NorCal Tea Party Patriots v. Internal Revenue Service et al

Filing 455

ORDER granting in part and denying in part 340 Plaintiffs Americans Against Oppressive Laws, Inc., NorCal Tea Party Patriots, San Angelo Tea Party, South Dakota Citizens for Liberty, Inc., Texas Patriots Tea Partys Motion to Unseal Court Filing s and Open the May 19, 2017 Hearing to the Public; granting in part and denying in part 386 Interested Party the Cincinnati Enquirer's Motion to Unseal; granting in part and denying in part 392 Defendants Lois Lerner and Holly Paz's Motion to Seal; granting in part and denying in part 393 The Cincinnati Enquirer's Expedited Motion to Unseal Documents 331, 332, 333, 334, and 344; Defendants Lois Lerner and Holly Paz shall file copies of the briefing on their Motion for Pr otective Order with redactions to the sensitive and personal information included in those briefs, including references to their supporting declarations and exhibits documenting the harassment and death threats they and their families have faced with in ninety (90) days of entry of this Order; Defendants Lois Lerner and Holly Paz shall file copies of the following documents with redactions to the names of their family members or personal friends, any home addresses or any other personal identifie rs within ninety (90) days of entry of this Order: (1) Holly Paz Merits Deposition, Exhibit 43 in 355 Support of United States' Motion for Summary Judgment (Doc. 355-17); (2) Lois Lerner Merits Deposition, Exhibit 44 in Support of 355 United States' Motion for Summary Judgment (Doc. 355-18); and (3) 357 United States' Statement of Proposed Undisputed Material Facts In Support of Its Motion for Summary Judgment on Class Action Claim; Plaintiffs are permitted to file a redacte d version of 375 Plaintiffs' Memorandum in Opposition to Motion for Summary Judgment; a redacted version of Plaintiffs' Statement of Material Facts and Response to IRS's Statement of Proposed Undisputed Facts (Doc. 375-1); and a reda cted version of Holly Paz Class Certification Deposition, Exhibit 54 in Opposition to United States Motion for Summary Judgment (Doc. 375-7) which exclude references to the names of Lerner and Paz's family members or personal friends, any home a ddresses, or any other personal identifiers; and Plaintiffs are permitted to file an unsealed version of Exhibit 104 to Plaintiffs' Opposition to United States' Motion for Summary Judgment (Doc. 375-5). Signed by Judge Michael R. Barrett on 5/3/2022. (kkz)

Case: 1:13-cv-00341-MRB Doc #: 455 Filed: 05/03/22 Page: 1 of 15 PAGEID #: 20114

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
NorCal Tea Party Patriots, et al.,
Plaintiffs,

Case No. 1:13cv341

v.

Judge Michael R. Barrett

Internal Revenue Service, et al.,
Defendants.
OPINION & ORDER
This matter is before the Court on the following four motions: (1) Motion to
Unseal Court Filings and Open the May 19, 2017 Hearing to the Public filed by Plaintiffs
Americans Against Oppressive Laws, Inc., NorCal Tea Party Patriots, San Angelo Tea
Party, South Dakota Citizens for Liberty, Inc., and Texas Patriots Tea Party (Doc. 340);
(2) Motion to Unseal filed by Interested Party The Cincinnati Enquirer (Doc. 386); (3)
Motion to Seal filed by Defendants Lois Lerner and Holly Paz (Doc. 392); and (4)
Expedited Motion to Unseal Documents 331, 332, 333, 334, and 344 (Doc. 393) filed by
The Cincinnati Enquirer. These motions have been full briefed. (Docs. 395, 398, 399,
401, 404, 405, 406, 449, 453). The Court also permitted amicus curiae briefs to be filed
by the State of Ohio and Judicial Watch, Inc. (Docs. 427, 428). In addition, the Court
held a hearing on the motions. (Doc. 432).
I. BACKGROUND
To provide some factual background, the Court references its earlier order
granting Plaintiff Texas Patriots Tea Party’s Motion for Preliminary Injunction:

