Case Number: BC650252 Hearing Date: May 07, 2019 Dept: 2

Plaintiff Gabriel Avina’s amended motion to seal portions of Defendant Zygmunt Rechlecki’s deposition is DENIED.

Plaintiff Gabriel Avina (“Plaintiff”) moves for an order sealing portions of Defendant Zygmunt Rechlecki’s (“Defendant”) deposition, pursuant to C.C.P. §2025.420(b)(15) and CRC 2.550-2.551.

C.C.P. §2025.420(b) provides, as follows:

The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

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(15) That the deposition be sealed and thereafter opened only on order of the court.

CRC 2.551(a) provides, as follows: “A record must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.”

CRC 2.550(d) provides, as follows:

The court may order that a record be filed under seal only if it expressly finds facts that establish:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.

As a preliminary matter, the Court assumes, for purposes of the instant motion, that CRC 2.550-2.551 apply to the determination of whether the deposition testimony should be sealed. (See CRC 2.550(a)(3) (“These rules do not apply to discovery motions and records filed or lodged in connection with discovery motions or proceedings. However, the rules do apply to discovery materials that are used at trial or submitted as a basis for adjudication of matters other than discovery motions or proceedings.”).)

Plaintiff argues his interests will be unduly prejudiced if the pertinent portions of Defendant’s deposition (pertaining to Defendant’s testimony that Plaintiff, at the scene of the accident, threatened to sue Defendant for $250,000.00, if he did not pay $80,000.00) are not sealed because Plaintiff is an attorney, who is obligated at all times to follow a higher standard of conduct as an officer of the court, and if the disputed allegations made by Defendant were obtained by the public and used against Plaintiff (in State or Federal matters), Plaintiff’s career, personal interests, and property interests would be damaged. (Motion, pgs. 3-4.)

However, Plaintiff did not identify an overriding interest that overcomes the right of public access to the record, assuming such testimony was used during trial. Even assuming arguendo, Plaintiff identified an overriding interest – injury to his career and reputation, the overriding interest does not support sealing the deposition. (Declaration of Plaintiff ¶¶5-6.) Plaintiff disputes the validity of Defendant’s testimony. Merely arguing the allegations are not supported by evidence is insufficient. Moreover, Plaintiff did not establish a substantial probability exists that the overriding interest (if any) will be prejudiced if the record is not sealed. Plaintiff summarized the challenged testimony in a public document filed with the Court (i.e. the instant motion) and Plaintiff, as he did in the motion, can dispute the deposition testimony, and/or challenge the Judgment. (Declaration of Plaintiff ¶4.)

The fact that the parties’ stipulated to seal the disputed portions of Defendant’s deposition is also insufficient. As discussed above, the “court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (CRC 2.551(a).)

Based on the foregoing, the amended motion to seal is DENIED.

The moving party is ordered to give notice.