Commercial Litigation and Arbitration

Presumption of Access to Judicial Records Inapplicable to Those Filed under Seal with a Non-Dispositive Motion, But Daubert Motion Filed with Summary Judgment Motion May Be Dispositive

In re Midland Nat’l Life Ins. Co. Annuity Sales Pracs. Lit., 2012 U.S. App. LEXIS 15334 (9th Cir. July 25, 2012):

The district court presided over four class action cases, each brought by the same plaintiffs' counsel. Plaintiffs asserted similar claims against each defendant for RICO violations and violations of state law based on the marketing and sales of annuity products to senior citizens. Fidelity & Guaranty Life Insurance Company ("Fidelity") and Midland National Life Insurance Company ("Midland") are the defendants in the two underlying cases. Allianz and American Equity Investment Life Insurance Company ("American Equity") are the defendants in the other two cases.

In 2007, Fidelity and Midland filed motions for summary judgment. Plaintiffs opposed, and attached a declaration by Craig McCann, Ph.D., to support their theory of causation and class-wide damages. Fidelity and Midland both filed motions based on Daubert to exclude Dr. McCann's opinion. The district court appointed an expert witness, Zvi Bodie, Ph.D., under Federal Rule of Evidence 706, to assist the court with resolving "central issues bearing on" the motions for summary judgment.

Dr. Bodie submitted a report evaluating Dr. McCann's opinion to the court and the parties. The defendants shared the report with Allianz and American Equity. ***

In its case, Allianz also filed a motion for summary judgment and a Daubert motion to exclude Dr. McCann. The district court deferred ruling on those motions while considering Fidelity and Midland's similar summary judgment and Daubert motions. ***

In November 2010, Allianz filed a motion to intervene in the underlying cases. Allianz requested the unsealing of Dr. Bodie's report and of any related records. The district court granted the motion for limited purpose intervention but denied Allianz's motion to unseal the judicial records. The district court ruled that the strong presumption in favor of public access to judicial records did not apply to the records at issue because they were attached to a non-dispositive Daubert motion. Applying the "good cause" standard, the district court ruled that Allianz had not offered a sufficiently compelling reason to unseal the records.***


Allianz contends that the district court committed reversible error because it applied the wrong standard when denying the motion to unseal. Allianz also argues that there are no compelling reasons for the judicial records to remain sealed. We review de novo whether the district court used the correct legal standard when ruling on a motion to grant, lift, or modify a protective order. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002). We review the district court's ruling for abuse of discretion. Id.


The public has a "general right to inspect and copy public records and documents, including judicial records and documents." Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978) (footnote omitted). This right extends to pretrial documents filed in civil cases. San Jose Mercury News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1102 (9th Cir. 1999). If, however, the documents are among those which have "traditionally been kept secret for important policy reasons," such as grand jury transcripts and pre-indictment warrant materials, they are not subject to the right of public access. Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir. 1989).

Although the common law right of access is not absolute, "we start with a strong presumption in favor of access to court records." Foltz, 331 F.3d at 1135. A party seeking to seal judicial records can overcome the strong presumption of access by providing "sufficiently compelling reasons" that override the public policies favoring disclosure. Id. When ruling on a motion to seal court records, the district court must balance the competing interests of the public and the party seeking to seal judicial records. Kamakana, 447 F.3d at 1179. To seal the records, the district court must articulate a factual basis for each compelling reason to seal. Id. Compelling reasons must continue to exist to keep judicial records sealed. Foltz, 331 F.3d at 1136.

We have "carved out an exception to the presumption of access" to judicial records. Id. at 1135. This exception is "expressly limited to" judicial records "filed under seal when attached to a non-dispositive motion." Id. Under the exception, "the usual presumption of the public's right of access is rebutted." Phillips, 307 F.3d at 1213. Thus, a particularized showing of "good cause" under Federal Rule of Civil Procedure 26(c) is sufficient to preserve the secrecy of sealed discovery documents attached to non-dispositive motions. Foltz, 331 F.3d at 1135, 1138. And once the right of access is rebutted, "the party seeking disclosure must present sufficiently compelling reasons why the sealed discovery document should be released." Phillips, 307 F.3d at 1213.


The district court ruled that the records here fall into the exception for sealed discovery documents attached to a non-dispositive motion. The district court reasoned that the Daubert motion was non-dispositive because it "would not have been a determination on the merits of any claim or defense." Allianz argues that the strong presumption of access to judicial records applies here, despite the connection to the Daubert motion, because the judicial records were also filed in connection with summary judgment proceedings.

That the records are connected to a Daubert motion does not, on its own, conclusively resolve the issue. In some cases, such as this one, a Daubert motion connected to a pending summary judgment motion may be effectively "dispositive of a motion for summary judgment." Lust ex rel. Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 597 (9th Cir. 1996) (holding that although a Daubert ruling was dispositive, the abuse of discretion standard still applies); see Rink v. Cheminova, Inc., 400 F.3d 1286, 1288 (11th Cir. 2005) (affirming a grant of summary judgment on grounds that plaintiff failed to prove causation after the plaintiff 's expert was excluded under Daubert). Plaintiffs themselves described these Daubert proceedings as "absolutely critical" and "potential[ly] case dispositive." To turn the issue around, if a magistrate judge had ruled on the Daubert motion and excluded Dr. McCann's opinion, plaintiffs surely would have challenged the order as dispositive and subject to de novo review by a district court judge.

Looking at these circumstances, we agree with Allianz that the judicial records at issue were filed "in connection" with pending summary judgment motions. San Jose Mercury News, 187 F.3d at 1102. The district court appointed Dr. Bodie to assist the court in resolving whether Fidelity and Midland were entitled to summary judgment on plaintiffs' RICO claim. Further, as the district court stated in an order granting in part and denying in part summary judgment, the judicial records at issue pertain to "central issues bearing on defendant's summary judgment motion."

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