The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
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7 INTERNATIONAL SWIMMING Case No. 18-cv-07394-JSC
LEAGUE, LTD,
Case No. 18-cv-07393-JSC
8 Plaintiff,
9 v. ORDER RE: ADMINISTRATIVE
10 MOTIONS TO SEAL
FÉDÉRATION INTERNATIONALE DE
Re: Dkt. Nos. 238, 243, 247, 252
11 NATATION,
Defendant.
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THOMAS A. SHIELDS, et al.,
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Plaintiff,
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v.
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FÉDÉRATION INTERNATIONALE DE
16 NATATION,
17 Defendant.
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Before the Court are the parties’ administrative motions to file under seal. (Dkt. Nos. 238,
20 243, 247, 252.)1 FINA seeks to file under seal excerpts of its letter brief regarding the depositions
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of third-party swimmers, as well as exhibits attached to its letter filed in response to Plaintiff’s
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letter brief regarding the deposition of these third-party swimmers. (Dkt. Nos. 238, 247.)
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Plaintiffs seek to file under seal excerpts of their letter brief regarding these swimmers’
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depositions, as well as excerpts of the parties’ joint case management statement (the “Statement”).
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(Dkt. No. 243 & 252.) After careful consideration of the parties’ submissions, the Court rules as
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1 Record citations are to material in the Electronic Case File in International Swimming League,
1 set forth below.
2 I. Legal Standard
3 There is a presumption of public access to judicial records and documents. Nixon v.
4 Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). Courts generally apply a “compelling
5 reasons” standard when considering motions to seal documents, recognizing that “a strong
6 presumption in favor of access is the starting point.” Kamakana v. City & Cty. of Honolulu, 447
7 F.3d1172, 1178 (9th Cir. 2006) (internal quotations and citations omitted). However, in the case
8 of non-dispositive motions and filings that are “only tangentially related[] to the underlying cause
9 of action[,]” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1097 (9th Cir. 2016)
10 (citation omitted), the public has less need for access these documents. Therefore, parties moving
11 to seal them need only meet the lower “good cause” standard of Federal Rule of Civil Procedure
12 26(c). See Kamakana, 447 F.3d at 1179-80; Ctr. for Auto Safety, 809 F.3d at 1101. The “good
13 cause” standard requires a “particularized” showing that “specific prejudice or harm will result if
14 the information is disclosed.” Cont’l Auto. Sys., Inc. v. Avanci, LLC, No. 19-CV-02520-LHK,
15 2019 WL 6612012, at *1 (N.D. Cal. Dec. 5, 2019) (citing Phillips ex rel. Estates of Byrd v. Gen.
16 Motors Corp., 307 F.3d 1206, 1210–11 (9th Cir.2002)). Under Civil Local Rule 79-5(b), sealing
17 is appropriate only where the requesting party “establishes that the document, or portions thereof
18 is . . . entitled to protection under the law,” or “sealable.” N.D. Cal. Civ. L.R. 79-5(b).
19 II. Administrative Motions to File Under Seal
20 a. FINA’s Letter Brief
21 FINA seeks to file under seal excerpts from its letter brief regarding the depositions of
22 third-party swimmers because Plaintiffs have “designated certain financial information relating to
23 Plaintiffs’ contractual relationships as ‘Confidential’ pursuant to the Amended Stipulated
24 Protective Order[.]” (Dkt. No. 238 at 2.) The letter brief is discovery-related and does not “affect
25 [the] litigants’ substantive rights[,]” nor is it substantively related to the case’s merits. Ctr. For
26 Auto Safety, 809 F.3d at 1100-01 (internal quotation marks and citation omitted). Therefore, the
27 “good cause exception”—rather than the “presumptive compelling reasons standard”—applies to
1 The Court previously determined that good cause existed to seal excerpts and references to
2 contractual provisions regarding Plaintiffs’ profit-sharing arrangements with ISL clubs, ownership
3 interests in ISL teams, earnings from sponsorship arrangements, and information regarding
4 Plaintiffs’ earnings as ISL league “ambassadors.” (Dkt. No. 231 at 2-3.) See also Digital Reg of
5 Texas, LLC v. Adobe Sys., Inc., No. C 12-1971 CW, 2014 WL 6986068, at *1 (N.D. Cal. Dec. 10,
6 2014); Smith v. Keurig Green Mountain, Inc., No. 18-CV-06690-HSG, 2020 WL 5630051, at *11
7 (N.D. Cal. Sept. 21, 2020). So too does good cause exist to seal the excerpts of FINA’s letter brief
8 that reference these provisions or arrangements.
9 b. Plaintiffs’ Letter Brief
10 Plaintiffs seek to file under seal information regarding Mr. Pebley’s personal finances, the
11 details of certain swimmers’ ownership interests in ISL clubs, as well as “references to deposition
12 testimony by Ali Khan and Dale Neuberger and a document produced by FINA.” (Dkt. No. 243
13 at 2.) As with FINA’s letter brief, Plaintiffs’ letter brief is discovery-related and does not affect
14 the litigants’ substantive rights or the case’s merits; therefore, the “good cause” standard applies to
