ProImage Wholesale Signs, LLC v. Burton Signworks, Inc. (JRG2)
MEMORANDUM AND ORDER REGARDING SEALING CONFIDENTIAL INFORMATION. Signed by Magistrate Judge C Clifford Shirley, Jr on 2/3/17. (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
PROIMAGE WHOLESALE SIGNS, LLC,
BURTON SIGNWORKS, INC.,
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, 825 F.3d 299, 305 (6th Cir. 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.’” Id. (quoting Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982)).
In Shane Group, Inc., the Sixth Circuit recently 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.
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. 710 F.2d 1165, 1179 (6th Cir. 1983). 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 selfappointed 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
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.
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.”).
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., 825 F.3d at 305.
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 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
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 under seal, unless the Court orders
otherwise. 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.
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.
Except as stated in Federal Rules of Civil Procedure 5.2, 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 is appropriate under the circumstances. Unredacted
Counsels’ attention is also invited to “CMECF Sealed Documents – Documentation for Attorneys, September 1,
2009” which can be found at:
documents shall be filed under the Proposed Sealed Document event in order that the Court can
compare the redacted and unredacted versions.
Failure to comply with the procedures set forth in this order may result in the Court
summarily denying the motion.
s/ C. Clifford Shirley, Jr.
United States Magistrate Judge
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