Pemberton et al v. Republic Services, Inc. et al

Filing 80

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs' motions (Doc. Nos. 61 and 67 ) to unseal Plaintiffs' response (Doc. No. 62 ) and surreply (Doc. Nos. 68 and 72 ) to Defendants' motion to quash the subpoena directed at Pelopidas, LLC, is GRANTED with respect to the filings themselves and DENIED with respect to the exhibits attached to Doc. No. 62 . As such, Doc. Nos. 62 , 68 and 72 shall be unsealed, but the exhibits to Doc. No. 62 shall remain under seal. Signed by District Judge Audrey G. Fleissig on July 8, 2015. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

KIRBI PEMBERTON, et al.,
Plaintiffs,
vs.
REPUBLIC SERVICES, INC., ALLIED
SERVICES, LLC, and BRIDGETON
LANDFILL, LLC,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case No. 4:14CV01421 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ motions to unseal their response and
proposed surreply to Defendants’ motion to quash a subpoena directed by Plaintiffs to
Pelopidas, LLC., (“Pelopidas”), a non-party public relations company hired by
Defendants’ counsel. For the reasons set forth below, the motion to unseal shall be
granted with respect to the response and proposed surreply, but denied with respect to the
exhibits to the response.
BACKGROUND
Plaintiffs filed this putative class action against Defendants, asserting negligence
and nuisance arising out of the odor, pollution, and emissions allegedly emanating from a
landfill owned and operated by Defendants. On January 30, 2015, a stipulated protective
order was entered in the case providing that, among other things, confidential material
shall be used by any recipient solely for the purpose of conducting this litigation. The

subpoena served on Pelopidas sought the production of a wide array of material related to
the case. On March 27, 2015, Defendants moved for leave to file a motion to quash the
subpoena, and a memorandum in support, under seal. Defendants explained that they
believed that most of the material sought was protected from discovery as privileged
attorney-client communications and work product. On March 30, 2015, the Court
granted Defendants’ motion to file their motion and memorandum under seal, and the
motion and memorandum were thusly filed.
On April 10, 2015, Plaintiffs filed a “Notice” that they were filing their response
to Defendants’ motion to quash the Pelopidas subpoena under seal, but that they moved
to have the response unsealed. (Doc. No. 61.) On the same day, Plaintiffs filed under
seal the response with eight exhibits, including (redacted) emails that were related to the
subpoena. (Doc. No. 62.) On April 24, 2015, Defendants filed a similar Notice and
motion to unseal (Doc. No. 67) on May 1, 2015, with regard to a proposed surreply that
they filed that day under seal (Doc. Nos. 68 and 72) directed to Defendants’ motion to
quash.

In support of their motions to unseal their response and proposed surreply,

Plaintiffs argue that these filings do not reflect or contain any information subject to the
protective order, and that as Pelopidas regularly communicated with the media in the
course of its work with Defendants’ attorney, there was nothing confidential in the
communications between Defendants’ counsel and Pelopidas.
Defendants argue that Plaintiffs’ motions to unseal should be denied because they
do not comport with Local Rule 7-4.01, which requires a memorandum in support of any
motion. Defendants urge the Court not to revisit its previous ruling sealing filings related
2

to the motion to quash “describe and discuss attorney-client communications and work
product and should . . . be kept under seal.”
On June 23, 2015, the Court granted Defendants’ motion to quash Plaintiffs’
subpoena directed at Pelopidas. The Court concluded that although the materials sought
were not protected by the attorney client privilege, they were protected by the work
product doctrine.
DISCUSSION
“‘[The courts of this country recognize a general right to inspect and copy public
records and documents, including judicial records and documents.’ A party seeking
closure or sealing of court documents must show that a restriction of the right of public
access is necessitated by a compelling government interest.” S.E.C. v. Shanahan, No.
No. 4:06-MC-546 CAS, 2006 WL 3330972, at *3 (E.D. Mo. Nov. 15, 2006) (quoting In
re Neal, 461 F.3d 1048, 1053 (8th Cir.2006)). “[O]nly the most compelling reasons can
justify non-disclosure of judicial records.” In re Neal, 461 F.3d at 1053 (citation
omitted). “The presumption in favor of access places the burden on the party seeking to
maintain confidentiality to establish sufficient grounds for prohibiting public access to
the record.” LDM Grp., LLC v. Akers, 2013 WL 1316420, at *10 (E.D. Mo. Mar. 29,
2013) (citation omitted).
The Court has reviewed Plaintiffs’ response and surreply to the motion to quash
and concludes that Defendants have not made a sufficient showing that they need to be
kept under seal. Defendants have not pointed to any specific confidential information in
the filings, nor does the Court discern any. The exhibits attached to Plaintiffs’ response,
3

however, do appear to be confidential and shall remain under seal. The Court is not
revisiting its decision with respect to Defendants’ own filings related to the motion to
quash, beginning with the motion and memorandum in support. But the two filings now
in question need not remain under seal.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ motions (Doc. Nos. 61 and 67) to
unseal Plaintiffs’ response (Doc. No. 62) and surreply (Doc. Nos. 68 and 72) to
Defendants’ motion to quash the subpoena directed at Pelopidas, LLC, is GRANTED
with respect to the filings themselves and DENIED with respect to the exhibits attached
to Doc. No. 62. As such, Doc. Nos. 62, 68 and 72 shall be unsealed, but the exhibits to
Doc. No. 62 shall remain under seal.

________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 8th day of July, 2015.

4