Case: 1:13-cv-00341-MRB Doc #: 455 Filed: 05/03/22 Page: 2 of 15 PAGEID #: 20115

Plaintiff Texas Patriots Tea Party (“TPTP”) joined with nine other selfdescribed “dissenting groups”—groups that oppose the policies of the
current presidential administration—to file suit against the Government for
violating their statutory and constitutional rights in the processing of their
applications for tax exemption. Plaintiffs allege that the Internal Revenue
Service (“IRS”) subjected their applications to heightened scrutiny and
unnecessary delays because of the groups’ political viewpoints,
specifically because their group names included terms such as “Tea
Party,” “Patriots,” or “9/12 Project” or because their group focuses
included issues such as government spending.
...
The allegations that underlie this lawsuit—allegations that the IRS
discriminated against dissenting groups when processing their application
for tax-exempt status based on the groups’ political viewpoints—were the
subject of investigations by the Treasury Inspector General for Tax
Administration (“TIGTA”), the Senate Finance Committee, and the Senate
Permanent Subcommittee on Investigations for the Committee on
Homeland Security and Governmental Affairs (“Senate PSI”). TIGTA
issued its initial report on May 14, 2013 and a supplemental report on
March 27, 2015. (Docs. 71-1, 244-7.) The Senate Finance Committee
issued its report on August 5, 2015. (Doc. 197-5.) The Senate PSI issued
its report on September 5, 2014. (Doc. 197-3.)
(Doc. 297, PAGEID 9893-95). Plaintiffs brought their claims on behalf of a class of all
dissenting groups who applied for tax-exempt status and were targeted for special
scrutiny. (Doc. 114, PAGEID 2049, ¶ 256).
The involvement of IRS employees Lerner and Paz has been detailed elsewhere,
including Plaintiffs’ 272-paragraph Second Amended Class Action Complaint (Doc.
114), and therefore the same will not be repeated here.
Since the filing of this case in 2013, Lerner and Paz have been the subject of
hate-filled online comments, harassed outside their homes, and received death threats
via telephone messages, emails and letters. (Doc. 331, PAGEID 11009–11012; Doc.
332, Lois Lerner Decl.; Doc. 333, Michael Miles Decl.; Doc. 334, Holly Paz Decl.).
These threats have also extended to members of their families. Paz’s children were
2

Case: 1:13-cv-00341-MRB Doc #: 455 Filed: 05/03/22 Page: 3 of 15 PAGEID #: 20116

forced to hide in their rooms when a man tried to forcibly enter her home. (Doc. 334,
PAGEID 11051). On another occasion, a stranger followed Paz’s son home from the
bus stop after school.

(Id.)

For over a year, Lerner’s husband received multiple

threatening emails at work. (Doc. 333, PAGEID 11024-11026). Lerner’s 89-year-old
mother-in-law also received a threatening letter. (Id., PAGEID 11027).
For that reason, Lerner and Paz filed a Motion for Protective Order seeking to
have their depositions prospectively placed under seal before their depositions were
taken. (Doc. 330). In addition, Lerner and Paz sought to have the briefing on the
Motion for Protective Order sealed. (Doc. 329). Plaintiffs responded by filing their
Motion to Unseal Court Filings which sought to unseal the briefing and the depositions.
(Doc. 340). The Court granted Lerner and Paz’s Motion for Protective Order to the
extent it sought to have the briefing filed under seal. (See Minute Entry dated 4/11/2017
& Doc. 335).
As to whether the yet-to-be-taken depositions should be sealed, the Court
scheduled a hearing to address this remaining issue. However, the May 19, 2017
hearing was vacated because this Court ruled that it was impossible to conduct the
analysis required under Shane Group, Inc. v. Blue Cross Blue Shield, 825 F.3d 299,
306 (6th Cir. 2016) if the depositions did not yet exist. (Doc. 345, PAGEID 11254).
Instead, on May 18, 2017, this Court entered a limited protective order which provided:
“the litigants, which for purposes of this Order also includes Movants, may designate
(not seal) the Paz and Lerner depositions as ‘Confidential—Attorneys’ Eyes Only.’ Such
a designation shall serve to restrict access, dissemination, and use of the designated
materials to counsel for Plaintiffs, Defendants, and Former Individual Management

