DOE v. MORELAND

Filing 238

ORDER granting in part and denying in part Plaintiff's 221 Motion to Unseal Documents and Defendant's and Non-Party Respondents' 230 Joint Motion on Sealing, and denying Plaintiff's 233 Motion for Order to Show Cause. See Order for details. Signed by Judge Timothy J. Kelly on 6/4/2024. (lctjk2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JEFFREY THOMAS, JR.,
Plaintiff,
v.

Civil Action No. 18-800 (TJK)

CRYSTAL MORELAND,
Defendant.
MEMORANDUM ORDER
In November 2023, the Court granted summary judgment for Defendant Crystal Moreland
in this hotly litigated defamation case. But a few lingering issues remain in the form of the parties’
motions to seal and Plaintiff Jeffrey Thomas’s motion for an order to show cause why Moreland
and a non-party should not be sanctioned for filing confidential documents on the public docket
while briefing the motions to seal. For the reasons explained below, the Court will grant in part
and deny in part the sealing motions and deny Thomas’s motion for an order to show cause.
I.

Motions to Seal
In accordance with the Protective Order, and for the most part in connection with their

summary judgment briefing, the parties filed several motions requesting the sealing or unsealing
of certain filings on the docket which were, in the interim, maintained provisionally under seal.
After resolving Moreland’s motion for summary judgment, the Court recognized that the contents
of its Memorandum Opinion might have a material impact on the parties’ positions on the sealing
of these filings. Thus, the Court denied those sealing motions without prejudice and allowed each
party to file a single consolidated motion requesting the sealing or unsealing in whole or in part of
any of the filings identified in the previously filed motions. See ECF No. 216. The Court also
granted Non-Party Respondents Humane Society Legislative Fund and Humane Society of the

United States (collectively “HSUS”) access to the provisionally sealed documents and leave to file
a sealing motion of their own, given the need to protect their institutional interests and confidential
documents produced in the case. See Minute Order of Dec. 12, 2023.
Thomas, Moreland, and HSUS all filed such motions. Thomas simply requests “the unsealing of all of the filings identified by the Court.” ECF No. 221 at 1. Moreland and HSUS
oppose that request. In a joint motion, they divide the relevant filings into three categories. ECF
No. 230. Category A includes 32 filings, none of which were directly cited in the Court’s Memorandum Opinion. Id. at 4–6. Moreland and HSUS request that these Category A documents remain
entirely under seal. Category B includes 10 documents that were directly cited in the Memorandum Opinion. Id. at 8–9. Moreland and HSUS propose filing these documents on the public
docket with proposed redactions. Finally, Category C includes 52 documents; Moreland and
HSUS agree with Thomas that these documents should be filed on the public docket with no redactions. Id. at 10–13.
Taking the categories in reverse order, the Court will grant the unsealing of the Category
C documents, grant in part the proposed redactions for the Category B documents, and deny without prejudice the unsealing of the Category A documents.
A.

Legal Standard

“[T]he decision as to access [to judicial records] 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. Hubbard, 650 F.2d 293, 316–17 (D.C. Cir. 1980) (citation omitted). “[A] district court’s decision to limit access to judicial records should, however, be informed
‘by this country’s strong tradition of access to judicial proceedings.’” Johnson v. Greater Se.
Cmty. Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991) (quotation omitted). In making such a
decision, this Court considers a series of factors discussed in Hubbard: (1) the need for public
2

access to the documents at issue; (2) the extent to which the public had access to the documents
before the sealing order; (3) the fact that a party has objected to disclosure and the identity of that
party; (4) the strength of the property and privacy interests involved; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced.
See Hubbard, 650 F.2d at 317–22.
B.

