UNITED STATES OF AMERICA v. QUICKEN LOANS INC.

Filing 396

OPINION & ORDER (1) Overruling Defendant's Blanket Objections to Unsealing Documents (Dkt. 370 ) and (2) Setting Procedure for Parties to Follow to Move to Maintain Documents Under Seal or Redacted. Signed by District Judge Mark A. Goldsmith. (KSan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,

Case No. 16-14050
Hon. Mark A. Goldsmith

vs.
QUICKEN LOANS INC.,
Defendant.
_______________________________/
OPINION & ORDER
(1) OVERRULING DEFENDANT’S BLANKET OBJECTIONS TO UNSEALING
DOCUMENTS (Dkt. 370) AND (2) SETTING PROCEDURE FOR PARTIES TO
FOLLOW TO MOVE TO MAINTAIN DOCUMENTS UNDER SEAL OR REDACTED
Although this case was dismissed pursuant to a settlement reached by the parties some two
years ago, an issue has arisen regarding the sealing of documents. In February 2019, Plaintiff the
United States of America and Defendant Quicken Loans Inc. filed cross motions for summary
judgment (Dkts. 175–177). The briefing and exhibits filed in connection with the motions were
placed provisionally under seal. See Dkts. 176–186, 188–288, 292–347, and 350–355. Originally,
the parties stipulated that the provisional seal would expire on May 15, 2019 (Dkt. 357). In an
order entered on June 3, 2019, the expiration date was later extended to June 18, 2019 (Dkt. 362).
Before the Court made any decision as to the motions for summary judgment, the parties reached
a settlement. Pursuant to a Federal Rule of Civil Procedure 41(a) stipulation, the Court dismissed
the case with prejudice on June 14, 2019 (Dkt. 363).
On December 21, 2020, the Court issued an order informing the parties that the Court
planned to unseal Dkts. 176–186, 188–288, 292–347, and 350–355 pursuant to the June 3, 2019
order unless objections were filed (Dkt. 364). Quicken filed a blanket objection to unsealing these

documents, arguing, primarily, that (i) the Court lacks jurisdiction to “reopen the case and
adjudicate sealing issues” and (ii) strong private interests and the absence of a public interest in
the sealed documents support maintaining the documents entirely under seal (Dkt. 370). The
Government filed a response to the Court’s order (i) stating that the Government opposes
Quicken’s blanket objections to unsealing the documents and (ii) requesting that the Court permit
the parties an opportunity to identify and move to seal particular documents, or portions thereof,
with the specific analysis and supporting materials required by Local Rule 5.3 (Dkt. 369).
Two non-parties, Gwen Thrower and Malou Tutanes-Luster, filed motions for leave to file
amicus briefs in response to the Court’s order (Dkts. 373, 375), which were granted (Dkt. 390).
The amici argue that the Court should overrule Quicken’s blanket objections to unsealing the
documents (Dkts. 391, 392). Thrower also requests that, should the Court permit redacted
documents to be filed under seal, the Government’s proposed process should be modified to permit
Thrower’s counsel to review the sealed documents “to help check that all appropriate documents
are being unsealed.” Thrower Amicus Brief at 10.
Having considered the parties’ briefing on the matter, the Court overrules Quicken’s
blanket objections to unsealing the documents.

Quicken is mistaken that the Court lacks

jurisdiction to unseal the subject documents. A federal district court, pursuant to its supervisory
power over its own records and files, has jurisdiction to issue an order unsealing summary
judgment documents that were previously temporarily sealed, even where the unsealing order
follows the parties’ stipulation of dismissal pursuant to a settlement. See Gambale v. Deutsche
Bank AG, 377 F.3d 133, 141 (2d Cir. 2004).
Quicken is also mistaken that it has provided the Court with sufficient information such
that the Court could determine the appropriateness of keeping the subject documents under seal at