3

Case: 1:13-cv-00341-MRB Doc #: 455 Filed: 05/03/22 Page: 4 of 15 PAGEID #: 20117

Defendants Lois G. Lerner and Holly Paz, in this action.” (Doc. 345, PAGEID 11255).
The Court reserved ruling on whether the Paz and Lerner depositions should be sealed
until the depositions were complete and the matter of sealing the depositions was
properly before the Court.
Plaintiffs took Lerner’s deposition on June 8, 2017, and Paz’s deposition on July
7, 2017. Thereafter, the parties began filing dispositive motions. The United States
filed its “Statement of Proposed Undisputed Facts in Support of its Motion for Summary
Judgment” and attached the Lerner and Paz depositions as exhibits. (Doc. 355-17;
Doc. 355-18). The depositions were filed under seal, but the United States’ summary
judgment motion itself was not filed under seal. (Doc. 364). Instead, where there were
citations to the Lerner and Paz depositions or summarizations of their testimony, those
portions of the motion were redacted.

(See, e.g., Doc. 364-2, PAGEID 13654).

Plaintiffs also relied on the Lerner and Paz depositions in their opposition to the United
States’ Motion for Summary Judgment. (Doc. 375). Plaintiffs filed their opposition and
the Lerner and Paz depositions under seal. (Doc. 375, 375-2, 375-3, 375-4).
While the dispositive motions were being briefed, the parties began engaging in
settlement discussions. To assist in those discussions, the Court modified its previous
limited protective order of May 18, 2017 (Doc. 345), which designated the Lerner and
Paz depositions as “Confidential—Attorneys’ Eyes Only” and restricted “access,
dissemination, and use” of the depositions to counsel for the parties.

Under the

modified order, for purposes of settlement discussions, the Lerner and Paz depositions
could be shared:
with one or more of the following individual representatives of the named
Plaintiffs (collectively, the “Five Class Representatives”), provided that the
4

Case: 1:13-cv-00341-MRB Doc #: 455 Filed: 05/03/22 Page: 5 of 15 PAGEID #: 20118

individual representatives of the Five Class Representatives first execute
the “Agreement To Be Bound by Order” (attached as Exhibit A): up to six
individuals per Class Representative, so long as those individuals are
board members of that Class Representative and their involvement is
reasonably necessary for that Class Representative to make a decision.
The Five Class Representatives are as follows:
a. Plaintiff NorCal Tea Party Patriots;
b. Plaintiff South Dakota Citizens for Liberty, Inc.;
c. Plaintiff Americans Against Oppressive Laws, Inc.;
d. Plaintiff Texas Patriots Tea Party; and
e. Plaintiff San Angelo Tea Party.
(Doc. 353, PAGEID 11285-11286). 1 Likewise, the Court ordered that United States’
unredacted Statement of Proposed Undisputed Facts and its exhibits could be shared
with the Five Class Representatives. (Doc. 353, PAGEID 11286-11287). While the
Five Class Representatives were required to treat the Lerner and Paz depositions and
the summary judgment materials as confidential, the modified order permitted them to
discuss the materials with counsel and each other. (Doc. 353, PAGEID 11287).
On October 25, 2017, the parties notified the Court that they had reached a
settlement resolving all remaining claims. (Doc. 388). Members of the class released
their claims for a payment of $3,500,000.00 by the United States. (Doc. 451, PAGEID
20069).

On August 8, 2018, the Court entered final approval of the class action

settlement but reserved its decision of whether the Lerner and Paz depositions should
be unsealed.

(Doc. 431).

On January 29, 2019, the parties filed a stipulation of

dismissal of all claims with prejudice. (Doc. 451).