Analysis

Beginning with Moreland and HSUS’s Category C documents, all parties agree that they
should be unsealed in their entirety. So the Court will order them unsealed and filed on the public
docket.
Moving to Category B, the Court will grant in part and deny in part Moreland and HSUS’s
proposed redactions. As Moreland and HSUS acknowledge, these documents were all cited in the
Memorandum Opinion and so the public interest in them is “especially strong.” Vanda Pharms.,
Inc. v. FDA, 539 F. Supp. 3d 44, 57 (D.D.C. 2021). Still, they argue that the proposed redactions
are necessary to protect “particularized privacy interests.” ECF No. 230 at 6. Specifically, they
seek to redact (1) the name of a nonparty formerly employed by HSUS to protect that person’s
privacy interests, (2) several cell phone numbers and Moreland’s personal email address, and (3)
portions of both an internal HSUS attorney’s notes memorializing a pre-litigation conversation
with Thomas’s then-attorney, and portions of a pre-litigation letter sent from HSUS’s outside attorney to Thomas’s then-attorney. Id. at 6–7. The Court agrees that the second group of redactions
warrant sealing but disagrees on the first and third groups.
As already noted, that these documents were all cited in the Memorandum Opinion favors
public access. That said, some of the specific information Moreland and HSUS propose redacting
was not directly cited by the Court and was not “critical to the Court’s analysis.” In re McCormick
& Co., No. 15-cv-1825 (ESH), 2017 WL 2560911, at *2–3 (D.D.C. June 13, 2017). That is, of
3

course, true for the personal cell phone numbers and Moreland’s personal email address. That
information was irrelevant to the Court’s analysis, and the parties did not reference these exhibits
for any reason connected to that information. The other Hubbard factors also favor continued
sealing of this information, which has not been previously publicly disclosed and for which the
relevant individuals have a strong interest in keeping it private. In short, the Court has little difficulty concluding that personal cell phone numbers and Moreland’s email address merit redaction.
By contrast, the Court finds that the Hubbard factors do not support the other proposed
redactions. Moreland and HSUS ask for the name of a nonparty formerly employed by HSUS to
be redacted from several deposition transcripts, messages, and other documents. But the only
information about that person that raises a material privacy interest is also present in a separate
filing that has been on the public docket since September 2020. See ECF No. 36-1 at 2. Moreover,
the Court already rejected HSUS’s request to seal that information, in part because, even then, it
had been on the docket so long. See Minute Order of May 25, 2022 (denying HSUS’s request to
seal ECF No. 36-1 containing the same information HSUS now seeks to redact). Given that this
information has been publicly available for almost four years, redacting it now would be closing
the stable door long after the horse has left.
The Court also does not find that Moreland and HSUS have shown that the pre-litigation
attorney notes and letter should be redacted. To begin, unlike the previous groups of redactions
where Moreland and HSUS sought to redact only specific contact information or names, here, the
proposed redactions for these two documents are more extensive; Moreland and HSUS propose
redacting virtually all of them. This is problematic because, at least with respect to ECF No. 19822, the document includes information about one of Thomas’s central claims that is cited directly

4

in the Memorandum Opinion. See ECF No. 217 at 28 n.12.1 In other words, that document includes information that is “relevant to the central claims of the litigation.” Vanda Pharms., Inc.,
539 F. Supp. 3d at 57; see also In re McCormick & Co., 2017 WL 2560911, at *2 (“[W]hen information produced by a party in discovery becomes critical to the Court’s analysis . . . the ‘purpose’
factor does not support redaction.” (citation omitted)). That said, this factor is less relevant to ECF
No. 198-20, which the Court cites only once and even then, merely to corroborate information
elsewhere in the record. See ECF No. 217 at 6.
Still, for both these documents, the vague “privacy interests” that Moreland and HSUS
have in them are hard to decipher. ECF No. 230 at 7. For one thing, much of the information they
discuss is repeated elsewhere in the summary judgment briefing and supporting exhibits. Indeed,
some of it is even discussed in the Memorandum Opinion itself. For example, Moreland and
HSUS propose redacting from ECF No. 198-22 (but not ECF No. 198-20) Moreland’s allegation
that Thomas invited her to take a walk with him during the “magic hour”—but that incident is
discussed several times in the Memorandum Opinion.2 See ECF No. 217 at 3 (citing ECF No.
198-19), 29 n.13 (citing ECF No. 198-18). More importantly, Thomas—not Moreland or HSUS—
appears to be the party whose privacy interests are most at stake if these documents are unsealed,
given that they mainly recount allegations of misconduct against him. See ECF No. 237 at 2

To be sure, Moreland and HSUS’s proposed redaction excludes the specific part of the
document directly cited by the Court. But the public interest in access to a document is not limited
to only those portions of it that are directly quoted in an opinion, which are already publicly available. Cf. Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 666–69 (D.C. Cir. 2017)
(rejecting the idea that portions of record not cited or quoted can readily be redacted).
1

2

In addition, both documents mention that, according to HSUS, other women had come
forward with complaints about Thomas, without mentioning any details. But this information is
discussed in Moreland’s summary judgment briefing, which she, HSUS, and Thomas agree should
be unsealed. See ECF No. 198-2 at 6.

