Well, here's a protective order from 7/9/2009. Seems to say parties can designate what is to be kept secret.
http://webaccess.sftc.org/minds_asp_pdf/mainpage.asp?Web_Server=webaccess.sftc.org&MINDS_Server=ntimagex&Category=C&DocID=02550701
Yes, that's it. And yes, parties can designate matters as "confidential." However, that is not the end of the analysis with respect to such matters submitted to the court for use in an adjudication, such the the summary judgment motion. As noted in the Protective Order itself, California Rules of Court Section 2.550 governs such material. And that section provides:
(c) Court records presumed to be open
Unless confidentiality is required by law, court records are presumed to be open.
(d) Express factual findings required to seal records
The court may order that a record be filed under seal only 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.
(Subd (d) amended effective January 1, 2004.)
(e) Content and scope of the order
(1)An order sealing the record must:
(A)Specifically state the facts that support the findings; and
(B)Direct the sealing of only those documents and pages, or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.
http://www.courts.ca.gov/cms/rules/index.cfm?title=two&linkid=rule2_550There does not appear to be any such order in the file. And it seems unlikely to me, based on what I saw in the Motion and associated documents, that all of the redacted material meets the above criteria. Moreover, CRC 2.550 is not a "mere" rule of court that the court put together for administrative reasons -- it basically states constitutional requirements based on the public's right of access to court proceedings. Here is the Advisory Committee Comment to the Rule:
This rule and rule 2.551 provide a standard and procedures for courts to use when a request is made to seal a record. The standard is based on NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178. These rules apply to civil and criminal cases. They recognize the First Amendment right of access to documents used at trial or as a basis of adjudication. The rules do not apply to records that courts must keep confidential by law. Examples of confidential records to which public access is restricted by law are records of the family conciliation court (Family Code, § 1818(b)), in forma pauperis applications (Cal. Rules of Court, rules 3.54 and 8.26), and search warrant affidavits sealed under People v. Hobbs (1994) 7 Cal.4th 948. The sealed records rules also do not apply to discovery proceedings, motions, and materials that are not used at trial or submitted to the court as a basis for adjudication. (See NBC Subsidiary, supra, 20 Cal.4th at pp. 1208-1209, fn. 25.)
Rule 2.550(d)-(e) is derived from NBC Subsidiary. That decision contains the requirements that the court, before closing a hearing or sealing a transcript, must find an "overriding interest" that supports the closure or sealing, and must make certain express findings. (Id. at pp. 1217-1218.) The decision notes that the First Amendment right of access applies to records filed in both civil and criminal cases as a basis for adjudication. (Id. at pp. 1208-1209, fn. 25.) Thus, the NBC Subsidiary test applies to the sealing of records.
NBC Subsidiary provides examples of various interests that courts have acknowledged may constitute "overriding interests." (See id. at p. 1222, fn. 46.) Courts have found that, under appropriate circumstances, various statutory privileges, trade secrets, and privacy interests, when properly asserted and not waived, may constitute "overriding interests." The rules do not attempt to define what may constitute an "overriding interest," but leave this to case law.
Rule 2.551 provides the procedures applicable to filing things under seal. As it notes:
A record must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.
http://www.courts.ca.gov/cms/rules/index.cfm?title=two&linkid=rule2_551However, upon reviewing the procedures set forth in Rule 2.551, it looks like my criticism of the Court may have been premature:
(3)Procedure for party not intending to file motion or application
(A)A party that files or intends to file with the court, for the purposes of adjudication or to use at trial, records produced in discovery that are subject to a confidentiality agreement or protective order, and does not intend to request to have the records sealed, must:
(i)Lodge the unredacted records subject to the confidentiality agreement or protective order and any pleadings, memorandums, declarations, and other documents that disclose the contents of the records, in the manner stated in (d);
(ii)File copies of the documents in (i) that are redacted so that they do not disclose the contents of the records that are subject to the confidentiality agreement or protective order; and
(iii)Give written notice to the party that produced the records that the records and the other documents lodged under (i) will be placed in the public court file unless that party files a timely motion or application to seal the records under this rule.
(B)If the party that produced the documents and was served with the notice under (A)(iii) fails to file a motion or an application to seal the records within 10 days or to obtain a court order extending the time to file such a motion or an application, the clerk must promptly remove all the documents in (A)(i) from the envelope or container where they are located and place them in the public file. If the party files a motion or an application to seal within 10 days or such later time as the court has ordered, these documents are to remain conditionally under seal until the court rules on the motion or application and thereafter are to be filed as ordered by the court.
Here it was Plaintiffs that used the material designated by Prosper as confidential, so they had to follow the above rules. Prosper then has 10 days to file a motion with the Court (or seek additional time in which to do so), requesting an order that the "confidential" material be sealed. If it fails to file such a motion, the clerk must make the documents public. Since Plaintiffs filed the material on November 30, Prosper's time hasn't quite run out yet (although it will pretty soon). If it doesn't timely file a motion, the documents will be public. If Prosper does timely file a motion to seal, then the Court will have to make the findings specified above, which seems unlikely to me with respect to a lot of the material. However, unopposed motions are prone to judicial error, because without a vigorous opposition by the other side, it is a lot easier for the court to screw up (that is why we have an adversarial system). So I really hope that if Prosper makes a motion to seal, that the Plaintiffs vigorously oppose the motion as a service to the Class (even though the specific issue of whether the material is public or not may not have much effect on the underlying litigation).
