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Johnson v. Shelbyville Hospital Corp.

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

March 22, 2017




         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

         This 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.

         When 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).

         In Shane Group., the Sixth Circuit discussed the very high barrier a party must surmount 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., 658 F. App'x. 202, 207 (6th Cir. 2016) (same).

         The 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)).

         In 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. (internal citation omitted). The court in Shane Group articulated the reasons for the public's interest in open access to court records similarly:

“[S]ecrecy insulates the participants, masking impropriety, obscuring incompetence, and concealing corruption.” [Brown & Williamson, 710 F.2d at 1179]. 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.” Id. at 1181.

825 F.3d at 305.

         The 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 ...

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