United States District Court, E.D. Tennessee, Chattanooga
DON KEENAN and D.C. KEENAN AND ASSOCIATES, P.C.
JAMES R. MILLER
MEMORANDUM AND ORDER REGARDING SEALING CONFIDENTIAL
CHRISTOPHER H. STEGER UNITED STATES MAGISTRATE
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.
Required to File Information Under Seal
Court regularly signs agreed protective orders, pursuant to
Fed.R.Civ.P. 26(c), which permit the parties to designate the
discovery they wish to keep confidential among themselves.
This practice is permissible because “‘[s]ecrecy
is fine at the discovery stage, before the material enters
the judicial record.'” Shane Grp., 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)).
Unfortunately, parties often assume - erroneously - that
because they have designated certain information as
confidential, they can then file that same information under
seal in the Court's record. “[T]here is a stark
difference between so-called ‘protective orders'
entered pursuant to the discovery provisions of Federal Rule
of Civil Procedure 26, on the one hand, and orders to seal
court records, on the other.” Shane Grp., 825
F.3d at 305.
information is exchanged during the discovery phase of
litigation, that information is not considered by a court to
render a ruling on an issue in the case. See Id. at
305. “‘At the adjudication stage, however, very
different considerations apply, '” id.
(quoting Joy v. North, 692 F.2d 880, 893 (2d Cir.
1982)), because, of course, a court does consider the
information filed in the court record to make its rulings.
Therefore, “[u]nlike information merely exchanged
between the parties, ‘[t]he public has a strong
interest in obtaining information contained in the public
record.'” Shane Grp., 825 F.3d at 305
(quoting Brown & Williamson Tobacco Corp. v.
F.T.C., 710 F.2d 1165, 1180 (6th Cir. 1983)).
Accordingly, “[c]ourts have long recognized . . . a
‘strong presumption in favor of openness' as to
court records.” Shane Grp., 825 F.3d at 305
(quoting Brown & Williamson, 710 F.2d at 1179).
Shane Goup., the Sixth Circuit discussed the very
high barrier a party must hurdle to overcome the presumption
of openness as to a court's record:
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.
825 F.3d at 305 (emphasis added); see also Rudd Equip.
Co. v. John Deere Constr. & Forestry Co.,
834 F.3d 589, 594 (6th Cir. 2016) (requiring
“compelling reasons” to justify sealing court
records). Moreover, “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 Grp., 825 F.3d at
305; see also Rudd Equip., 834 F.3d at 594 (same);
Beauchamp v. Fed. Home Loan Mortg. Corp., __
F.App'x.__, 2016 WL 3671629, at *4 (July 11, 2016)
reasons for this “heavy burden” are examined
thoroughly in Brown & Williamson wherein the
court began its discussion by recognizing this country's
long-standing tradition of public access to court proceedings
based upon the First Amendment and common law. 710 F.2d at
1177. See also In re Morning Song Bird Food Litig.,
831 F.3d 765, 782 (6th Cir. 2016) (“As a general rule,
the public has a first amendment right of access to court
documents and proceedings”); Rudd Equip. Co.,
834 F.3d at 593 (“a court's discretion to seal its
records is bounded by a ‘long-established legal
tradition' of the ‘presumptive right of the public
to inspect and copy judicial documents and files'”)
(quoting In re Knoxville News-Sentinel Co., 723 F.2d
470, 474 (6th Cir. 1983).
Brown & Williamson, the court articulated three
reasons for the 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.” 710 F.2d 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
court in Shane Group articulated the reasons for the
public's interest in open access to court records
“[S]ecrecy insulates the participants, masking
impropriety, obscuring incompetence, and concealing
corruption.” Id. And in any of these cases,
the public is entitled to assess for itself the merits of
judicial decisions. Thus, “[t]he public has an interest
in ascertaining what evidence and records the District Court
and this Court have relied upon in reaching our
decisions.” 825 F.3d at 305 (quoting Brown &
Williamson, 710 F.2d at 1179-80).
right of access is not absolute, however. Brown &
Williamson., 710 F.2d 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
1) a defendant's right to a fair ...