B. et al v. WAL-MART STORES, INC.

Filing 97

ORDER ON DEFENDANT'S MOTION TO SEAL: For the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion to Maintain Under Seal a List of Wal-Mart's Claims Filed by Plaintiff on February 27, 2015. [ Dkt. 88.] The clerk is directed to maintain Docket No. 86 under seal, but Defendant shall respond as set forth above within fourteen (14) days of the date of this order ***SEE ORDER FOR ADDITIONAL INFORMATION***. Signed by Magistrate Judge Mark J. Dinsmore on 4/3/2015. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
A. B.,
K. M.,
M. M. BY HER NATURAL GUARDIAN,
K.M.,
C. R.,
K. R. BY HIS NATURAL GUARDIANS
A.B. and C.R.,
Plaintiffs,

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vs.
WAL-MART STORES, INC.,

No. 1:14-cv-00422-RLY-MJD

Defendant.
ORDER ON DEFENDANT’S MOTION TO SEAL
This matter comes before the Court on Defendant’s Motion to Maintain Under Seal a List
of Wal-Mart’s Claims Filed by Plaintiff on February 27, 2015. [Dkt. 88.] For the reasons that
follow, the Court GRANTS IN PART and DENIES IN PART the motion.
I.

Background

On March 5, 2014, A.B., K.M., M.M., C.R., and K.R. (“Plaintiffs”) sued Wal-Mart
Stores, Inc. (“Defendant”) alleging that Defendant had negligently failed to protect Plaintiffs
from an abduction and sexual assault that began in Defendant’s parking lot. [See Dkt. 1-1.]
During discovery, Plaintiffs sought information about other crimes that had occurred in or near
Wal-Mart parking lots across the country. In pursuit of such information, Plaintiffs filed multiple
motions to compel, [see Dkts. 72 & 76], and at a hearing on Plaintiffs’ second and third motions,
Plaintiffs disclosed that they had obtained a list of claims titled “General Liability All Criminal
Claims and Incidents Involving a Person Being Injured or Abducted or Killed as a Result of a
Criminal Act for Wal-Mart Stores, Inc. Nationwide From 10/1/1994 to 10/11/1994” (hereinafter
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“Claims List”). [See Mot. to Compel Hr’g Tr. 19:14-21:20, Feb. 26, 2015.] Plaintiffs explained
that the list had been produced in a separate case—Katoria Lee v. Wal-Mart—filed in Georgia
state court. [Hr’g Tr. 21:1-20.] They offered it as evidence that courts had previously allowed for
discovery of the kind they sought in this case, [Hr’g Tr. at 21:14-23], and they subsequently filed
the Claims List as an exhibit in support of their motions to compel. [See Dkt. 86.]
At the hearing, the parties recognized that the Claims List contained potentially sensitive
or confidential information, [Hr’g Tr. at 20:5-21:20], and the list was accordingly filed under
seal. [See Dkt. 86.] Pursuant to the Court’s protective order, [Dkt. 69], Defendant then filed the
currently pending motion to maintain the list under seal. [Dkt. 88.]
II.

Discussion

Rule 26 allows for 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
stages of a judicial proceeding.” Id. The judge is thus “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.

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Defendant in this case contends that “good cause” exists to maintain the Claims List
under seal because it was originally produced pursuant to a protective order in the Georgia state
court case. [Dkt. 88-1 at 4-6.] As support, Defendant cites the Affidavit of Albert J. Decusati.
[Dkt. 88-2.] Mr. Decusati states that he was “counsel of record for Wal-Mart Stores, Inc. in the
case of Katoria Lee v. Wal-Mart Stores, Inc., and Eric Deown Riggins, State Court of Clayton
County, Civil Action No. 2004-cv-01129E.” [Id. ¶ 3.] In that case, the parties entered a “Consent
Protective Order” that covered the documents produced in response to the plaintiff’s request for
production of documents. [Id. ¶ 9.] Under the terms of the order, any document marked
confidential—such as the Claims List currently at issue—was to be filed only under seal. [See
Dkt. 88-2 at 9 (Ex. 3 to Decusati Aff.).]
The Consent Protective Order allowed for only limited dissemination of confidential
documents. [Id. at 8-9.] It restricted disclosure primarily to counsel; persons assisting counsel;
witnesses to the alleged crime against the plaintiff; and officers, directors or employees of a
party. [Id.] The order then provided a limited exception allowing for dissemination to “attorneys
pursuing claims against Wal-Mart similar to the allegations asserted by Plaintiff against
Defendant in this action, to wit: a premises liability parking lot claim whereby a store customer
is injured, abducted or killed by a third-party.” [Id. at 9.] Any person receiving confidential
documents was to agree in writing to be bound by the terms of the protective order. [Id.]
In this case, Plaintiffs are pursuing a negligence claim based on Wal-Mart’s failure to
prevent a crime in its parking lot, [see Dkt. 1-1], and Plaintiffs’ attorneys thus fall within the
scope of the limited disclosure permitted by the Consent Protective Order. Under the terms of
that order, however, Plaintiffs’ attorneys should have agreed in writing to be bound by the terms
of the order before receiving the Claims List. Additionally, because the Consent Protective Order