These five named Plaintiffs were the only class representatives remaining in the case at
this stage of the proceedings. Plaintiffs Simi Valley Moorpark Tea Party, Prescott Tea Party,
Tampa 912 Project, and Faith and Freedom Coalition of Ohio voluntarily dismissed their claims
on July 7, 2015. (Doc. 184). Plaintiff Texas Public Policy Foundation filed a Joint Stipulation of
Dismissal on January 6, 2017. (Doc. 311).
1

5

Case: 1:13-cv-00341-MRB Doc #: 455 Filed: 05/03/22 Page: 6 of 15 PAGEID #: 20119

Plaintiffs argue that this Court should go back and lift its provisional seal of the
briefing pertaining to the Motion for Protective Order. Lerner and Paz agree that the
briefs identified by Plaintiffs (Docs. 331, 339, 341, and 344) may be released to the
public, but only after they make redactions to the portions of those briefs that implicate
their privacy interests or which could potentially inspire further criminal violence against
them, including all references to the three sealed declarations and exhibits. (Doc. 404,
PAGEID 19102).
While the parties appear to agree on these documents, a disagreement still
exists over other materials. Plaintiffs remain steadfast in seeking an order from this
Court unsealing the deposition transcripts of Lerner and Paz and any unredacted filings
referencing the transcripts. However, Lerner and Paz request that these documents
remain sealed. 2 Lerner and Paz explain that the Court did not need to consider their
deposition testimony because the United States and Plaintiffs reached a settlement.
Lerner and Paz also maintain that the public dissemination of the transcripts would
threaten their physical safety and that of their loved ones.
The Cincinnati Enquirer also seeks an order unsealing the unredacted version of
Plaintiffs’ Memorandum in Opposition to the United States’ Motion for Summary

The specific documents at issue are the deposition transcripts (Doc. 355-17, 355-18,
375-2, 375-3, 375-4); the unredacted version of the United States’ Statement of Proposed
Undisputed Material Facts in Support of its Motion for Summary Judgment on Class Action
Claim (Doc. 357); the unredacted version of Plaintiffs’ Memorandum in Opposition to Motion for
Summary Judgment and Exhibit 104 (Doc. 375, Doc. 375-5); and the unredacted version of
Plaintiffs’ Statement of Material Facts and Response to IRS’s Statement of Proposed
Undisputed Facts (Doc. 375-1). (See Doc. 398-1).
2

6

Case: 1:13-cv-00341-MRB Doc #: 455 Filed: 05/03/22 Page: 7 of 15 PAGEID #: 20120

Judgment and Plaintiffs’ Statement of Material Facts and Response to the United
States’ Statement of Proposed Undisputed Facts (Docs. 375, 375-1). 3
II. ANALYSIS
As intimated above, this Court’s analysis is guided by the Sixth Circuit’s decision
in Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 299 (6th Cir.
2016). In Shane Group, the Sixth Circuit clarified the standard for sealing documents
which the parties have made a part of the court record. The Sixth Circuit began by
explaining that “there is a stark difference between so-called ‘protective orders’ entered
pursuant to the discovery provisions of Federal Rule of Civil Procedure 26, on the one
hand, and orders to seal court records, on the other.”

Id. at 305.

As the court

explained, “[d]iscovery concerns the parties' exchange of information that might or might
not be relevant to their case,” and therefore “a district court may enter a protective order
limiting the use or disclosure of discovery materials upon a mere showing of ‘good
cause[.]’” Id. (quoting Fed. R. Civ. P. 26(c)(1)). However, the court pointed out that “[a]t
the adjudication stage . . . very different considerations apply.” Id. (quoting Joy v. North,
692 F.2d 880, 893 (2d Cir. 1982)). “Unlike information merely exchanged between the
parties, ‘[t]he public has a strong interest in obtaining the information contained in the
court record.’” Id. (quoting Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165,

