A Motion to Seal (or a Motion for the Streisand Effect?)


In civil litigation, a well-crafted motion to seal can ensure that confidential information stays confidential. But a motion to seal is not an effective tool when a party attempts to use it in a manner akin to the EU’s recently imposed “right-to-be-forgotten” ruling, such as by asking a court to seal dispositive orders twelve years after the Court issued the orders:

Plaintiff Maia Ferrand (“Ferrand”) brought the referenced action in the Southern District of New York alleging gender discrimination against her prior employer, defendant Credit Lyonnais. By Decision and Order dated September 30, 2003, this Court granted Credit Lyonnais’ motion for summary judgment (Dkt. No. 32), and by Order dated November 19, 2003, it denied Ferrand’s motion requesting reconsideration. (Dkt. No. 39.)

By letter dated April 20, 2015, Ferrand moved the Court to “seal from the public record the Decisions and Orders in the referenced matter to avoid continued harm to Ms. Ferrand, and to direct all search engines to remove the Decisions and Orders from the public domain.” (Dkt. No. 43.) The Court now considers Ferrand’s motion… .

Ferrand v. Lyonnais, 2015 WL 3378454, at *1 (S.D.N.Y. May 15, 2015) (underlines added). In fact, Ms. Ferrand’s request is even more broad than an EU “right-to-be-forgotten” request that merely deletes search requests. By asking the Court to seal the orders, Ms. Ferrand is asking for the source of the information to be deleted, not just to remove search-engine results.1

Was Ms. Ferrand likely to succeed?

4,170 Days Late and More Than a Dollar Short

In federal civil litigation, Rule 26(c)(1)(G) allows parties to seek a protective order “requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way.” While the Local Rules for the Southern District of New York provide little guidance in seeking to have a document sealed (noting only that “a protective order must be signed or a request by letter must be granted by a judge”), the Second Circuit has provided ample clarity:

As a matter of law, then, we hold that the contested documents—by virtue of having been submitted to the court as supporting material in connection with a motion for summary judgment—are unquestionably judicial documents under the common law.

As to the weight of the presumption given to such documents, Joy v. North has already clarified that the presumption is of the highest: “documents used by parties moving for, or opposing, summary judgment should not remain under seal absent the most compelling reasons.

Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 123 (2d Cir. 2006) (emphasis in original). Thus, not only must the Court’s orders in Ms. Ferrand’s case remain public, any documents submitted by the parties on summary judgment must remain public.2, 3

But where information is not confidential, it is not entitled to special protection from the Court. See, e.g.Louis Vuitton Malletier S.A. v. Sunny Merch. Corp., No. 13 CIV. 5242 LAP, 2015 WL 1499449, at *21 (S.D.N.Y. Mar. 31, 2015) (denying redaction requests for information that already has been public). Here, the orders have been freely available from the Court, in court reporters, and online for twelve years. The Court observes as much:

These rulings are matters of public record appearing not only on the docket of this Court and in search engine results, but they are also published in law reporters. See Ferrand v. Credit Lyonnais, 292 F.Supp.2d 518 (S.D.N.Y.2003); Ferrand v. Credit Lyonnais, No. 02–cv–5191, 2003 WL 22251313 (S.D.N.Y. Sept. 30, 2003).

Accordingly, the Court’s sealing of its Decisions and Orders on the docket, and even directing search engines to remove them, would be pointless if done to remove public information about them.

The first rule of motions to seal: move to seal information that is confidential, not information that is publicly available. Cats don’t go back in bags very well. Needless to say, Ms. Ferrand’s motion was denied…twice. (Yes, she sent a second letter six days later…which the Court also promptly denied.)

Brilliant Reasoning from Northern California

For documents exchanged by the parties in discovery, a protective order may be invoked broadly. See, e.g.Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010) (noting that Rule 26 allows the trial court “to protect a party or person from annoyance, embarrassment, oppression, undue burden or expense”). But when those documents are submitted to the Court, the standard is much higher. Id. (“[A] ‘compelling reasons’ standard applies to most judicial records.”).