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specifically provides for filing any protected documents only under seal, Defendant argues this
Court should maintain the Claims List under seal in order to give effect to the protective order
entered by the Georgia state court. [See Dkt. 88-1 at 4-5.] 1
Federal courts often exhibit respect for the protective orders entered by state courts. See,
e.g., Washington v. New Orleans City, 424 F. App’x 307, 311-12 (5th Cir. 2011) (“[Plaintiff’s
counsel] has identified no authority permitting a party to flout a state court protective order
simply because documents in a state action might prove useful in a separate federal action.”). At
the same time, however, a state court’s protective order does not mandate that this Court seal the
document at issue. In Lower Town Project, LLC v. Lawyers Title Insurance Corp., for instance,
the court observed that while litigants cannot simply ignore a state court protective order, the
court “is not bound to follow or enforce such an order.” No. 10-11615, 2012 WL 666574, at *5
(E.D. Mich. Feb. 29, 2012). Similarly, in Reicher v. Starring, the plaintiff asked the court to seal
two exhibits and a brief on the grounds “that sealing these documents [was] necessary in order to
comply with the terms of the state court’s stipulated order of confidentiality.” No. CIV.A. 112171, 2011 WL 4404117, at *2 (E.D. La. Sept. 21, 2011). The court, however, determined that
plaintiff’s request was “overbroad,” and the court then sealed only those portions of the exhibits
and briefs that actually contained proprietary information. See id.
Giving binding effect to a state court order would also be inconsistent with Seventh
Circuit precedent. In this circuit, the judge must make an independent determination that the
information at issue must be sealed. See Cincinnati Ins. Co., 178 F.3d at 945 (“The judge is the

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The Consent Protective Order also provided that, at the conclusion of the Georgia state court case, the plaintiff’s
counsel were to return all copies of the Defendant’s confidential documents, including those that had been
disseminated to third parties. [See Dkt. 88-2 at 11.] This evidently did not occur, but the Consent Protective Order
further provides that its “restrictions on communication and disclosure . . . shall be binding upon the parties and all
other persons” even “[a]fter the final termination of this action.” [Id.] The order thus purports to continue to restrict
the dissemination of the Claims List.

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primary representative of the public interest in the judicial process and is duty-bound therefore to
review any request to seal the record (or part of it).”); see also Jepson, Inc. v. Makita Elec.
Works, Ltd., 30 F.3d 854, 858-59 (7th Cir. 1994) (criticizing protective order in which “there
[was] no indication that the Magistrate Judge made an independent determination that ‘good
cause’ existed”). Thus, the Magistrate Judge in this case will not defer to the state court order,
and will instead independently evaluate whether Defendant has met its burden to justify sealing
the Claims List.
Here, Defendant argues that sealing the list is necessary to protect the privacy interests of
the victims identified in the list. [Dkt. 88-1 at 7.] As Defendant notes, many jurisdictions by
statute forbid the disclosure of the identities of certain crime victims, such as minors and victims
of sexual assault. [Id.] Defendant thus argues that maintaining this information under seal is
necessary to comply with state law. [Id.]
The Seventh Circuit has expressly recognized that such statutory protections constitute
“good cause” for filing information under seal. See Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d
544, 546 (7th Cir. 2002) (“In civil litigation . . . information required by statute to be maintained
in confidence (such as the name of a minor victim of a sexual assault), is entitled to be kept
secret on appeal.”). Thus, to the extent that the Claims List contains the names of individuals
whose identifies—by statute—cannot be disclosed, the seal on the list may be maintained.
Defendant, however, has not limited its motion to only those names that are statutorily
protected; rather, Defendant asks to seal all names in the list. [See Dkt. 88-1 at 7.] This request is
overbroad: “[T]here is no general rule that the identities of crime victims should not be identified
in publically filed documents,” Emess Capital, LLC v. Rothstein, 841 F. Supp. 2d 1251, 1255
(S.D. Fla. 2012), and Defendant has cited no legal authority to the contrary. By failing to provide

