Grisham v. Banks et al

Filing 62

ORDER granting 57 Motion to Seal affidavits and the Youth Court File under seal as summary judgment exhibits for access only by the Court and counsel of record.. Signed by District Judge Debra M. Brown on 1/23/17. (tab)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
BG, III, a minor, by and through
his next friend and special guardian,
Marion E. Grantham, Jr.

PLAINTIFF

V.

NO. 4:16-CV-64-DMB-JMV

ROB BANKS, BRAD CARVER,
JERRY CARVER, LEE TAYLOR, and
CARROLL COUNTY

DEFENDANTS

ORDER GRANTING MOTION TO SEAL
On January 6, 2017, the defendants filed a motion, along with a supporting memorandum,
seeking leave to file summary judgment exhibits under seal for review only by the Court and
counsel.1 Doc. #57; Doc. #58. For the reasons explained below, the motion will be granted.
I
Applicable Law
Rule 79 of the Uniform Local Rules provides that no document may be filed under seal
without a court order. L.U. Civ. R. 79(b). In this regard, Rule 79 instructs that “[n]o document may
be sealed merely by stipulation of the parties.” Id. at 79(d). Though “[a] confidentiality order or
protective order entered by the court to govern discovery will not qualify as an order to seal
documents for purposes of this rule,” “[a] statute mandating or permitting the non-disclosure of a
class of documents provides sufficient authority to support an order sealing documents.” Id. at
79(d), (b).
There is a “presumption in favor of the public’s access to judicial records,” and the decision
1

The defendants filed an initial motion for leave to file summary judgment exhibits under seal on December 21, 2016.
On December 29, 2016, the Court denied the motion without prejudice for noncompliance with local rule requirements
but granted the defendants until January 6, 2017, to file a new motion to seal. This new motion is titled, “Addendum to
Motion to File Summary Judgment Exhibits Under Seal for Limited Review by Court and Counsel.”

whether to order judicial records sealed is committed to the sound discretion of the district court,
which must “balance the public’s common-law right of access against the interests favoring
nondisclosure.” SEC v. Van Waeyenberghe, 990 F.2d 845, 848–49 (5th Cir. 1993); accord, Test
Masters Educ. Servs. v. Robin Singh Educ. Servs., 799 F.3d 437, 454 (5th Cir. 2015); Casa Orlando
Apartments, Ltd. v. Fed. Nat’l Mortgage Ass’n, 624 F.3d 185, 201 & n.70 (5th Cir. 2010). Where, as
here, the documents sought to be sealed are exhibits to a dispositive motion, the weight afforded to
the public’s common law right of access is necessarily greater. United States v. Amodeo, 71 F.3d
1044, 1049 (2d Cir. 1995) (“[T]he weight to be given the presumption of access must be governed by
the role of the material at issue in the exercise of Article III judicial power and the resultant value of
such information to those monitoring the federal courts.”); Chicago Tribune Co. v.
Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312 & n.11 (11th Cir. 2001) (collecting circuit cases)
(“The better rule is that material filed with discovery motions is not subject to the common-law right
of access, whereas discovery material filed in connection with pretrial motions that require judicial
resolution of the merits is subject to the common-law right ….”).
II
Analysis
The defendants seek to seal seven exhibits, described as six affidavits and a “Youth Court
File.” Doc. #58 at 2. As described, the affidavits “all reference the contents of the Youth Court file”
and “directly relate to [BG III’s] youth court record, and the actions the individuals took regarding
the criminal allegations.”2 Id. The motion seeks permanent and whole sealing—that is, the sealing
of the entirety of each exhibit for an indeterminate time instead of partial redaction.

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Items sought to be sealed may be filed under temporary seal for the Court’s review in deciding the sealing motion. L.U.
Civ. R. 79(e)(2). Such did not happen in this case. However, the motion provides some description of the exhibits. The
Youth Court file concerns BG III, and the affiants are identified as “Officer Jerry Carver, Officer Brad Carver, Officer
Rob Banks, Officer Lee Taylor, County Prosecutor Lori Bell, and Youth Court Judge Edward Fenwick.” Doc. #58 at 2.

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A. Relevant Authority
As grounds for the requested sealing, the defendants cite “Rule 5 of the Uniform Rules of
Youth Court in Mississippi,” which, according to the motion, states that “[r]ecords involving
children … shall not be disclosed except as authorized.” Id. at 4. Though not cited by the
defendants, a Mississippi statute provides substantially the same protection. But for exceptions not
relevant here, Miss. Code Ann. § 43-21-251(2) states that “[t]he records of the youth court and the
contents thereof shall be kept confidential and shall not be disclosed.” Because BG III’s youth court
records are sought to be sealed and because the affidavits reference its contents, sufficient authority
to seal the documents under Local Rule 79 is provided by both Mississippi rule and statute.
B. Balancing
Next, the Court must “balance the public’s common-law right of access against the interests
favoring nondisclosure.” In this regard, the defendants make two arguments: (1) that an order
denying whole and permanent sealing of the exhibits at issue would be inconsistent with Magistrate
Judge Jane M. Virden’s protective order governing discovery; and (2) that “due to the Plaintiff’s
status as a minor, he is owed additional protections (unlike adults) from having the public review”
the summary judgment exhibits.
1.

