Judge: Teresa A. Beaudet, Case: BC697115, Date: 2022-10-05 Tentative Ruling

Case Number: BC697115    Hearing Date: October 5, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Gerald Lange (“Plaintiff”) filed this employment action on March 7, 2018 against Defendant Monster Energy Company (“Defendant”).

            Plaintiff now moves to file under seal Exhibits 1, 4, and 6-9 in support of Defendant’s opposition to Plaintiff’s Motion in Limine No. 1 to Exclude Collateral Source Disability Payments. Defendant opposes.   

Discussion

Generally, court records are presumed to be open unless confidentiality is required by law. ((Cal. Rules of Court, rule 2.550(c).) If the presumption of access applies, the court may order that a record be filed under seal “if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.” (Cal. Rules of Court, rule 2.550(d).)

In connection with its opposition to Plaintiff’s Motion in Limine No. 1, Defendant lodged certain documents conditionally under seal. The documents include Exhibits 1, 4, and 6-9 to the Declaration of Kristy A. Schlesinger in Support of Defendant’s Opposition to Plaintiff’s Motion in Limine No. 1. Exhibit 1 is a copy of a deposition exhibit that reflects portions of a direct message string between Plaintiff and another individual. (Declaration of Kristy A. Schlesinger in Support of Defendant’s Opposition to Plaintiff’s Motion in Limine No. 1, ¶ 3.) Exhibits 4, 6, and 7 contain Plaintiff’s medical records.  (Id., ¶¶ 6, 8, 9.) Exhibit 8 is a copy of a deposition exhibit which reflects portions of a direct message string between Plaintiff and another individual. (Id., ¶ 10.) Exhibit 9 is a copy of a deposition exhibit which is a compilation of “Professional Dumbass, LLC” invoices for work performed. (Id., ¶ 11.)

Plaintiff notes that the parties entered into a “Stipulation and First Amendment to the Protective Order – Highly Confidential – Attorneys’ Eyes Only,” which was approved by the Court on April 25, 2022. (Brush Decl., ¶ 3.) Plaintiff asserts that the subject exhibits contain information that is covered by the April 25, 2022 protective order. (Brush Decl., ¶ 3.) The Court notes that “documents subject to a protective order often remain outside public purview on a ‘good cause’ showing akin to that which supported issuance of the protective order in the first place.” ((Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 484.)

Plaintiff also contends that the overriding interest at play here is Plaintiff’s right to privacy, specifically Plaintiff’s right to privacy concerning Plaintiff’s personal medical records, his contact information, and his business’s employer identification number. (Cal. Const., art. I,   § 1.)

In ordering records sealed, the court must also find a substantial probability that the moving party would be prejudiced absent sealing. ((Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1279.) Plaintiff contends that if the exhibits at issue are not placed under seal, they will be available for public viewing and dissemination, which would be prejudicial to Plaintiff because the proposed sealing pertains to highly sensitive and confidential information. In addition, Plaintiff contends that the request is narrowly tailored and no less restrictive alternative exists. Plaintiff notes that he is only seeking to seal six of the twelve exhibits attached to Defendant’s opposition to Plaintiff’s Motion in Limine No. 1.

In its opposition, Defendant indicates that it “requests the Court deny Plaintiff’s Application with respect to Exhibit 1, 8 (text messages) and 9 (invoices), and defers to the Court discretion on whether the other exhibits (4, 6 and 7—medical records) rise to the level of sealing.” (Opp’n at p. 2:8-10.)

The Court finds that Plaintiff has demonstrated good cause to seal Exhibits 4, 6, and 7, which consist of Plaintiff’s medical records. Moreover, Defendant does not appear to oppose the sealing of these exhibits.

Defendant asserts that Exhibits 1 and 8, which consist of two message strings between Plaintiff and other parties, do not contain information required to be sealed. But as Plaintiff notes, Exhibit 1 contains a message in which Plaintiff discusses personal medical information. The Court finds that Plaintiff has demonstrated good cause to seal Exhibit 1.

As to Exhibit 8, Plaintiff asserts that in a message in this exhibit, he “discusses the content of a conversation he had with an attorney friend; such a conversation is protected under the attorney-client privilege. Certainly, his friend would be bound to maintain the confidentiality of that conversation.” (Reply at p. 4:5-8.) The Court notes that Plaintiff did not raise this argument in the moving papers. ((See American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453, “[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.”) Moreover, Plaintiff does not assert that the messages in Exhibit 8 are between Plaintiff and his attorney.

Plaintiff also asserts that the individuals with whom Plaintiff was communicating in Exhibits 8 (and Exhibit 1) have a right to privacy, and the fact that these are private messages between individuals further illustrates the third parties’ expectations of privacy in the message exchanges. In the moving papers, Plaintiff raised “privacy interests” as an overriding interest. ((Cal. Const., art. I, § 1.) Plaintiff also argues that Exhibit 8 is subject to the parties’ protective order. The Court thus finds that Plaintiff has demonstrated good cause to seal Exhibit 8.

As to Exhibit 9, the Court finds that Plaintiff has only demonstrated good cause to seal Plaintiff’s business’s employer identification number, as well as Plaintiff’s and third parties’ personal contact information. The Court does not find that Plaintiff has demonstrated good cause to seal the remaining information in Exhibit 9.   

Lastly, Defendant asserts that Plaintiff’s counsel’s declaration in support of the motion contains “the same type of boilerplate, conclusory, non-specific statements” rejected by the Court in In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292. The Court of Appeal in In re Providian Credit Card Cases, supra, at page 295 concluded that “in light of the strong presumption in favor of public access…the trial court here did not abuse its discretion in deciding to unseal records over an objection that the materials constituted proprietary trade secrets.” As Defendant notes, certain declarations in opposition to the subject motion to unseal documents had “statements directed at satisfying the statutory definition of a trade secret as undisclosed information possessing economic value,” but the Court of Appeal found such statements to be “conclusionary and lacking in helpful specifics.” (Id. at p. 305.) The Court of Appeal also found, however, that “it is also reasonable to infer from the declarations--and we do, in support of the trial court’s order…that the scripts, if not all at once, then at least in piecemeal fashion, were disclosed to defendants’ customers…The scripts are sales pitches, and once they have been used, sales pitches are not treated as trade secrets.” (Ibid.) The Court of Appeal concluded that there was “substantial evidence to support findings that the 21 documents the trial court ordered unsealed did not qualify as trade secrets either because of the subject matter, because they had already been disclosed, or because defendants had not taken reasonable efforts to protect them.” (Id. at p. 308.) As Plaintiff notes, the instant motion does not seek to seal any documents containing alleged trade secrets, so In re Providian Credit Card Cases is distinguishable.

Conclusion

Based on the foregoing, Plaintiff’s motion to seal is granted in part. The Court grants Plaintiff’s motion to seal Exhibits 1, 4, 6, 7, and 8 in their entirety.

As to Exhibit 9, the Court grants Plaintiff’s motion to seal only as to the personal contact information and personally identifiable information of plaintiff and third parties, as well as Plaintiff’s business’s EIN information. The Court accordingly orders Plaintiff to file Exhibit 9 with the foregoing information redacted. 

Pursuant to California Rules of Court, rule 2.551(e), the Court directs the clerk to file this order, maintain the records ordered sealed in a secure manner, and clearly identify the records as sealed by this order.

DATED:  October 5, 2022                             ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court