Equal Employment Opportunity Commission v. GMT, LLC

Filing 36

ORDER granting 24 Motion for Protective Order and denying 28 Motion for Reconsideration. The parties shall confer and attempt in good faith to stipulate to the terms of a protective order and submit the proposed order to this court by July 27, 2012 for approval. Absent an agreement by the parties, the court will enter a protective order consistent with the practices of this district. Ordered by Magistrate Judge Cheryl R. Zwart. (BHC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
8:11CV336
Plaintiff,
CHANDA LONG, BRITTANY BARRY,
KAYLA ROMSA, MURIEL BOWERY
and KIMBERLY JOHNSON,

MEMORANDUM AND ORDER

Plaintiff-Intervenors
vs.
GMT, LLC, d/b/a Miracle Hill Golf and
Tennis Center
Defendant.

This matter is before the court on the joint motion for a protective order filed by
Defendant GMT, LLC d/b/a Miracle Hill Golf and Tennis Center (“Miracle Hill”) and
Plaintiff-Intervenors Chandra Long, Brittany Barry, Kayla Romsa, Muriel Bowery and
Kimberly Johnson, (filing no. 24), and the motion for reconsideration, (filing no. 28),
filed by Plaintiff Equal Employment Opportunity Commission (“EEOC”).

For the

reasons set forth below, the joint motion of the Defendant and Plaintiff-Intervenors is
granted and the EEOC’s motion for reconsideration is denied.

FACTUAL BACKGROUND
The Equal Employment Opportunity Commission (“EEOC”) filed this lawsuit
against Miracle Hill on September 28, 2011. The EEOC alleges Miracle Hill engaged in
sexual harassment against the Plaintiff-Intervenors, and it seeks a judgment “to correct
unlawful employment practices on the basis of sex, and to provide appropriate relief to
Chanda Long, Brittany Barry, Kayla Romsa, Muriel Bowery and Kimberly Johnson, and
all similarly situated females who were adversely affected by such practices.” Filing No.

1, at CM/ECF p.1. The Plaintiff-Intervenors joined the lawsuit and filed their complaint
on April 3, 2012.

On May 18, 2012, each of the parties at least minimally participated in mediation.
Plaintiff-Intervenors and Miracle Hill reached an agreement and entered into a
Confidential Settlement Agreement and Release (the “Agreement”). The EEOC was not
a party to that settlement.

The EEOC served a discovery request upon Miracle Hill. Miracle Hill asserts the
Agreement is responsive to some of those requests, but it will not produce the Agreement
without a protective order. The EEOC objects to the entry of a protective order, asserting
that the Agreement is not relevant and the EEOC does not want to see or review it.

Miracle Hill and Plaintiff-Intervenors filed a joint motion for a protective order.
In support of their motion, they submitted a copy of the Agreement, but requested that the
court allow the Agreement and the supporting brief be filed under seal. Filing Nos. 23 &
24. The court granted the motion to seal. Filing No. 27.

In addition to opposing the

motion for protective order, the EEOC has requested that the court reconsider its decision
to seal the Agreement and brief in support of the motion for protective order.

LEGAL ANALYSIS

I..

Motion for Protective Order

A court will enter an order protecting a party from certain types of discovery only
upon a showing of good cause. See Fed. R. Civ. P. 26(c). The party seeking the
protective order bears the burden of demonstrating the existence of good cause for the
entry of such an order. See Miscellaneous Docket Matter No. 1 v. Miscellaneous Docket

2

Matter No. 2, 197 F.3d 922, 926 (8th Cir. 1999). A showing of “good cause” requires “a
particular and specific demonstration of fact, as distinguished from . . . conclusory
statements.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981) (quoting 8 C. Wright
& A. Miller, Federal Practice and Procedure § 2035, p. 265 (1970)); Miscellaneous
Docket Matter, 197 F.3d at 926. Thus, the parties seeking protection must show that
specific prejudice or harm will result if no protective order is granted. See Frideres v.
Schiltz, 150 F.R.D. 153, 156 (S.D.Iowa 1993).
A determination of whether “good cause” for a protective order exists “must also
include a consideration of the relative hardship to the non-moving party should the
protective order be granted.” General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204,
1212 (8th Cir.1973) (citing United States v. Kordel, 397 U.S. 1, 4-5 (1970)). The court
has broad discretion in determining whether a protective order is warranted and the
degree of protection required. Roberts v. Shawnee Mission Ford, Inc., 352 F.3d 358, 362
(8th Cir.2003). One accepted use of that discretion is the entry of protective orders to
maintain the secrecy of confidential settlement agreements. See Phillips ex rel. Estates of
Byrd v. General Motors Corp., 307 F.3d 1206, 1212 (9th Cir. 2002); deBarros v. Walmart
Stores, --- F. Supp. 2d ---, ---, 2012 WL 787239 *4 (D. Or. 2012; see also Daniels v.
Bursey, case no. 03c1550, 2006 WL 468015 *4 (N.D. Ill. Feb. 23, 2006)(strong public
policy favoring settlement of claims was “good cause” to issue protective order for a
confidential settlement agreement).