In their Expedited Motion to Unseal, The Cincinnati Enquirer also sought to unseal the
redacted versions of Lerner and Paz’s Motion for Protective Order and Reply in support of their
Motion for Protective Order (Docs. 331, 344). Lerner and Paz agree that these documents can
be made publicly available, but only after redactions are made to the sensitive and personal
information included in those briefs, including references to their supporting declarations and
exhibits documenting the harassment and death threats they and their families have faced.
(Doc. 401, PAGEID 19070). Out of concern for their safety and privacy, Lerner and Paz do not
agree that the three declarations and their exhibits (Docs. 332, 333, 334) should be unsealed.
The Cincinnati Enquirer refused to reach an agreement on these documents. (Doc. 401,
PAGEID 19070).
3

7

Case: 1:13-cv-00341-MRB Doc #: 455 Filed: 05/03/22 Page: 8 of 15 PAGEID #: 20121

1180 (6th Cir. 1983)). As the Sixth Circuit explained, the public’s interest can rest on
several grounds:
Sometimes, the public's interest is focused primarily upon the litigation's
result—whether a right does or does not exist, or a statute is or is not
constitutional. In other cases—including “antitrust” cases—the public's
interest is focused not only on the result, but also on the conduct giving
rise to the case. In those cases, “secrecy insulates the participants,
masking impropriety, obscuring incompetence, and concealing corruption.”
And in any of these cases, the public is entitled to assess for itself the
merits of judicial decisions. Thus, “[t]he public has an interest in
ascertaining what evidence and records the District Court and this Court
have relied upon in reaching our decisions.”
Shane Group, 825 F.3d at 305 (quoting Baxter Int'l, Inc. v. Abbott Labs., 297 F.3d 544,
546 (7th Cir. 2002) (citations omitted).
In Shane Group, the Sixth Circuit stated that the line between the discovery and
adjudicative stages “is crossed when the parties place material in the court record.” Id.
(citing Baxter, 297 F.3d at 545). However, as this Court has recently observed: “it may
be an overreading of Shane Group to suggest that the case means to create a brightline rule under which the presumption of access necessarily applies to every court
filing.” United States v. Sittenfeld, No. 1:20-CR-142, 2021 WL 1438300, at *6 (S.D.
Ohio Apr. 15, 2021).
Lerner and Paz argue that because the parties reached a settlement and the
Court did not use the summary judgment materials or deposition testimony to determine
the parties’ legal rights, these materials are not judicial documents. Plaintiffs take the
opposite position and argue that these materials played an important role in the Court’s
consideration of the proposed settlement. Plaintiffs cite to Shane Group, which stated
that a district court “cannot judge the fairness of a proposed compromise without
weighing the plaintiff’s likelihood of success on the merits against the amount and form
8

Case: 1:13-cv-00341-MRB Doc #: 455 Filed: 05/03/22 Page: 9 of 15 PAGEID #: 20122

of the relief offered in the settlement.” See Shane Group, 825 F.3d at 309 (quotes
omitted)).
While the Court did not necessarily need to review the Lerner and Paz
depositions to make its fairness determination, there is no question that courts consider
motions for summary judgment to be subject to the public’s right of access. As one
district court has recently observed, “[t]ransparency is most important . . . when the
merits of the case are being decided.” Klein v. Fifth Third Bank, N.A., Case No. 3:20CV-0572-DJH-CHL, 2022 WL 1049327, at *4 (W.D. Ky. Apr. 7, 2022) (“public interest in
access was ‘especially strong’ for a document ‘offered in support of a motion for
summary judgment, which will result in a ruling on the merits as a matter of law’”)
(quoting Rudd Equip. Co., Inc. v. Volvo Constr. Equip. N. Am., LLC, No. 3:19-CV-778DJH-CHL, 2020 WL 6946577, at *3 (W.D. Ky. Nov. 25, 2020)). Accordingly, “[w]hen
documents are filed in support of a motion for summary judgment, ‘the public would
have a substantial interest in knowing what evidence exists (or does not exist) that
would show that [a defendant] engaged in [actionable] conduct.’” Id. (quoting Kentucky
v. Marathon Petroleum Co. LP, No. 3:15-CV-354-DJH-CHL, 2018 WL 3130945, at *6
(W.D. Ky. June 26, 2018) and citing Rushford v. New Yorker Mag., Inc., 846 F.2d 249,
253 (4th Cir. 1988) (holding that documents filed in support of a motion for summary
judgment in a civil case are entitled to a more rigorous standard); Lugosch v. Pyramid
Co. of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006) (same); Foltz v. State Farm Mut.
Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003) (same)). Therefore, the “strong
presumption in favor of openness” to which Shane Group refers most certainly applies

