Reed et al v. Chase Home Finance, LLC

Filing 94

Order re: 66 Memorandum and Evidentiary Submission in Support of Maintaining Summary Judgment Evidence Under Seal, construed as a motion, is granted in part denied in part. Defendant is ordered to file and serve exhibits as set out by 10/10/2012. The defendant is ordered by 10/10/2012 to retrieve from chambers the courtesy copy of its exhibits. Signed by Chief Judge William H. Steele on 9/26/2012. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MAX LEROY REED, JR., et al.,
Plaintiffs,
v.
CHASE HOME FINANCE, LLC,
Defendant.

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) CIVIL ACTION 11-0412-WS-C
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ORDER

Prior to filing its motion for summary judgment, the defendant filed a motion for
leave to file, under seal and electronically, “certain documents in support of” its motion
for summary judgment. (Doc. 50). The Court granted the motion, “subject to the Court’s
review of the documents upon filing.” (Doc. 52).
Rather than filing “certain documents” under seal, the defendant filed the entirety
of its exhibits – approximately 415 pages worth – under seal. (Doc. 59). The Court
questioned this practice, noted the inclusion in the defendant’s sealed filing of many
documents not apparently deserving of such treatment, and ordered the defendant to file a
supplemental brief supporting its position. 1 The defendant has done so, (Doc. 66), the
1

“Every court has supervisory power over its own records and files ....” Nixon v. Warner
Communications, Inc., 435 U.S. 589, 598 (1978). Thus, the Court has authority to review sua
sponte the propriety of a filing under seal. Gambale v. Deutsche Bank AG, 377 F.3d 133, 141
(2nd Cir. 2004); see also Prescient Acquisition Group, Inc. v. MJ Publishing Trust, 487 F. Supp.
2d 374, 375 (S.D.N.Y. 2007 ) (raising sua sponte the propriety of filing documents under seal);
Meridian Project Systems, Inc. v. Hardin Construction Co., 426 F. Supp. 2d 1101, 1103 n.2
(E.D. Cal. 2006) (same); Zurich American Insurance Co. v. Rite Aid Corp., 345 F. Supp. 2d 497,
499 (E.D. Pa. 2004) (addressing sua sponte whether file should remain sealed); cf. In re:
Alexander Grant & Co. Litigation, 820 F.2d 352, 357 (11th Cir. 1987) (“Efficiency should never
be allowed to deny public access to court files or material of record unless there has been an
appropriate predicate established.”).
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plaintiffs have filed a response in opposition, (Doc. 77), and the issue of whether to
maintain the documents under seal is ripe for resolution.
The defendant has helpfully included a chart showing its position on sealing
separately as to each exhibit. (Doc. 66 at 6-9). By the Court’s count, the defendant
concedes that 19 exhibits containing 242 pages should be completely unsealed. As to
two other exhibits, it proposes unsealing 49 pages out of 55. With respect to four other
exhibits covering 17 pages, it proposes unsealing with “minor redaction.” It wishes the
final 26 exhibits, containing 101 pages, to remain sealed.
The initial question is why the defendant submitted 415 pages under seal when it
actually desires that only 107 pages be sealed. The defendant asserts it had no choice,
that the District’s procedures allow it only to file all exhibits under seal or no exhibits
under seal. (Doc. 66 at 3). It is true enough that the CM/ECF format does not allow a
single filing to be split between sealed and unsealed components, but nothing in the
District’s procedures prohibits or discourages a party from submitting sealed exhibits in
one filing and unsealed exhibits in another.
The public has constitutional and common-law rights of access to materials filed
in a federal lawsuit. See generally Chicago Tribune Co. v. Bridgestone/Firestone, Inc.,
263 F.3d 1304, 1309 (11th Cir. 2001) (discussing these rights and their parameters).
“This right of access is not absolute [and] may be overcome by a showing of good
cause.” Romero v. Drummond Co., 480 F.3d 1234, 1245 (11th Cir. 2007); accord
Chicago Tribune, 263 F.3d at 1310. The defendant recognizes this standard as applicable
here. (Doc. 66 at 5).
The defendant identifies the sensitive information embedded in the 101 pages as
consisting of: (1) the plaintiffs’ personally identifiable financial information, especially
“account or loan numbers and financial information relating to the Reeds’ mortgage loan
and payments”; (2) Fannie Mae’s loan number and certain other information; and (3) the
defendant’s confidential pricing information and related terms of its agreement with
Fannie Mae regarding loan servicing. The defendant invokes several sources in support
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of its argument that these pages should remain sealed: (1) as to documents implicating
the plaintiffs’ privacy concerns, the Gramm-Leach-Bliley Act (“GLB”), 15 U.S.C. §§
6801 et seq.; (2) as to documents implicating Fannie Mae’s privacy concerns, the
defendant’s agreement with Fannie Mae to maintain confidentiality; and (3) with respect
to the defendant’s own privacy concerns, its internal policy.
In evaluating the existence of good cause for maintaining documents under seal,
the Court is to consider “the availability of a less onerous alternative to sealing the
documents.” Romero, 480 F.3d at 1246. The Court’s review of the exhibits at issue
reveals that most of the defendant’s concerns may be adequately addressed by the
submission of an unsealed version of the document redacted to conceal whatever
sensitive information is contained therein. See Vision Bank v. Horizon Holdings USA,
LLC, 2011 WL 4478772 at *5 n.11 (S.D. Ala. 2011) (“If the privileged information that
might have justified the filing of the invoices under seal has been redacted, then there is
no discernable need for sealing those exhibits, particularly given the vital importance of
the public’s right of access to judicial proceedings.”).
The defendant posits, without offering discernible support, that the plaintiffs’
personal protected information “permeate[s]” the documents, causing redaction to be “too
troublesome.” (Doc. 66 at 13, 16 n.6). The Court’s review of the documents satisfies it
that most require only modest redaction of loan numbers, mortgage payments and the
like.2 The defendant has failed to establish that any actual, significant inconvenience
flowing from a redaction requirement provides good cause for keeping the documents
under seal.

