United States District Court, N.D. California
SERGIO L. RAMIREZ, Plaintiff,
TRANS UNION, LLC, Defendant.
ORDER ON DEFENDANT'S MOTION TO SEAL OPPOSITION TO PLAINTIFF'S MOTION TO CERTIFY Re: Dkt. No. 119
JACQUELINE SCOTT CORLEY, Magistrate Judge.
In this putative class action, Plaintiff Sergio Ramirez alleges that he was denied an auto loan after Defendant Trans Union, LLC mistakenly informed a car dealership that Plaintiff was on the federal government's Office of Foreign Assets Control ("OFAC") list. Plaintiff contends that Defendant violated the Federal Credit Reporting Act ("FCRA") and the California Consumer Credit Reporting Agencies Act ("CCRAA") by failing to ensure "maximum possible accuracy" of its credit reports, and failing to provide consumers with proper disclosures. (Dkt. No. 1 ¶ 1.) Now pending before the Court is Defendant's Motion to File under seal portions of its Opposition to Plaintiff's Motion to Certify Class, and portions of declarations and deposition testimony it submits in support of its Opposition. For the reasons explained below, Defendant's Motion is GRANTED in part and DENIED in part.
"[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." Nixon v. Warner Comm'ns, Inc., 435 U.S. 589, 597 n.7 (1978); see also Foltz v. State Farm Mutual Auto Ins. Co., 331 F.3d 1124, 1134 (9th Cir. 2003) ("In this circuit, we start with a strong presumption in favor of access to court records."). The right is justified by the interest of citizens in "keep[ing] a watchful eye on the workings of public agencies." Nixon, 435 U.S. at 598. The right, however, "is not absolute and can be overridden given sufficiently compelling reasons for doing so." Foltz, 331 F.3d at 1135; see, e.g., Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir. 1989). "A narrow range of documents is not subject to the right of public access at all because the records have traditionally been kept secret for important policy reasons." Kamakana v. City and Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (internal citations omitted); see, e.g., Times Mirror Co., 873 F.2d at 1219 (grand jury transcripts and warrant materials in the midst of a pre-indictment investigation not subject to right of public access).
The right of public access to judicial records "applies fully to dispositive pleadings, including motions for summary judgment and related attachments." Kamakana, 447 F.3d at 1179. The Ninth Circuit "adopted this principle of disclosure because the resolution of a dispute on the merits, whether by trial or summary judgment, is at the heart of the interest in ensuring the public's understanding of the judicial process and of significant public events." Id. (internal citations and quotation marks omitted). Thus, "[a] party seeking to seal a judicial record then bears the burden of overcoming this strong presumption by meeting the compelling reasons' standard." Id. at 1178-79. The reasons must "outweigh the general history of access and the public policies favoring disclosure." Id. at 1179 (internal quotation marks and citations omitted). Such compelling reasons include "the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets." Id. (internal quotation marks and citation omitted). "The mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records." Id. A parties' request for sealing must be "narrowly tailored" and establish that the "document, or portions thereof, are privileged, protectable as trade secret or otherwise entitled to protection under the law." L.R. 79-5(b).
The Court must "conscientiously balance[ ] the competing interests" of the public and those of the party seeking to keep certain judicial records secret. Foltz, 331 F.3d at 1135. In considering these interests, the court must "base its decision on a compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture." Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995) (internal citations omitted).
In contrast to the "compelling reasons" required to overcome the presumption of public access to dispositive pleadings, the Ninth Circuit imposes a lower "good cause" standard for keeping judicial records attached to non-dispositive motions. Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 678 (9th Cir. 2010) (internal quotation marks omitted). Because non-dispositive motions "are often unrelated, or only tangentially related, to the underlying cause of action, " there is a "weaker public interest" in accessing these materials. Id.
