Armstrong v. Hy-Vee, Inc. et al

Filing 73

ORDER - The plaintiff's Unopposed Motion to Restrict Access (filing 69 ) is granted. The Clerk of the Court is directed to modify the docket entries for filing 70 , filing 71 , and filing 72 , in order to restrict access to those filings to case participants. Ordered by Judge John M. Gerrard. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JACQUE ARMSTRONG,
Plaintiff,

4:15-CV-3085

vs.
ORDER
HY-VEE, INC.,
Defendant.
This matter is before the Court on the plaintiff's Unopposed Motion to
Restrict Access (filing 69). The plaintiff's motion will be granted.
This Court's procedure for restricting access to unredacted documents
is set forth in NECivR 5.3(c): A party seeking to file an unredacted document
must electronically file a motion to restrict access to the document. NECivR
5.3(c)(1)(A). That motion should explain why restricting access to the
document is necessary. See id. At the same time, the document to which the
party seeks to restrict access should be filed separately as a restricted
document. NECivR 5.3(c)(1)(B). The document remains provisionally
restricted pending the ruling on the motion to restrict. Id. Then, among other
things, the Court may grant the motion to restrict, or deny the motion and
direct the Clerk of the Court to lift the provisional restriction. Id.; see also
NECivR 5.3(c)(2).
In this case, that procedure has been honored mostly in the breach:
both parties, for instance, have filed "restricted" documents without the
provisional restriction, requiring the Court to modify the docket entries for
their filings in order to restrict them. See, filing 60; filing 61; filing 66; filing
67. And in this instance, in addition, the plaintiff's motion to restrict (filing
69) was filed several days before the documents to be restricted.
The reason for requiring a document to be filed under restriction at the
same time as the motion to restrict is fairly self-evident: how can the Court
determine whether the restriction is warranted without being able to review
the document? Motions to seal or restrict access are characteristically
granted, but not always, because under the common law, judicial records and
documents have been historically considered to be open to inspection by the
public. In re Search Warrant for Secretarial Area Outside Office of Gunn, 855
F.2d 569, 573 (8th Cir. 1988); see also Nixon v. Warner Commc'ns, 435 U.S.
589, 597 (1978). There is a common-law presumption in favor of public access

to judicial records, based in sound public policy considerations. See United
States v. McDougal, 103 F.3d 651, 657 (8th Cir. 1996); see also, Nixon, 435
U.S. at 597-98; Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572
(1980); IDT Corp. v. eBay, 709 F.3d 1220, 1222 (8th Cir. 2013); Webster
Groves Sch. Dist. v. Pulitzer Publ'g Co., 898 F.2d 1371, 1376 (8th Cir. 1990);
United States v. Webbe, 791 F.2d 103, 106 (8th Cir. 1986). But court records
are often sealed for good reason. See Doe v. Blue Cross & Blue Shield United
of Wisc., 112 F.3d 869, 872 (7th Cir. 1997). So, in each instance when
restricted access is requested, the Court must consider the degree to which
sealing a judicial record would interfere with the interests served by the
common-law right of access, and balance that interference against the
interests served by maintaining confidentiality of the information sought to
be sealed. IDT Corp., 709 F.3d at 1222.
Although restricting access to documents at the request of the parties is
generally routine, the Court cannot perform its obligation in considering such
requests unless it can review the documents. And a party's failure to
provisionally restrict such documents when they are filed risks disclosing
confidential information during the time between the filing of the document
and the Court's attention being drawn to the party's oversight. Accordingly,
the parties are advised, for future reference, to more carefully observe the
requirements of NECivR 5.3(c)(1).
IT IS ORDERED:
1.

The plaintiff's Unopposed Motion to Restrict Access (filing
69) is granted.

2.

The Clerk of the Court is directed to modify the docket
entries for filing 70, filing 71, and filing 72, in order to
restrict access to those filings to case participants.

Dated this 21st day of December, 2016.
BY THE COURT:

John M. Gerrard
United States District Judge

-2-