Cohen v. Public Service Company of Colorado d/b/a Xcel Energy

Filing 146

ORDER The Motion for Sanctions Doc. # 128 is DENIED. The Motion to File Reply Doc. # 139 is GRANTED, and the Clerk of the Court is directed to accept for filing Plaintiffs Reply Doc. # [139-1]. The Motion to Restrict Access Doc. # 142 is DENIED. A final pretrial conference is set for August 21, 2014, at 9:00 a.m., in Courtroom 401, 4th floor, Alfred A. Arraj United States Courthouse, 901 19th Street, Denver, Colorado. A Final Pretrial Order shall be prepared by the parties and submitted to the court no later than August 14, 2014, by Magistrate Judge Boyd N. Boland on 7/10/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 13-cv-00578-WYD-BNB
STACEY COHEN,
Plaintiff,
v.
PUBLIC SERVICE COMPANY OF COLORADO, d/b/a/ XCEL ENERGY,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on the following:
(1)

Plaintiff’s Motion for Sanctions [Doc. # 128, filed 5/21/2014];

(2)

Plaintiff’s Unopposed Motion for Leave to File Reply [Doc. # 139, filed

6/23/2014]; and
(2)

Plaintiff’s Unopposed Motion to Restrict Access [Doc. # 142, filed 6/29/2014].

In addition, the case is now ready to be set for a final pretrial conference.
I held a hearing on the pending motions this afternoon and made rulings on the record
concerning the Motion for Sanctions and the Motion for Leave to File Reply, which are
incorporated here.
I did not address the Motion to Restrict Access at the hearing. Local rule of practice 7.2,
D.C.COLO.LCivR, governs motions to restrict access. It provides in relevant part:
(a) Policy. Unless restricted by statute, rule of civil procedure, or
court order, the public shall have access to all documents filed with
the court and all court proceedings.
* * *

(c) Motion to Restrict. A motion to restrict public access shall be
open to public inspection and must:
(1) identify the document or the proceeding for which restriction
is sought;
(2) address the interest to be protected and why such interest
outweighs the presumption of public access (stipulations between
the parties or stipulated protective orders with regard to
discovery, alone, are insufficient to justify restricted access);
(3) identify a clearly defined and serious injury that would result if
access is not restricted;
(4) explain why no alternative to restricted access is practicable or
why only restriction will adequately protect the interest in question
(e.g., redaction, summarization, restricted access to exhibits or
portions of exhibits); and
(5) identify the restriction level sought (i.e., Level 1 = access
limited to the parties and the court; Level 2 = access limited to the
filing party and the court; Level 3 = access limited to the court).
(Emphasis added.)
The important public interests in open court records are discussed in Huddleson v. City
of Pueblo, 270 F.R.D. 635 (D. Colo. 2010), and include:
People in an open society do not demand infallibility from their
institutions, but it is difficult for them to accept what they are
prohibited from observing. The public has a fundamental interest
in understanding the disputes presented to and decided by the
courts, so as to assure that they are run fairly and that judges act
honestly.

Id. at 635 (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509 (1984)).
The right to inspect and copy judicial records is not absolute, however. To the contrary:
All courts have supervisory powers over their own records and
files. Thus a court, in its discretion, may seal documents if the
public’s right of access is outweighed by competing interests.
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* * *
[B]ecause the analysis of the question of limiting access is
necessarily fact-bound, there can be no comprehensive formula for
decisionmaking. The decision as to access is one best left to the
sound discretion of the trial court, a discretion to be exercised in
light of the relevant facts and circumstances of the particular case.

United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985). Privacy and preservation of trade
secrets are among the interests which have been found, under certain circumstances, to overcome
the presumption of openness. Huddleson, 270 F.R.D. at 637.
Here, the plaintiff seeks to restrict access to certain exhibits filed in support of her
Motion for Sanctions, arguing:
Public disclosure of [the] information could cause either or both of
the parties, and/or other employees of Defendant, to suffer
embarrassment, humiliation and other defined and significant
injuries through the disclosure of this confidential information.
* * *
The public has a limited interest in viewing any of the information
in [the] Exhibits. . . . Resolution of Plaintiff’s Motion for
Sanctions does not turn solely on any of the information contained
in any of those documents. Plaintiff made them exhibits to her
proposed Reply In Support of Motion for Sanctions because they
contain information that she believes to be relevant to that Motion.
Motion to Restrict Access [Doc. # 142] at ¶¶4-5.
This is an employment discrimination case. The plaintiff has summarized her claims as
follows:
Plaintiff has been employed by Defendant since 1988. During that
employment, Plaintiff has worked in jobs that traditionally have
been performed by male employees.
Plaintiff has filed six charges of employment discrimination with
the EEOC. . . . In those charges, Plaintiff has alleged that
Defendant has discriminated against here because of her sex and/or
because of her age, and that Defendant has retaliated against her,
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in violation of Title VII of the Civil Rights Act of 1964 and in
violation of the Age Discrimination Act of 1967.
In addition, Plaintiff has filed a number of internal complaints, to
fellow employees and management employees at Defendant and to
representatives of her labor union, in which she opposed what she
believed in good faith to have been sex discrimination, age
discrimination and/or unlawful retaliation by employees of
Defendant.
Scheduling Order [Doc. # 18] at pp. 1-2. The exhibits at issue here and to which the plaintiff
seeks to attach restricted access relate directly to her claims and may be evidence at the trial.
The work of a district court ordinarily is open to the public. The exhibits at issue here are not
private or confidential; to the contrary, they all relate to matters occurring in connection with the
plaintiff’s employment by the defendant and her charges of discrimination. Nor are any of the
exhibits particularly embarrassing.
IT IS ORDERED:
(1)

The Motion for Sanctions [Doc. # 128] is DENIED.

(2)

The Motion to File Reply [Doc. # 139] is GRANTED, and the Clerk of the Court

is directed to accept for filing Plaintiff’s Reply [Doc. # 139-1].
(3)

The Motion to Restrict Access [Doc. # 142] is DENIED.

(4)

A final pretrial conference is set for August 21, 2014, at 9:00 a.m., in Courtroom

401, 4th floor, Alfred A. Arraj United States Courthouse, 901 19th Street, Denver, Colorado. A
Final Pretrial Order shall be prepared by the parties and submitted to the court no later than
August 14, 2014.

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Dated July 9, 2014.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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