Wilmington Savings Fund Society, FSB v. United States Department of Justice et al (PLR1)
Filing
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MEMORANDUM AND ORDER REGARDING SEALING CONFIDENTIAL INFORMATION Signed by Magistrate Judge Christopher H Steger on 8/30/2016. (DJH, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
WILMINGTON SAVINGS FUND SOCIETY,
FSB, Not Individually But Solely As Trustee for
RPMLT 2014-1 Trust, Series 2014-1
)
)
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Plaintiff,
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Case No. 1:16-cv-344
v.
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Judge Reeves/Steger
UNITED STATES DEPARTMENT OF JUSTICE, )
ROBERT S. PATTERSON, and TAMMY L.
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PATTERSON,
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Defendants,
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________________________________________________________________________
MEMORANDUM AND ORDER REGARDING
SEALING CONFIDENTIAL INFORMATION
This Memorandum and Order Regarding Sealing Confidential Information enunciates the
specific standards that must be met and the procedures that must be followed in order to file
anything in the Court record under seal.
Standard Required to File Information Under Seal
The Court regularly signs agreed protective orders which permit the parties to designate
the discovery they wish to keep confidential among themselves. “‘Secrecy is fine at the
discovery stage, before the material enters the judicial record.’” Shane Group, Inc. v. Blue Cross
Blue Shield of Michigan, _ F.3d _, 2016 WL 3163073,*3 (6th Cir. June 7, 2016) (quoting Baxter
Int'l, Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002)). “‘At the adjudication stage,
however, very different considerations apply.’” Shane Group, Inc.,__ F.3d __, 2016 WL
3163073, *3 (quoting Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982)).
In Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, the Sixth Circuit recently
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discussed the very high barrier a party must hurdle to file information under seal in the Court’s
record:
The courts have long recognized … a “strong presumption in
favor of openness” as to court records. Brown & Williamson, 710 F.2d at
1179. The burden of overcoming that presumption 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 non-disclosure of judicial records.” In re Knoxville News–
Sentinel Co., 723 F.2d 470, 476 (6th Cir. 1983). Moreover, the greater the
public interest in the litigation's subject matter, the greater the showing
necessary to overcome the presumption of access. See Brown &
Williamson, 710 F.2d at 1179.
Shane Group, Inc., __ F.3d __, 2016 WL 3163073, *3.
The reasons for this “heavy burden” are examined thoroughly in Brown & Williamson
Tobacco Corp. v. FTC wherein the court began its discussion by recognizing this country’s longstanding tradition of public access to court proceedings based upon the First Amendment and
common law. Brown & Williamson Tobacco Corp, 723 F.2d at 1177. The court articulated
three reasons for this right of public access. First, “public 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, “public 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,
“open trials promote true and accurate fact finding.” Id. (external citation omitted.)
The right of access is not absolute, however. Id. at 1179. There are two categories of
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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.
Nevertheless, as explained in In re Southeastern Milk Antitrust litigation, 666 F. Supp.2d
908, 915 (E.D. Tenn. 2009),
… neither harm to reputation of the producing party nor conclusory allegations of injury
are sufficient to overcome the presumption in favor of public access. Id. at 1179–80
(citing Joy v. North, 692 F.2d 880, 884 (2d Cir.1982)) (“A naked conclusory statement
that [disclosure will injure a producing party] ... falls woefully short of the kind of
showing which raises even an arguable issue as to whether it may be kept under seal.”).
(Brackets original).
At the very least, a party’s assertion that information it seeks to seal constitutes legitimate
trade secrets must be supported by an affidavit. In some instances, it may be necessary to hold
an evidentiary hearing to determine whether information purported to be confidential business
information can be filed under seal. Further, “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.” Shane Group, Inc, __ F.3d __, 2016 WL 3163073, *3.
It is highly unlikely that the Court will place entire motions and their supporting
documents under seal. To do so would eliminate from the public record all bases for any
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decision upon the motion by the Court thereby eviscerating the public’s First Amendment right
of access. The parties are encouraged to be very selective in the information they seek to seal.
As previously indicated, agreement by the parties that information is confidential business
information, standing alone, does not meet the standard required to file information under seal.
Procedure Required to Obtain Leave to File Under Seal
1.
Any party who wants to file material under seal must file an appropriate motion in
the Court record seeking leave to do so. In filing this motion, the moving party MUST comply
with E.D. Tenn. L.R. 26.2 and Rule 12.2 of the Electronic Case Filing Rules and Procedures.1 If
the motion to seal is granted, the document shall remain permanently under seal. If the Court
denies the motion to seal, the moving party may file that same material, which was the subject of
the motion to seal, in the public record within seven days of entry of the Court’s order denying
the motion to seal.
2.
In the event a party moves to file under seal information which has been
designated as confidential by someone else (e.g., another party or a non-party), the party who has
designated the information as confidential will have 14 days from service of the motion to seal to
file: (a) a response indicating whether that party supports the motion to seal, and, if the response
is in the affirmative; (b) any declarations or other papers supporting such response.
3.
Redaction is considered by the Court to be the same as sealing information. See
E.D. L.R. 26.2. Where a party has met the rigorous standard to file information under seal,
redaction is required unless more than 50% of the document needs to be sealed. Proposed
redacted documents should be filed with the motion to seal or response to the motion to seal, as
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Counsels’ attention is also invited to “CMECF Sealed Documents – Documentation for
Attorneys, September 1, 2009” which can be found at:
http://www.tned.uscourts.gov/docs/atty_documentation.pdf
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is appropriate under the circumstances. Unredacted documents shall be filed under the Proposed
Sealed Document event in order that the Court can compare the redacted and unredacted
versions.
4.
Failure to comply with the procedures set forth in this order may result in the
Court summarily denying the motion.
SO ORDERED.
ENTER.
s/Christopher H. Steger
United States Magistrate Judge
UNITED STATES MAGISTRATE JUDGE
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