2

The ease of making such redactions is reflected in a redacted exhibit attached to the
defendant’s supplemental brief. (Doc. 66, Exhibit BB). Oddly, the defendant insists on keeping
its Exhibit 2(D) under seal, even though it is the same document as Exhibit BB, which was not
filed under seal. Moreover, the defendant has already redacted several exhibits filed under seal,
(Doc. 59, Exhibits 3(E), 4(B), 4(C), 4(D), 4(I)), and it offers to redact several others. (Doc. 66 at
6-8).

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The defendant similarly objects that submitting a redacted version as envisioned
by Rule 5.2(f) would be “too … expensive” and would entail “remarkable expense.”
(Doc. 66 at 16 n.6, 19 n.8). The expense of redacting approximately 100 pages can
scarcely be “remarkable” but, if it is, that is a cost the defendant elected to bear by
submitting the documents for judicial review.
The defendant next asserts that redaction is infeasible because the redacted
information is also the probative information. (Doc. 66 at 15, 18). This is a non sequitur.
The defendant has already submitted the unredacted exhibits to the Court under seal, so
the Court has had full opportunity to glean any probative value from them. It is
immaterial whether, from the redacted version of the documents, the public will be
persuaded by their diminished probative force to accept the defendant’s view of the case.
It is especially curious that the defendant would resist filing unsealed, redacted
copies, since the protective order which the Magistrate Judge entered on the parties’ joint
motion expressly contemplates the redaction of information subject to GLB. (Doc. 41 at
5, ¶9). The plaintiffs urge that redacted versions of these documents be filed in lieu of
sealing, and that approach is consonant with both law and the parties’ agreement.3
The only information the defendant identifies as implicating its own privacy
interests is information concerning its servicing fee and its pricing in bidding for
servicing rights. Very minor redactions would hide the various references to the
servicing fee, although the single page of pricing information, (Doc. 59, Exhibit 4(E)),
requires sealing in toto.
The exact parameters of the privacy interest the defendant claims on Fannie Mae’s
behalf remain unclear, but they certainly appear to be broader than can be easily
3

The defendant’s discussion of GLB does not indicate that redaction is an inadequate
remedy under that statute, and it affirmatively acknowledges that a court order for redaction
would “trigger the judicial-process exception” to the Act. (Doc. 66 at 13). See also Chao v.
Community Trust Co., 474 F.3d 75, 87 n.6 (3rd Cir. 2007) (if personal information is redacted
before production, GLB is no longer implicated).

