4U Promotions, Inc. v. Excellence in Travel, LLC et al

Filing 103

OPINION AND ORDER: The Court VACATES the orders granting the parties' motion to seal. The Clerk is DIRECTED to file docs 13 , 20 , 26 , 50 , 55 , 59 , 81 , 86 , 88 , 93 , 94 & 98 on the public record. Signed by Magistrate Judge Norah McCann King on 8/10/2017. (er)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
4U Promotions, Inc.,
Plaintiff,
Case No. 2:15-CV-1673
Magistrate Judge King

v.
Excellence in Travel, LLC,
et al.,
Defendants.

OPINION AND ORDER

The Court previously granted the parties leave to file several
documents under seal.

For the following reasons, the Court

reconsiders its previous orders and will order those documents to be
filed on the public record in light of the requirements set forth in
Shane v. Blue Cross Blue Shield of Michigan, 825 F.3d 299 (6th Cir.
2016).
I.
In Shane, the Court of Appeals made explicit the obligations of
both the party requesting nondisclosure and the court considering such
a motion.

In addressing the differences in that consideration between

the discovery stage and the adjudication stage, the Court explained:
“At the adjudication stage, however, very different
considerations apply.” Joy v. North, 692 F.2d 880, 893 (2d
Cir. 1982). The line between these two stages, discovery
and adjudicative, is crossed when the parties place
material in the court record. Baxter, 297 F.3d at 545.
Unlike information merely exchanged between the parties,
“[t]he public has a strong interest in obtaining the
information contained in the court record.” Brown &
Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1180
(6th Cir. 1983)....
Id. at 305.

Further citing to Brown & Williamson, 710 F.2d at 1179, the Court
of Appeals noted that “courts have long recognized ... a presumption
in favor of openness as to court records.”

Id.

Accordingly, “[t]he

burden of overcoming that presumption is borne by the party that seeks
to seal them.”
Cir. 2001).

Id., citing In re Cendant Corp., 260 F.3d 183, 194 (3d

This burden is “a heavy one” and “‘[o]nly the most

compelling reasons can justify non-disclosure of judicial records.’”
Id., quoting In re Knoxville News-Sentinel Co., 723 F.2d 470, 476 (6th
Cir. 1983).

That is, “[t]he parties’ asserted bases for sealing”

cannot be “brief, perfunctory or patently inadequate.”

Id. at 306.

The mere reference to a designation of confidentiality is a
“protective-order justification[], not [a] sealing-order one[].”

Id.

Additionally, “the proponents of closure bear the burden of showing
that ‘disclosure will work a clearly defined and serious injury[.]’”
Id. at 307, quoting Cendant, 260 F.3d at 194.

Specificity in

delineating the injury attendant to disclosure is essential.

Id. at

307- 308. Typically, only trade secrets, information covered by a
recognized privilege and information required by statute to be
maintained in confidence is enough to overcome the presumption of
access.

Id. at 308.

Moreover, even if a party demonstrates a compelling reason for
filing under seal, “the seal itself must be narrowly tailored to serve
that reason.”

Id. at 305, citing Press-Enter. Co. v. Superior Court

of California, Riverside Cnty., 464 U.S. 501, 509-11 (1984).

As a

result, “the proponent of sealing” is required to “‘analyze in detail,

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document by document, the propriety of secrecy, providing reasons and
legal citations.’”

Id. at 305-306, quoting Baxter, 297 F.3d at 548.
II.

The documents filed under seal include the complaint (Doc. 13),
the motion to dismiss and response (Docs. 20 and 26) and all documents
relating to Plaintiffs’ currently pending motion to enforce the
settlement agreement (Docs. 50, 55, 59, 81, 86, 88, 93, 94, and 98).
Redacted versions of these documents have been filed on the public
record.

The parties’ justifications for filing all of these documents

under seal can be characterized as nothing more than the terms of the
parties’ settlement agreement and the general confidentiality that
courts typically have afforded such agreements.

This reason is

insufficient to meet the “demanding requirements for a seal” as set
forth in Shane.
Moreover, the requests to seal cannot be characterized as
narrowly tailored under Shane.

A quick review of the publicly filed

documents reveals significant redactions.

This level of redaction is

inconsistent with the “strong presumption in favor of openness as to
court records.”

Shane, at 305.

For these reasons, the Court VACATES the orders granting the
parties’ motion to seal. The Clerk is directed to file Docs. 13, 20,
26, 50, 55, 59, 81, 86, 88, 93, 94, and 98 on the public record.

August 10, 2017

s/ Norah McCann King
United States Magistrate Judge

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