Moore et al v. Smith

Filing 114

ORDER granting 70 Motion to Vacate ; denying 88 Motion to Strike. IT IS ORDERED that the Motion to Motion to Vacate Order (Rec. Doc. 70) is GRANTED. The Clerk shall unseal the Motion to Sever and Stay Claims (Rec. Doc. 67). IT IS FURTHER ORDERED that Motion to Strike Plaintiffs' opposition as untimely (Rec. Doc. 88) is DENIED. Signed by Judge Carl Barbier on 12/11/2018. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRYAN MOORE, ET AL.

CIVIL ACTION

VERSUS

No. 17-5219

RANDY SMITH

SECTION: “J”(2)
ORDER AND REASONS

Before the Court is a Motion to Vacate Order (Rec. Doc. 70) filed by
intervenors Capital City Press, LLC, doing business as The Advocate, and WWL-TV,
Inc. (“Movants”). Plaintiffs filed an opposition (Rec. Doc. 82) that was untimely per
the local rules, although it was filed before the Motion was submitted before the
Court. Rather than filing a reply to the opposition, Movants filed a Motion to Strike
Plaintiffs’ opposition as untimely (Rec. Doc. 88), which Plaintiffs opposed (Rec. Doc.
94). Considering the Motions, the legal memoranda, the record, and the law, the
Court finds that the Motion to Strike should be DENIED and the Motion to Vacate
Order should be GRANTED.
FACTS AND PROCEDURAL HISTORY
Plaintiffs in this case are several former sheriff’s deputies who allege they were
illegally terminated by the elected sheriff of St. Tammany Parish for supporting the
candidate who lost the election. On July 30, 2018, three of the ten plaintiffs, David
Hanson, Sr., David Hanson, Jr. and Tammy Hanson, moved for leave to file under
seal (Rec. Doc. 52) a motion to sever and stay claims (Rec. Doc. 67). On August 15,
2018, the Court held a status conference, at which it granted the motion and allowed

the parties to brief the motion to sever and stay under seal. (Rec. Doc. 57). The Court
ultimately denied the motion to sever and stay in an unsealed order with reasons.
(Rec. Doc. 69).
Movants intervened and now argue that this Court’s August 15, 2018 order
sealing the motion to sever and stay violates the public’s right of access to court
records and proceedings under the United States Constitution and federal precedent.
(Rec. Doc. 70-1 at 3). Following this Court’s denial of the motion to sever and stay,
David Hanson, Sr., David Hanson, Jr. and Tammy Hanson voluntarily dismissed
their case.
PARTIES’ ARGUMENTS AND APPLICABLE LAW
The core of Movants’ argument is that there is a presumption in favor of access
to court filings that the Plaintiffs have failed to rebut. Indeed, “the public has a
common law right to inspect and copy judicial records.” S.E.C. v. Van Waeyenberghe,
990 F.2d 845, 848 (5th Cir. 1993) (quoting Nixon v. Warner Communications, Inc.,
435 U.S. 589, 597 (1978)). “However, the public's common law right is not absolute.”
Id. District courts enjoy supervisory power over their own records and files, see Nixon,
435 U.S. at 597, and the public’s interest in transparency is sometimes outweighed
by the other factors relevant to a particular case. Thus, district courts must balance
competing interests. Van Waeyenberghe, 990 F.2d at 848. While engaging in
balancing, the Court keeps in mind that from the start, the scales tip in favor of
access. See Federal Savings & Loan Ins. Corp. v. Blain, 808 F.2d 395, 399 (5th Cir.

