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The recent decision in Plexxikon Inc. v. Novartis Pharm's Corp., No. 17-cv-04405-HSG, 2020 WL 7027432 (N.D. Cal. November 30, 2020), explores what seems to be all the necessary issues that surround getting a Federal Court to seal a document in a case in the Ninth Circuit and perhaps the nation.
First, there is the question of the American public's right of access to documents filed in court cases. If the document is part of a filing submitted to a Court when asking the Court for a ruling, then the document is presumptively accessible to the public and it cannot be sealed without a showing of "extraordinary circumstances." Plexxikon Inc., 2020 WL 7027432, at *1.
In contrast, if the document is not part of a filing designed to elicit a dispositive ruling from the Court, i.e., if it is attached to "a non-dispositive motion," then the party seeking to seal it must instead show "good cause" to seal it. The showing of "good cause" to seal is a "particularized showing" of specific harm or prejudice that would happen to the party seeking to seal a document if the document is not sealed. Plexxikon Inc., 2020 WL 7027432, at *2.
In either situation, the party asking a judge to seal a document must do more than say that it is "confidential" or "highly confidential" just because a stipulated protective order allows that party to say those words. In the view of the federal judge in this case, that is all that the party did when it asked the Court to allow it to file a second motion for summary judgment, asked the Court to seal attachments to its motion requesting leave, and also asked the Court to seal the party's objections to a Magistrate's Recommendation against sealing. Plexxikon Inc., 2020 WL 7027432, at *2-*3.
Saying that the documents were "highly confidential" did not make them so, the Court ruled in effect.
The sealing motions were denied even applying the lower standard of "good cause" in this case. Plexxikon Inc., 2020 WL 7027432, at *3.
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