Case Name: Donna Louise Horner v. Unifund CCR, LLC, et al.
Case No.: 17-CV-313357

Case Name: Donna Louise Horner v. Pilot Receivables Management, LLC, et al.
Case No.: 17-CV-313359

Plaintiff alleges unlawful debt collection practices by defendants in connection with her consumer credit account. On October 17, 2018, the Court granted defendants’ motions to compel arbitration and continued their related motions to seal. As directed by the Court, defendants filed supplemental declarations attaching redacted public versions of the “Forward Flow Debt Sale Agreement” at issue in their motions. The motions to seal, which plaintiff initially opposed, have again come on for hearing.

I. Legal Standard

“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.” (Cal. Rules of Court, rule 2.550(d).)

“Courts have found that, under appropriate circumstances, various statutory privileges, trade secrets, and privacy interests, when properly asserted and not waived, may constitute overriding interests.” (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298, fn. 3.) In addition, confidential matters relating to the business operations of a party may be sealed where public revelation of the information would interfere with the party’s ability to effectively compete in the marketplace. (See Universal City Studios, Inc. v. Superior Court (Unity Pictures Corp.) (2003) 110 Cal.App.4th 1273, 1285-1286.)

Where some material within a document warrants sealing, but other material does not, the document should be edited or redacted if possible, to accommodate both the moving party’s overriding interest and the strong presumption in favor of public access. (Cal. Rules of Court, rule 2.550(d)(4), (5).) In such a case, the moving party should take a line-by-line approach to the information in the document, rather than framing the issue to the court on an all-or-nothing basis. (In re Providian, supra, 96 Cal.App.4th at p. 309.)

II. Analysis

Defendants initially moved to file under seal the complete copies of the “Forward Flow Debt Sale Agreement” that were lodged in support of their motions to compel arbitration, as well as portions of their reply briefs that quoted from that document. In its prior order, the Court indicated that it was inclined to seal the confidential portions of the agreement that were identified in the declaration supporting defendants’ motions, “including the price Pilot paid, the types of accounts purchased, how the accounts were selected, the terms under which [First National] will repurchase accounts, and the terms under which the parties will indemnify each other.”

However, other terms of the agreement, including those discussed in defendants’ reply papers, do not appear to be confidential. These terms are a basis for the Court’s resolution of defendants’ motions to compel arbitration and are discussed in its ruling above. The Court is not inclined to seal this information. Under the circumstances, the motions to seal will be continued to permit defendants to submit a public version of the agreement from which only the specific terms they contend are confidential have been redacted.

On December 7, 2018, defendants filed supplemental declarations by Susan Appel, in-house legal counsel for Pilot and Unifund. The declarations attach redacted versions of the “Forward Flow Debt Sale Agreement,” and Ms. Appel confirms that none of the redacted information is discussed in the reply briefs. Ms. Appel declares that, in addition to the confidential information identified in their original briefing, defendants have redacted other confidential, commercially sensitive terms from the agreement. These terms are kept confidential and could be used by defendants’ competitors to their commercial detriment.

The Court finds that the information redacted from the “Forward Flow Debt Sale Agreement” attached to the supplemental declarations is appropriately filed under seal, and the factors set forth in rule 2.550(d) are satisfied as to this material. To the extent plaintiff continues to oppose sealing this information, the Court has considered her arguments and is not persuaded by them. It will accordingly grant defendants’ motions as to the unredacted versions of the “Forward Flow Debt Sale Agreement,” but will deny them as to the reply briefs supporting defendants’ motions to compel, which defendants no longer contend contain confidential information.

III. Conclusion and Order

Defendants’ motions to seal are GRANTED IN PART as to the “Forward Flow Debt Sale Agreement” and DENIED as to the reply briefs.

The Court will prepare the order.