In this case, Miracle Hill and Plaintiff-Intervenors assert a protective order is
necessary because the Agreement is responsive to the EEOC’s discovery requests but the
terms of the Agreement require that it remain confidential.

The EEOC asserts a

protective order is not necessary because, despite having never seen the Agreement, the
EEOC knows the Agreement is not relevant and should not be produced at all.

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The EEOC’s argument is not well founded. The EEOC served discovery on
Miracle Hill and requested information and documents, including any documents or
information Miracle Hill intends to rely upon in its defense of the claims brought by the
EEOC. Miracle Hill identified the Agreement as one of the documents it may present as
a part of its defense. Having never seen the terms of the Agreement, the EEOC is not in
the position to argue that the Agreement is not relevant to Miracle Hill’s defense.
Moreover, the EEOC’s suggestion that any compensation or other recovery the PlaintiffIntervenors received as part of a settlement has no bearing at all on this case – one which
the EEOC is bringing on behalf of the Plaintiff-Intervenors – strikes the court as flawed.
The mere fact that the EEOC does not wish to see the Agreement does not make it
irrelevant or non-responsive to their discovery requests.

Miracle Hill and the Plaintiff-Intervenors have submitted the Agreement for an in
camera review, which the court has now completed. The very terms of the Agreement
demonstrate that Miracle Hill and Plaintiff-Intervenors will suffer specific harm if the
terms of the Agreement are not kept confidential, including the potential collapse or
nullification of the Agreement in its entirety. Thus, they have provided the necessary
“good cause” to demonstrate the need for a protective order. Conversely, the EEOC has
provided very little, if any, evidence that it will experience any hardship by entering a
protective order and keeping the terms of the Agreement confidential. Accordingly, the
court finds a protective order is an appropriate remedy to maintain the confidentiality of
the Agreement.

II.

Motion for Reconsideration

Plaintiff EEOC also asks the court to reconsider its order granting Miracle Hill and
Plaintiff-Intervenors permission to file their brief and evidence in support of their joint
motion for protective order (including the Agreement) under seal.
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A court has supervisory power over its own records, and the decision to seal a file
is within the court’s discretion.

See Webster Groves Sch. Dist. v. Pulitzer Publishing

Co., 898 F.2d 1371, 1376 (8th Cir. 1990). “The district court may in appropriate cases
seal documents or deposition testimony to ensure that they will be used only for judicial
purposes and will not be disseminated.” Schoffstall v. Henderson, 223 F.3d 818, 823
(8th Cir. 2000). Courts generally acknowledge two sources of the public’s right to access
documents filed with the Federal courts: (1) the First Amendment and (2) a common-law
right. However, these rights generally only apply to “judicial documents and records.”
See Stone v. University of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988).
Simply filing a document with the court does not convert it to a “judicial document.”
United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995). For instance, documents filed
with discovery motions are generally not considered “judicial documents” and are not
subject to the public right of access. Chicago Tribune Co. v. Bridgestone/Firestone, Inc.,
263 F.3d 1304, 1312 (11th Cir. 2001)(common-law right of access did not apply to
documents submitted in support of discovery motions). See also Stone, 855 F.2d at 18182 (noting the limitation of the First Amendment right to public access in civil cases to
documents submitted in support of a motion for summary judgment) .

The EEOC argues that the motion to seal should not have been granted for two
reasons. First, it argues that the First Amendment requires disclosure of documents filed
with the federal court absent a compelling government interest to keep the documents
under seal.

Second, the EEOC asserts that even if the First Amendment does not

mandate unsealing the documents, a common-law right to public access exists which also
weighs in favor of unsealing the Agreement. These arguments are premature.

The Agreement has been submitted by Defendants in support of a motion for
protective order. This is a non-dispositive discovery motion and the right of public

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access does not attach under either the First Amendment or the common-law right of
access.

Chicago Tribune Co., 263 F.3d at 1312 . As discussed above, Defendant has

shown good cause for withholding public access to the Agreement. At this stage in the
litigation, a good cause showing is sufficient justification for keeping the Agreement
under seal.1 See Id. (noting the public right to access standard of discovery materials is
identical to the “good cause” standard for issuing a protective order under Fed. R. Civ. P.
26(c)).
IT IS ORDERED:
1)

The motion for protective order filed by the Plaintiff-Intervenors and the
Defendant, (filing no. 24), is granted. The parties shall confer and attempt
in good faith to stipulate to the terms of a protective order and submit the
proposed order to this court by July 27, 2012 for approval. Absent an
agreement by the parties, the court will enter a protective order consistent
with the practices of this district.

2)

Plaintiff’s motion for reconsideration, (filing no. 28), is denied.

July 11, 2012.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S.
District Court for the District of Nebraska does not endorse, recommend, approve, or
guarantee any third parties or the services or products they provide on their Web sites.
Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the court.
1

Once a protective order is entered, a less restrictive method of filing, such as
“restricted access” may be appropriate.
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