Editing (LexisNexis)
In Apex Op's, LLC v. Rosenberg, No. 2:22-cv-01169-RFB-DJA, 2022 WL 4112201, at *1 (D. Nev. Aug. 22, 2022) (Albregts, USMJ), Everything Blockchain, Inc. filed a motion to dismiss with exhibits. It also filed a motion to seal one of the exhibits to its motion to dismiss. "Blockchain moves to seal the exhibit because it is a copy of a settlement agreement between other parties in the litigation. Blockchain explains that the settlement agreement contains a confidentiality provision, designed to protect the confidential business terms and nature of the agreement." Apex Operations, 2022 WL 4112201, at *1 (record reference omitted).
Even though Blockchain's motion to seal was unopposed, it was denied. The Magistrate Judge denied the motion effectively holding, although not stating it, that an unopposed motion to seal is not sufficient to seal a document in a Court file. The Magistrate Judge in this case did expressly rule that in the Ninth Circuit a confidentiality provision in a settlement agreement is not enough by itself for a Court to seal the agreement.
"A party seeking to seal judicial records submitted in conjunction with dispositive motions bears the burden of meeting the “compelling reasons” standard …. Under that standard, “a court may seal records only when it finds ‘a compelling reason and articulate[s] the factual basis for its ruling, without relying on hypothesis or conjecture.’ ” [Citations omitted.] Under Local Rule 7-2(d), the failure of an opposing party to file points and authorities in response to any motion constitutes a consent to the granting of the motion." Apex Operations, 2022 WL 4112201, at *1.
The Magistrate Judge went on to recognize that "[h]owever, courts in this district have explained that '[t]he mere fact that the parties’ settlement agreement may contain a confidentiality provision, without more, does not constitute a compelling reason to seal the information.'” Apex Operations, 2022 WL 4112201, at *1.
Accordingly, Blockchain's motion to seal was denied, without prejudice to submit compelling reasons to seal or, taking a so-called "middle approach" to the presumption of public access to Court records, to propose redactions to the other parties' settlement agreement that Blockchain attached to its motion to dismiss. Apex Operations, 2022 WL 4112201, at *1.
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