Bradford & Bigelow, Inc. v. Richardson

109 F. Supp. 3d 445, 91 Fed. R. Serv. 3d 1634, 2015 U.S. Dist. LEXIS 79877, 2015 WL 3819234
CourtDistrict Court, D. Massachusetts
DecidedJune 19, 2015
DocketCivil Action Nos. 13-11025-RWZ, 14-14113-RWZ
StatusPublished
Cited by16 cases

This text of 109 F. Supp. 3d 445 (Bradford & Bigelow, Inc. v. Richardson) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bradford & Bigelow, Inc. v. Richardson, 109 F. Supp. 3d 445, 91 Fed. R. Serv. 3d 1634, 2015 U.S. Dist. LEXIS 79877, 2015 WL 3819234 (D. Mass. 2015).

Opinion

MEMORANDUM OF DECISION

RYA W. ZOBEL, District Judge.

Plaintiff Bradford & Bigelow, Inc., moves to seal materials that it expects defendants Heather Richardson and Thomas Richardson will file with their forthcoming motions for summary judgment, as well as documents that it intends to file with its own motions for summary judgment. See Docket # 44 (C.A. No. 13-11025-RWZ), Docket # 17 (C.A. No. 14-14113-RWZ). The parties entered into stipulations that allowed them to designate documents produced during discovery as confidential. Docket # 44 at 1318.1 They apparently designated large quantities of [447]*447documents that way, but failed to include a confidentiality provision in their stipulation — which was'not submitted to the court for approval, as it should have been under Federal Rule of Civil Procedure 26(c). That rule governs what happens when a party that receives confidential information from another party needs to file it or write about it in a filing. Plaintiff wants to seal all of the documents that it designated as confidential in the summary judgment submissions, but defendants object because of the difficulties and costs associated with sealed filings and the general principle of public access to court records.

The problem raised in plaintiffs motion is, unfortunately, a common one in complex civil litigation before this court. See, e.g., Order, Skyhook Wireless, Inc. v. Google, Inc., No. 10-11571-RWZ (D.Mass. Feb. 18, 2015), Docket # 562. It seems .to stem from parties’ misconception that they, rather than the court, get to decide when documents are sealed. That is not so. Parties seeking to seal documents must explain, on a document-by-document basis, why sealing is required and how their request satisfies the applicable legal standard. Because plaintiff has not done that here, its motion is denied. The court, however, will allow the parties to submit a protective order for approval before summary judgment motions are filed2 that includes a provision addressing the sealing issue and setting out a procedure to seal truly confidential materials only.

1. The Legal Standard for Filing Documents Under Seal

“A party seeking to file a document under seal must demonstrate that ‘good cause’ exists to do so.” Dunkin Donuts Franchised Restaurants, LLC v. Agawam Donuts, Inc., No. CIV.A. 07-11444-RWZ, 2008 WL 427290, at *1 (D.Mass. Feb. 13, 2008). This is because of the longstanding tradition of public access to trials and pretrial motions in our judicial system — a tradition that is protected both by the common law and the First Amendment. See, e.g., Nixon v. Warner Comm’ns, 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978); FTC v. Standard Fin. Mgmt., 830 F.2d 404, 408 n. 4 (1st Cir.1987) (common law); Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir.2006) (common law and First Amendment). And, at a more practical level, it is driven by administrative concerns. The court expends considerable resources to process and maintain sealed documents. See, e.g., Dunkin Donuts, 2008 WL 427290, at *1.

What constitutes “good cause,” and therefore what concerns can justify a document being filed under seal, depends on the nature of the filing. The more important the document is to the core judicial function of determining the facts and law applicable to the case, the stronger the presumption of public access and the higher the burden to overcome it. On one end of the spectrum, there is no public right of access to unfiled discovery materials. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32-36, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). But, once a document produced in discovery is filed with the court, there is a presumptive right of public access. See Standard Fin. Mgmt. Corp., 830 F.2d at 409 (“[DJocuments which are submitted to, and accepted by, a court of competent jurisdiction in the course of adjudicatory proceedings, become documents to which the presumption of public access applies.”). At the opposite end of the spectrum from discovery mate[448]*448rials, the public interest is strongest (and the burden to overcome it the highest) for documents introduced at trial or included in an appellate record. See, e.g., Poliquin v. Garden Way, 989 F.2d 527, 533 (1st Cir.1993); Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 545-46 (7th Cir.2002).

Between these extremes, the presumption may be overcome if the filing is not related to issues where there is no tradition of public access, like motions about discovery matters. See Anderson v. Cryovac, Inc., 805 F.2d 1, 13 (1st Cir.1986) (holding that there is no common law right to inspect such documents because “[tjhere is no tradition of public access to discovery, and requiring a trial court to scrutinize carefully public claims of access would be incongruous with the goals of the discovery process”). But the pendulum swings the other way for materials filed in connection with non-discovery motions, like motions for summary judgment, Daubert motions, or motions in limine. See, e.g., Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 165 (3d Cir.1993) (“[W]e hold there is a presumptive right to public access to all material filed in connection with nondiscovery pretrial motions, whether these motions are case dispositive or not....”). To seal such filings, the party seeking to overcome the presumption of public access must demonstrate significant countervailing interests, like the existence of trade secrets in the documents or confidential business information. See, e.g., Nixon, 435 U.S. at 598, 98 S.Ct. 1306 (“[Cjourts have refused to permit their files to serve as ... sources of business information that might harm a litigant’s competitive standing.”); Baxter Int’l, Inc., 297 F.3d at 546 (describing other possible countervailing interests).

A common justification offered up as “good cause” for sealing a court filing is that a document is (or contains information that is) designated as confidential under a stipulated protective order. That alone, however, is not enough. The “good cause” that justifies an umbrella protective order at the discovery stage (and allows such designations) is not sufficient to meet the heightened standard to seal filings about dispositive motions or trial. Cf. N.D. Cal. L.R. 79-5(d)(l)(A) (“Reference to a stipulation or protective order that allows a party to designate certain documents as confidential is not sufficient to establish that a document, or portions thereof, are sealable.”); Sedona Conference Working Group on Protective Orders, & Confidentiality & Public Access (WG2),

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109 F. Supp. 3d 445, 91 Fed. R. Serv. 3d 1634, 2015 U.S. Dist. LEXIS 79877, 2015 WL 3819234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bradford-bigelow-inc-v-richardson-mad-2015.