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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Wells Fargo Bank NA,

Plaintiff,

v. 

Wyo Tech Investment Group LLC, et al.,

Defendants.

No. CV-17-04140-PHX-DWL

ORDER 

In June 2019, the parties submitted a proposed protective order and asked the Court 

to adopt it. (Doc. 158.) The Court denied this request without prejudice because the 

proposed order contained “procedures that do not align with LRCiv 5.6, the local rule

regarding sealing of court records in unsealed civil actions or with the Court’s Case 

Management Order.” (Doc. 165 at 1.) 

Now pending before the Court is the parties’ “Second Stipulation and Joint Motion 

for Protective Order.” (Doc. 205). Although this version of the proposed protective order 

remedies many of the deficiencies that were contained in the earlier iteration, it contains 

one provision that remains problematic. Specifically, on page 7, lines 3-13, under the 

heading “Court Procedures,” the proposed order provides as follows:

For applications and motions to the Court in which a Party wants to submit 

Protected Material, at least three (3) court days before such items are filed 

with the Court, the filing Party shall disclose to the Party who designated the 

Protected Material as Confidential all documents or information that the 

filing Party intends to submit to the Court, unless the filing Party believes in 

good faith that it will be necessary to file something with the Court in less 
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than three (3) court days or decides in good faith to use a particular document 

only shortly before a deadline. In that event, the filing Party will file any 

Protected Material under seal pursuant to Local Rule 5.6(d). In either event, 

it will then be incumbent on the designating Party to petition the Court for 

leave to have the documents or Protected Material either filed under seal or 

remain under seal if already so filed under L.R. 5.6(d). If the Court grants 

the designating Party’s request, the documents containing Protected 

Material shall be lodged with the Court in electronic form.

(Doc. 205-1 at 7, emphasis added.) This language deviates from LRCiv 5.6(d), which sets 

forth a clear process (and clear timelines) for resolving disputes over whether documents 

marked as “confidential” should be filed under seal. For example, the italicized language 

above seems to suggest that, in the case of such a disagreement, the document at issue 

sometimes won’t be lodged with the Court unless and until the Court rules in favor of the 

party wishing for the document to be sealed. The problem with this approach is that the 

Court won’t be able to rule on the sealing request without first reviewing the document. 

The Court thus encourages the parties to simply adopt the language set forth in LRCiv 

5.6(d) concerning the process for filing documents that have been marked confidential by 

another party, instead of coming up with a paraphrase of that language that may contain 

slight unintentional (or perhaps intentional) deviations from the usual process.

The parties’ stipulation (Doc. 205) is therefore denied without prejudice. They may 

file a new motion for protective order that remedies the deficiency identified above.

Dated this 26th day of August, 2019.