5

(Moreland and HSUS acknowledging that the information redacted is “unflattering to Plaintiff”).
But Thomas disavows any such privacy interest by requesting that the documents be unsealed.
Moreland and HSUS also argue that these documents reflect “pre-litigation communications” and “settlement discussions” between HSUS and Thomas that are not ordinarily filed on the
public docket. ECF No. 230 at 7. And it is true that whether a document reflects settlement
discussions can be “an appropriate consideration under Hubbard” when “confidentiality was [an]
important factor in the [] decision to settle the case.” In re Fort Totten Metrorail Cases, 960 F.
Supp. 2d 2, 9 (D.D.C. 2013) (cleaned up).3 Here, there is nothing to suggest that these communications were settlement discussions, let alone such discussions that bore fruit. They include no
settlement terms, back-and-forth negotiations, or concessions typical of settlement negotiations
and that would suggest the need for confidentiality. For the most part, they reflect Moreland’s and
HSUS’s allegations against Thomas (and how HSUS believed the allegations justified its decision
to fire Thomas) that appear throughout the summary judgment briefing. Without more, that these
documents reflect pre-litigation communications is not enough to outweigh any interest the public
may have in viewing them given that Moreland attached them as exhibits to a dispositive motion,
making them part of the judicial record.4 Cf. EEOC v. Nat’l Child.’s Ctr., Inc., 98 F.3d 1406, 1409
(D.C. Cir. 1996) (“[T]he starting point in considering a motion to [un]seal court records is a ‘strong

3

Indeed, that a document is a final settlement agreement is only one consideration under
Hubbard and does not dispositively favor sealing. See In re Chodiev, No. 18-mc-13 (RMM), 2021
WL 1795423, *4 n.4 (D.D.C. Mar. 23, 2021), report and recommendation adopted, No. 18-mc-13
(EGS), 2021 WL 6805642 (D.D.C. May 7, 2021).
4

Moreland and HSUS appear to suggest that because ECF No. 198-20 was created in anticipation of litigation, it might qualify as privileged or as attorney work product. See ECF No.
230 at 7 (citing Fed. R. Evid. 502 and ECF No. 41). But they do not actually assert such a claim.
In any event, whether a document is attorney work product is only one consideration under Hubbard. And for all the reasons explained, the Court finds that the Hubbard factors, on balance, do
not warrant its continued sealing.

6

presumption in favor of public access to judicial proceedings.’”) (quoting Johnson, 951 F.2d at
1277.
In sum, the Court finds that, after weighing the Hubbard factors, the proposed redaction of
personal cell phone numbers and Moreland’s personal email address from the Category B documents is appropriate, but that the other proposed redactions are unwarranted.
On to the final category of documents. Moreland and HSUS request that the Category A
documents remain entirely under seal. But the Court does not find that their wholesale sealing is
appropriate. Moreland and HSUS mainly argue that because these filings were not cited in the
Memorandum Opinion, the public interest in them is diminished. That is true, but it is hardly
dispositive that they should remain entirely under seal. Indeed, “documents used by parties moving for, or opposing, summary judgment should not remain under seal absent the most compelling
reasons.” See ICC Evaluation Serv., LLC v. Int’l Ass’n of Plumbing & Mech. Offs., Inc., No. 16cv-54 (EGS/ZMF), 2022 WL 2785985, at *7 (D.D.C. July 15, 2022) (quoting Joy v. North, 692
F.2d 880, 893 (2d Cir. 1982)). Thus, although the Court did not directly cite them in its Memorandum Opinion, Moreland and HSUS must still present adequate grounds for their sealing.
According to Moreland and HSUS, there are important privacy interests justifying the sealing of these documents. They explain that they contain personal, private information of nonparties,
(including cell phone numbers), pre-litigation communications between attorneys about settlement
discussions, and other internal HSUS materials. But none of those interests, as far as the Court
can tell, support their wholesale sealing. Indeed, many of the privacy interests asserted by Moreland and HSUS in these documents mirror their asserted interests in the Category B documents
discussed above. And as the Court already explained with respect to those documents, while some
of those interests warrant sealing, others do not. Thus, the Court will require Moreland and HSUS