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this juncture. A district court that chooses to seal court records must set forth specific findings
and conclusions that justify nondisclosure to the public. Shane Grp., Inc. v. Blue Cross Blue Shield
of Mich., 825 F.3d 299, 306 (6th Cir. 2016). This means that, prior to sealing court records, the
district court must balance the competing private and public interests, determine that the interests
in support of nondisclosure are compelling and the interests supporting access are less so, and
determine that the seal itself is no broader than necessary. Id.
Quicken is correct in arguing that courts have found no, or at least little, public interest in
the public’s access to sealed documents that a court never relied on in reaching any decision. In
re Davol, Inc./C.R. Bard., Inc., Polypropylene Hernia Mesha Prods. Liability Litig., Case No. 2:18md-2846, Case No. 2:18-cv-1509, 2021 WL 81821, at *9 (S.D. Ohio Jan. 11, 2021) (finding that
the public had no interest in the content of exhibits that the court did not rely on in ruling on a
motion in limine); Elliott v. Genovese, No. 3:17-cv-00250, 2019 WL 144185, at *4 (M.D. Tenn.
Jan. 9, 2019) (finding no public interest in an exhibit attached to Rule 60 motion because the court
did not rely on information contained in this exhibit in deciding the motion); see also Brown &
Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1181 (6th Cir. 1983) (“The public has an
interest in ascertaining what evidence and records the District Court . . . ha[s] relied upon in
reaching [its] decisions.”). Quicken has also identified private interests that would at least
arguably justify nondisclosure to the public. See Quicken Objs. at 14–20 (arguing that the subject
documents contain confidential information of third parties and Quicken’s confidential business
information); Shane,  825 F.3d at 308 (stating that “trade secrets” and private information about
“innocent third parties” can justify nondisclosure to the public).

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However, Quicken has not shown that a court can ignore the mandate in Shane to conduct
a document-by-document review and balance these interests. Even when sealing issues have been
addressed regarding documents not relied on by a court in making its decision, a document-specific
review has been ordered to determine whether a less restrictive approach, such as redaction, would
be possible. IDT Corp. v. eBay, 709 F.3d 1220, 1224 (8th Cir. 2013) (vacating a district court’s
order denying a motion to unseal a document where the record did not provide sufficient
information to determine that the private interests could only be protected by keeping the entire
document under seal rather than redacting certain portions).
Because a seal should not be broader than necessary, the Court must perform the granular
exercise of balancing interests required by Shane. The parties seeking sealing must “analyze in
detail, document by document, the propriety of secrecy, providing reasons and legal citations.”
Shane, 825 F.3d at 305–306 (punctuation modified).
To accomplish this, the Court grants the parties—i.e., the United States and Quicken—
leave to file motions regarding documents that they believe should be maintained under seal or
refiled with redactions within 60 days of the date of this opinion and order. The parties should
meet and confer regarding the documents or excerpts that they believed should remain under seal
or redacted. If an agreement regarding the documents is reached, the parties should file a joint
motion. If not, the parties should file separate motions. Any motion filed should cite to the specific
docket numbers and PageIDs of the material that the parties believe should remain completely
under seal or redacted. As to documents that the parties believe should be redacted, the parties
should submit the proposed redacted version of these documents via the utilities function. The
parties need not submit any document that they believe should remain completely under seal. The

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parties are free to propose an alternative method within 14 days of the date of this opinion and
order if they believe that there is a more efficient way to present items for the Court’s review.
The amici and their counsel are not entitled to participate in the process of reviewing
documents. Allowing outside parties to see material that may ultimately remain under seal would
circumvent the purpose of keeping this material out of the public’s view. Further, amici’s
counsel’s review of the sealed documents is not necessary to ensure that all appropriate documents
are unsealed. The Court will perform this oversight function. Nonetheless, each amicus may file
a memorandum, not exceeding ten pages, to express any views, not later than 14 days following
the completion of the parties’ briefing.
SO ORDERED.
Dated: June 23, 2021
Detroit, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge

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