LONG v. FAIRBANK FARMS INC et al
Filing
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AMENDED ORDER ON GOPACS REQUEST FOR REDACTIONS OF DECISION By MAGISTRATE JUDGE JOHN H. RICH III. (lrc)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MARGARET LONG,
Plaintiff
v.
FAIRBANK FARMS, INC., et al.,
Defendants and
Third-Party Plaintiffs
v.
GREATER OMAHA PACKING
COMPANY, INC.,
Third-Party Defendant
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No. 1:09-cv-592-GZS
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ALICE SMITH,
Plaintiff
v.
FAIRBANK FARMS, INC., et al.,
Defendants and
Third-Party Plaintiffs
v.
GREATER OMAHA PACKING
COMPANY, INC.,
Third-Party Defendant
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No. 2:10-cv-60-GZS
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AMENDED ORDER ON GOPAC’S REQUEST FOR REDACTIONS OF DECISION1
On May 31, 2011, I issued a Memorandum Decision on Motion To Exclude and
Recommended Decision on Motions for Summary Judgment (“Decision”) (Docket No. 209, Long;
Docket No. 182, Smith) in which I directed the Clerk of the Court to seal the Decision and the parties
to notify me by noon on Friday, June 3, 2011, whether the Decision contained any confidential
information that should remain sealed. If so, I instructed the parties to indicate explicitly what
language was proposed to be redacted, with due regard to the public‟s interest in access to court
proceedings.
Third-party defendant Greater Omaha Packing Company, Inc. (“GOPAC”) requested that, if
the entire order were not sealed, portions pertaining to (i) non-party Culver City Meat Packing
Company (“Culver City”) and (ii) certain deposition testimony of one of GOPAC‟s experts, Gerald
Zirnstein, Ph.D., be redacted as shown in an exemplar that GOPAC attached to its request. See
Docket Nos. 210, 210-1, Long; Docket Nos. 183, 183-1, Smith. The Fairbank Farms, Inc. third-party
plaintiffs (collectively, “Fairbank”) filed a response opposing any sealing or redaction of the
Decision. See Docket No. 216, Long; Docket No. 187, Smith.
GOPAC sought the proposed redactions primarily on the basis of concerns that the public,
without legal training, would not understand the dynamic that the court on summary judgment is
constrained to view the facts in the light most favorable to the nonmoving party, as a result of which
GOPAC‟s and Culver City‟s businesses could be significantly impacted by an unfair association of
their products with E. coli O157:H7 and the outbreak of illness. See Docket No. 210, Long, at 2;
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This amended order substitutes the word “unsealed” for the word “redacted” in the final sentence. No other change is
made.
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Docket No. 183, Smith at 2. GOPAC reasoned that because the facts of the matter continue in
dispute, this information should continue to be protected from disclosure until presented to a jury.
See id. GOPAC also noted that (i) at the request of Culver City, a customer of GOPAC that is not a
party to this action, GOPAC‟s counsel had designated references to Culver City as
“CONFIDENTIAL” pursuant to the confidentiality orders entered in these cases, and (ii) Dr.
Zirnstein‟s testimony contains information that has been recognized by the United States Department
of Agriculture (“USDA”) as confidential pursuant to exceptions to the Freedom of Information Act
(“FOIA”) that protect sensitive and confidential information. See id. GOPAC requested that this
court apply the same standards used by the USDA pursuant to the FOIA. See id. at 2-3.
Fairbank argued that (i) FOIA standards are inapposite, (ii) redaction of court decisions
requires compelling justification, and (iii) GOPAC offers no such justification, relying instead on
fears of public embarrassment and a purported interest in shielding non-party Culver City even
though Culver City is both an innocent purchaser and was fully capable of seeking redaction of the
Decision had it wished to do so. See Docket No. 216, Long, at 2-3; Docket No. 187, Smith at 2-3
(quoting, inter alia, Union Oil Co. of Cal. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000) (“What
happens in the halls of government is presumptively public business. Judges deliberate in private but
issue public decisions after public arguments based on public records. The political branches of
government claim legitimacy by election, judges by reason. Any step that withdraws an element of
the judicial process from public view makes the ensuing decision look more like fiat, which requires
compelling justification”).
After careful review of the parties‟ papers, I REJECT all of the redactions proposed by
GOPAC. Fairbank is correct that FOIA standards are inapposite. “Under the common law, there is a
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long-standing presumption of public access to judicial records.” In re Gitto Global Corp., 422 F.3d
1, 6 (1st Cir. 2005). “This presumption of access helps safeguard the integrity, quality, and respect in
our judicial system, and permits the public to keep a watchful eye on the workings of public
agencies.” Id. (citation and internal quotation marks omitted).
The right of public access to judicial records is not absolute, and “it is within a court‟s
discretion to curtail” it, for example, “to prevent judicial records from being used to gratify private
spite or promote public scandal, or to prevent [such] records from becoming reservoirs of libelous
statements for press consumption or sources of business information that might harm a litigant‟s
competitive standing.” Id. (citations and internal punctuation omitted). Still, “only the most
compelling reasons can justify non-disclosure of judicial records.” Id. (citation and internal
punctuation omitted). See also, e.g., Panse v. Shah, 201 Fed. Appx. 3, 3 (1st Cir. 2006) (“Sealing is
disfavored as contrary to the presumption of public access to judicial records of civil proceedings. It
is justified only for compelling reasons and with careful balancing of competing interests.”)
(citations omitted).
The “compelling reasons” standard applies with equal force to summary judgment opinions
as to trials. See, e.g., Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)
(“[T]he resolution of a dispute on the merits, whether by trial or summary judgment, is at the heart of
the interest in ensuring the public‟s understanding of the judicial process and of significant public
events. Thus, „compelling reasons‟ must be shown to seal judicial records attached to a dispositive
motion.”) (citations and internal quotation marks omitted).
GOPAC offers no compelling reasons for the proposed redactions. At heart, it identifies
concerns potentially faced by all litigants – that its business as well as that of its non-party customer,
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Culver City, could be cast in an unfair negative light and, accordingly, harmed as a result of public
misunderstanding of the summary judgment process. Yet, “[t]he mere fact that the production of
records may lead to a litigant‟s embarrassment, incrimination, or exposure to further litigation will
not, without more, compel the court to seal its records.” Id.
Consistent with this order, an unsealed version of the Decision shall be made publicly
available on the Court‟s docket forthwith.
SO ORDERED.
NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file an
objection to this order within fourteen (14) days after being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right to review by the
district court and to appeal the district court’s order.
Dated this 22nd day of June, 2011.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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