Opinion
2:15-cv-02245 WBS AC
10-22-2021
UNITED STATES OF AMERICA ex rel. BRIAN MARKUS, individually, Relator, v. AEROJET ROCKETDYNE HOLDINGS, INC., a corporation and AEROJET ROCKETDYNE, INC., a corporation, Defendants.
ORDER RE: REQUEST TO SEAL
WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE.
Plaintiff Brian Markus brought this action against defendants Aerojet Rocketdyne Holdings, Inc. and Aerojet Rocketdyne, Inc. arising from defendants' allegedly wrongful conduct in violation of the False Claims Act (“FCA”), 31 U.S.C. §§ 3729 et seq. The documents at issue here were filed in connection with defendants' motion for summary judgment. (Docket No. 116). Defendants request to file under seal (1) redacted portions of defendants' memorandum in support of its motion for summary judgment (“defendants' motion”) (2) redacted portions of defendants' statement of undisputed facts in support of the motion (“defendants' statement”), and (3) the exhibits and portions of exhibits to the declaration of Tammy A. Tsoumas in support of defendants' motion (“exhibits”). Defendants claim exhibits 1-5 reflect information about the government's FCA investigation, and the remaining requests for seal pertain to information about the cybersecurity status of Aerojet and other contractors and Aerojet's non-public business operations.
A party seeking to seal a judicial record bears the burden of overcoming a strong presumption in favor of public access. Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). The party must “articulate compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure, such as the public interest in understanding the judicial process.” Id. at 1178-79 (citation omitted).
“[T]he strong presumption of access to judicial records applies fully to dispositive pleadings, including motions for summary judgment and related attachments . . . because the resolution of a dispute on the merits, whether by trial or summary judgment, is at the heart of the interest in ensuring the ‘public's understanding of the judicial process and of significant public events.'” Id. at 1179 (citation omitted). In ruling on a motion to seal, notwithstanding the other party's failure to object, the court must balance the competing interests of the public and the party seeking to keep the records secret. Id.
I. Information About Aerojet and Other Contractors' Cybersecurity and Aerojet's Non-Public Business Operations
Defendants request to redact portions of their motion, portions of their statement, and seal in their entirety several exhibits and redact several exhibits as non-public business and cybersecurity information. (Docket No. 121).
Defendants state these documents were designated as confidential under the parties stipulated to protective order. This court has previously pointed out that a confidentiality agreement between the parties does not per se constitute a compelling reason to seal documents that outweighs the interests of public disclosure and access. See Harper v. Charter Communications, LLC, No. 2:19-cv-00902-WBS-DC, 2021 WL 600960, at *2 (E.D. Cal. Feb. 16, 2021); Foster Poultry Farms, Inc. v. Certain Underwriters at Lloyd's, London, No. 1:14-cv-00953-WBS-SAB, 2015 WL 5608241, at *1 (E.D. Cal. Sept. 23, 2015). The fact that the assigned magistrate judge signed the stipulated protective order does not change this principle. See Harper, 2021 WL 600960, at *2.
Beyond its contention that the documents are subject to the Stipulation and Protective Order, Aerojet alleges these documents include trade secrets, and commercial, financial, or business confidential information which competitors could use. Defendants also claim these documents contain cybersecurity information that potential attackers could use.
The Ninth Circuit has recognized that an example of a compelling reason for sealing records includes “sources of business information that might harm a litigant's competitive standing.” Ctr. for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1097 (9th Cir. 2016) (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978)). Courts have also held that cybersecurity is a compelling reason to seal documents. See Connor v. Quora, Inc., No. 18-cv-07597-BLF, 2020 WL 8474750, at *2 (N.D. Cal. Oct. 26, 2020) (granting the request to seal cybersecurity information as public disclosure could cause attack); In Re Anthem, Inc. Data Breach Litigation, No. 15-MD-02617-LHK, 2017 WL 9614789, at *2 (N.D. Cal. Aug. 25, 2017) (granting the request to seal because if “specific information regarding Anthem's cybersecurity practices were disclosed, this could allow cyberattackers greater opportunity to defeat these defenses . . . .”). The request to seal here appears to sufficiently show that sealing is necessary to protect defendants' protected business information and cybersecurity information. Accordingly, the request to seal will be granted as to defendants' motion, defendants' statement, and exhibits reflecting cybersecurity and non-public business information.
II. Information Regarding the Government's Investigation
Defendants request to seal exhibits 1-5 because they reflect information about the government's FCA investigation. Defendants cite 31 U.S.C. § 3730(b)(2) as an example of courts sealing information related to the government's FCA investigation. However, 31 U.S.C. § 3730(b)(2) pertains to the initial sealing of FCA complaints. Here, defendants, not the government, are requesting to seal these documents without articulating any compelling reasons that outweigh the strong presumption of public access. Therefore, the court must deny defendants' request to seal as to exhibits 1-5 without prejudice.
IT IS THEREFORE ORDERED that the defendants' request to seal redacted portions of defendants' motion, redacted portions of defendants' statement, and exhibits 18-19, 38-44, 46, 48, 50, 52, 54-56, 58, 60-68, 70-73, 76-79, 81-86, 88-89, 91-95, 97, 101-106, 108, 110-111, 115-120, 122-131, 134, 136, 138, 140, 142, 144, 146, 148-158, 160-176, 178-181, 186-191, 193-202, 205-206 of the Declaration of Tsoumas be, and the same hereby is, GRANTED, and said documents are ordered SEALED.
Defendants list exhibits 7-10 in the request to seal emailed to the courtroom deputy, but do not list those exhibits as part of the filed request to seal. Due to this discrepancy, the court does not consider exhibits 7-10 as part of the request to seal.
IT IS FURTHER ORDERED that defendants' requests to seal exhibits 1-5 of the Declaration of Tsoumas be, and the same hereby are, DENIED WITHOUT PREJUDICE.