Elbertson v. Chevron, U.S.A., Inc.
Filing
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MEMORANDUM AND OPINION entered DENYING 19 Unopposed MOTION to Seal Case files.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JANETTE ELBERTSON,
Plaintiff,
v.
CHEVRON, U.S.A., INC.
Defendant.
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CIVIL ACTION NO. H-10-0153
MEMORANDUM AND OPINION
The plaintiff has filed an unopposed motion to seal “the entire public record” of this case
months after it was settled and dismissed. This is an employment case. The plaintiff sued her
former employer, alleging that she was wrongfully terminated, discriminated against on the basis
of race, national origin, and age, and retaliated against for complaining internally about the use of
company aircraft for personal reasons and questionable accounting practices, including requesting
reimbursement for overstated travel expenses. The case was dismissed in July 2010 based on the
parties’ announcement of settlement. In October 2010, the plaintiff filed this unopposed motion to
seal all the court records.
In this motion, the plaintiff asserts her belief that the public record of this suit “could be a
detriment to her current and future employment. . . .if a current or potential employe[r] discovered
the facts of this matter, it would not view her involvement favorably, which could be a threat to her
job security.” (Docket Entry No. 19, p. 2). The plaintiff argues that her job security and ability to
maintain or obtain employment in the future outweigh the public’s right of access.
The Fifth Circuit has described the following standard for sealing court documents:
Courts have recognized that the public has a common law right to
inspect and copy judicial records. Nixon v. Warner Communications,
Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 1312, 55 L. Ed. 2d 570
(1978); Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 429 (5th
Cir. 1981). However, the public’s common law right is not absolute.
Nixon, 435 U.S. at 598, 98 S. Ct. at 1312; see Belo, 654 F.2d at 430.
“Every court has supervisory power over its own records and files,
and access has been denied where court files might have become a
vehicle for improper purposes.” Nixon, 435 U.S. at 598, 98 S. Ct. at
1312. Thus, the common law merely establishes a presumption of
public access to judicial records. Littlejohn v. BIC Corp., 851 F.2d
673, 678 (3d Cir. 1988). Although the common law right of access
to judicial records is not absolute, “the district court’s discretion to
seal the record of judicial proceedings is to be exercised charily.”
Federal Savings & Loan Ins. Corp. v. Blain, 808 F.2d 395, 399 (5th
Cir. 1987).
In exercising its discretion to seal judicial records, the court must
balance the public’s common law right of access against the interests
favoring nondisclosure. See Nixon, 435 U.S. at 599, 602, 98 S. Ct. at
1312, 1314 (court must consider “relevant facts and circumstances of
the particular case”); Belo, 654 F.2d at 434; see also Bank of America
Nat’l Trust v. Hotel Rittenhouse, 800 F.2d 339, 344 (3d Cir. 1986)
(court had duty to “balance the factors favoring secrecy against the
common law presumption of access”); Newman v. Graddick, 696
F.2d 796, 803 (11th Cir. 1983) (“The historic presumption of access
to judicial records must be considered in the balance of competing
interests.” (citing Belo)).
S.E.C. v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993) (footnote omitted). The Van
Waeyenberghe court found that the district court had abused its discretion in sealing court
documents because there was no evidence that the district court balanced the competing interests
prior to entering the sealing order, noting that the district court had not mentioned the presumption
in favor of public access to judicial records and had not articulated any reasons that would support
sealing the documents at issue. See id. at 848–49.
The Fifth Circuit has affirmed a district court’s refusal to seal records based on very similar
reasons to those the plaintiff asserts here. In Macias v. Aaron Rents, Inc., 288 F. App’x 913, 915 (5th
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Cir. 2008) (unpublished), the Fifth Circuit found that the district court had not abused its discretion
by refusing to seal court documents based on the plaintiff’s concern that he was finding it difficult
to obtain employment because he had successfully sued a former employer. The plaintiff requesting
sealing raised argued “the lack of importance to the public and the potential for employer retaliation
against litigious employees” as justifications for sealing the record of his successful lawsuit. The
court noted that these concerns “could apply to nearly all cases filed in the federal courts, especially
those involving title VII.” The court continued: “If we were to decide that the court’s determination
here was an abuse of discretion, then the same argument could successfully be made by countless
plaintiffs. Such a result, however, would be contrary to our statement that ‘the district court’s
discretion to seal the record of judicial proceedings is to be exercised charily.’” Id. (quoting Van
Waeyenberghe, 990 F.2d at 848 (internal citations and quotations omitted) (emphasis added)). Other
courts have reached the same result in similar cases. See, e.g., Peru v. T-Mobile USA, Inc., 2010 WL
2724085, 1-3 (D. Colo. 2010); U.S. ex rel. Permison v. Superlative Technologies, Inc., 492 F.Supp.2d
561, 564 -565 (E.D. Va. 2007).
Although this court understands the plaintiff’s concern, she has failed to show that it
outweighs the significant public interest in full access to judicial records. Weighed against that
powerful public interest in access, the plaintiff has made a weak showing of potential harm to her
privacy interests. The law prohibits (and provides a remedy for) discrimination or retaliation by a
prospective employer against applicants in these circumstances. See generally Kelley v. Goodyear
Tire & Rubber Co., 220 F.3d 1174, 1179 (10th Cir.2000) (discussing employee’s claim that
prospective employer retaliated against him for filing complaint against prior employer); Nilsson v.
City of Mesa, 503 F.3d 947, 954-55 & n. 3 (9th Cir. 2007) (same). The harm feared by the plaintiff
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here is precisely the same harm that most employment discrimination plaintiffs face, and yet there
is no tradition of sealing all such records or even of allowing anonymous employment discrimination
litigation. And when, as here, the public has already had access to documents, that is a factor
weighing in favor of continued public access. See, e.g., Weiss v. Allstate Ins. Co., No. 06-3774, 2007
WL 2377119, at *5 (E.D. La. Aug. 16, 2007).
The motion to seal is denied.
SIGNED on November 9, 2010, at Houston, Texas.
______________________________________
Lee H. Rosenthal
United States District Judge
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