Case Number: BC500829 Hearing Date: June 23, 2014 Dept: 34

Moving Party: Defendant Seimens Healthcare Diagnostics Inc. (“defendant”)

Resp. Party: None

TENTATIVE RULING:

Defendant’s motion to seal is DENIED.

BACKGROUND:

Plaintiff commenced this action on February 8, 2013, seeking declaratory relief as to the interpretations of certain contracts between plaintiff and defendants regarding medical diagnostic equipment leased by defendants’ predecessor. Plaintiff filed a first amended complaint on March 17, 2014, which also seeks declaratory relief.

On February 25, 2013, defendant and cross-complainant Siemens Healthcare Diagnostics, Inc., filed a cross-complaint asserting three causes of action for breach of contract, three causes of action for breach of the implied covenant of good faith and fair dealing, and a cause of action for unjust enrichment. Defendant filed a first amended cross-complaint on March 17, 2014.

ANALYSIS:

Procedural Analysis

A party that requests that a record or portion of a record be filed under seal must file a motion or an application for an order sealing it. The motion must be accompanied by a supporting memorandum and a declaration containing facts sufficient to justify the sealing. (CRC, rule 2.551(b)(1); Savaglio v Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 597-601.) All parties that have appeared in the case must be served with a copy of the motion or application. Unless the judge orders otherwise, a party that already possesses copies of the records to be sealed must be served with a complete, unredacted version of all papers as well as a redacted version. (CRC, rule 2.551(b)(2).)

The moving party must lodge the record with the court in a separate envelope when the motion or application is made, unless good cause exists for not lodging it or it has been lodged previously. (CRC, rule 2.551(b)(4) and (d).) The lodged record is conditionally under seal pending the judge’s determination of the motion or application. (CRC, rule 2.551(b)(4).)

Here, the motion complies with rule 2.551. The items sought to be sealed – defendant’s motion for summary judgment, certain exhibits to the declaration and amended declaration of Cheryl S. Chang, and certain exhibits to the declaration of Eric Chan – were previously lodged provisionally under seal by defendant and plaintiff on 5/5/14, 5/7/14, and 5/13/14.

Substantive Analysis

Pursuant to CRC, rule 2.550(d), a judge may order that a record be filed under seal only if the judge expressly finds facts that establish all the following:

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

(CRC 2.550(d).)

In ruling on a motion to seal, the court must weigh the competing interests and concerns. This process necessitates (1) identifying the specific information claimed to be entitled to protection from public disclosure, (2) identifying the nature of the harm threatened by disclosure, and (3) identifying and accounting for countervailing considerations. (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894.) Therefore, in order to prevail on his motion, the moving party must present a specific enumeration of the facts sought to be withheld and the specific reasons for withholding them. (H.B. Fuller Co., 151 Cal.App.4th at 904.)

The California Supreme Court has held that the First Amendment provides “a right of access to ordinary civil trial and proceedings.” (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1212.) The court further noted its belief that “the public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system.” (Id., at 1210.) There is a presumption of openness in civil court proceedings. (Id., at 1217.) This presumption may apply to seemingly private proceedings. (Burkle v. Burkle (2006) 135 Cal. App.4th 1045, 1052 (divorce proceedings).) Therefore, it is up to this Court to determine if that presumption has been overcome.

Courts must find compelling reasons, prejudice absent sealing and the lack of less-restrictive means, before ordering filed documents sealed. (Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232, 1246; NBC Subsidiary (KNBC-TV), Inc. v. Sup. Ct. (1999) 20 Cal.4th 1178, 1208-09 n. 25; Champion v. Sup. Ct. (1988) 201 Cal.App.3d 777, 787.) A proposed sealing must be narrowly tailored to serve the overriding interest, such as by sealing portions of pleadings or redacting particular text. (In re Marriage of Burkle (2006) 135 Cal.App.4th 1045, 1052, 1070.) An application to seal must be accompanied by a declaration containing facts sufficient to justify sealing. (CRC Rule 2.551(b)(1).)

Financial information involving confidential matters relating to a party’s business operations may be sealed where “public revelation of these matters would interfere with [the party’s] ability to effectively compete in the marketplace” and “if made available to the public, there is a substantial probability that their revelation would prejudice the foregoing legitimate interests of [party].” (Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1283.)

Defense counsel declares that defendant seeks to file under seal those documents which were produced during discovery which, pursuant to a protective order, were designated as “confidential” and “highly confidential.” (Chang Decl., ¶¶ 6-7.) Defense counsel declares that the documents contain confidential and proprietary records and confidential commercial information belonging to third parties. (Id., ¶¶ 8-9.) Defense counsel declares that harm to defendant and third parties could result if the information is not protected from disclosure. (Id., ¶ 10.)

Defense counsel’s conclusory declarations are not sufficient to support sealing the documents. Defense counsel asks the Court to seal 35 documents, encompassing hundreds of pages. (Id., ¶ 6.) Some of the documents are 1 page long; other documents are over 200 pages long. (Id.) These are, apparently, all of the documents that the parties agreed to designate as either “Confidential” or “Highly Confidential.” (Id., ¶¶ 8-9.)

Defense counsel does not establish personal knowledge as to defendant’s records or commercial information, or as to whether harm could result. Defendant does not explain what facts contained in the document constitute confidential commercial information. The mere fact that the parties agreed that the documents were confidential is not a sufficiently compelling reason to seal the records.

Accordingly, defendant’s motion to seal is DENIED.