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setting forth standard for obtaining leave to file documents under seal
Summary of this case from Asbridge v. Kan. Tpk. Auth.Opinion
Case No. 03-2666-CM.
June 30, 2004
MEMORANDUM AND ORDER
Pending before the Court is the parties' Joint Motion for Protective Order (doc. 13). The parties request that the Court enter a protective order pursuant to the stipulation of the parties.
The parties seek a protective order that will allow them to designate as confidential personnel records and files, trade secret information, personal financial information, and "computer records or other confidential electronic information." The proposed Protective Order provides that any material which is designated as confidential may not be disclosed except to certain specified individuals and entities and may only be used in connection with the prosecution and defense of this action. The proposed Protective Order contains a provision that would permit the parties to file under seal any material designated as confidential. It also provides that any person not permitted access to documents designated confidential under the Protective Order may be barred from the courtroom if confidential documents or information will be presented at the trial or motion hearing.
The decision whether to enter a protective order lies within the sound discretion of the court. Federal Rule of Civil Procedure 26 provides that the court, upon a showing of good cause, "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." The Scheduling Order entered in this case requires that at all "jointly proposed protective orders shall include . . . a concise but sufficiently specific recitation of the particular facts in this case that would provide the court with an adequate basis upon which to make the required finding of good cause pursuant to Fed.R.Civ.P. 26(c)."
Thomas v. IBM, 48 F.3d 478, 482 (10th Cir. 1995).
Doc. 9, ¶ II.j.
Upon review of the Motion and the proposed Protective Order, the Court finds that the parties have shown good cause to keep the referenced confidential personnel records and files, trade secret information, and personal financial information confidential between the parties. The Court, however, does not find that good cause has been shown to keep "computer records or other confidential electronic information" confidential. The mere fact that a document is a computer record or an electronic document does not warrant protection from disclosure. The Court therefore finds that the proposed Protective Order is objectionable to the extent it seeks to protect computer records and electronic documents from disclosure.
In addition, the Court finds that Paragraph 4, which contains a provision for filing documents under seal is objectionable. The parties have failed to establish a public or private harm sufficient to overcome the public's right of access to judicial records. The parties have therefore failed to adequately support their request that the Court enter the provision allowing for the filing of confidential materials under seal.
It is well settled that federal courts recognize a common-law right of access to judicial records. This right derives from the public's interest "in understanding disputes that are presented to a public forum for resolution" and is intended to "assure that the courts are fairly run and judges are honest." This public right of access, however, is not absolute. As federal district courts have supervisory control over their own records and files, the decision whether to allow access to those records is left to the court's sound discretion. In exercising that discretion, the court must consider the relevant facts and circumstances of the case and balance the public's right of access, which is presumed paramount, with the parties' interests in sealing the record or a portion thereof. Documents should be sealed "only on the basis of articulable facts known to the court, not on the basis of unsupported hypothesis or conjecture."
Worford v. City of Topeka, No. 03-2450-JWL-DJW, 2004 WL 316073, at *1 (Feb. 17, 2004) (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-99 (1978); Crystal Grower's Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir. 1980); Stapp v. Overnite Transp. Co., No. 96-2320-GTV, 1998 WL 229538, at *1 (D. Kan. Apr. 10, 1998)).
Worford, 2004 WL316073, at *1 (citing Crystal Grower's Corp., 616 F.2d at 461).
Id. (citing Stapp, 1998 WL 229538, at *1).
Id. (citing Stapp, 1998 WL 229538, at *1).
Id. (citing Stapp, 1998 WL at *1 (citations omitted)).
Id. (citing Stapp, 1998 WL 229538, at *1).
In keeping with "the paramount right of public access," this Court will require a party to move for permission to file a particular document under seal and to demonstrate a public or private harm that is sufficient to justify the sealing of the document. The fact that the parties may agree to a protective order which provides for the filing of confidential materials under seal does not dispense with the requirement that the parties establish a harm sufficient to overcome the public's right of access to judicial records.
Id.
Id. The Court notes that an additional concern supports the Court's rejection of blanket "filing under seal" provisions in protective orders. Because this District has implemented an electronic case filing system, documents filed under seal must be filed conventionally, i.e., in paper form, rather than electronically. See D. Kan. 5.4.6. Such paper filings impose a significant administrative burden on the Clerk's Office.
In this case, the parties have not provided sufficient information for the Court to ascertain exactly what confidential documents may be filed under seal. Even assuming the Court were able to determine what documents maybe filed under seal, the parties have failed to articulate any specific facts upon which the Court could base a finding of a public or private harm that would overcome the public's right of access to judicial records. The Court must therefore reject the filing under seal provision contained in Paragraph 4 of the proposed Protective Order.
The Court wishes to make it clear that this ruling does not preclude any of the parties from filing a motion to file a particular document or documents under seal. Any such motion should identify the particular document(s) sought to be filed under seal and should set forth specific facts that would satisfy the standards set forth herein.
The Court also rejects Paragraph 5 of the proposed Protective Order to the extent it bars certain individuals from attending the trial or motion hearings in which confidential documents or information will be presented. As the Tenth Circuit has noted, "[l]awsuits are public events." "The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Accordingly, requests by parties to close the courtroom to certain individuals during the presentation of confidential or trade secret information are treated with disfavor and are generally granted only in extraordinary circumstances. The parties have failed to present any evidence of extraordinary circumstances in this case. The Court must therefore reject this provision of the proposed Protective Order.
As the Court's Deposition Guidelines allow persons to be excluded from depositions based on the provisions of a protective order, the Court has no objections to that portion of Paragraph 5 which bars certain individual from attending depositions in which confidential information and/or documents are revealed. See Deposition Guidelines, ¶ 4(a) [found at www.ksd.uscourts.gov] ("While a deponent is being examined about any document designated as confidential pursuant to a protective or confidentiality agreement or order, any persons to whom disclosure is not authorized under the order or agreement shall be excluded from the deposition.").
N.M. v. Zavaras, 139 F.3d 798, 803 (10th Cir. 1998).
Press-Enterprise Co. v. Superior Court of Calif., Riverside County, 464 U.S. 501, 510 1984).
See, e.g., Mike v. Dymon, Inc., No. 95-2405-EEO, 1997 WL 38111, at * 1 (D. Kan. Jan. 23, 1997) (citing 8 Charles Alan Wright et al., Federal Practice Procedure 2042 at 550 (2d ed. 19994) (and cases cited therein).
In light of the above, the Court is unable to approve the proposed Protective Order submitted by the parties, and the Court will deny the Motion for Protective Order. The parties are hereby granted leave to file another motion for protective order and to submit a revised, agreed protective order consistent with this Order.
IT IS THEREFORE ORDERED that the parties' Joint Motion for Protective Order (doc. 13) is denied.
IT IS SO ORDERED.