CANTLEY v. INDIANA UNIVERSITY HEALTH, INC.
Filing
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ORDER granting in part and denying in part 63 Motion to Seal Documents 56 and [57-12] and to maintain 60 and 62 under seal. Defendant is ORDERED to publicly file properly redacted versions of Docket Nos. 57-12 and 62 within 7 days of the date of this order. Signed by Magistrate Judge Mark J. Dinsmore on 11/21/2014. (CBU)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ALESA A CANTLEY,
)
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Plaintiff,
vs.
INDIANA UNIVERSITY HEALTH, INC.,
Defendant.
No. 1:13-cv-01296-TWP-MJD
ORDER ON DEFENDANT’S MOTION TO SEAL
This matter comes before the Court on Defendant’s Motion to Seal. [Dkt. 63.] For the
reasons set forth below, the court GRANTS IN PART and DENIES IN PART the motion.
I.
Background
Alesa Cantley (“Plaintiff”) sued Indiana University Health, Inc. (“Defendant”) for alleged
violations of Title VII of the Civil Rights Act of 1964. [Dkt. 1 at 1.] Plaintiff alleges that despite
her qualifications and repeated applications, Defendant never offered her interviews for potential
promotions. [Id. at 2.] Plaintiff complained to Defendant that it had a pattern or practice of
failing to promote people of Plaintiff’s protected class. [Id. at 3.] Defendant allegedly responded
to Plaintiff’s complaint by disciplining her, suspending her, and terminating her employment.
[Id. at 3-4.] Plaintiff filed this lawsuit on August 15, 2013, alleging, inter alia, race
discrimination and retaliation. [Id. at 4-5.]
The Court entered an interim protective order on August 27, 2013. [Dkt. 8 at 9] The order
allows the parties to designate information “confidential” if the information contains “protected
trade secrets or confidential and non-public commercial, personal or medical information and
such designation is necessary to protect the interests of the client.” [Id. at 9-10.] If such
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information is filed with the Court, the order states that papers containing the information “may
be filed under seal to the extent permitted by law . . . and kept under seal until further order of
the Court.” [Id. at 12.] The party that produced the confidential information, however, must “file
a motion to seal such documents within fourteen days of their filing with the Court.
Contemporaneous with the filing of the motion to seal, the producing party shall also file a
separate version of the document(s) sought to be sealed with the Confidential Information
redacted therefrom for public consumption.” [Id.]
Defendant moved for summary judgment on September 26, 2014. [Dkt. 53.] Plaintiff
filed her response on October 24, 2014. [Dkt. 56.] Defendant contends that the response, [Dkt.
56], and Exhibit L in support of Plaintiff’s response, 1 [Dkt. 57-12], contain confidential
information that should be filed under seal. [Dkt. 63 at 3.] Defendant also contends that its reply
in support of summary judgment, [Dkt. 60], and its Supplemental Declaration of Anne Riley,
[Dkt. 62], contain confidential information that should be filed under seal. With its motion,
Defendant included proposed redacted copies of Docket Nos. 56, 60, and 62. [See Dkts. 63-1,
63-2 & 63-3.]
II.
Discussion
Rule 26 contemplates filing under seal for “good cause.” Fed. R. Civ. P. 26. “The
determination of good cause cannot be elided by allowing the parties to seal whatever they
want.” Citizens First Nat. Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir.
1999). The public “at large pays for the courts and therefore has an interest in what goes on at all
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Defendant’s motion asks to seal “Exhibit K.” [Dkt. 63 at 3.] Document 57-12, however, is Exhibit L, rather than K.
Also, it is Exhibit L that contains a disciplinary file of one of Defendant’s employees. The Court thus construes
Defendant’s motion as a request to seal Exhibit L, not Exhibit K as requested.
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stages of a judicial proceeding.” Id. Hence, the judge is “duty-bound” to “review any request to
seal the record.” Id.