9

Case: 1:13-cv-00341-MRB Doc #: 455 Filed: 05/03/22 Page: 10 of 15 PAGEID #: 20123

to the Lerner and Paz depositions and any unredacted filings referencing the
transcripts. See Sittenfeld, 2021 WL 1438300, at *9.
Nevertheless, there are certain interests which overcome this “strong
presumption.” Rudd Equipment Co., Inc. v. John Deere Construction & Forestry Co.,
834 F.3d 589, 593 (6th Cir. 2016) (citing Brown, 710 F.2d at 1179). These interests
include “certain privacy rights of participants or third parties, trade secrets, and national
security.” Brown, 710 F.2d at 1179. Therefore, to justify sealing records, the proponent
must demonstrate: “(1) a compelling interest in sealing the records; (2) that the interest
in sealing outweighs the public's interest in accessing the records; and (3) that the
request is narrowly tailored.” Kondash v. Kia Motors Am., Inc., 767 F. App'x 635, 637
(6th Cir. 2019). The proponent must also “analyze in detail, document by document, the
propriety of secrecy, providing reasons and legal citations.” Shane Group., 825 F.3d at
305-06 (quoting Baxter, 297 F.3d at 548).
Plaintiffs argue that evidence of the public’s interest in this case is overwhelming:
“the events giving rise to this litigation have been the subject of congressional inquiries
and reports, inspector general inquiries and reports, and involve the IRS’s viewpointbased targeting of more than four hundred public interest groups from coast to coast.”
(Doc. 398, PAGEID 19010). Plaintiffs also point out that the Attorney General of the
United States issued a press release regarding the Government’s agreement to settle
this litigation. (Id.)
However, from the perspective of Lerner and Paz, their interest in their personal
safety and that of their families outweighs the public's interest in accessing the records.
While Plaintiffs and The Cincinnati Enquirer have attempted to downplay their concerns,

10

Case: 1:13-cv-00341-MRB Doc #: 455 Filed: 05/03/22 Page: 11 of 15 PAGEID #: 20124

the safety and privacy of Lerner, Paz and their families is a compelling interest. The
difficulty for the Court is that any time Lerner and Paz are placed in the public spotlight,
they seem to be at risk, regardless of what they have actually said in their depositions. 4
This is because the comments, letters and death threats they and their families have
received are untethered from the facts and legal issues in this case. Instead, members
of the public have chosen to use this case as an opportunity to air any grievances they
might have with the government.
There is no legitimate public interest in the death threats and harassment faced
by Lerner and Paz and their families. Their families are not parties to this litigation and
these incidents have no bearing on the merits of the underlying case. In keeping with
their agreement to publicly file redacted copies of the briefing on their Motion for
Protective Order, Lerner and Paz shall file the following documents with redactions
which will protect their security and privacy, and the security and privacy of their
families: (1) Memorandum in Support of Former Individual Management Defendants’
Motion for Protective Order (Doc. 331); (2) Plaintiffs’ Memorandum in Opposition to the
Motion for Protective Order filed by Lois Lerner and Holly Paz (Doc. 339); (3) Plaintiffs’
Memorandum in Support of Motion to Unseal Court Filings and Open the May 19, 2017
Hearing to the Public (Doc. 341); (4) Reply Brief in Support of Certain Former Individual
Management Defendants’ Motion for Protective Order (Doc. 344).