"The Ninth Circuit has not ruled as to whether a motion for class certification is a dispositive motion for the purposes of determining whether the compelling reasons' standard applies." Labrador v. Seattle Mortgage Co., 08-2270 SC, 2010 WL 3448523, at *2 (N.D. Cal. Sept. 1, 2010). Although courts in the Northern District "have generally considered motions for class certification nondispositive, " In re NCAA Student-Athlete Name & Likeness Licensing Litig., 09-CV-01967 CW NC, 2013 WL 3014138, at *3 (N.D. Cal. June 17, 2013), some have recognized that "there may be circumstances in which a motion for class certification is case dispositive, " In re High-Tech Emp. Antitrust Litig., 11-CV-02509-LHK, 2013 WL 163779, at *2 n.1 (N.D. Cal. Jan. 15, 2013). For example, "a motion for class certification might be dispositive if a denial of class status means that the stakes are too low for the named plaintiffs to continue the matter.'" Id. (quoting Prado v. Bush, 221 F.3d 1266, 1274 (11th Cir. 2000)); see also Dugan v. Lloyds TSB Bank, PLC, 12-CV-02549-WHA NJV, 2013 WL 1435223 (N.D. Cal. Apr. 9, 2013) (recognizing that courts in the Ninth Circuit generally treat class certification motions as non-dispositive unless the motion's denial "would constitute the death knell of a case.").
Defendant seeks to seal portions of ten deposition transcripts and five declarations, and the exhibits thereto, submitted in support of its opposition to Plaintiff's motion to certify. In its earlier ruling on Plaintiff's motion to seal (Dkt. No. 121), the Court sealed "discussions about consumer disputes and related policies and procedures and the search logic and functioning of the OFAC product." ( id. at 5), but declined to seal discussions that merely stated that TransUnion continued to use Accuity's OFAC product post- Cortez or that its OFAC matching is based on name only. ( Id. at 5-6.) Upon consideration of the present motion, the Court will seal two additional categories of information: discussion of internal decision-making or strategy at TransUnion or Accuity, and Plaintiff's private financial and personal information. The Court applies these general principles to each deposition and exhibit in Defendant's motion in turn.
I. Deposition Testimony
(1) Robert Lytle (Dkt. No. 119-19)
Defendant seeks to seal approximately 20 pages of the deposition of TransUnion employee Robert Lytle (Dkt. No. 119-19), as well as Exhibits 3 and 9 to the deposition. Of this excerpt of Lytle's deposition now proffered, the Court has already considered and declined to seal pages 70 and 299 (Dkt. 121 at 8) and sealed pages 221, 223-224 ( id. at 10.) The Court addresses the remaining pages.
On page 97, Lytle testified that TransUnion sells a product with the term "OFAC" in its name, a TransUnion product called OFAC Name Screen is an add-on to a credit report that presents that data that is a possible match in the OFAC database, and creditors can purchase a credit report from TransUnion with or without OFAC add-on. Besides having been made public in Cortez v. TransUnion, 617 F.3d 688 (3rd Cir. 2010), none of this testimony concerns confidential information.
In the portion including pages 131 through 134, the Court seals only page 132:10-18 and 134:4-22, in which Lytle discusses TransUnion's rationale for obtaining OFAC information from Accuity and how it processes that data. For the same reasons, pages 169 and 171 will be sealed.
Lytle's testimony on page 137:15 through 138:2 describes the interaction between TransUnion and Accuity and will therefore be sealed. The remainder of these pages describes the process in very general "layman's terms" and provides no confidential information.
Pages 256 through 258 need not be sealed. Most of the testimony concerns Exhibit 9 to the deposition, a "Release Announcement" from November 2010, Bates numbered TU XXXXXXX-XX. Although the document is marked "TransUnion Confidential - For Internal Use Only, " the Court finds no reason to seal it. The document announces that the term "potential" would be added when reporting an OFAC match, but provides no explanation for the change. Unlike Exhibit A to Colleen Gill's Declaration, titled Technical General ...