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American Guarantee and Liability Insurance Co. v. Norfolk Southern Railway Co.

United States District Court, E.D. Tennessee, Knoxville

February 3, 2017

AMERICAN GUARANTEE & LIABILITY INSURANCE COMPANY, Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, et al., Defendants.

          MEMORANDUM AND ORDER REGARDING SEALING CONFIDENTIAL INFORMATION

          C. Clifford Shirley, Jr. United States Magistrate Judge

         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.

Id.

         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 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 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 ...

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