However, the

declarations and exhibits filed in conjunction with these briefs (Docs. 332, 333, 334)
shall remain under seal. The sensitive information included these declarations and
exhibits relates to family members of Lerner and Paz who have no connection to this
In a Supplemental Declaration, Lerner describes yet another incident where her life was
in danger. (Doc. 449, PAGEID 20065).
4

11

Case: 1:13-cv-00341-MRB Doc #: 455 Filed: 05/03/22 Page: 12 of 15 PAGEID #: 20125

litigation.

The public’s interest in accessing the records is not outweighed by the

concerns for the safety and privacy of Lerner and Paz and their families. Given the
direction above regarding the filing of the redacted documents, the request for these
documents to remain sealed is narrowly tailored.
As to the Lerner and Paz depositions and the summary judgment materials, the
Court must stop at this juncture, and distinguish Shane Group from this case. In Shane
Group, the documents placed under seal included the entire motion for class
certification and its attachments, which the Sixth Circuit identified as “arguably the most
important filing in any putative class action.” 825 F.3d at 306. The district court also
sealed the amended complaint, the defendant’s response to the motion for class
certification, and the defendant’s motion to strike filings related to the class's expert
witness. Id. The Sixth Circuit explained that with these documents sealed, “both the
general public and the class were able to access only fragmentary information about the
conduct giving rise to this litigation, and next to nothing about the bases of the
settlement itself.” Id.
Here, the same documents identified by the Sixth Circuit are not sealed in this
case. 5 In contrast, the public and the class have had access to everything except for a
small percentage of documents. 6 As Lerner and Paz have pointed out, the government
produced over 16,000 documents to Plaintiffs which were not subject to a protective
order.

(Doc. 344, PAGEID 11237).

In addition, class members could access the

While Plaintiffs’ Motion to Certify Class has been redacted (Doc. 193) none of the
briefing on the motion (Docs. 197, 198, 199, 216) or the order granting certification (Doc. 233)
are sealed. These documents were either not filed under seal or were unsealed pursuant to an
agreed order (Doc. 377).
5

By the Court’s count, only fifteen documents on the docket remain sealed. There are
over 400 docket entries in this case.
6

12

Case: 1:13-cv-00341-MRB Doc #: 455 Filed: 05/03/22 Page: 13 of 15 PAGEID #: 20126

depositions of at least twenty-one other current or former IRS employees. (Doc. 392-1,
PAGEID 18906).

While the Lerner and Paz depositions were filed under seal, the

United States’ summary judgment motion itself was not filed under seal but was instead
filed with redactions where there were citations to the Lerner and Paz depositions or
summaries of their testimony. (See Doc. 364-2). Any public interest in this filing could
largely be satisfied by a review of the publicly available materials, regardless of access
to the Lerner and Paz depositions.
However, the Court notes that unlike the redactions to the briefing on the Motion
for Protective Order, the redactions to these documents do not address the death
threats and harassment faced by Lerner and Paz and their families.

Instead, the

redactions appear to be an attempt to avoid inspiring further harassment, threats or
actual acts of violence against Lerner, Paz and their families.

While the balance

between the public’s interest in these documents and the potential for violence is a
tough call, the Court is hopeful that the passage of time will protect Lerner, Paz and
their families. In addition, any references to personal information in the depositions and
summary judgment materials shall remain under seal so that the sealed portions of the
documents are narrowly tailored to the concerns for the safety and privacy of Lerner,
Paz and their families.
Therefore, Lerner and Paz shall file copies of the following documents with
redactions to the names of their family members or personal friends, any home
addresses or any other personal identifiers: (1) Holly Paz Merits Deposition, Exhibit 43
in Support of United States’ Motion for Summary Judgment (Doc. 355-17); (2) Lois
Lerner Merits Deposition, Exhibit 44 in Support of United States’ Motion for Summary

13

Case: 1:13-cv-00341-MRB Doc #: 455 Filed: 05/03/22 Page: 14 of 15 PAGEID #: 20127