Interests favoring nondisclosure

Judge Virden’s July 1, 2016, protective order states:
The parties shall file a motion to seal before this Court prior to filing any part of
Plaintiff’s Youth Court file they obtain, pursuant to L.U.Civ.R. 79. The parties may
only file a portion of Plaintiff’s Youth Court file after this Court has granted and
entered an Order permitting the parties to file certain portions of the Carroll County
Youth Court file under seal…. The parties may not otherwise file any portion of
Plaintiff’s Carroll County Youth Court file in this action.
Doc. #36 at ¶ 5. Although the defendants credibly contend that “[d]iscovery takes place so that the
parties may gather evidence to pursue their party’s interests at trial,” Doc. #58 at 4, discovery also

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allows the parties the opportunity to evaluate whether to go to trial. It is therefore consistent with the
purpose of discovery to exchange material under a protective order which may later be excluded
from trial or the Court’s docket. Though denying the motion to seal but permitting leave to file
documents with redaction would implicitly modify the July 1, 2016, protective order, such alone
does not require that the defendants’ sealing motion be granted.
Regarding BG III’s status as a minor, the defendants argue:
Undeniably, especially in this digital age, if made public, these records could easily
be found and “follow” the youth into adulthood. If released, these alleged juvenile
violations could taint the youth in adulthood and unnecessarily prevent BGIII, (as a
reformed adult) from obtaining employment and other opportunities due to the fact
that the youth has been “branded” as a criminal. It would be unfair ….
Id. at 6. The Court agrees. Public disclosure of the summary judgment exhibits could possibly have
a negative effect on BG III as an adult, particularly his employment opportunities—a significant
interest. This concern is heightened due to the easier access to and transmission of information in
today’s digital age.3 As such, it would be unfair to BG III to disclose to the public the summary
judgment exhibits.
2.

Public’s common law right of access

Next, the Court must consider the public’s interest in the disclosure of the information sought
to be sealed. The public’s interest as a matter of law includes “promot[ing] trustworthiness of the
judicial process.” Van Waeyenberghe, 990 F.2d at 849 (quoting Littlejohn v. Bic Corp., 851 F.2d 673,
682 (3d Cir. 1988)). Though “the public’s interest in access to court records ‘is particularly
legitimate and important where, as in this case, at least one of the parties to the action is a public
entity or official,’” Jaufre ex rel. Jaufre v. Taylor, 351 F. Supp. 2d 514, 517 (E.D. La. 2005) (citation
omitted); the public’s right “is not absolute,” Van Waeyenberghe, 990 F.2d at 848. In this regard, the
3

Relevant to this concern, the Uniform Local Rules were recently amended to permit a motion requesting to seal exhibits
“only from public access in CM/ECF, but [not from] public viewing at one or more terminals located within the Clerk’s
office.” L.U. Civ. R. 79(e)(3)(B)(3).

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defendants argue that “[g]iven the fact that most delinquent juveniles can be reformed, the best
interests of BGIII trump the public’s interest in viewing the confidential records.” Doc. #58 at 7.
3.

Findings

Here, the interests favoring nondisclosure outweigh the public’s common law right to access
judicial records. See Jaufre ex rel. Jaufre, 351 F. Supp. at 516 (“Courts have recognized that the
privacy of children may constitute a compelling interest that outweighs the presumption in favor of
public access.”). While the “best interests” of a minor child may not always outweigh the public’s
right, this case does not appear to pose any particular risk of calling into question the trustworthiness
of the judicial process, and the weight assigned to BG III’s interest in fairness is necessarily greater
for the reasons discussed above.
The only remaining question then is whether whole and permanent sealing of the exhibits is
justified. The motion to seal does not address this question specifically. Accordingly, the Court,
upon review of the sealed exhibits once filed, may order an alternative to sealing, such as partial
redaction. However, whole and permanent sealing may be justified for two reasons. First, as
explained above, BG III’s interest in fairness may extend throughout his life. Second, the conduct
giving rise to the Youth Court matters was the subject of some local media attention that named a
suspect by his age and the school he attended. Doc. #59-3. Consequently, it is reasonably possible
that BG III’s identity may be discerned from partially redacted versions of the exhibits, which would
be unfair to BG III.
III
Conclusion
For the reasons above, the defendants’ motion to seal [57] is GRANTED. The defendants
may file the referenced affidavits and the Youth Court File under seal as summary judgment

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exhibits4 for access only by the Court and counsel of record.5
SO ORDERED, this 23rd day of January, 2017.
/s/ Debra M. Brown
.
UNITED STATES DISTRICT JUDGE

4

Because the summary judgment motion has been fully briefed, the defendants’ filing of summary judgment exhibits
pursuant to this order does not authorize any additional filings relevant to the summary judgment motion beyond that
allowed by this order.
5

The defendants should file only those portions of the youth court records that are directly pertinent to the summary
judgment issues. If they fail to do so, the Court, after reviewing the sealed exhibits once filed, may order additional
actions by the defendants as an alternative to sealing the entirety of the exhibits, including partial redaction or the refiling of the youth court file with only those portions cited in the summary judgment briefs.

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