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Alfred Gonzales and Kelly Gonzales v. Comcast Corporation

October 7, 2011

ALFRED GONZALES AND KELLY GONZALES, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
COMCAST CORPORATION, AND DOES 1 THROUGH 10 INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART COMCAST'S REQUEST TO SEAL DOCUMENTS

I. INTRODUCTION

Plaintiffs Alfred Gonzales and Kelly Gonzales ("Plaintiffs") filed this putative class action suit on May 3, 2010, in Fresno County Superior Court. (Doc. 1, ¶ 1.) According to the First Amended Complaint, Comcast Corporation ("Comcast") is a provider of cable television, among other things, for which Plaintiffs contracted for service. In September 2008, Plaintiffs attempted to cancel their Comcast services, however Comcast allegedly continued to withdraw monthly service fees from Plaintiffs' bank account beyond Plaintiffs' date of cancellation, despite that Plaintiffs' account had been closed and their equipment returned for nearly a month. (Doc. 56, ¶¶ 12-13, 16.) Plaintiffs allege that Comcast engages in unfair business practices of refusing to clearly identify the termination date of customer accounts, provides convoluted final bills, and intentionally uses "confusing so-called 'final bills' to increase its profits." (Doc. 56, ¶ 20.)

The action was removed to this Court by Comcast on June 3, 2010. On November 30, 2010, the parties entered into a stipulation for a protective order of confidentiality with regard to discovery documents. (Doc. 28.) This proposed stipulated protective order ("protective order") was signed by the Court on December 17, 2010. (Doc. 29.)

On August 22, 2011, Plaintiffs filed a Motion to Certify Class and Appoint Representative Plaintiffs and Lead Counsel ("Motion for Class Certification"). (Doc. 64.) On September 26, 2011, Comcast filed an opposition to Plaintiffs' Motion for Class Certification. In addition to its opposition papers, Comcast requested that the Court seal certain documents attached as exhibits to the declaration of Bryan Merryman that was filed in support of Comcast's opposition. The documents that Comcast desires to file under seal were lodged with the Court and served on Plaintiffs. No opposition to Comcast's sealing request was filed.

For the reasons set forth below, Comcast's request to seal Exhibits C, D, E, G, H, N, O, P, and Q to the declaration of Bryan A. Merryman filed in support of Comcast's opposition to Plaintiffs' Motion to Certify Class is GRANTED IN PART and DENIED IN PART.

II. DISCUSSION

A. Legal Standard

Every court has supervisory power over its own records and files, and may provide access to court documents at its discretion. See Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995) (citing Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978)). A motion to seal documents implicates the "general right to inspect and copy public records and documents, including judicial records and documents." Warner Commc'ns, Inc., 435 U.S. at 597 (footnote omitted).

In the Ninth Circuit, there is a strong presumption in favor of access to court records. See Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003) (stipulated order without more insufficient basis to seal court records). The right to access is not absolute, however, and can be overridden where the interest of the parties in sealing documents outweighs the public interest. Warner Commc'ns, Inc., 435 U.S. at 602. The factors a court should consider include the "public interest in understanding the judicial process and whether disclosure of the material could result in improper use of the material for scandalous or libelous purposes or infringement upon trade secrets." Hagestad, 49 F.3d at 1434 (quoting EEOC v. Erection Co., Inc., 900 F.3d 168, 170 (9th Cir. 1990)). The decision whether to seal a particular document is "left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case." Warner Commc'ns, Inc., 435 U.S. at 599.

B. Comcast's Request to Seal Exhibits C, D, E, G, and H to the Declaration of Bryan Merryman On September 26, 2011, Comcast filed a request that the Court seal certain exhibits attached to the declaration of Bryan A. Merryman filed in support of Comcast's opposition to Plaintiffs' Motion for Class Certification. (See Doc. 75-3.) Exhibits C, D, E, G, and H, which Comcast lodged with the Court and asserts should be sealed, include copies of the Comcast billing invoices sent to Plaintiffs as subscribers of Comcast's services. Comcast asserts that 47 U.S.C. § 551 prohibits Comcast from publicly disclosing personally identifiable information about a subscriber, and thus it seeks to seal Plaintiffs' billing invoices contained in Exhibits C, D, E, G, and H.

Pursuant to 47 U.S.C. § 551, a cable operator "shall not disclose personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned and shall take such actions as are necessary to prevent unauthorized access to such information by a person other than the subscriber or cable operator." 47 U.S.C. § 551(c)(1).

1. Exhibits E, G, and H

With respect to Exhibits E, G, and H, Plaintiffs have already filed these documents and made them publicly available on the docket, by filing the documents as Exhibits 4, 6, and 7 to the Declaration of Kevin F. Ruf. (Doc. 66-4, 66-6, 66-7.) Plaintiffs submitted a sealing request to the Court, requesting that these documents be sealed because Comcast had marked them "confidential" pursuant to the parties' stipulated protective order that was signed by the Court. Pursuant to the protective order, a party seeking to file confidential documents must first seek an order permitting the documents to be filed under seal. Other than the protective order, Plaintiffs articulated no basis to seal the documents beyond the fact that Comcast had marked the billing statements "confidential" when it produced them in discovery. (See Doc. 71.) Comcast's request to seal documents to protect Plaintiffs' privacy when the documents have already been made publicly available by Plaintiffs themselves is moot. Although Comcast requests that Exhibits E, G, and H be sealed ...


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