Reid v. Kroger Co.

Filing 37

ORDER conditionally granting 36 Motion to File Under Seal. Signed by Judge Timothy S. Black on 8/25/17. (gs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

DELORES REID, on behalf of herself
and all others similarly situated,
Plaintiff,
vs.
THE KROGER CO., et al.,
Defendants.

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Judge Timothy S. Black
Case No. 1:16-cv-815

ORDER CONDITIONALLY GRANTING
MOTION TO FILE UNDER SEAL (Doc. 36)
This Fair Credit Reporting Act case is before the Court on Defendants’ motion to
file under seal. (Doc. 36).
I.

INTRODUCTION

On July 21, 2017, Plaintiff filed a motion to certify class pursuant to Federal Rule
of Civil Procedure 23. (Doc. 34). Defendants’ response to Plaintiff’s motion is currently
due on August 25, 2017.
On August 23, 2017, Defendants filed a motion requesting an Order allowing
Defendants to file “2014 and Current Company Matrices” under seal. (Doc. 36 at 1).
The motion states that the matrices are designated as confidential under the Protective
Order (Doc. 27) and that Plaintiff does not object to the sealing of these documents.
(Doc. 36 at 1). Defendants argue its matrices contain proprietary and trade secret
information, and they are of little to no importance to the public. (Id. at 2).

II.

STANDARD OF REVIEW

A district court’s decision to seal court records is reviewed for an abuse of
discretion. Klingenberg v. Fed. Home Loan Mortg. Co., 658 Fed. Appx. 202, 207 (6th
Cir. 2016) (citing Shane Grp. Inc. v. Blue Cross Blue Shield, 825 F.3d 299, 306 (6th Cir.
2016)). However, “the district court’s decision is not accorded the deference that
standard normally brings.” Id.
That is because there is a “stark” difference between, on one hand, the propriety of
allowing litigants to exchange documents in secret, and on the other hand, allowing
litigants to shield from public view those documents which are ultimately relied on in the
Court’s adjudication. See Shane Grp., 825 F.3d at 305. Parties are typically entitled to a
“protective order” limiting disclosure of documents in discovery upon a mere showing of
good cause. Id. However, “very different considerations apply” when these materials are
filed in the public record. Id.
Unlike information merely exchanged between the parties, the public has a strong
interest in obtaining the information contained in the court record. Id. Accordingly, the
courts have long recognized a “strong presumption in favor of openness” of court
records. Id. (quoting Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1180
(6th Cir. 1983)).
Three times in the past two years the Sixth Circuit has explained that a party
moving to seal court records must overcome a significant burden. See Shane Grp., 825
F.3d at 305-06; Klingenberg, 658 Fed. Appx. at 207-08; Rudd Equip. Co. v. John Deere

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Constr. & Forestry Co., 834 F.3d 589, 593-96 (6th Cir. 2016). According to the Sixth
Circuit:
The burden of overcoming that presumption [of openness] is borne by the
party that seeks to seal them. In re Cendant Corp., 260 F.3d 183, 194 (3d
Cir. 2001). The burden is a heavy one: “Only the most compelling reasons
can justify the non-disclosure of judicial records.” In re Knoxville NewsSentinel Co., 723 F.2d 470, 476 (6th Cir. 1983). . . . And even where a
party can show a compelling reason why certain documents or portions
thereof should be sealed, the seal itself must be narrowly tailored to serve
that reason. See, e.g., Press-Enter. Co. v. Superior Court of California,
Riverside Cnty., 464 U.S. 501, 509-11, 104 S. Ct. 819, 78 L. Ed. 2d 629
(1984). The proponent of sealing therefore must “analyze in detail,
document by document, the propriety of secrecy, providing reasons and
legal citations.” Baxter, 297 F.3d at 548.
Shane Grp., 825 F.3d at 305-06.
A movant’s obligation to provide compelling reasons justifying the seal exists
even if the parties themselves agree the filings should be sealed. See Rudd Equip., 834
F.3d at 595 (noting the parties “could not have waived the public’s First Amendment and
common law right of access to court filings[]”) (citation omitted); see also In re Knoxville
News-Sentinel Co., 723 F.2d 470, 475 (6th Cir. 1983) (in reviewing a motion to seal, the
district court has “an obligation to consider the rights of the public”). Simply put, this
Court has an obligation to keep its records open for public inspection and that obligation
is not conditioned upon the desires of the parties to the case. Shane Grp., 825 F.3d at
307.
A district court that chooses to seal court records must set forth specific findings
and conclusions “which justify nondisclosure to the public.” Id. at 306 (quoting Brown &
Williamson, 710 F.2d at 1176). A court’s failure to set forth reasons explaining why the
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interests in support of nondisclosure are compelling, why the interests supporting access
are less so, and why the seal itself is no broader than necessary is grounds to vacate an
order to seal. Id.
III.

ANALYSIS

Defendants’ motion falls short of the standards provided by the Sixth Circuit. The
motion argues that the matrices contain proprietary and trade secret information, but it
does not “analyze in detail” any document the Defendants seek to seal, does not provide
legal citations supporting the requested seal, and does not show that the requested seal is
“narrowly tailored.” Defendants assert that Plaintiff does not object to the seal, but the
parties’ agreement does not obviate the Court’s duty to ensure that its records are open
for public inspection. See Rudd Equip., 834 F.3d at 595; Shane Grp., 825 F.3d at 307.
Defendants have simply not yet offered substantiated, compelling reasons sufficient to
justify non-disclosure.
Nevertheless, the Court understands Defendants must file their response to
Plaintiff’s motion to certify to keep briefing on schedule. To that end, the Court will
allow the Defendants to file the proposed documents under seal on the condition that the
seal will expire 30 days from filing unless (1) one party, or both of the parties,
successfully move(s) to seal the filing under the proper standard set forth by the Sixth
Circuit Court of Appeals, or (2) one party, or both of the parties, move(s) to extend the
conditional period on the basis that a motion to seal is pending before the Court.
The Court finds this to be a sound approach which balances the public’s interest in
access to court records with the parties’ interest in complying with the Court’s briefing
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schedule. The public interest will not be harmed by documents having been sealed for a
brief time while the Court considers the issue upon proper briefing.
IV.

CONCLUSION

For these reasons, Defendants’ motion to file under seal (Doc. 36) is
CONDITIONALLY GRANTED. Accordingly, Defendants may file the proposed
documents under seal, however, the seal will expire in 30 days from filing unless (1) the
parties successfully move to seal the filing (or portions of the filing) under the standards
set forth by the Sixth Circuit Court of Appeals or (2) the parties move to extend the
conditional period on the basis that a motion to seal is pending before this Court.
IT IS SO ORDERED.
Date:

8/25/17

Timothy S. Black
United States District Judge

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