Judgment (Doc. 355-18); and (3) United States’ Statement of Proposed Undisputed
Material Facts In Support of Its Motion for Summary Judgment on Class Action Claim
(Doc. 357).
Accordingly, Plaintiffs are permitted to file a redacted version of Plaintiffs’
Memorandum in Opposition to Motion for Summary Judgment (Doc. 375); a redacted
version of Plaintiffs’ Statement of Material Facts and Response to IRS’s Statement of
Proposed Undisputed Facts (Doc. 375-1); and a redacted version of Holly Paz Class
Certification Deposition, Exhibit 54 in Opposition to United States’ Motion for Summary
Judgment (Doc. 375-7) which exclude references to the names of Lerner and Paz’s
family members or personal friends, any home addresses, or any other personal
identifiers.
Finally, Plaintiffs seek to unseal Exhibit 104 to Plaintiffs’ Opposition to United
States’ Motion for Summary Judgment (Doc. 375-5). It appears that this document was
produced as part of a Freedom of Information Act request and is already in the public
domain. Therefore, this document shall be unsealed. Plaintiffs are permitted to file an
unsealed version of Exhibit 104 to Plaintiffs’ Opposition to United States’ Motion for
Summary Judgment (Doc. 375-5).
IV.

CONCLUSION
Based on the foregoing, it is hereby ORDERED that:
1. Plaintiffs Americans Against Oppressive Laws, Inc., NorCal Tea Party Patriots,
San Angelo Tea Party, South Dakota Citizens for Liberty, Inc., Texas Patriots
Tea Party’s Motion to Unseal Court Filings and Open the May 19, 2017 Hearing
to the Public (Doc. 340) is GRANTED in PART and DENIED in PART;
2. Interested Party the Cincinnati Enquirer’s Motion to Unseal (Doc. 386) is
GRANTED in PART and DENIED in PART;

14

Case: 1:13-cv-00341-MRB Doc #: 455 Filed: 05/03/22 Page: 15 of 15 PAGEID #: 20128

3. Defendants Lois Lerner and Holly Paz’s Motion to Seal (Doc. 392) is GRANTED
in PART and DENIED in PART;
4. The Cincinnati Enquirer’s Expedited Motion to Unseal Documents 331, 332, 333,
334, and 344 (Doc. 393) is GRANTED in PART and DENIED in PART;
5. Defendants Lois Lerner and Holly Paz shall file copies of the briefing on their
Motion for Protective Order with redactions to the sensitive and personal
information included in those briefs, including references to their supporting
declarations and exhibits documenting the harassment and death threats they
and their families have faced within ninety (90) days of entry of this Order;
6. Defendants Lois Lerner and Holly Paz shall file copies of the following
documents with redactions to the names of their family members or personal
friends, any home addresses or any other personal identifiers within ninety (90)
days of entry of this Order: (1) Holly Paz Merits Deposition, Exhibit 43 in Support
of United States’ Motion for Summary Judgment (Doc. 355-17); (2) Lois Lerner
Merits Deposition, Exhibit 44 in Support of United States’ Motion for Summary
Judgment (Doc. 355-18); and (3) United States’ Statement of Proposed
Undisputed Material Facts In Support of Its Motion for Summary Judgment on
Class Action Claim (Doc. 357);
7. Plaintiffs are permitted to file a redacted version of Plaintiffs’ Memorandum in
Opposition to Motion for Summary Judgment (Doc. 375); a redacted version of
Plaintiffs’ Statement of Material Facts and Response to IRS’s Statement of
Proposed Undisputed Facts (Doc. 375-1); and a redacted version of Holly Paz
Class Certification Deposition, Exhibit 54 in Opposition to United States’ Motion
for Summary Judgment (Doc. 375-7) which exclude references to the names of
Lerner and Paz’s family members or personal friends, any home addresses, or
any other personal identifiers; and
8. Plaintiffs are permitted to file an unsealed version of Exhibit 104 to Plaintiffs’
Opposition to United States’ Motion for Summary Judgment (Doc. 375-5).
IT IS SO ORDERED.

/s/ Michael R. Barrett
Michael R. Barrett
United States District Judge

15

___