Diehl v. The Money Source Inc. et al

Filing 101

Order re: 99 Unopposed MOTION for leave to Seal Document. Defendants are ordered to file a supplemental memorandum by 3/28/2018. Signed by District Judge William H. Steele on 3/14/2018. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANASTASIA P. DIEHL,
Plaintiff,
v.
THE MONEY SOURCE, INC., et al.,
Defendants.

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CIVIL ACTION 17-0125-WS-B

ORDER
This matter comes before the Court on Defendants’ Unopposed Motion for Leave to File
Exhibits Under Seal (doc. 99).
In connection with their summary judgment filings, defendants The Money Source, Inc.
and LoanCare, LLC filed nearly 500 pages of exhibits. Every single page of nearly every single
one of those exhibits was filed under seal, without leave of court. In an Order (doc. 98) entered
on March 2, 2018, the Court explained that counsel’s mere ipse dixit that “such exhibits are
‘confidential’” was not sufficient, and that it was not “apparent that sealing is the least restrictive
alternative available, or that an unsealed, redacted version of these exhibits could not be made
publicly accessible.” (Doc. 98, at 1.) On that basis, the March 2 Order directed defendants to
file an appropriate motion “identifying what specifically in these hundreds of pages is so
confidential that they must all be sealed from public access in their entirety and why less
restrictive alternatives such as redaction are inadequate to safeguard the relevant private
interests.” (Id.)
The March 2 Order’s directive that The Money Source and LoanCare make a sufficient
showing to justify the across-the-board sealing of their summary judgment exhibits is rooted in
important public policy considerations. Federal courts have long recognized a strong
presumption in favor of allowing public access to judicial records. See, e.g., Chicago Tribune
Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001) (“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. … [T]he common-law right of access
includes the right to inspect and copy public records and documents.”). “Indeed, the common
law right of public access to judicial documents is said to predate the Constitution.” United
States v. Byrd, 11 F. Supp.3d 1144, 1148 (S.D. Ala. 2014) (citation and internal marks omitted).
Importantly, the presumption of public access extends to “[m]aterial filed in connection with any
substantive pretrial motion, unrelated to discovery,” and to any “motion that is presented to the
court to invoke its powers or affect its decisions.” Romero v. Drummond Co., 480 F.3d 1234,
1246 (11th Cir. 2007) (citations and internal quotation marks omitted). “Litigants may not
override that presumption by simply referencing a protective order.” Allstate Ins. Co. v. Regions
Bank, 2015 WL 4073184, *2 n.3 (S.D. Ala. July 2, 2015); see also Suell v. United States, 32 F.
Supp.3d 1190, 1192 (S.D. Ala. 2014) (“[t]he mere existence of a protective order does not
automatically override the public’s right of access”).
In their Motion for Leave to File Exhibits under Seal, The Money Source and LoanCare
have recognized the requirements for sealing motions, as set forth in General L.R. 5.2(b). They
state that the subject exhibits include materials produced in discovery pursuant to a protective
order and designated “Confidential – Attorneys’ Eyes Only.” They explain in broad language
that these exhibits contain the following: (i) private information relating to plaintiff, Anastasia
Diehl, as well as her loan and credit account; (ii) defendants’ proprietary information; (iii)
defendants’ “[c]ompetitively sensitive information;” and (iv) sensitive or proprietary
“agreements and related documentation.” (Doc. 99, ¶ 7.) And they enumerate in general terms
their position that many exhibits include “[c]ertain documents” marked “Confidential –
Attorneys’ Eyes Only” and that the depositions excerpts include “[p]ortions” that refer to
documents with such designations. (Id., ¶ 13.) Based on this showing, the Court is confident
that, at least as to some part of the voluminous summary judgment exhibits, private interests in
preserving confidentiality may outweigh the presumption of public access to judicial materials.
Here is the rub: The Court also has no doubt that the universe of information and
documents as to which any legitimate sealing interest under Rule 26 exists is considerably
smaller than defendants have requested. In its present form, the “seal-everything” Motion for
Leave to File Exhibits Under Seal is breathtakingly overbroad. Part of the problem is that, as so
often occurs in discovery, the litigants were overinclusive in their liberal use of the “Confidential
– Attorneys’ Eyes Only” designation in their document production. Moreover, the excessive

