United States District Court, D. Utah
IBC ADVANCED TECHNOLOGIES, INC., and STEVEN R. IZATT Plaintiffs,
UCORE RARE METALS INC., JIM MCKENZIE, and PETER MANUEL, Defendants.
C. Nielson, Jr. District Judge
ORDER ON MOTIONS FOR LEAVE TO FILE UNDER
B. PEAD, UNITED STATES MAGISTRATE JUDGE
matter was referred to Magistrate Judge Pead pursuant to 28
U.S.C. §636(b)(1)(A). Before the court are three
non-dispositive motions (collectively the
“Motions”): 1) Defendant Ucore Rare Metals,
Inc.'s (“Ucore”) Motion for Leave to File
Exhibit A of Notice of Removal Under Seal (“First
Motion”, ECF No. 3); 2) Ucore's Motion for Leave to
File Defendant Ucore Rare Metals Inc.'s Motion to
Dismiss, or, in the Alternative, to Stay and Memorandum in
Support Under Seal along with Exhibits D, E, G, and H
(“Second Motion”, ECF No. 7); and, 3) IBC Advance
Technologies, Inc.'s (“IBC”) Motion to File
Under Seal Plaintiffs' Memorandum in Opposition to
Defendants Ucore's Motion to Dismiss, or in the
Alternative, to Stay (“Third Motion”, ECF No.
case was removed from Third District Utah State Court
(“Kendall Action”). Id. The Utah State
Courts have a record classification system that permits
courts to designate filed documents as public, protected,
private or sealed. See Utah Rules of Judicial Administration
4-202 et. seq. Prior to the removal from state court to
federal court, the Honorable William Kendall, State of Utah
Third District Judge, designated the Complaint (ECF No. 4) as
a protected document thereby restricting who could obtain a
copy from the state court. See ECF No. 2-4; see also Utah
Rules of Judicial Administration 4-202 et. seq.
separate yet related state court action that involves the
same parties and similar disputes, Third District Court Judge
Laura Scott issued orders in No. 190900129 (“Scott
Action”) classifying most of the pleadings as
protected. Ucore now seeks to seal those same pleadings in
this action by virtue of Judge Scott's orders. The Scott
Action was dismissed.
court records in state court actions may include
attorney's work product, records that are subject to
attorney client privilege, bids or proposals until the
submission deadline has closed, court security plans, records
that would impair government procurement, strategy about
collective bargaining or records of the Children's
Justice Center. See Utah Rules of Judicial Administration
United States District Court for the District of Utah does
not have an equivalent local rule that permits courts to
classify documents as protected. Instead parties must move to
seal a document pursuant to the District of Utah Rules of
Practice. In general, “[t]he records of the court are
presumptively open to the public.” DUCivR 5-3(a)(1).
Furthermore, the sealing of “…pleadings,
motions, memoranda, exhibits, and other documents or portions
thereof  is highly discouraged” unless a document
contains privileged information, is protectable as a trade
secret, or is otherwise protectable under the law.
Id. The public shall have access to documents unless
restricted by statute or court order. See Id. In
addition, the court may seal a document upon a showing of
good cause. See Id.
seeks to seal the entire Complaint based upon the prior
ruling from Judge William Kendall classifying the document as
protected. See First Motion at 1. In the Kendall Action, IBC
sought to designate the Complaint as protected claiming
information contained therein is confidential. Id.
The request was made ex parte and before Ucore had accepted
service. Id. at 2. This court, however, has not been
provided a copy of IBC's ex parte motion that was filed
in the Kendall Action.
upon receipt of the First Motion, IBC has not lodged its own
narrowly-tailored motion, consistent with the mandates of
DUCivR 5-3(b)(2)(C)(i), explaining what specific information
contained in the Complaint is truly deserving of protection.
Likewise, the parties have not independently pointed the
court to any privilege that would restrict the Complaint from
access by the public. Even if such information had been
filed, the court may embark on its own review to determine if
the documents should remain sealed. See DUCivR 5-3(b)(3).
the Complaint contains facts that may give rise to causes of
action for breach of contract, breach of implied covenant of
good faith and fair dealing, negligent misrepresentation,
fraud claims, breach of fiduciary duties, and unjust
enrichment. The statements in support of these claims are
generally not protected from the public pursuant to statute,
rule or case law. Moreover, the parties have not identified a
secret scientific process that if disclosed would jeopardize
a company's competitive status in a market. Instead, in
many paragraphs in the Complaint, IBC references information
that was already contained in Ucore's public press
releases or the notable public research or speeches of the
parties involved in this action. Such details are undeserving
of protection from public review.
some financial data does appear in the background section of
the Complaint, it relates to Ucore's 2018 Financial
Statements that are available on the Internet or data that
Ucore had made public independent of its Financial
Statements. Furthermore, the Complaint, which consists of
approximately 38 pages and more than 180 paragraphs, contains
only one sentence in paragraph 58 that is redacted. It is
unclear why the sentence is redacted as the parties have not
filed an unredacted copy of the Complaint with this court,
despite the mandates of DUCivR 5-3(b)(1).
some of the content contained in the Complaint is already in
the public sphere, good cause is not present to seal the
entire document. Balancing the mandates of DUCivR 5-3 with
Judge Kendall's order protecting the contents of the
Complaint, however, the court is unwilling to expose the
entire Complaint to the public at this juncture. Therefore,
pursuant to Fed.R.Civ.P. 5.2(d), the Court authorizes IBC to
file a properly redacted version of ...