15 Plaintiffs’ letter brief. See Ctr. For Auto Safety, 809 F.3d at 1100-01.
16 Plaintiffs have withdrawn their request to seal information in the letter brief regarding Mr.
17 Marculescu that cites and relates to the depositions of Ms. Hosszú and Mr. Khan. (Dkt. No. 255 at
18 2 ¶ 5.) Nonetheless, good cause does not exist to seal references in the letter brief to deposition
19 testimony regarding Mr. Marculescu’s “threat[s] [to] some swimmers’ coaches and parents about
20 their ISL participation,” as well as Mr. Neuberger’s “meeting with class members after this case
21 was filed [held] without informing putative class counsel.” (Dkt. No. 243-4 at 3.) This excerpt
22 does not reference any financial or personal information, nor does it reflect or reference any terms
23 of a profit-sharing arrangement whose disclosure would “specific[ally] prejudice or harm” any
24 party or swimmer. Cont’l Auto. Systems, 2019 WL 6612012, at *1. Similarly, the letter brief’s
25 statement that Mr. Pebley “work[ed] forty hours a week” betrays no personal or financial
26 information whose disclosure would prejudice or harm Mr. Pebley, see Cont’l Auto. Systems, 2019
27 WL 6612012, at *1, and therefore good cause does not exist to seal it. (Dkt. No. 243-4 at 3.) Nor
1 swimmers who do not have an ownership interest in an ISL team”—warrant sealing under the
2 “good cause” standard because it does not reveal any “unique material terms” of any contractual
3 arrangement regarding specific swimmers’ ownership interests, nor does this summary contain
4 any confidential business or proprietary information. (Dkt. No. 243-4 at 4-5.) Digital Reg of
5 Texas, 2014 WL 6986068, at *1; see also Smith, 2020 WL 5630051, at *11.
6 Furthermore, good cause does not exist to seal the statement that Mr. Shields, “like Mr.
7 Miller and Mr. Pebley, does not have an ownership stake in an ISL team” because there is no
8 specific prejudice or harm that will result if this information—that these swimmers do not have an
9 ownership stake in an ISL team—is disclosed. In contrast, Plaintiffs have met their burden in
10 showing that swimmers with ISL contracts may be harmed in future business negotiations if the
11 details of these contracts “becomes public knowledge[,]” and as such the Court finds good cause
12 exists to seal excerpts of the letter brief that reference these contractual provisions or the
13 ownership interests swimmers have in ISL teams. (Dkt. No. 243-4 at 5.) See Digital Reg of
14 Texas, 2014 WL 6986068, at *1. The letter brief’s description of a document FINA used at the
15 class representatives’ depositions as one that “demonstrates its knowledge of how much the
16 swimmers earned” does not mention the document’s content or its specific terms regarding these
17 swimmers’ financial and personal information, nor have Plaintiffs established that a “specific
18 prejudice or harm” will result if this broad characterization is disclosed; therefore, this excerpt is
19 undeserving of seal. (Dkt. No. 243-4 at 5.) Cont’l Auto. Systems, 2019 WL 6612012, at *1.
20 However, explicit references to information from this document regarding Mr. Shield’s income
21 satisfy the “good cause” standard and are deserving of seal. (Id.) See Digital Reg of Texas, 2014
22 WL 6986068, at *1.
23 c. FINA’s Letter Exhibits
24 FINA seeks to file under seal 2 exhibits—excerpts of the deposition transcripts of Ms.
25 Hosszú and Mr. Khan—attached to its letter filed in response to Plaintiffs’ letter brief because
26 Plaintiffs designated these exhibits “‘Confidential’ pursuant to the Amended Stipulated Protective
27 Order.” (Dkt. No. 247 at 2.) On February 19, 2021, Plaintiffs’ counsel filed a declaration stating
1 Court,” and that “Plaintiffs withdraw the confidentiality designation as to those portions of the
2 transcript[s].” (Dkt. No. 255 at 2 ¶¶ 3-4.)
3 d. The Statement
4 Plaintiffs move to file under seal certain excerpts of the Statement designated as
5 “confidential” by FINA under the parties’ stipulated Amended Protective Order. Plaintiffs submit
6 the declaration of counsel Joshua W. Malone, who attests that Plaintiffs were required to file the
7 material under seal pursuant to “Section XV, paragraph C of the Amended Protective Order[.]”
8 (Dkt. No. 252-1 at 2 ¶ 4.)
9 Under the Local Rules of this District, where a party seeks to file under seal any material
10 designated as confidential by another party, the submitting party must file a motion for a sealing
11 order. See N.D. Cal. Civ. L.R. 79-5(d)-(e). “Within 4 days of the filing of the Administrative
12 Motion to File Under Seal, the Designating Party must file a declaration . . . establishing that all of
13 the designated information is sealable.” Id. at 79-5(e)(1). “If the Designating Party does not file a
14 responsive declaration as required by subsection 79-5(e)(1) and the Administrative Motion to File
15 Under Seal is denied, the Submitting Party may file the document in the public record no earlier
16 than 4 days, and no later than 10 days, after the motion is denied.” Id. at 79-5(e)(2).
17 To date, FINA, the designating party, has not filed a responsive declaration to the above-
18 referenced motion. Having considered the submission of the parties and for the reasons stated
19 above, Plaintiffs’ administrative motion to seal is denied.
20 CONCLUSION
21 For the reasons set forth above, the Court GRANTS FINA’s motion to seal excerpts of its
22 letter brief in its entirety. Plaintiffs’ motion to seal excerpts of its letter brief is GRANTED in part
23 and DENIED in part. Because Plaintiffs have withdrawn the confidentiality designations on
24 which FINA’s second sealing motion depend, FINA shall publicly file the material it sought to
25 seal. Plaintiffs’ administrative motion to seal excerpts of the Statement is DENIED.
26 This Order disposes of Dkt. Nos. 238, 243, 247, 252.
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1 IT IS SO ORDERED.
2 Dated: March 2, 2021
ol)
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JACQUELINE SCOTT CORLE
5 United States Magistrate Judge
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