Acosta v. Target Corporation et al

Filing 256

WRITTEN Opinion entered by the Honorable Geraldine Soat Brown on 5/16/2012: Motion hearing held. Before the court are plaintiffs' three unopposed motions to retain the seal of certain exhibits provisionally filed under seal [216, 230, 247]. For the reasons set forth below, defendants are ordered to show cause why such seal should remain. [For further details see minute order.] Notice mailed by judge's staff (ntf, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Joan B. Gottschall

CASE NUMBER

05 C 7068

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

Geraldine Soat Brown

DATE

5/16/2012

Acosta vs. Target Corporation et al.

DOCKET ENTRY TEXT

Motion hearing held. Before the court are plaintiffs’ three unopposed motions to retain the seal of certain
exhibits provisionally filed under seal [216, 230, 247]. For the reasons set forth below, defendants are
ordered to show cause why such seal should remain.

O[ For further details see text below.]

Notices mailed by Judicial staff.
*Copy to judge/magistrate judge.

00:05

STATEMENT
Plaintiffs Richard Acosta and Jennifer Roman, on behalf of themselves and their putative class, filed
three unopposed motions to retain the seal of certain documents provisionally filed under seal. [Dkt 216,
230, 247.] The motions relate to 46 exhibits attached to plaintiffs’ summary judgment motion [dkt 215], four
exhibits attached to plaintiffs’ response to defendant’s summary judgment motion [dkt 229] and four exhibits
attached to plaintiffs’ reply in support of their motion for class certification [dkt 245].
During discovery in this matter, defendants Target Corporation, Target National Bank and Target
Receivables LLC (collectively, Target) produced documents Target asserted were confidential and Target so
designated those documents. As required by the protective order entered in this case (Protective Order ¶ 13)
[dkt 118], plaintiffs provisionally filed such documents under seal and sought leave of court to retain the seal.
Target does not oppose plaintiffs’ motions, and indeed filed a memorandum in further support of them. [Dkt
252.] The burden of establishing why the confidential information should be held under seal squarely
belongs to Target since it the producing party claiming their confidential status. (Protective Order ¶ 13.)
Unlike unfiled discovery to which the public generally has no right of access, “[i]t is beyond dispute
that most documents filed in court are presumptively open to the public.” Bond v. Utreras, 585 F.3d 1061,
1073 (7th Cir. 2009). This right of access is “derived from the common-law principle that courts are public
institutions that operate openly - a principle codified at 28 U.S.C. § 452 - and judicially imposed limitations
on this right are subject to the First Amendment.” Id. The public’s right of access to filed materials is
markedly different than its claim to unfiled discovery because, among other reasons, discovery is usually
conducted in private. Id. As the Seventh Circuit explained, “[s]ecrecy is fine at the discovery stage, before
the material enters the judicial record . . . . But those documents . . . that influence or underpin the judicial
decision are open to public inspection unless they meet the definition of trade secrets or other categories of
bona fide long-term confidentiality.” Baxter Intl., Inc. v. Abbott Labs, 297 F.3d 544, 545 (7th Cir. 2002).

05C7068 Acosta vs. Target Corporation et al.

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STATEMENT
The court may of course issue an order sealing particular items in the record where it has determined
that there is good cause to do so. Citizens First Natl. Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943,
944 (7th Cir. 1999). The problem here, however, is that the parties have provided little information
necessary to make such a determination.
The gravamen of plaintiffs’ case rests on the concept that defendants’ conversion of customers’
Target cards to Visa cards was done with such underwriting criteria and under such circumstances that
consumers were deceptively set up to fail. (Am. Compl.) [Dkt 170.] According to plaintiffs, Target changed
customers’ accounts without telling them and without proper disclosures, and failed to tell customers that
they would not qualify for Target Visas under the underwriting criteria applied outside of the conversion
program. (Id. at 1.) Target disputes plaintiffs’ allegations. Clearly then, Target’s underwriting criteria and
its business planning regarding the conversion program are central to the disputed issues in the case.
Many of the documents provisionally filed under seal are several years old (some date from 2004) and
relate to dated underwriting criteria and a program that has since been terminated. Even with Target’s
memorandum in support of plaintiffs’ motions, it has not explained why such information is so sensitive that
it should be withheld from the public view. Likewise, despite the Protective Order’s mandate that only
confidential information, not entire documents, be filed under seal, neither party indicated whether portions
of the fifty-four exhibits at issue should be publicly filed. (See Protective Order ¶ 13.)
Target is given until May 30, 2012 to show cause why such seal should remain. Plaintiffs may join in
Target’s submission or submit their own filing if they so choose. To maintain its position, Target must come
forward with an argument, backed by authority and evidence, supporting its claim for the continued
confidentiality of the documents. Its submission must also indicate whether it contends that each document
is confidential in its entirety or designate the specific portions it so claims.

05C7068 Acosta vs. Target Corporation et al.

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