Scola v. Publix Super Markets, Inc.

Filing 10

MEMORANDUM AND ORDER re 9 Joint MOTION for Protective Order filed by Publix Super Markets, Inc. Signed by Magistrate Judge William B Carter on 4/30/12. (KFB, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
ELAINE SCOLA,
Plaintiff
v.
PUBLIX SUPER MARKETS, INC.
Defendant.

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CASE NO. 1:11-cv-101
Collier/Carter

MEMORANDUM AND ORDER
The parties in the instant case have submitted an AAgreed Protective Order@ for entry.
undersigned will enter the Agreed Protective Order simultaneously with this ORDER but this
Order STRIKES the first sentence of paragraph 5 of the Agreed Protective Order and
SUBSTITUTES in its stead a paragraph which is set forth below.
The first sentence of paragraph 5 of the Agreed Protective Order submitted by the parties
provides that if a party files a document which has been designated as confidential in the Court
record, then that same party shall simultaneously move to file the confidential document under
seal. (See & 5 of proposed Agreed Protective Order, Doc. 9-1). This provision improperly puts
the burden on the party who wants to file the document to request that it be filed under seal. The
party who has designated the document as confidential should be the party moving to seal the
document since that party is in the better position to explain to the Court why it should be filed
under seal. This Court cannot place under seal any documents filed with the Court, even those
designated as Aconfidential@ by the parties, absent good cause to do so as the public has a
paramount interest in access to all court documents. Proctor & Gamble Co. v. Bankers Trust
78 F. 3d 219, 227 (6th Cir. 1996); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165,
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1177-1181 (6th Cir. 1983). In addition, E.D.TN. LR 26.4 flatly prohibits filing any document
under seal without prior showing of good cause to the satisfaction of the Court. Filing a motion
seal which simply states the parties have designated the document as confidential will not be
sufficient to place the document or information under seal.
In Proctor & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996), the
Sixth Circuit directed that no court papers may be placed under seal absent Agood cause shown.@
Id. at 227. The Court then referred to its earlier decision of Brown & Williamson Tobacco Corp.
v. FTC, 710 F.2d 1165, 1177-1181 (6th Cir. 1983), cert. denied, 465 U.S. 1100 (1984), as the
decision in which Athe principles A of sealing court papers for good cause shown is Aso
painstakingly discussed.@ Id. at 227.
In Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177-1181 (6th Cir.
cert. denied, 465 U.S. 1100 (1984), the Sixth Circuit began its discussion of when court papers
could be placed under seal by recognizing the long standing tradition of public access to court
proceedings in this country. The Court articulated three reasons for this right of public access.
First, Apublic trials play an important role as outlets for community concern, hostility and
emotions. When judicial decisions are known to be just and when the legal system is moving to
vindicate societal wrongs, members of the community are less likely to act as self-appointed law
enforcers or vigilantes.@ Id. at 1178 (internal citations omitted). Second, Apublic access provides
a check on the courts. Judges know that they will continue to be held responsible by the public
their rulings. Without access to the proceedings, the public cannot analyze and critique the
reasoning of the court....One of the ways we minimize judicial error and misconduct is through
public scrutiny and discussion.@ Id. Third, Aopen trials promote true and accurate fact finding.@
Id. (external citation omitted.).
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The right of access is not absolute, however. Id. at 1179. There are two categories of
exceptions to the right of public access. The first category is the need to keep dignity and order
in the courtroom. In such an instance, the legitimate societal interest in protecting the
adjudicatory process from disruption outweighs the interest of unfettered public access to the
proceedings. Id. The second category consists of restrictions based on the content of the
information to be disclosed to the public. Id. Certain content based exceptions outweigh the
right to public access. Some of these exceptions include:
1) a defendant=s right to a fair trial,
2) trade secrets,
3) national security, and
4) certain privacy rights of participants and third parties.
Id.
In light of the foregoing, it is ORDERED that the first sentence of Paragraph 5 of the
Agreed Protective Order, which is being entered simultaneously with this Order, be STRICKEN
and SUBSTITUTED with the following paragraph:
If any party desires that materials containing confidential information be filed with the
Court, that party shall give opposing counsel five (5) days notice. Thereafter, any party
may file a motion requesting that the papers be filed under seal. In filing this motion, the
moving party MUST comply with Rule 12.2 of the Electronic Case Filing Rules and
Procedures. If the motion is granted, the clerk=s office will retrieve the document and
redocket it. If the motion is denied, the clerk=s office will delete the document and modify
the docket entry to note the document was deleted upon the denial of the motion to seal.

SO ORDERED.
ENTER.
SBj|ÄÄ|tÅ UA `|àv{xÄÄ VtÜàxÜ
UNITED STATES MAGISTRATE JUDGE

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