Six4three v. Facebook, Inc., No. A156095 (May 18, 2020)
Plaintiff in an anti-SLAPP fight filed a declaration in support of its opposition that included hundreds of exhibits that had been designated as confidential under a protective order. After the motion was resolved, the trial court struck from the record a whole bunch of exhibits that were not germane to the motion. It also ordered parts of some exhibits sealed. Plaintiff appeals.
The Court of Appeal dismisses the appeal. The striking order is not an appealable order. Any appeal to it would have to be taken up in connection with an appeal of the anti-SLAPP ruling or from a final judgment. And so far as sealing order goes, Plaintiff isn’t aggrieved. Sealing prevents the general public from accessing the documents. But it has no effect on Plaintiff’s rights—plaintiff has copies of the documents already. Since Code of Civil Procedure § 902 limits appeals to a “party aggrieved,” Plaintiff lacks standing to appeal the sealing order.
Appeal dismissed.
Showing posts with label sealing. Show all posts
Showing posts with label sealing. Show all posts
Wednesday, May 27, 2020
Wednesday, March 4, 2015
The NCAA Can't Don the Man's Mantle in Sealing Fight
McNair v. NCAA, No. B245475 (D2d3 Feb. 6, 2015)
The underlying lawsuit involves allegations that the NCAA defamed plaintiff in its report regarding allegations that former USC running back Reggie Bush received improper benefits while a student athlete. In connection with an appeal of an order denying an anti-SLAPP motion, the NCAA seeks to seal a number of documents that were lodged in connection with the motion. In a short published opinion, the court of appeal addresses a key issue regarding sealing.
NCAA argued that its investigations are subject to an overriding interest against public disclosure under the NBC Subsidiary standard because confidentiality is essential to its ability to get witnesses to come forward. It grounds this argument on its bylaws and the confidentiality agreements it enters with these witnesses. But since these are private agreements, as the court explains, the “mere agreement of the parties alone is insufficient to constitute an overriding interest to justify sealing the documents.”
Nor was the court swayed by the NCAA’s various policy arguments analogizing the NCAA to a public agency conducting an investigation and claiming that disclosure would destroy its ability to investigate. The NCAA isn’t part of the judicial system and it is not a law enforcement agency. It is a private organization that investigates violations of its rules akin to how an employer might investigate the misconduct of its employees. So, although the NCAA might perform an important service, its interests in doing so don’t outweigh the public’s right of access to the courts.
Motion to seal denied.
The underlying lawsuit involves allegations that the NCAA defamed plaintiff in its report regarding allegations that former USC running back Reggie Bush received improper benefits while a student athlete. In connection with an appeal of an order denying an anti-SLAPP motion, the NCAA seeks to seal a number of documents that were lodged in connection with the motion. In a short published opinion, the court of appeal addresses a key issue regarding sealing.
NCAA argued that its investigations are subject to an overriding interest against public disclosure under the NBC Subsidiary standard because confidentiality is essential to its ability to get witnesses to come forward. It grounds this argument on its bylaws and the confidentiality agreements it enters with these witnesses. But since these are private agreements, as the court explains, the “mere agreement of the parties alone is insufficient to constitute an overriding interest to justify sealing the documents.”
Nor was the court swayed by the NCAA’s various policy arguments analogizing the NCAA to a public agency conducting an investigation and claiming that disclosure would destroy its ability to investigate. The NCAA isn’t part of the judicial system and it is not a law enforcement agency. It is a private organization that investigates violations of its rules akin to how an employer might investigate the misconduct of its employees. So, although the NCAA might perform an important service, its interests in doing so don’t outweigh the public’s right of access to the courts.
Motion to seal denied.
Wednesday, December 10, 2014
Seal Spiel
Overstock.com v. Goldman Sachs, No. A133487 (D1d1 Nov. 13, 2014)
This is a magnum opus on the handling of sealed files and a must-read for anyone who litigates complex business cases in state court. Sorry in advance for the overly detailed procedural setup—the last thing I want is for my posts to read like bench memos—but for once, the background is quite germane to understanding the ultimate ruling in the case.
This is a magnum opus on the handling of sealed files and a must-read for anyone who litigates complex business cases in state court. Sorry in advance for the overly detailed procedural setup—the last thing I want is for my posts to read like bench memos—but for once, the background is quite germane to understanding the ultimate ruling in the case.
Friday, December 20, 2013
The Superior Court Can't Play Lucy to the Regents' Charlie Brown
Regents of the University of California v. Superior Court, No. A138136 (D1d2, as modified Jan 14, 2013)
On the merits, the court of appeal holds that records of private venture capital funds in which the Regents invested some pension funds do not fall within the Public Records Act. But it also resolves a procedural issue. In the course of the litigation, the Regents provisionally lodged some records under seal pursuant to Rule of Court 2.551(b)(4), pending a ruling on an application to seal them. The Regents' counsel made clear during argument that if the court declined to seal the records, the Regents wanted them returned under Rule of Court 2.551(b)(6). The superior court did not rule on the sealing application right away. When it ultimately ruled on the merits, however, it also ruled that the Regents were judicially estopped from requesting the return of their documents because they submitted them for the court to consider on the merits of the PRA request.
In this the trial court erred. Judicial estoppel did not apply because the Regents never took an inconsistent position—they consistently claimed that the records were not public and that they wanted them returned without filing if the court would not seal them. The trial court had two options under the Rule: Order the records sealed or deny the application return the records under Rule 2.551(b)(6). If it took the latter tack it could not consider the returned records in addressing the merits. Of course, a trial court is free to delay its ruling on sealing, and there are often good reasons to do so. But there's a catch. The trial court might consider the provisionally lodged materials in ruling on the merits and also decide that the did not meet the standard for sealing. If that happens, and if the submitting party won't consent to the materials' public filing, the court will need to go back and reevaluate the merits without the provisionally sealed material. That, however, is the risk a trial court bears when it delays ruling on sealing.
Writ granted.
On the merits, the court of appeal holds that records of private venture capital funds in which the Regents invested some pension funds do not fall within the Public Records Act. But it also resolves a procedural issue. In the course of the litigation, the Regents provisionally lodged some records under seal pursuant to Rule of Court 2.551(b)(4), pending a ruling on an application to seal them. The Regents' counsel made clear during argument that if the court declined to seal the records, the Regents wanted them returned under Rule of Court 2.551(b)(6). The superior court did not rule on the sealing application right away. When it ultimately ruled on the merits, however, it also ruled that the Regents were judicially estopped from requesting the return of their documents because they submitted them for the court to consider on the merits of the PRA request.
In this the trial court erred. Judicial estoppel did not apply because the Regents never took an inconsistent position—they consistently claimed that the records were not public and that they wanted them returned without filing if the court would not seal them. The trial court had two options under the Rule: Order the records sealed or deny the application return the records under Rule 2.551(b)(6). If it took the latter tack it could not consider the returned records in addressing the merits. Of course, a trial court is free to delay its ruling on sealing, and there are often good reasons to do so. But there's a catch. The trial court might consider the provisionally lodged materials in ruling on the merits and also decide that the did not meet the standard for sealing. If that happens, and if the submitting party won't consent to the materials' public filing, the court will need to go back and reevaluate the merits without the provisionally sealed material. That, however, is the risk a trial court bears when it delays ruling on sealing.
Writ granted.
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