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nature of the sealing motion is exacerbated by the inclusion of deposition excerpts in which the
witness is not even discussing confidential exhibits, much less disclosing their contents in a way
that reasonably implicates private concerns about disclosure of sensitive information. A few
examples (among the many that are readily apparent) illustrate the point. Defendants say the
Declaration of Allison Bielby (doc. 90, Exh. A) must be sealed because the exhibits to such
declaration were produced by LoanCare and marked “Confidential – Attorneys’ Eyes Only.”
However, the Bielby Declaration itself merely traces Anastasia Diehl’s loan history, including
the loan amount, the promissory note, the mortgage, the servicing of the loan, payment history,
correspondence between Diehl and LoanCare, the witness’s determinations as to the cause and
responsible party for Diehl’s payments being misrouted, and the like. Nothing in the Declaration
appears to divulge “proprietary” or “commercially sensitive” information belonging to
LoanCare. A copy of the Mortgage is attached to the Bielby Declaration as an exhibit, and
marked “Confidential – Attorneys’ Eyes Only,” but a mortgage recorded in probate court cannot
reasonably be viewed as confidential or proprietary. Another exhibit is the “Equity Accelerator”
program agreement between LoanCare and Diehl, but Bielby unequivocally declares that this
program “is not affiliated with LoanCare in any way,” so even if this agreement were secret
(which seems highly unlikely) it does not appear that public disclosure of same would trammel
any legitimate privacy concerns of defendants. For another example, defendants say LoanCare’s
Exhibit D must be sealed because it contains documents marked “Confidential – Attorneys’ Eyes
Only.” This three-page exhibit consists exclusively of correspondence between Diehl and
LoanCare concerning Diehl’s request to “set[] up biweekly automatic payments.” (Doc. 90, Exh.
D.) There appears to be nothing remotely proprietary, commercially sensitive or “confidential”
anywhere in this exhibit.
Simply put, defendants’ evidentiary submission appears to consist in substantial part of
documents as to which the presumption of public access has not been overcome and does not
appear to be offset by any countervailing private interests. It is not appropriate to seal a large
stack of exhibits simply because a small subset may implicate bona fide private interests in
confidentiality. To the contrary, The Money Source and Loan Care bear the burden of making a
particularized showing that the Rule 26 good cause balancing test is satisfied with respect to each
sealed item. See, e.g., Suell, 32 F. Supp.3d at 1192 (“The governing standard must be applied by
the plaintiffs to each document, and to each portion of each document, separately.”); General

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L.R. 5.2(b)(2)(B) (motion to seal must articulate “[t]he basis upon which the party seeks the
order, including the reasons why alternatives to sealing are inadequate”). Defendants have not
done so here. An obvious, viable alternative to sealing every single page of movants’
evidentiary submission would be for defendants to file an additional, unsealed, redacted copy of
their exhibits, and thereby to facilitate public access to all portions of the deposition transcripts
and documents that do not truly contain proprietary or competitively sensitive information.
In short, defendants’ proposed kneejerk “seal-everything” approach, while perhaps
expedient, is incompatible with Chicago Tribune, Rule 26, General L.R. 5.2, and this Court’s
obligation to safeguard the public’s right of access to court proceedings absent a specific
showing of overriding private interests. Accordingly, defendants are ordered to file a
supplemental memorandum, on or before March 28, 2018, setting forth in detail, on an item-byitem basis, precisely which materials and categories of information it is claiming should be
sealed and why. Wherever reasonably possible, defendants are expected to file redacted public
versions of these materials, so as to allow unfettered public access to all non-sensitive portions of
those documents. The Court recognizes that this process may be time-consuming; however, the
concerns expressed herein are important. The presumption of public access matters, and will not
be cavalierly set aside for the sake of convenience. Where defendants can show particularized
concerns about Diehl’s privacy or disclosure of commercially sensitive / proprietary information,
the Court will grant the sealing request. As to all other exhibits and portions of exhibits,
however, the public right of access must be honored and preserved, notwithstanding the
“Confidential” stamp affixed to the bottom of a page during discovery.
DONE and ORDERED this 14th day of March, 2018.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

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