7

to propose specific redactions to the Category A documents, as they did for Category B. Indeed,
in their reply brief, Moreland and HSUS requested, in the alternative, that they be allowed to do
so. ECF No. 237 at 1. The Court will grant that request.5
For all these reasons, the Court will grant the parties’ joint request to unseal all the Category
C documents identified by Moreland and HSUS. It will grant Moreland and HSUS’s motion to
redact the personal cell phone numbers and Moreland’s email address in the filings identified as
Category B, but it will deny the request to redact the name of the nonparty formerly employed by
HSUS and to redact the attorney notes and letter. And finally, it will deny without prejudice Moreland and HSUS’s request to seal the filings identified as Category A and will permit them to
propose specific redactions to those filings consistent with Hubbard and this Memorandum Order.
II.

Motion for Order to Show Cause
Thomas also moves for an order requiring Moreland and HSUS to show cause why they

should not be sanctioned for violating the Protective Order by filing confidential documents on the
public docket while briefing the motions to seal. The basis for Thomas’s motion is that in Moreland and HSUS’s publicly filed joint sealing motion, they improperly disclosed sealed material.
As Thomas explains, Moreland and HSUS attached to their motion on the public docket certain
filings with proposed redactions—but those filings had already been designated confidential and
filed under seal in their entirety.6 In response, Moreland and HSUS explain that they were the

The Court acknowledges the “administrative burden of reviewing” the record for sealing
purposes, “but the D.C. Circuit has expressly held that ‘the burden of producing judicial records
may not permanently foreclose their unsealing.’” Vanda Pharms., Inc., 539 F. Supp. 3d at 57
(quoting In re Leopold to Unseal Certain Elec. Surveillance Applications & Ords., 964 F.3d 1121,
1134 (D.C. Cir. 2020)).
5

6

These exhibits represent the documents identified by Moreland and HSUS as Category

B.

8

parties who designated these documents confidential, and they withdrew that designation before
filing them. According to Moreland and HSUS, because Thomas never designated these documents confidential, there was nothing preventing them from filing the documents publicly once
they had withdrawn their designation. Thomas responds that only the Court could remove the
confidentiality designation and permit disclosure.
A.

Legal Standard

A court has the authority to hold a party in civil contempt for “[d]isobedience or resistance
to its lawful writ, process, order, rule, decree, or command.” 18 U.S.C. § 401. “Two elements
must be established before a party may be held in civil contempt. First, the Court must have issued
an order that is clear and reasonably specific. Second, the putative contemnor must have violated
the Court’s Order.” Stewart v. O’Neill, 225 F. Supp. 2d 6, 10 (D.D.C. 2002) (citations omitted).
“Courts may impose civil sanctions either to coerce the contemnor into compliance with the court’s
order or ‘to compensate the complainant for losses sustained’ from the contempt.” United States
v. Two Gen. Elec. Aircraft Engines, 317 F. Supp. 3d 516, 520 (D.D.C. 2018) (quoting United States
v. United Mine Workers of Am., 330 U.S. 258, 303–04 (1947)). The decision to issue sanction “is
left to the sound discretion of the district court judge.” Dorsey v. Jacobson Holman PLLC, 764 F.
Supp. 2d 209, 213 (D.D.C. 2011), aff’d, 476 F. App’x 861 (D.C. Cir. 2012).
B.

