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Suell v. United States

United States District Court, S.D. Alabama, Southern Division

July 25, 2014

JOE GLENN SUELL, et al., Plaintiffs,

For Joe Glenn Suell, Tracy Suell, Plaintiffs: David G. Wirtes , Jr., James Brian Duncan , Jr., Joseph M. Brown , Jr., LEAD ATTORNEYS, Cunningham, Bounds, LLC, Mobile, AL.

For United States of America, Defendant: Deepthy Kishore, LEAD ATTORNEY, Washington, DC; Steven E. Butler, U.S. Attorney's Office, Mobile, AL.

Page 1191



The plaintiffs have filed a motion for leave to file under seal. (Doc. 100). Attached to the motion, filed under seal, are all 547 pages of exhibits on which the plaintiffs rely in support of their motion for partial summary judgment. The only ground offered in support of the motion is that the submitted documents are subject to a protective order entered by the Magistrate Judge at the parties' joint request.

Protective orders are contemplated by Rule 26(c) as a tool for managing discovery. Among other possible subjects, a protective order may " requir[e] that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way." Fed.R.Civ.P. 26(c)(1)(G). When such an order is sought by contested motion, the movant must show " good

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cause" for entry of the order. Id. Rule 26(c)(1). However, it is now " commonplace" for parties to " stipulate[e] to a protective order allowing each other to designate particular documents as confidential and subject to protection under" Rule 26(c). Chicago-Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1307 (11th Cir. 2001). " This method replaces the need to litigate the claim to protection document by document, and postpones the necessary showing of 'good cause' required for entry of a protective order until the confidential designation is challenged." Id. at 1307-08. The instant protective order meets this description.

Agreed protective orders adequately address the interests of the parties. The public, however, also has certain rights of access to discovery materials. As relevant here, " discovery material filed in connection with pretrial motions that require judicial resolution of the merits is subject to the common-law right" of access to judicial records. Chicago-Tribune, 263 F.3d at 1311, 1312. There is also a constitutional right of access to discovery materials submitted in connection with substantive motions, governed by the same standard as the common-law right. Id. at 1310, 1313, 1315. That standard is " the Rule 26 good cause balancing test." Id. at 1313.

The mere existence of a protective order does not automatically override the public's right of access; instead, the party seeking to maintain secrecy " must establish good cause for continued protection under Rule 26." Chicago Tribune, 263 F.3d at 1313. This is especially so when the protective order (as in Chicago Tribune ) was agreed, since in such a case there has been no prior judicial determination of good cause.[1]

The governing standard must be applied by the plaintiffs to each document, and to each portion of each document, separately. See Chicago Tribune, 263 F.3d at 1307 (an agreed protective order merely postpones the need to litigate good cause " document by document" ). The plaintiffs' one-size-fits-all approach to every word on 547 pages of documents will not do. For example, the plaintiffs propose to file under seal the same affidavit of Edward Hager that they filed -- unsealed -- in December 2013. (Doc. 22-1).[2] The plaintiffs cannot by inaction shift to the Court the burden of determining what documents should or should not be sealed.

Finally, it is irrelevant that no member of the public has sought leave to intervene in order to litigate the plaintiffs' effort to keep filed material invisible to the public. " The judge is the primary representative of the public interest in the judicial process and is duty-bound therefore to review any request to seal the record (or

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part of it)," even absent a motion to unseal. Citizens First National Bank v. Cincinnati Insurance Co., 178 F.3d 943, 945 (7th Cir. 1999); accord Gambale v. Deutsche Bank AG, 377 F.3d 133, 141 (2nd Cir. 2004) (a court may " modify a protective order sua sponte after the parties have filed a stipulation of dismissal" ); In re: Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 184 F.Supp.2d 1353, 1363 (N.D.Ga. 2002). The Court has so ruled on multiple occasions. See Reed v. Chase Home Finance, LLC, 2012 WL ...

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