When information is filed with a court, it may “influence or underpin the judicial
decision” and is therefore “open to public inspection unless” the information “meets the
definition of trade secrets or other categories of bona fide long-term confidentiality.” Baxter
Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002). A motion asking to seal such
information has “no prospect of success” unless it analyzes “in detail, document by document,
the propriety of secrecy, providing reasons and legal citations.” Id. at 548. General assertions that
the information is “commercial” or otherwise sensitive will not suffice. Id. at 546.
Defendant contends that each of the documents at issue contains confidential information
concerning Defendant’s discipline of its employees. Document 56, Plaintiff’s Response in
Opposition to Defendant’s Motion for Summary Judgment, contains accounts of the discipline of
three employees who are not parties to this lawsuit. [Dkt. 56 at 10-11, 26-28.] Defendant’s
proposed redactions remove only this information. [See Dkt. 63-1 at 10-11, 26-28.]
As Defendant notes, “[c]ourts have previously honored requests to seal information
produced under a protective order when it concerns non-parties, including personnel information,
such as job performance and evaluations.” [Dkt. 63 at 3.] In Perry v. Bath & Body Works, LLC,
for instance, the court stated that it was “[m]indful of the Seventh Circuit Court of Appeals’ firm
position regarding requests to seal documents from the public record,” but nonetheless sealed the
“disciplinary records” of “a nonparty.” 993 F. Supp. 2d 883, 889 (N.D. Ind. 2014). Likewise, in
Stevens v. General Electric Consumer & Industries, the court noted that it would maintain a brief
in support of summary judgment under seal because it contained “the names of certain current
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and former GE employees” and “confidential information about them (such as job performance
evaluations).” No. 1:06-CV-215, 2008 WL 506058, at *1 (N.D. Ind. Feb. 19, 2008).
Finally, in Little v. Mitsubishi Motor Manufacturing of America., Inc., the court
determined that it would “protect . . . from public disclosure” the portions of “[Defendant’s]
motion for summary judgment and attached exhibits” that revealed “private information
regarding the personnel files of nonparty employees.” No. 04-1034, 2006 WL 1554317, at *4
(C.D. Ill. June 5, 2006). Indeed, that court observed that “[s]uch information is often construed
by courts to fall within the realm of ‘other facts that should be held in confidence’—at least as it
applies to nonparty employees. Id. at *3 (citing Smith v. City of Chicago, No. 04 C 2710, 2005
WL 3215572, at *3 (N.D. Ill. Oct. 31, 2005)).
These cases thus establish that the disciplinary records of nonparties are often subject to
seal. Notably, these cases limit the breadth of such a seal: In Little, for instance, the Court
rejected Defendant’s attempt to “file under seal and away from the public’s view its entire
motion for summary judgment along with 79 voluminous exhibits.” Id. at *4. In the present case,
however, Defendant has redacted from Docket No. 56 only the specific references to individual
nonparties’ disciplinary records. [See Dkt. 63-1 at 10-11, 26-28.] The Court thus GRANTS
Defendant’s motion to seal Docket No. 56.
Document 57-12, Exhibit L to Plaintiff’s Response in Opposition to Defendant’s Motion
for Summary Judgment, contains “a complete copy of [a nonparty’s] disciplinary file.” [Dkt. 63
at 3.] This document thus contains confidential nonparty information, and the Court accordingly
directs the Clerk to seal Document 57-12.
Defendant, however, has not included a redacted copy of Exhibit L, and thus apparently
asks to keep the entire document sealed. This goes too far. In Perry, for instance, the plaintiff
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asked to seal certain documents related to nonparties, but the Court observed that citing portions
of the documents would be “necessary for the Court’s analysis.” Perry, 993 F. Supp. 2d at 890.
The Court thus ordered Plaintiff to file a redacted version excising only the names of the
nonparties and leaving the rest of the document available for public view. Id.