When you fail to provide such “compelling reasons,” you may get an order denying your motion to seal, such as the following order from Judge Charles Breyer of the Northern District of California (h/t: TechDirt):

For the following reasons, all pending motions to seal are hereby DENIED. As an initial matter, [REDACTED]. It has also not escaped the Court’s attention that [REDACTED]. Moreover, [REDACTED]. In that same vein, [REDACTED]. For the foregoing reasons, the pending administrative motions to seal are denied. IT IS SO ORDERED.

In Re Hewlett-Packard Co. Shareholder Derivative Lit., No. 3:12-cv-06003-CRB (N.D. Cal. Jul. 28, 2015). Judge Breyer’s order needs to be seen to be appreciated.

Procedural Observations

So what process were the litigants in Hewlett-Packard expected to follow? N.D. Cal. Civil L.R. 79-5 provides detailed procedures for seeking to file confidential documents under seal. Most notably, the filing must be accompanied by a declaration signed under penalty of perjury “establishing that the document sought to be filed under seal, or portions thereof, are sealable.” This is a surprising requirement, as the motion (and thus the accompanying declaration) are made by the party seeking to file the document with the Court, and not necessarily the party claiming that the document is confidential. It is easy to imagine a circumstance where one party cannot attest to the propriety of filing another party’s document under seal but is required to do so, as the filing party, under a protective order.

With that in mind, the Southern District of Indiana takes a slightly different approach:

Unless the sealed filing is authorized by statute, rule, or prior court order (other than a protective order), a party filing a document under seal must contemporaneously:
(A) file a Motion to Maintain Document(s) Under Seal, and
(i) if the filing party designated the subject information confidential, a Brief in Support that complies with the requirements of subsection (e); and/or
(ii) if the filing party did not designate the subject information confidential, an identification of the designating party(ies); …

S.D. Ind. Local Rule 5-11(d)(2). This properly places the burden on the party claiming confidentiality to be the one to argue in favor of that position. It also eliminates filings from an opposing party weakly advocating the sealing of documents in which they have no real interest.4 Other courts take slightly different approaches, though many lack even a basic outline of such a procedure. See, e.g., Northern District of Georgia.

Conclusion

Whether or not a court’s local rules provide detailed procedures for filing motions to seal, the motion always should be accompanied with an explanation as to either (1) why the material sought to be sealed either is irrelevant or immaterial to a Court order; or, (2) why the material is confidential. Otherwise, motions to seal—especially those filed twelve years after litigation has closed—serve as a request not to suppress information but a request for application of the Streisand Effect.


1 As an aside, it does appear that Ms. Ferrand asked Google in the EU to “forget” her. Searches of “maia ferrand” on google.fr produce no reference to the lawsuit, but the lawsuit is the first result when searching for “maia ferrand new york“. And, of course, Google.com shows the lawsuit as one of the first results when searching for “maia ferrand“. This shows the futility of the EU’s “right-to-be-forgotten” ruling: any modicum of diligence in conducting a search will bypass the traps based solely on a person’s name.

2 Whether Credit Lyonnais (the defendant that prevailed against Ms. Ferrand) would oppose the motion is not known. They presumably did not know of the request, as Ms. Ferrand’s letter does not indicate that a copy was sent to them and no response from Credit Lyonnais is recorded on the docket. Presuming that they would oppose disappearing their victory, this also would constitute a strike against Ms. Ferrand’s request. See, e.g.Campbell v. MBI Associates, Inc., No. 12-CV-989 SLT CLP, 2015 WL 1543215, at *19 n.1 (E.D.N.Y. Mar. 31, 2015) (including as consideration on a motion to seal whether any party opposed the motion).

3 Whether the press or the public challenges the sealing also factors into the analysis. See, e.g., Refco Grp. Ltd., LLC v. Cantor Fitzgerald, L.P., No. 13 CIV. 1654 RA HBP, 2015 WL 4298572, at *6 (S.D.N.Y. July 15, 2015) (“Because this Order is being granted without any argument from the press or the public, it is without prejudice to any possible future application to unseal made by the press or the public.”).

4 The Southern District of Indiana also allows redacted documents to be filed where “any of the confidential information in a document is irrelevant or immaterial to resolution of the matter at issue”. S.D. Ind. LR 5-11(c)(2).

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