Judge: Mark H. Epstein, Case: 21SMCV01681, Date: 2023-09-21 Tentative Ruling

Case Number: 21SMCV01681    Hearing Date: December 21, 2023    Dept: I

The motion to seal is GRANTED IN PART AND DENIED IN PART. 

Defendants seek to seal certain records (and file redacted versions of those records in the public domain).  The legal road is well-marked.  Court records are presumed public unless either confidentiality is required by law (such as in juvenile proceedings) or a party seeking to file under seal can show: (1) there is exists an overriding interest that overcomes the right of public access; (2) the overriding interest supports sealing; (3) it is substantially probable that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) there is no less restrictive means to achieve or protect the overriding interest.  (McGuan v. Endovascular Techs., Inc. (2010) 182 Cal.App.4th 974.)  Defendants seek to redact certain financial information that is relatively granular in exhibit 10 concerning the deal by which UMass Global acquired the university.  According to defendant’s general counsel, the information is not ordinarily available to the public and defendant does keep it confidential.  The court cannot speak from any personal knowledge as to what is and is not detrimental if disclosed, but defendant states that this kind of information could be harmful if disclosed because it could be used by competitors (whose information remains confidential) to their benefit, presumably in competing for the scarce donor dollars as well cause harm with regard to discussions with either donors or others over spending that might occur.  Defendant also seeks to seal the brochure that was purportedly sent to plaintiff to solicit plaintiff’s contribution (although defendant does not concede that it was actually sent).  That brochure, according to defendant, contains information about donation strategies that defendants claim would be detrimental if it became known to the public.

As to the financial documents, plaintiff claims that this stuff is all on the internet.  But the court is not so sure that it is there with a high level of granularity.  Plaintiff has not cited a public web site that contains all of this information.  For now, the court believes that public disclosure of this information would be detrimental to defendant’s ability to raise money and with regard to spending decisions.  The court also notes that this detail was not terribly germane to any decision the court has made thus far.  The court believes that defendant has shown the overriding interest that overcomes the public interest in this regard and that the overriding interest will be prejudiced if the information is in the public domain.  The sealing is narrow and the court cannot think of a less restrictive way to protect the overriding interest.

As to the donor brochure, the court feels differently.  First, in the summary judgment papers defendant described the brochure as being fairly cut and paste and generic; a fair reading of those papers hardly suggested that the brochure contained state secrets and if it did, the court’s review did not disclose them.  And it was (at least potentially) given to plaintiff without any promise or NDA ensuring that it would be kept confidential.  Further, it was given at a time that defendant was in a different position—it was not affiliated with UMass.  Whatever information might be in that document strikes the court as stale at best.  Moreover, it is hard to see what is in that document that is not already all over this case in other public filings, including the complaint.  Finally, the brochure was actually important to the court’s determination of the prior motions.  That is important because the test is a balance.  The public’s right to know is stronger regarding information that matters to the court in reaching the court’s decision than when the information is at best tangential or at worst irrelevant to the court’s analysis.  Recall that the public’s interest is not voyeuristic; rather it is that what goes on in court is the public’s business and how judges reach their decisions is also the public’s business.  When the court balances the brochure using that scale, defendant’s showing is wanting.

Therefore, the court is inclined to GRANT the motion as to the financial documents in Exhibit 10 (meaning that the court will “lock” the versions containing the unredacted documents and direct plaintiff, in consultation with the defense, to file redacted public versions) and DENY the motion as to the brochure. 

The court notes that sealing the documents now does not mean they will be sealed at trial.  At trial, the public’s right is at its zenith and the court is very strict about sealing documents.  Of course, the parties can always agree to file only redacted documents where there is secret information that is not germane to the case.  Where the only documents filed are redacted, there is nothing to seal because the court will not see the redacted material.  Further, this order is without prejudice to reconsideration de novo if a member of the public actually seeks the information in the document now sealed.  The court will view the showing made by such an applicant, which might be different than anything the court has yet considered.