This approach is consistent with that taken by other courts: In Smith, the court considered
records related to nonparties’ “overtime/supplemental pay information.” Smith, 2005 WL
3215572, at *3. This information was important to the court’s analysis and hence “important to
the public’s review of the case.” Id. The court therefore determined that if “the actual documents
need to be filed with the court, non-parties’ names and identifying factors shall be redacted,” but
the court directed that other information remain publicly available. Id. In Little, meanwhile, the
court noted that the Seventh Circuit has approved filing parallel versions of briefs—“one full
version containing all details, and another redacted version with confidential information
omitted.” Little, 2006 WL 1554317, at *4 (quoting Hicklin Eng’g, L.C. v. Bartell, 439 F.3d 346,
348 (7th Cir. 2006)). It accordingly ordered a party to redact identifying information from briefs
and exhibits and publicly file these redacted copies. Id.
This case presents a situation similar to those in Perry, Smith, and Little. Plaintiff argues
in her response to Defendant’s motion for summary judgment that the nonparty’s disciplinary
record in Exhibit L helps establish disparate treatment and retaliation against Plaintiff. [Dkt. 56
at 28.] These records will thus be involved in the Court’s analysis: that is, they will “influence or
underpin the judicial decision,” and are presumptively open to public inspection. Baxter, 297
F.3d 545. The Court thus ORDERS Defendant to file, within seven (7) days of the date of this
order, a redacted version of Exhibit L from which only the identifying information of any
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nonparty employees has been removed. Failure to file such a redacted copy will result in the
unsealing of Document 57-12.
Defendant next contends that Document 60, Defendant’s Reply in Support of Its Motion
for Summary Judgment, contains information on “the confidential disciplines of a nonparty
employee.” [Dkt. 63 at 3.] The Court has reviewed this document and agrees with Defendant’s
assertion. [See Dkt. 60 at 9-10, 17.] The Court also notes that Defendant’s proposed redacted
copy of this brief excises only the information specifically related to the discipline of the
nonparty. [See Dkt 63-2 at 9-10, 17.] Defendant’s proposed redactions thus comport with the
procedures outlined above in cases such as Perry, Smith, and Little. The Court therefore
GRANTS Defendant’s motion to maintain Docket No. 60 under seal.
Defendant finally asserts that Document 62, the Supplemental Declaration of Anne Riley,
also “contains disciplines of a nonparty employee.” [Dkt. 63 at 3.] The Court has reviewed this
document and agrees that it contains such information. [See Dkt. 62 at 2, 5, 7.] As with Exhibit
L, however, Defendant’s proposed redactions go beyond those necessary to protect the identity
of the nonparty employee, particularly at pages five and seven of the declaration. [See Dkt. 63-3
at 5, 7.] The Court will therefore maintain Document 62 under seal, but the Court ORDERS
Defendant to publicly file, within seven (7) days of the date of this order, a copy of Document
No. 62 from which only the information identifying any nonparty employees has been redacted.
Failure to file such a redacted copy will result in the unsealing of Document 62.
III.
Conclusion
For the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART
Defendant’s Motion to Seal. [Dkt. 63.] The Clerk is directed to seal Docket Nos. 56 and 57-12,
and to maintain under seal Docket Nos. 60 and 62. Defendant is ORDERED to publicly file
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properly redacted versions of Docket Nos. 57-12 and 62 within seven (7) days of the date of this
order.
Date: 11/21/2014
Distribution:
Jason Porter Cleveland
JOHN H. HASKIN & ASSOCIATES
jcleveland@jhaskinlaw.com
John H. Haskin
JOHN H. HASKIN & ASSOCIATES
jhaskin@jhaskinlaw.com
Bonnie L. Martin
OGLETREE, DEAKINS, NASH, SMOAK & STEWART
bonnie.martin@odnss.com
Dorothy D. Parson
OGLETREE, DEAKINS, NASH, SMOAK & STEWART
dorothy.parson@odnss.com
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