Holick v. Burkhart

Filing 78

MEMORANDUM AND ORDER granting in part and denying in part 39 Motion to Unseal Document. Signed by Magistrate Judge Kenneth G. Gale on 8/8/17. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARK HOLICK,

)
)
Plaintiff,
)
)
v.
)
)
JULIE A. BURKHART,
)
)
Defendant.
)
______________________________ )

Case No. 16-1188-JTM-KGG

MEMORANDUM & ORDER ON
MOTION TO UNSEAL
Currently pending before the Court is Plaintiff’s Motion to Unseal (Doc. 39)
Defendant’s “Motion to File Under Seal” and its exhibits (Doc. 36). For the
reasons stated herein, Defendant’s motion is GRANTED in part and DENIED in
part.
BACKGROUND
In 2013, Defendant received a temporary order of protection from stalking
against Plaintiff in Kansas state court (state court action). Defendant’s deposition
was taken in the state court action. Also, a Protective Order was entered in the
state court action, which is the subject of some disagreement by the parties
(discussed infra). Plaintiff brings the present federal court matter against Plaintiff

alleging malicious prosecution, abuse of process, and defamation relating to the
allegations levied against him in the state court action. (See generally, Doc. 1.)
Plaintiff recently withdrew his claim for defamation. (Docs. 66, 77 (text entry).)
ANALYSIS
Defendant filed a sealed Motion for Leave to File Under Seal (Doc. 32) that
was granted by the Court via text entry. (See Doc. 35, May 30, 2017, text entry.)
Plaintiff now moves for an Order unsealing the Motion to File Under Seal and its
exhibits, one of which is Defendant’s deposition transcript from the underlying
state court case. Plaintiff argues that there is a presumption against sealing, the
document at issue is central to determination of the case, and that Defendant failed
to make the requisite showing of particularized harm to seal of documents. (See
Doc. 39.)
A protective order entered in the state court case that allowed the parties to
designate documents as “confidential.” Plaintiff contends the state court protective
order was entered by the judge ex parte without Plaintiff having an opportunity to
be heard on the issues there. (Id., at 15.) Plaintiff also argues that the state court
protective order was “never activated” by Defendant and that Defendant never
designated her deposition transcript as confidential in the state court case. (Id., at
13-14.) Regardless, Plaintiff argues that this Court is not bound by a protective
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order from a state court action. (Id., at 16.)
Defendant responds that Plaintiff’s motion is “procedurally deficient”
because her underlying motion to seal has already been granted and Plaintiff has
not moved for reconsideration of the ruling. (Doc. 46, at 3.) As to substantive
arguments, Defendant argues that the deposition transcript is subject to the state
court protective order. (Id., at 5.) She also argues that pretrial depositions are not
“public components of a civil trial” and are “conducted in private as a matter of
modern practice.” (Id., at 8.) As such, she contends that the public access/open
courts aspect is not considered a “restriction on a traditionally public source of
information.” (Id.)
Because the Court granted the motion to seal without an opportunity for
Plaintiff to respond to the motion, the Court considers the present motion an
timely-filed motion for reconsideration. The Court agrees that the Tenth Circuit
recognizes a strong presumption against sealing judicial documents.
‘Courts have long recognized a common-law right of
access to judicial records,’ but this right ‘is not absolute.’
Mann v. Boatright, 477 F.3d 1140, 1149 (10th
Cir.2007). Thus, the presumption in favor of access to
judicial records may be overcome where ‘countervailing
interests heavily outweigh the public interests in access.’
Id. (internal quotation marks omitted). The burden is on
the party seeking to restrict access to show ‘some
significant interest that outweighs the presumption.’ Id.
(internal quotation marks omitted).
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Colony Ins. Co. v. Burke, 698 F.3d 1222, 1241 (10th Cir. 2012). The Court also
generally agrees that evidence submitted for the substantive resolution of a matter
carries a “strong presumption of access.” Id., at 1242 (citing Logusch v. Pyramid
Co. of Onandaga, 435 F.3d 110, 121 (2nd Cir. 2006)). Regardless of any use in the
underlying state court action, the deposition in question was merely offered in the
present federal court litigation in support of Defendant’s unsuccessful procedural
motion to stop Plaintiff from deposing Defendant.
Plaintiff implicitly concedes that some portions of the filed and sealed
deposition – the portions that Plaintiff offers to redact – should remain sealed. (See
Doc. 53, at 7.) The version of the deposition that is the subject of this motion
includes those sections, so that version should remain sealed. Plaintiff’s motion is,
thus, DENIED, as to the deposition transcript (Doc. 36-1, sealed).
The Court states that Plaintiff’s motion is denied as to the present filing
only. This ruling does not constitute a ruling that substantive portions of the
deposition filed in support of subsequent dispositive motions or at the ultimate trial
of this matter must necessarily be filed under seal. Such issues, if raised, will be
determined by the Judge presiding over such a motion or presiding over the trial.
Because the Court is not fully resolving the present disagreement, both parties are
instructed to refrain from file this document openly in the Court without an
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agreement to do so or permission from the Court.
There is, however, no argument by Defendant that the underlying motion
(Doc. 36) and other documents filed under seal should have been filed under seal.
To the contrary, Defendant’s response in opposition discusses only the deposition
transcript. (See generally Doc. 46.) As such, the Clerk is directed to unseal
Document 36 and all exhibits other than the deposition (Doc. 36-1, sealed).

IT IS THEREFORE ORDERED that Defendant's Motion (Doc. 39,
sealed) is GRANTED in part and DENIED in part.
IT IS SO ORDERED.
Dated this 8th day of August, 2017, at Wichita, Kansas.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE

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