May et al v. BHP Billiton Petroleum (Fayetteville) LLC
ORDER directing the Clerk to unseal docket entries 59 , 66 , 94 , 95 , 96 , 97 , 98 , 104 , 106 , 109 , 111 , 112 , 113 . BHP' s embedded request to redact the sentence from the Court's Order is denied. All the documents on page three of this Order shall remain under seal. BHP should provide the redacted versions of some of these sealed documents to the Clerk by 4 January 2016. Signed by Judge D. P. Marshall Jr. on 11/5/2015. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
KENNETH JOE MAY; MARY ANN MAY;
STEVE SNOWDEN; and CINDY SNOWDEN
BHP BILLITON PETROLEUM (Fayetteville) LLC
1. At the parties' request, the Court entered a Protective Order and
Amended Protective Order, Ng 38 & 48, to protect certain business-related
information. Many filings have been made under seal because they included,
or referred to, this kind of information. In reviewing the record when deciding
the parties' summary judgment motions, the Court didn't see anything that
seemed particularly confidential or sensitive. So the Court noted this
impression, and asked BHP to explain what the Court had overlooked with
specifics. NQ 120 at 18. BHP now agrees that much of the record can be
unsealed, but asks the Court to keep some things under wraps and to redact
one sentence from the Court's recent comprehensive Order. The Mays and the
Snowdens respond that everything should be unsealed.
2. Two preliminary points. First, the Court directs the Clerk to unseal
NQ 59, 66, 94, 95, 96, 97, 98, 104, 106, 109, 111, 112, & 113. BHP has acquiesced
on these materials. Second, BHP' s embedded request to redact the sentence
from the Court's Order is denied. The projected date is too distant, and too
fluid, for it's disclosure to make any real difference in the business world.
3. BHP has made a sufficient case that some of the business-related
information should not be public. This Court's business should, with
important exceptions, be done in public. See, e.g., Nixon v. Warner
Communications, Inc., 435 U.S. 589,597 (1978). But one of the law's exceptions
is that no unnecessary harm should come to a litigant from disclosure of what
would otherwise be private. As to BHP, this principle protects how the
company makes its business decisions. The Mays and the Snowdens are
correct: some of the record on this score is generic. Some, though, is specific,
and some of it- for example, the material about other plays - isn't relevant to
this case, but could be useful to BHP' s competitors. NQ 69-16 at 83-87
(deposition pagination). The Court also weighs in the balance that the parties
proceeded under the Protective Orders, which presumptively shielded almost
4. BHP is the one seeking confidentiality, so it must do the necessary
work. Where practicable, redaction is better than sealing. FED. R. CIV. P. 5.2(d).
Redaction isn't do-able for N2 60-5, 60-17, 60(a)-17, 70-6, 70-20, 70-21, 70-22,
70-24, 70-38, 73-3 & 73-4. They'll remain under seal. BHP'schart,N2122at3-9,
is careful and helpful. Using the specific pages identified in its chart, BHP
must supply the Clerk with redacted versions of Ng 60, 60-27, 60(a), 60(a)-27,
67, 68, 69, 70-16, 70-25, 70-32, 70-33, 74, 77-1, 77-3, 78, 80, 81, 85, 86, 87-1, 88,
89, 93 & 110. These will be filed on the public docket, and linked to the
companion sealed filing, which will stay under seal.
5. The Clerk shall unseal the documents listed at page 2, supra, of this
Order now. All the documents listed on this page shall remain under seal.
BHP should provide the redacted versions of some of these sealed documents
to the Clerk by 4 January 2016.
D .P. Marshall Jr.
United States District Judge
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