In re Bank One Securities Litigation

222 F.R.D. 582, 2004 U.S. Dist. LEXIS 15320, 2004 WL 1775933
CourtDistrict Court, N.D. Illinois
DecidedAugust 5, 2004
DocketNo. 00 C 767
StatusPublished
Cited by11 cases

This text of 222 F.R.D. 582 (In re Bank One Securities Litigation) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Bank One Securities Litigation, 222 F.R.D. 582, 2004 U.S. Dist. LEXIS 15320, 2004 WL 1775933 (N.D. Ill. 2004).

Opinion

MEMORANDUM OPINION AND ORDER

MORTON DENLOW, United States Magistrate Judge.

Throughout the history of this country, documents that at one point were classified because of their political significance and sensitivity have been disclosed because they have become politically stale yet remain historically significant. The same is true with regard to the documents in this case. At one point, the information contained in the documents that were sealed in this case was financially sensitive and proprietary. However, as a result of the significant events that have occurred during the years following the sealing of those documents, the reasons for keeping the documents under seal have disappeared, yet the documents remain historically significant for the purpose of this litigation. The time has come to unseal the documents in this case and to permit the public to enjoy the right of free access to which it is entitled.

This case comes before this Court on a motion by lead Plaintiff Naomi Bowell Trust on behalf of the First Chicago NBD Plaintiffs (“Plaintiffs”) to unseal the district court record in this action against Bank One (“Defendant”), and other individual defendants. This motion presents the issue whether certain pleadings, motions, and attached exhibits that have been sealed by an agreed protective order should be unsealed to allow public access to materials filed with the district court and to give putative class members sufficient notice and information under Federal Rule of Civil Procedure 23(c)(2) to appraise class claims and defenses. Defendant proposes that putative class members receive access to the record only after they sign a protective order. Plaintiffs claim that Defendant has not presented evidence to show “good cause” to keep the record sealed and that Defendant’s solution is inconsistent with Rule 23 and the public’s interest in access to court documents. For the following reasons, Plaintiffs’ motion to unseal the district court record is granted.

I. BACKGROUND FACTS

This case arises from the October 2, 1998 merger (the “Merger”) between Defendant and First Chicago NBD. Plaintiffs allege Defendant violated federal securities laws by issuing a materially false and misleading Joint Proxy Statement and Prospectus in connection with the Merger. A previous opinion entered by this Court on July 31, 2002 details the background facts in this case. See In re Bank One Secs. Litig., First Chicago Shareholder Claims, 209 F.R.D. 418 (N.D.Ill.2002). For the purpose of brevity, this opinion will discuss only the information relevant to the present issue.

The issue currently before this Court stems from a protective order entered on December 12, 2001. The order was agreed upon by the parties, governs all discovery material produced during the pretrial discovery stage of this action, and permits the producing party to designate as “Confidential” any material that:

(a) is or contains non-public financial data, marketing and advertising data and plans, strategic or long-range plans, internal cost data, performance data, customer or vendor data, contracts and agreements with third parties, or technological data; and (b) is designated by a party in good faith as confidential because it contains or is information protected from disclosure by Fed.R.Civ.P. 26(c)(7). Material produced by third parties may, at the option of that party, be deemed “Confidential” under the terms of this Protective Order.

Protective Order of Dec. 12, 2001, at 2. Additionally, the order provides that confidential [585]*585information could be disclosed to the Court and its staff, as well as to “Qualified Persons,” including parties and class representatives, when necessary to “aid in the prosecution, defense, or settlement” of this action. Under the order, such information would be made part of the public record only when authorized by the Court. Until then, “any person may seek to unseal any pleading or other court paper at any time upon motion to the Court.” The order further provides:

A party or other person objecting to the designation of Confidential Material shall provide written notice of the objection to the designating party, specifying the materials that are the subject of the objection. The parties and any other objecting person(s) shall confer in good faith____ If such conference does not resolve the objection, ... the designating person(s) may apply to the Court, by motion or petition, for a ruling that material designated by a party as Confidential shall be treated as provided in this Order or the Confidential designation shall lapse. The party that opposes the designation of the material as Confidential shall be given notice of the application and an opportunity to respond. Pending determination by the Court, material designated by a party as Confidential shall be treated as provided in this Order.

Id. ¶12, at 6-7.

Fact discovery in this case has ended, and the parties are proceeding on expert discovery. Plaintiffs’ Amended Complaint, the Answers, several motions, briefs, and attached discovery currently remain sealed pursuant to the December 12, 2001 order. Plaintiffs have informed Defendant of their intent to disseminate notice to the class members, and they have filed a motion to unseal the district court record to give class members an adequate opportunity to evaluate the action, as well as to afford public access to materials filed with the Court.

Defendant contends that no compelling reason exists to unseal the records, that the records contain trade secrets worthy of concealment, that Plaintiffs have violated the terms of the agreed protective order governing challenges to confidentiality, and that the matter should be resolved by permitting putative class members access to the court filings only if they first agree to abide by a protective order. Plaintiffs argue Defendant has not shown “good cause” to maintain the seal on the record pursuant to Federal Rule of Civil Procedure 26(c) and that Defendant’s solution is inconsistent with Rule 23 and the public’s interest in access to court documents.

On July 14, 2004, oral arguments were held with regard to the issue of “good cause.” Prior to this event, the parties met to try to resolve their disagreements. As a result of the meeting, Defendant agreed to unseal much of the record. However, at oral argument Defendant argued that the documents remaining under seal contained confidential information that could compromise Defendant’s marketplace position. Additionally, Defendant alleges the existence of a confidentiality requirement with regard to documents related to the Office of the Comptroller of the Currency (“OCC”) that were produced during discovery. At the close of the oral argument, this Court issued a ruling from the bench that unsealed all documents in the record except OCC-related documents, including those pleadings that reference the OCC or its involvement in the case, for which this Court reserved ruling.

Later that same day, a telephone conference call between this Court, Defendant, and Plaintiffs determined the necessity of an additional appearance by the parties before this Court to address the alleged confidentiality of the OCC-related documents.

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Bluebook (online)
222 F.R.D. 582, 2004 U.S. Dist. LEXIS 15320, 2004 WL 1775933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bank-one-securities-litigation-ilnd-2004.