Case Information

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llY'.~ UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SCOTT A. MCMILLAN, an CASE NO. 16cv2186-WQH-MDD individual; THE MCMILLAN LAW FIRM, APC, a California professional ORDER corporation, Plaintiffs,

v. DARREN D. CHJ\KER, an individual,

and as trustee of PLATINUM

HOLDINGS GROUP TRUST doing business as Counter Forensics, et ar.,

Defendants.

17 HJ\YES,Judge: The matter before the Court is the Motion to Seal or for Protective Order filed

19 by Defendant Darren D. Chaker. (ECF No. 78). I. BACKGROUND On August 29, 2016, Plaintiffs Scott A. McMillan and The McMillan Law Firm 22 ("Plaintiffs") initiated this action by filing a complaint alleging causes of action for 23 violations of the Racketeer Influenced and Corrupt Organizations Act and civil 24 extortion against Defendant Darren D. Chaker ("Defendant") and other defendants. 25 (ECF No. 1). On December 5, 2016, Plaintiffs filed the First Amended Complaint 26 alleging the same causes of action. (ECF No. 25). ^[1] The Court granted a motion to dismiss the First Amended Complaint on August

28, 2017. (ECF No. 83). 16cv2186·WQH-MDD *2 . ' On May 22, 2017, Defendant filed the Motion to Seal or for Protective Order. 2 (ECF No. 78). Defendant requests that the Court seal the following three previously 3 filed documents: (1) Exhibit FF to the Original Complaint (ECF No. 1-30); (2) Exhibit 4 FF to the First Amended Complaint (ECF No. 25-29); and (3) Exhibit C attached to the 5 declaration of Plaintiff Scott McMillan in support of his opposition to Defendant's 6 motion for sanctions (ECF No. 75-1 at 121-141). Alternatively, Defendant moves the 7 Court for a protective order pursuant to Federal Rule of Civil Procedure 5.2( e ). On 8 June 12, 2017, Plaintiff filed a response in opposition. (ECF No. 80). On June 19, 9 2017, Defendant filed a reply. (ECF No. 81 ). II. CONTENTIONS Defendant contends that the Court should seal the three exhibits pursuant to

12 common law or Federal Rule of Civil Procedure 5.2. Defendant contends that Exhibit 13 FF to the original complaint and Exhibit FF to the first amended complaint contain 14 personal and confidential information and could expose Defendant to identify theft. 15 Defendant contends that the two Exhibits FF contain his date of birth, social security 16 number, driver's license numbers, and other personal identifying details. Defendant 17 contends that Plaintiff violated Rule 5.2 by filing Exhibit FF because Plaintiff did not 18 redact the month and date ofbirth and the first five digits of Defendant's social security 19 number. Defendant contends that the personal information in the exhibits is immaterial to this litigation and its inclusion in the record serves no public interest. Defendant 21 contends that Exhibit C contains personal information such as addresses, dates of birth, 22 driver's license information of Defendant's sister, medical information, and other 23 personal information. Further, Defendant requests that the Court order that all counsel 24 be restrained from publicly disseminating any portion of the sealed documents in this 25 matter and that all documents shall be filed in compliance with Federal Rule of Civil 26 Procedure 5.2. (ECF No. 78-1 ). Defendant contends that Exhibits 1, 2, 4, 6, 7 and 8 to Plaintiffs opposition to this motion (ECF No. 80) should be stricken or 28 alternatively, sealed and/or fully redacted because these exhibits contain the same 16cv2186-WQH-MDD *3 t ,

1 personal information that is the subject of the motion to seal. (ECF No. 81 at 7). 2 Defendant contends that Plaintiffs should be sanctioned for knowingly refiling this 3 information in bad faith. Id. Plaintiffs contend that there is no compelling reason to seal Exhibit FF or Exhibit

5 C. (ECF No. 80 at 7, 15). Plaintiffs contend that there are no social security numbers 6 listed in Exhibit FF and the addresses included in the exhibit are "primarily 7 thoroughfares or commercial buildings." Id. at 8. Plaintiffs contend that the month and 8 dates of birth can be redacted and driver's license numbers are not protected 9 information. Id. at 11. Plaintiffs contend that sensitive information in Exhibit C was

10 redacted prior to filing and that the exhibit does not list Defendant's personal address 11 or full date of birth. Id. at 15-18. Plaintiffs contend that Defendant does not have 12 standing to request the Court seal documents containing personal information about 13 Vania Chaker. Id. Plaintiffs contend that Exhibit FF and Exhibit C were not filed for 14 an improper purpose. Plaintiffs contend that sealing the documents is an overbroad 15 measure and "proposes that the best way to balance the interests ofDefendant and the 16 public access would be to file the original exhibits under seal, and file the attached 17 proposed redacted versions on the public record." Id. at 8.