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encompassed within the “good cause” test. For example, the defendant asserts that the
original promissory note, as well as the monthly invoices the defendant sent the plaintiffs,
must remain sealed based on Fannie Mae’s privacy interests. (Doc. 66 at 14). To support
this supposed privacy interest, the defendant apparently relies on nothing more than
Fannie Mae’s asserted ownership of these documents and its insistence that the defendant
(to whom Fannie Mae entrusted the note and from whom the invoices are issued)
maintain their confidentiality. The documents submitted by the defendant along with its
supplemental brief may reflect Fannie Mae’s ownership of these documents, but they do
not purport to require the defendant to keep confidential any document Fannie Mae
happens to own. Instead, they caution the defendant to take appropriate steps to ensure
the confidentiality of any “confidential information” the defendant obtains about
borrowers and security properties, without identifying what is considered to be
confidential. (Doc. 66, Exhibits 1-2 to Exhibit CC).
Even could it be concluded that the defendant has shown an agreement between
itself and Fannie Mae to keep these or other documents confidential, such an agreement
would not of itself establish good cause to keep the material sealed. The test “requires
balancing the asserted right of access against the other party’s interest in keeping the
information confidential,” Romero, 480 F.3d at 1246 (internal quotes omitted), and a
confidentiality interest based on nothing more than a side agreement, with no further
showing that the documents are in fact deserving of protection, cannot weigh decisively
in favor of sealing. See id. (what must be considered is harm to “legitimate privacy
interests”) (emphasis added); see also Mobile Shelter Systems USA, Inc. v. Grate Pallet
Solutions, LLC, 2011 WL 5357843 at *1 (M.D. Fla. 2011) (“As an initial matter, whether
documents may be filed under seal is a separate issue from whether the parties may agree
that the documents are confidential, because the public has a common-law right to inspect

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and copy judicial records and public documents.”) (internal quotes omitted).4 To the
uncertain extent the defendant suggests that its agreement with Fannie Mae precludes
redaction, (Doc. 55 at 15 n.5), the Court rejects the proposition for the same reasons.
The defendant reports that, had the Court not raised the issue of sealing sua sponte,
it would have filed a motion to maintain certain documents under seal. (Doc. 66 at 3-4).
Accordingly, the Court so construes the defendant’s supplemental brief. For the reasons
set forth above, the motion is granted with respect to Exhibit 4(E) and denied with
respect to all other exhibits, including deposition excerpts and declarations.
The defendant is ordered to file and serve, on or before October 10, 2012, an
unsealed version of all exhibits (other than 4(E)) which it submitted in support of its
motion for summary judgment. As to those exhibits appearing in column 3 of the
defendant’s chart, the defendant is to file and serve the exhibits unredacted. As to those
exhibits appearing in columns 2 and 4 of the defendant’s chart, the defendant is to file
and serve the exhibits with only such redaction as is necessary to conceal the truly private
information, such as servicing fees and information covered by GLB.5
DONE and ORDERED this 26th day of September, 2012.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

4

The defendant presumably is aware of this principle, since the protective order it
submitted acknowledges that “[t]his Court has the ultimate authority to determine whether
information or material should be designated as ‘confidential’ notwithstanding a party’s decision
to so designate the information or material.” (Doc. 41 at 6, ¶13; accord id. ¶ 14).
5

The Court has by contemporaneous order granted the defendant’s motion for summary
judgment. However, no final judgment will be entered until the Court is satisfied that the
defendant has filed a fresh set of exhibits that complies with this order and does not continue to
conceal information undeserving of such treatment.
The defendant is ordered to retrieve from chambers the courtesy copy of its exhibits on
or before October 10, 2012, so that it may dispose of the copy as it sees fit. Final judgment will
not be entered before this retrieval is accomplished.

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