their prior disclosures render the confidentiality requirement of the agreement moot. (See Resp. 2 at 2-3.) The court disagrees. Only the benefiting party can waive a contractual clause. See Mike M. Johnson, Inc. v. Cnty. of Spokane, 78 P.3d 161, 166 (Wash. 2003). "A party to a contract may waive a contract provision, which is meant for its benefit, and may imply waiver through its conduct." Id. "Waiver by conduct, however, 'requires unequivocal acts of conduct evidencing an intent to waive.'" Id. (quoting Absher Const. Co. v. Kent Sch. Dist. No. 415, 890 P.2d 1071, 1074 (Wash. Ct. App. 1995)). Even though the confidentiality clause could benefit any party to the agreement, the Hoh and Quileute are the parties attempting to enforce the confidentiality clause, and there is no evidence before the court that the Hoh and Quileute "unequivocally waived" their right to enforce the confidentiality clause. Id. Thus, the confidentiality provision is enforceable, and a proper basis to justify the Hoh and Quileute's renewed motion to seal.
The court finds the Skokomish's remaining argument in opposition to the renewed motion to seal similarly unavailing. The Skokomish claim that Federal Rule of Civil Procedure 26 authorizes them "to disclose the existence of the [agreement] and the nature of communications under it" because the agreement is likely discoverable. (Resp. 2 at 4.) Rule 26 applies within the context of discovery, and the Skokomish have not disclosed the agreement within the context of discovery. (See generally Mot.; Reply.) Furthermore, the same "good cause" standard discussed above applies to motions seeking a protective order over materials disclosed during discovery. (See Mesa Bank, 2009 WL 247908, at *1 (citing San Jose Mercury News, Inc. v. U.S. Dist. Court-N. Dist. (San Jose), 187 F.3d 1096, 1103 (9th Cir. 1999)). Thus, the above analysis would also apply within the discovery context.
The court therefore GRANTS the Hoh and Quileute's motion to seal the non-dispositive documents referencing the agreement between the Skokomish, Hoh, and Quileute (Dkt. ## 92, 94). The Skokomish are ordered to file on the docket redacted versions of the following documents: (1) the Skokomish response memorandum to the Hoh and Quileute's motion for leave to participate as amici curiae (Dkt. # 76); (2) the Skokomish's response memorandum to the Hoh and Quileute's first motion to seal (Dkt. # 82); and (3) the Skokomish's response memorandum to the Hoh and Quileute's renewed motion to seal and its associated exhibits (Dkt. # 98, 98-2, 98-3). The documents shall be redacted to conceal any mention of or reference to the confidentiality agreement or its contents. (See Reply at 4-5.) And the court will seal the unredacted versions of these documents (Dkt. ## 76, 82, 98, 98-2, 98-3).
The court will maintain under seal: (1) the Hoh and Quileute's unredacted reply memorandum regarding their motion for leave to participate as amici curiae (Dkt. # 80); (2) the Hoh and Quileute's unredacted reply memorandum regarding their first motion to seal (Dkt. # 88); (3) the Hoh and Quileute's unredacted renewed motion to seal (Dkt. ## 94); (5) the unredacted declaration of Lauren King and associated exhibit filed in support of the Hoh and Quileute's renewed motion to seal (Dkt. ## 95, 95-1); and (8) the Hoh and Quileute's unredacted reply memorandum regarding their renewed motion to seal (Dkt. # 100).
Furthermore, in the interest of judicial economy, any party that references the confidentiality agreement at issue here in a future pleading must (1) file the pleading with any reference to the agreement redacted, and (2) file an unredacted version of the pleading under seal. Failure to do so may result in sanctions.
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JAMES L. ROBART
United States District Judge