18 III. LEGAL ST AND ARDS "Historically, courts have recognized a' general right to inspect and copy public 20 records and documents, includingjudicial records and documents."' Kamakana v. City and Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc 'ns., Inc., 435 U.S. 589, 597 & n.7 (1978). "A party seeking to seal a judicial 23 record then bears the burden of overcoming this strong presumption by meeting the 24 compelling reasons standard. That is, the party must articulate compelling reasons 25 supported by specific factual findings ... that outweigh the general history of access 26 and the public policies favoring disclosure .... " Id. at 1178-79 (citations and 27 quotation marks omitted). The presumed right to access court proceedings and 28 documents can be overcome "only by an overriding right or interest 'based on findings 16cv2186-WQH-MDD *4 1 that closure is essential to preserve higher values and is narrowly tailored to serve that 2 interest."' Oregonian Pub/ 'g Co. v. United States District Court, 920 F.2d 1462, 1465 3 (9th Cir. 1990) (quoting Press-Enterprise Co. v. Superior Court, 446 U.S. 501, 510 4 (1985)).

5 "Under the compelling reasons standard, the district court must weigh relevant 6 factors, base its decision on a compelling reason, and articulate the factual basis for its 7 ruling, without relying on hypothesis or conjecture." Pintos v. Pac. Creditors Ass 'n, 8 605 F.3d 665, 679 (9th Cir. 2010) (quotations omitted). "'Relevant factors' include the 9 'public interest in understanding the judicial process and whether disclosures of the 10 material could result in improper use of the material for scandalous or libelous 11 purposes or infringement upon trade secrets."' Id. at 659 n.6 (quoting Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)); see also Kamakana, 447 F.3d at 1179 ("In general, 'compelling reasons' sufficient to outweigh the public's interest in 14 disclosure and justify sealing court records exist when such 'court files might have 15 become a vehicle for improper purposes,' such as the use of records to gratify private 16 spite, promote public scandal, circulate libelous statements, or release trade secrets."). 17 Further, Rule 5.2 provides,

18 Unless the court orders otherwise, in an electronic or paper filing with the

court that contains an individual's social-security number

19 taxpayer-identification number, or birth date, the name of an individuai

known to be a minor, or a financial-account number, a party or nonparty 20 making the filing may include only:

21 (1) the last four digits of the social-security number and

taxpayer-identification number;

(2) the year of the individual's birth;

(3) the minor's initials; and

(4) the last four digits of the financial-account number. 26 Fed. R. Civ. P. 5.2(a). Rule 5.2 provides exemptions from this redaction requirement 27 for certain documents, including "the official record of a state-court proceeding." Fed. 28 R. Civ. P. 5.2(b). 16cv2 l 86-WQH-MDD

IV. RULING OF THE COURT 2 The Court has reviewed the three exhibits. Exhibit FF to the Original Complaint 3 (ECF No. 1-30), Exhibit FF to the First Amended Complaint (ECF No. 25-29), and 4 Exhibit C attached to the declaration of Plaintiff Scott McMillan in support of his 5 opposition to Defendant's motion for sanctions (ECF No. 75-1at121-141) contain 6 personal and confidential identifying information related to Defendant. The 7 confidential information contained in these exhibits, such as addresses, financial 8 information, driver's license information, and a possible social security number, "could 9 become a vehicle for improper purposes" and justifies sealing the exhibits. Kamakana,

10 447 F.3d at 1179. The Court finds that Defendant has carried his burden of 11 overcoming the strong presumption in favor of public access by articulating compelling 12 reasons, supported by specific factual findings, for sealing the documents. Further, 13 because Exhibits 1, 2, 4, 5, 6, 7 and 8 attached to Plaintiffs' response in opposition to 14 the motion to seal contain most of the same personal information, the Court finds that 15 Defendant has carried his burden to seal these exhibits as well. IT IS HEREBY ORDERED that the motion is GRANTED with respect to the

17 request to seal and denied as to all other requests. (ECF No. 78). The Clerk of Court 18 shall seal the following previously filed documents: (1) Exhibit FF to the Original 19 Complaint (ECF No. 1-30); (2) Exhibit FF to the First Amended Complaint (ECF No. 20 25-29); (3) Exhibit C attached to the declaration of Plaintiff Scott McMillan in support 21 of his opposition to Defendant's motion for sanctions (ECF No. 75-1 at 121-141); and, 22 (4) Exhibits 1, 2, 4, 5, 6, 7, and 8 attached to Plaintiffs' response in opposition to the 23 motion to seal (ECF Nos. 80-2, 80-3, 80-5, 80-6, 80-7, 80-8, 80-9). ~: DATED: r/ ~/f]

27 l6cv2l86-WQH-MDD