Univalor Trust, SA et al v. Columbia Petroleum, LLC et al
(VACATED - See doc. 8) ORDER finding as moot 2 Motion for Leave to File; denying 4 Motion for Leave to File under seal; the settlement agreement provisionally filed under seal (doc. 3) is STRICKEN from the record. Signed by Magistrate Judge Katherine P. Nelson on 8/17/2015. (srr) Modified on 8/17/2015 (srr).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
UNIVALOR TRUST, SA, et al.,
COLUMBIA PETROLEUM, LLC,
CIVIL ACTION NO. 15-00414-N
This action is before the Court on the Plaintiffs’ amended motion to file under
seal (Doc. 4), filed under S.D. Ala. GenLR 5.2. The Plaintiffs’ seek to file under seal
(presumably as an attachment to their recently-filed Complaint (Doc. 1)) a copy of
the settlement agreement that is the basis for this declaratory judgment action. As
grounds, the Plaintiffs state that the settlement agreement contains confidentiality
provisions and that some but not all parties have agreed to waive these provisions.
The common-law right of access to judicial proceedings, an essential
component of our system of justice, is instrumental in securing the
integrity of the process. Beyond establishing a general presumption
that criminal and civil actions should be conducted publicly, the
common-law right of access includes the right to inspect and copy public
records and documents. The right to inspect and copy is not absolute,
however, and a judge's exercise of discretion in deciding whether to
release judicial records should be informed by a sensitive appreciation
of the circumstances that led to the production of the particular
document in question…[T]he common-law right of access requires a
balancing of competing interests.
Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir.
2001) (per curiam) (citations and quotation omitted).
The Eleventh Circuit has
held that while “material filed with discovery motions is not subject to the
common-law right of access,…discovery material filed in connection with pretrial
motions that require judicial resolution of the merits is subject to the common-law
Id. at 1312.
Here, the settlement agreement that the Plaintiffs wish to
file under seal goes to the merits of this entire case.
Indeed, it is the raison d'être
for this action. (See Doc. 1 at 10 – 11 (“Plaintiffs respectfully request this Court
enter an Order declaring that Defendants entered into a valid binding settlement
agreement with Plaintiffs[ and ]request the Court Order the Defendants to comply
with the terms of the settlement agreement…”)).
The Court is not presently
convinced that the confidentiality provisions of the settlement agreement override
the common-law right of access in this action.
Cf. Suell v. United States, 32 F.
Supp. 3d 1190, 1192 & n.1 (S.D. Ala. 2014) (Steele, C.J.) (“The mere existence of a
protective order does not automatically override the public's right of access; instead,
the party seeking to maintain secrecy ‘must establish good cause for continued
protection under Rule 26.’
Chicago Tribune, 263 F.3d at 1313.
This is especially
so when the protective order (as in Chicago Tribune ) was agreed, since in such a
case there has been no prior judicial determination of good cause…Courts routinely
recognize that the existence of a protective order does not answer the question
whether documents subject to a constitutional or common-law right of access may be
sealed. E.g., Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir. 2011); Kamakana v.
City and County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006); Procter & Gamble
Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996); Rushford v. New Yorker
Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988).”).
The Court also notes that the filing of the settlement agreement is
unnecessary at this stage of the litigation.
While a written instrument may be
attached to a pleading as an exhibit, see Fed. R. Civ. P. 10(c), nothing in the Federal
Rules of Civil Procedure requires the attachment of the agreement to the
Complaint. Moreover, a review of the Complaint indicates that specific provisions
of the agreement are not at issue. Rather, it appears that the Defendants have
simply repudiated and refused to acknowledge the settlement agreement in its
Accordingly, rather than order that the settlement agreement
provisionally filed under seal (Doc. 3) be unsealed, the Court will order that it be
stricken. See Fed. R. Civ. P. 12(f). The Plaintiffs are free to again request leave to
file the settlement agreement under seal, should they desire, provided they show
sufficient reason for doing so.
Alternatively, the Plaintiffs are granted leave to
re-file the settlement agreement as an unsealed exhibit to the Complaint, so long as
it is filed no later than Monday, August 24, 2015.2
Because the Plaintiffs have failed to show good cause at this stage to justify
filing and maintaining the settlement agreement under seal, it is ORDERED that
their amended motion to file under seal (Doc. 4) is DENIED 3 and that the
Moreover, all parties to the agreement who are not accused of repudiating it have waived
the confidentiality provisions.
Thereafter, any attempt to attach the settlement agreement as an exhibit to the complaint
will be treated as an amendment subject to Federal Rule of Civil Procedure 15(a).
The Plaintiffs’ initial motion to file under seal (Doc. 2) is MOOT due to the filing of the
settlement agreement provisionally filed under seal (Doc. 3) is STRICKEN from
DONE and ORDERED this the 17th day of August 2015.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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