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such “legal citations” in support of its position, Defendant has failed to meet its burden to
establish good cause for sealing this portion of the Claims List. See Baxter, 297 F.3d at 548.
In addition, Defendant asks to seal not only the names in the list, but also other
information, such as the nature of the crime, the date of the crime, and the state where the crime
took place. [Dkt. 88-1 at 7.] Such a broad request goes beyond the scope of what is permissible
in this circuit. See Baxter, 297 F.3d at 546 (emphasis added) (filing “the name of a minor victim
of a sexual assault” under seal is permissible); Little v. Mitsubishi Motor Mfg. of Am., Inc., No.
04-1034, 2006 WL 1554317, at *4 (C.D. Ill. June 5, 2006) (“[A]ll that would be required to
protect [the employees’] privacy interest . . . is the redaction of their names and any other
identifying factors (e.g. social security numbers, phone numbers, addresses, and etc).”); Smith v.
City of Chicago, No. 04 C 2710, 2005 WL 3215572, at *3 (N.D. Ill. Oct. 31, 2005) (allowing for
redaction of “non-parties’ names and identifying factors” but requiring the “substance of the
information [to] be publicly available”). 2
Defendant nonetheless contends that merely redacting the names from the list would be
inappropriate. 3 [Dkt. 88-1 at 7.] Because the Claims List includes the date of the crime and the
state where the crime took place, Defendant asserts that a “savvy individual using online search
engines, news websites, social media, and state and local law enforcement records” could still
“track down the identity of the crime victim.” [Id.] This argument is meritless. If the identities of
the victims have already been disclosed through “news websites,” “law enforcement records,” or
otherwise, then there is no basis to seal the information at all. See, e.g., Marine Travelift, Inc. v.

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The only “identifying factors” present in the Claims List are the names of crime victims. The list does not contain
social security numbers, phone numbers, addresses, or other identifying information, such that redaction may be
limited to the names in the list.
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Defendant also suggests that making a redacted copy available would constitute “an improper modification of the
Protective Order issued in Lee.” [Dkt. 88-1 at 5.] As explained above, however, the Court is not bound by that order.
See, e.g., Lower Town Project, 2012 WL 666574, at *5.

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Marine Lift Sys., Inc., No. 10-C-1046, 2013 WL 4087555, at *3 (E.D. Wis. Aug. 13, 2013)
(“This information . . . is already contained within the public record. . . . Consequently, these
documents will also not be maintained under seal.”); Bowman v. Int’l Bus. Machines Corp., No.
1:11-CV-0593-RLY-TAB, 2012 WL 5285891, at *2 (S.D. Ind. Oct. 25, 2012) (denying motion
to seal exhibit where “the exhibit [was] already publicly available”).
Defendant then argues that the Claims List should remain sealed so that Defendant itself
is not prejudiced by the disclosure of the list. [Dkt. 88-1 at 5-6.] Defendant suggests that the
Claims List could “potentially [be] used by parties against Wal-Mart in other litigation,” and that
this sort of harm “is precisely what the Protective Order [in Lee] was designed to prevent.” [Dkt.
88-1 at 6.]
This assertion is tenuous at best. Although the protective order in Lee required all copies
of the Claims List to be returned to Defendant at the conclusion of Lee’s suit, [see Dkt. 88-2 at
11], it also specifically provided for dissemination of the Claims Lists to attorneys pursuing
certain premises liability claims against Wal-Mart. [See id. at 9.] The order thus approved of the
use of the list in cases other than Lee, such that it strains credulity for Defendant to argue that
such a use was “precisely what the Protective Order was designed to prevent.” [Dkt. 88-1 at 6.]
Additionally, Defendant’s assertion of “potential[]” harm, [Dkt. 88-1 at 5], is too
speculative to justify sealing the entire Claims List. The information in the list is more than ten
years old, and Defendant has provided no explanation regarding how revealing such dated
information is actually damaging to its interests. [See id. a 5-6.] Thus, Defendant may claim that
disclosure of the list would be a “patent injustice,” [id. at 6], but this unsubstantiated assertion
does not justify maintaining the list under seal. See, e.g., Felling v. Knight, No. IP01-0571-C-

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T/G, 2001 WL 1782360, at *2 (S.D. Ind. Dec. 21, 2001) (“A finding of good cause must be
based on a particular factual demonstration of potential harm, not on conclusory statements.”)
For these reasons, the Court concludes that it is not appropriate to maintain the entire
Claims List under seal. The Court will maintain the original, un-redacted copy of the list under
seal, but within fourteen (14) days of the date of this order, Defendant must file a copy of the
Claims List from which Defendant has redacted the names—and only the names—of those
individuals whose identities—under state or federal statute—cannot be disclosed.
III.

Conclusion

For the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART
Defendant’s Motion to Maintain Under Seal a List of Wal-Mart’s Claims Filed by Plaintiff on
February 27, 2015. [Dkt. 88.] The clerk is directed to maintain Docket No. 86 under seal, but
Defendant shall respond as set forth above within fourteen (14) days of the date of this order.

Date: 04/03/2015

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Distribution:
Eric A. Riegner
FROST BROWN TODD LLC
[e-mail]
Matthew Reed King
FROST BROWN TODD LLC
[e-mail]
Thomas L. Davis
FROST BROWN TODD LLC
[e-mail]
Joel Kirk LeBlanc
LEBLANC NETTLES DAVIS
[e-mail]
Neil Andrew Davis
LEBLANC NETTLES DAVIS
[e-mail]
Nelson A. Nettles
LEBLANC NETTLES DAVIS
[e-mail]
Nancy Zangrilli
MCDONNELL & ASSOCIATES, P.C.
[e-mail]
Patrick J. McDonnell
MCDONNELL & ASSOCIATES, P.C.
[e-mail]

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