Bell v. US Xpress, Inc.

Filing 49

MEMORANDUM AND ORDER AMENDING PROTECTIVE ORDER re 47 Joint MOTION for Protective Order filed by US Xpress, Inc. Signed by Magistrate Judge William B Carter on 10/22/12. (KFB, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
ROBERT BELL, JR. et al.,
Plaintiff,
v.

)
)
)
)
)
)

US XPRESS, INC.
Defendants.

No.:1:11-cv-181
Collier/Carter

MEMORANDUM AND ORDER AMENDING PROTECTIVE ORDER
The parties in the instant case move for entry of a “Stipulated Protective Order @
(Protective Order). [Doc. 47]. The undersigned GRANTS the motion in part and DENIES the
motion in part as follows: The undersigned ENTERS the Protective Order simultaneously with
this ORDER but this Order STRIKES paragraph 3 of the Protective Order and SUBSTITUTES
in its stead a paragraph which is set forth below.
Paragraph 3 of the Protective Order submitted by the parties provides that if a party files
a document with confidential information in it in the Court record, then that same party shall
simultaneously move to file the confidential information under seal. (See & 3 of proposed
Protective Order, Doc. 39-1). 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 Co., 78 F. 3d 219, 227 (6th Cir. 1996);
Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177-1181 (6th Cir. 1983). In
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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 to 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.
1983), 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
for 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.@
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Id. (external citation omitted.).
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 Paragraph 3 of the 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 either that: (1) the confidential information be redacted from
the document filed in the public record and an unredacted version be filed under seal, or
(2) the entire document be filed under seal. The Court will require the first option unless
redaction is impractical because the document to be filed contains more confidential
material than not. 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
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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.
The parties are also invited to examine Fed. R. Civ. P. 5.2(a) governing the redaction of personal
identifiers and the names of minors. Redaction in compliance with Rule 5.2(a) does not require
prior court approval.

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

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