Equal Rights Center v. Post Properties, Inc.

• Court: District Court, District of Columbia
• Decided: July 28, 2011
• Docket: Civil Action No. 2006-1991
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

EQUAL RIGHTS CENTER, ) ) Plaintiff, ) ) v. ) Civil Case N0. 06cvl991 (RJL)

) POST PROPERTIES, INC. and POST GP ) HOLDINGS, INC. and POST ) APARTMENTS HOMES, L.P., )

) FILED

Defendants, ) JUL 2 8 20" 'l"'*" C|erk, U.S. Distn'ct & Bankruptcy MEM()RANDUM ORDER Cuurfs for the District of CO|umbla (July jjzoi 1)

On June 16, 2010, while on appeal, the Equal Rights Center ("ERC") moved the United States Court of Appeals for the D.C. Circuit to unseal portions of the record previously sealed by this Court. Appellant’s Motion to Unseal Portions of the Record, Equal Rz'ghts Center v. Post Propertz`es, Inc., N0. 09-5359 (D.C. Cir., June 16, 2010), ECF N0. 1250364. In response, the Post Properties defendants ("Post"), who did not object to ERC’s motion, further moved the Court to unseal various additional documents in the record. Appellees’ Response and Motion to Unseal Additional Portions of the Record, Equal Rights Center, N0. 09-5359 (D.C. Cir., June 25, 2010), ECF N0. 1251923 ("Post’s Mot. Unseal"). ERC opposed Post’s motion to unseal these additional documents claiming that the documents contained confidential and proprietary

information Appellant’s Reply and Response to Post’s Mot. Unseal, Equal Rights

Center, N0. 09-5359 (July 8, 2010), ECF N0. l253895 ("ERC’s Opp’n"). On September 2, 2010, our Circuit Court issued an order in which it referred the question of whether the documents should be unsealed to this Court. Order, Equal Rights Center, N0. 09-5359 (D.C. Cir., Sept. 2, 2010), ECF N0. l263954 ("Order"). In particular, the Circuit Court specified that the documents in question include: (l) Post’s Memorandum in Support of Motion to Strike (Mar. 20, 2009), ECF N0. 163 ("Memorandum"); (2) exhibits N through R attached thereto ("Exhibits N through R"); and (3) pages 72-73 of exhibit 37 to Post’s Motion for Summary Judgment (Dec. l7, 2008), ECF N0. l2l-37. See ia'.

As an initial matter, Post only moves to unseal pages 72-73 of exhibit 37 to defendants’ motion for summary judgment if those pages were included in the record submitted to this Court. Post’s Mot. Unseal at 5. Having reviewed the record, this Court finds that those pages were not included in exhibit 37 to defendants’ motion for summary judgment.l Post’s Mot. Summ. J., Ex. 37 (Dec. l7, 2008), ECF. N0. 121~37. Thus, as those pages are not in the record, this Court need not, and indeed cannot, address whether they are appropriately sealed.

The determination of whether to unseal the remaining documents must be assessed in accordance with the factors set forth in Um'tea’ States v. Hubbara', 650 F.2d 293, 317-

22 (D.C. Cir. 1980). In Hubbard, our Circuit Court outlined six factors that this Court

1 Exhibit 37 consists of excerpts from the May 30, 2008 deposition of Donald L. Kahl. These excerpts do not include pages 72-73. The Courts notes, however, that exhibit 36 to defendants’ motion for summary judgment, which consists of excerpts from the April 23, 2008 deposition of Donald L. Kahl, does contain pages numbered 72-73.

must weigh against the "strong presumption in favor of public access to judicial proceedings." Johnson v. Greater SE Comm. Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991) (citing Hubard, 650 F.2d at 317). Those factors are: (l) the need for public access to the documents at issue; (2) public use of the documents; (3) the fact of objection and identity of those objecting to disclosure; (4) the strength of the generalized property and privacy interests asserted; (5) the possibility of prejudice; and (6) the purpose for which the documents were introduced. Hubbard, 650 F.2d at 317-22.

Applying the Hubbara’ factors, 1 fail to see any reason to unseal both the Memorandum and Exhibits N through R at this time. On March 8, 2011 our Circuit affirmed this Court’s ruling granting final judgment in favor of defendants, Judgment, Equal Rzghts Center, N0. 09-5359 (D.C. Cir., Mar. 8, 2011), ECF N0. 1296849. The need for public access is, therefore, highly diminished. See Hubbard, 650 F.2d at 317-18. Furthermore, ERC’s strong objection weighs in favor of keeping the memorandum and exhibits under seal. See ia’. at 319-20. Nevertheless, Post argues, and this Court agrees, that there are no apparent property or privacy interests in the memorandum or exhibits

themselves.z See ia'. at 320. That said, however, privacy interests are but one of many

2 For instance, ERC cites to a reference to "Exhibit C" on page 3 of the memorandum, arguing that Exhibit C contains confidential identifying information relating to ERC’S members. ERC’s Opp’n at 4. But the reference to Exhibit 3 is a "see a1so" cite that contains no substantive information Post’s Mot. Strike at 3. The fact that Exhibit C exists is not alone confidential or proprietary. Indeed, ERC’s discussion of Exhibit C in its unsealed response to Post’s motion to unseal contains more information about Exhibit C than the memorandum itself. See ERC’s Opp’n at 4. ERC also cites to the discussion of Kahn’s deposition testimony. ERC’s Opp’n at 4. But the discussion and quoted 3

factors that may weigh in favor of keeping the documents sealed. See id. at 317-22. Simply put, Post did not identify, and this Court does not find, any reason to unseal the documents at this time. See z'a’. at 320-24. Accordingly, it is hereby ORDERED that Post’s motion to unseal its memorandum in support of its motion to strike and exhibits N through R thereto is DENIED; and it is hereby ORDERED that Post’s motion to unseal pages 72-73 to its motion for summary judgment is DENIED as moot. S0 ORDERED. /\ @LAM RICHARD J. LE N United States District Judge

excerpts do not seem to contain any proprietary or confidential information. See Post’s Mot. Strike at 3. Indeed, the information in the quoted excerpts pertains to the number of ERC members, information that is available online in ERC’s public annual reports. Finally, ERC argues that the memorandum contains a discussion of various exhibits to the Declaration of Alyssa Lareau that were filed under seal. ERC’s Opp’n at 4-5. Again, nothing in the discussion appears to this Court to be confidential or proprietary. See Post’s Mot. Strike at 8-19.