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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Kim Cramton,

Plaintiff,

v. 

Grabbagreen Franchising LLC, et al.,

Defendants.

No. CV-17-04663-PHX-DWL

ORDER 

Pending before the Court is an amended motion to seal filed by Defendants and 

Counterclaimants Eat Clean Holdings LLC, Eat Clean Operations LLC, Grabbagreen 

Franchising LLC, and Keely Newman (collectively, “the movants”). (Doc. 224.) For the 

following reasons, the motion will be denied. 

The background for the sealing request is that the movants have filed a motion for 

sanctions. In that motion, the movants have argued “that relevant evidence in the 

possession of the Plaintiff was hidden, withheld or destroyed, and that the evidence could 

not be recovered from other sources through the exercise of reasonable and diligent 

efforts.” (Id. at 2.) However, because “[a]ll discovery and disclosure were completed 

before undersigned counsel was retained,” the movants’ new attorneys have obtained a 

declaration from the movants’ previous attorney that “describes in detail [the movants’] 

efforts to obtain the evidence from all sources, including his explanations as to why certain 

actions were taken and why other actions were not.” (Id.) According to the movants, this 

declaration should be filed under seal because “[a]rguably . . . [it] touches upon both 
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[a]ttorney-client and work product privileged communications regarding decisions and 

actions by Defendants and [their prior law firm] to find the missing evidence from Plaintiff 

and from other third-party sources. While the Declaration does not directly reveal any 

privileged communications, and is not intended as to waive any privileges, it does contain 

information which [their prior law firm] is required to protect under E.R. 1.6, which is the 

broader duty to protect client confidentiality.” (Id.)

This argument is not compelling. As an initial matter, the declaration was not filed 

on an ex parte basis with the Court—it has already been provided to the movants’ 

adversaries in this lawsuit. This means that any expectation of confidentiality has already 

been extinguished. The Court is aware of no rule that would permit a privileged or 

confidential communication to retain that status so long as it’s only disclosed to one set of 

outsiders, but not to the rest of the world. Moreover, it seems to the Court that the movants 

have already (if implicitly) released their prior law firm from any duty to maintain 

confidentiality by choosing to inject the contents of the declaration into this lawsuit in 

support of their claims. See E.R. 1.6(a) (“A lawyer shall not reveal information relating to 

the representation of a client unless the client gives informed consent . . . .”) (emphasis 

added).

Accordingly, IT IS ORDERED that:

(1) The amended motion to seal (Doc. 224) is denied; and

(2) Pursuant to LRCiv 5.6(e), the lodged document (Doc. 222-1) will not be 

filed. The submitting party may, within five days of the entry of this Order, resubmit the 

document for filing in the public record.

Dated this 16th day of September, 2019.