2

1987) (“The district court's discretion to seal the record of judicial proceedings is to be
exercised charily.”).
Movants urge a public interest in the motion to sever and stay based on a series
of reports published by Movants. In one article, The Advocate reported that a Grand
Jury had served a subpoena on the St. Tammany Sheriff’s Office seeking documents
relating to a work-release facility that had been privatized by former Sheriff Jack
Strain. 1 According to the article, among the documents sought were the calendars or
planners and personnel records of David Hanson, Sr., one of the plaintiffs who moved
to sever and stay his claims against Sheriff Smith. Id. Thus, “[w]ith a Grand Jury
Investigation occurring and the public’s interest in that investigation, extremely
high, Movants aver that the Motion to Sever and Stay should be unsealed.” (Rec. Doc.
70-1 at 3).
Plaintiffs argued in their original motion to seal that the common law right of
access was must give way to the specific prejudice Plaintiffs would suffer if the
content of the motion to sever and stay were to be revealed. (Rec. Doc. 52-1). In
opposition though, Plaintiffs do not attempt to argue that balancing weighs in their
favor. They argue first that any public interest in in the motion to sever is moot
because the plaintiffs who filed the motion have dismissed their claims. Second, they
argue that Movants improperly delayed in intervening and opposing the sealing the

See Sara Pagones, Grand Jury Serves Subpoena on St. Tammany Sheriff’s Office as
it Probes Jack Strain and Work-Release Program, THE ADVOCATE (Mar. 27, 2018,
532 PM),
https://www.theadvocate.com/new_orleans/news/communities/st_tammany/article_b
2e13b60-320e-11e8-a350-33a5f5e7bf7d.html.
1

3

motion to sever and stay. If they had timely done so, say Plaintiffs, Plaintiffs could
have taken advantage of Local Rule 5.6, which provides procedural requirements for
parties who request that documents or exhibits be filed under seal. In relevant part,
Local Rule 5.6(D) states:
If the motion to file under seal is denied, the movant may file another
motion to remove the document(s) from the record within seven days. If
no such motion is timely filed, the document(s) must be filed as a public
record.
Plaintiffs argue that, given the alleged newsworthiness of the case, intervenors must
have had notice of Plaintiff’s filings but did not timely intervene when the motion to
seal was pending. Plaintiffs argue that the Movants’ later intervention therefore
deprives them of a right they have under the local rules.
Movants argue that the opposition should be stricken from the record as
untimely. (Rec. Doc. 88-2). They point out that Local Rule 7.5 states that a
memorandum in opposition must be filed at least eight days in advance of a contested
motion’s submission date, which was October 10, 2018. Plaintiffs filed their
opposition on October 8, 2018—six days late.
DISCUSSION
The Court will not strike the opposition. Plaintiffs’ first argument is without
merit. The public’s right to access court filings does not end when a case is closed.
Rather, the end of litigation is often a condition upon which documents are unsealed.
See, e.g., United States v. Nix, 976 F. Supp. 417, 421 (S.D. Miss. 1997) (sealing
exhibits only as long as was necessary to protect rights of criminally accused). Nor

4

have the Plaintiffs explained why public interest in the content of the motion to sever
would diminish because some of the plaintiffs in this proceeding have voluntarily
dismissed their claims.
The Court rejects Plaintiffs’ second argument as well. Plaintiffs put forth no
authority supporting their assertion that the public right to access court documents
is forfeited because Movants failed to intervene within the seven-day grace period in
which the local rules afforded Plaintiffs to opportunity to withdraw the motion to be
sealed. That argument requires ranking a right granted to the public by the U.S.
Constitution below a procedural mechanism instituted by the Court for the
convenience of litigants; that is something the Court is obviously without power to
do.
Finally, upon actually balancing the purported prejudice to Plaintiffs with the
interest in the public in accessing the sealed motion, the Court concludes that the
motion must be unsealed.
CONCLUSION
Accordingly,
IT IS ORDERED that the Motion to Motion to Vacate Order (Rec. Doc. 70)
is GRANTED. The Clerk shall unseal the Motion to Sever and Stay Claims (Rec.
Doc. 67).
IT IS FURTHER ORDERED that Motion to Strike Plaintiffs’ opposition as
untimely (Rec. Doc. 88) is DENIED.

5

New Orleans, Louisiana, this 11th day of December, 2018.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

6