Analysis

The Protective Order itself does not address whether a party may remove a confidential
designation at will, and if so, the procedure for doing so. Thus, it is hardly obvious that it is “clear
and reasonably specific” enough for the Court to hold Moreland and HSUS in contempt under the
circumstances. In any case, even assuming Thomas is right that Moreland and HSUS violated the
Protective Order, sanctions against them would be inappropriate for at least two reasons. Thus,
the Court will not order them to show cause.
9

First, there is nothing to suggest that Moreland or HSUS intentionally violated the Protective Order or that they did so to harass Thomas. As Moreland and HSUS explain, having withdrawn their confidentiality designation over these documents, they did not consider the documents
to be protected by the Protective Order. They also knew at the time they filed their motion that
more than a month beforehand, Thomas had moved to unseal all the documents at issue. And
while Thomas claims that the purpose of this disclosure was to harass him, there is no evidence
contradicting Moreland and HSUS’s assertion of good faith. See Walker v. Ctr. for Food Safety,
667 F. Supp. 2d 133, 136–37 (D.D.C. 2009) (violation of a court’s order can be excused if there is
“good faith substantial compliance with the order”). Indeed, the only reason Moreland and HSUS
filed these documents on the docket was to propose redactions, as required by the Court’s order.
Moreover, contrary to Thomas’s assertion, the documents filed did not uniformly disclose material
unfavorable to him while redacting information unfavorable to Moreland and HSUS. In fact, many
of the redactions proposed by Moreland and HSUS relate to information that is potentially embarrassing to Thomas.
Second, Thomas cannot point to any harm, loss, or inconvenience he has suffered from
these documents being filed publicly. As mentioned above, Thomas requested that these very
documents—along with all other documents in this case—be unsealed. In other words, Thomas
seeks a show cause order against Moreland and HSUS for disclosing documents that Thomas himself has requested be placed on the public docket.
In sum, even if Thomas is right that Moreland and HSUS violated the Protective Order by
unilaterally withdrawing their confidential designation of these documents without leave of the
Court and then filing them on the docket, because the Court accepts their explanation that they
acted in good faith, Thomas agrees that the documents should be unsealed, and Thomas has

10

suffered no harm or inconvenience, the Court will not impose civil sanctions for any such violation.
Thus, the Court declines to issue a show cause order.
*

*

*

For all these reasons, it is hereby ORDERED that Thomas’s Motion to Unseal Documents,
ECF No. 221, and Moreland and HSUS’s Joint Motion on Sealing, ECF No. 230, are GRANTED
IN PART and DENIED IN PART.
It is further ORDERED that the following documents shall be unsealed and placed on the
public docket: ECF Nos. 182, 188, 190, 193, 193-1, 193-2, 193-3, 193-4, 193-5, 198, 198-1, 1982, 198-3, 198-4, 198-6, 198-7, 198-8, 198-10, 198-11, 198-12, 198-15, 198-16, 198-17, 198-24,
198-27, 198-28, 198-30, 198-35, 198-38, 198-49, 198-50, 198-51, 201, 201-1, 201-2, 201-3, 202,
203, 203-1, 203-7, 206, 206-2, 206-4, 207, 207-1, 207-2, 209, 209-1, 209-2, 209-5, 209-6, and
209-8.
It is further ORDERED that Moreland and HSUS’s request to file the following documents
under seal shall be DENIED WITHOUT PREJUDICE: ECF Nos. 198-13, 198-14, 198-21, 19823, 198-29, 198-31, 198-32, 198-33, 198-34, 198-36, 198-37, 198-39, 198-40, 198-41, 198-42,
198-43, 198-44, 198-45, 198-46, 198-47, 198-48, 198-52, 198-53, 203-2, 203-3, 203-4, 203-5,
203-6, 203-8, 206-1, 206-3, and 209-7. It is further ORDERED that by July 9, 2024, Moreland
and HSUS may file a renewed motion to seal with respect to these documents with proposed redactions in accordance with this Memorandum Order.
It is further ORDERED that Moreland and HSUS’s request to file the following documents
with proposed redactions shall be GRANTED IN PART and DENIED IN PART: ECF Nos.
198-5, 198-9, 198-18, 198-19, 198-20, 198-22, 198-25, 198-26, 209-3, and 209-4. It is further

11

ORDERED that by July 9, 2024, Moreland and HSUS shall file new versions of these documents
containing only the redactions permitted by the Court as described in this Memorandum Order.
It is further ORDERED that Thomas’s Motion for Order to Show Cause, ECF No. 233, is
DENIED.
SO ORDERED.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: June 4, 2024

12