The Volokh Conspiracy
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From last Thursday's decision in Butigan v. Al-Malki (U.S. District Court for the Eastern District of Virginia):
This case concerns a civil action brought by Christy A. Butigan ("Plaintiff") for alleged improprieties performed by Salah Mohammed K. A. Al-Malki and Salwa Awad M. Saeed ("Defendants") against Plaintiff during her term of employment with Defendants. The issue before the Court is whether to seal the entire record in this case where a settlement agreement was reached without judicial intervention. The Court DENIES the Parties' Joint Motion because the Parties assert no significant interest that outweighs the presumption in favor of public access to court records.
The background, based on plaintiff's complaint:
Defendants employed Plaintiff as a domestic servant in their homes in both the United States and Qatar from approximately September 10, 2010 until April 27, 2011. Plaintiff terminated her employment with Defendants on April 27, 2011 when she fled from their home in Vienna, Virginia due to intolerable living and working conditions.
On April 26, 2013, Plaintiff filed a Complaint against Defendants for alleged violations of the Trafficking Victims Protection Act and Fair Labor Standards Act, in addition to asserting state law claims. On May 12, 2014, a default judgment was entered in favor of Plaintiff and against Defendants. The Parties then entered into a Confidential Settlement Agreement on January 17, 2017, and on February 14, 2017, the Court entered a Stipulation and Order vacating the default judgment and dismissing the matter with prejudice and without costs. As a separate condition of the Settlement Agreement, the Parties agreed to jointly petition the Court, in its discretion, to seal the court record.
The legal framework was the usual one for questions about whether to seal court documents: American law has long recognized a common law "right to access, inspect, and copy court records and documents," developed by courts as part of their rule-setting for their own operations. In the past several decades, the Supreme Court has also recognized a First Amendment right of access to criminal court hearings, but lower courts have generally concluded that this First Amendment right of access also applies to civil cases and to many documents in those cases. The rights are strongly protected but not absolute: Under the common-law right:
Access to court files may be denied, for instance, "(1) where disclosure may be used to gratify private spite or promote public scandal, (2) where disclosed records may serve as reservoirs of libelous statements for press consumption, or (3) where disclosure might reveal trade secrets [.]" Under Seal v. Under Seal (4th Cir. 2003). In deciding whether to seal court records and documents, the court should consider factors including "whether the records are sought for improper purposes …; whether release would enhance the public's understanding of an important historical event; and whether the public has already had access to the information contained in the records."
And under the First Amendment right,
Denial of public access to such court records is justified only if it is required by compelling governmental interest and "there is no less restrictive way to serve that governmental interest."
But the court concluded that both rights prevent the sealing of the documents:
The Court DENIES the Parties' Joint Motion to Seal because the Parties do not assert a compelling governmental interest that necessitates or justifies the sealing of documents, nor do they assert a significant interest that outweighs the public's common law right of access to judicial records….
First, in support of their motion, the Parties cite the fact that there has been no adversarial process engaged in this matter and a settlement agreement was obtained without judicial intervention. In support of this claim, the parties quote an opinion from Second Circuit stating that "[r]aw, unverified information should not be as readily disclosed as matters that are verified." United States v. Amodeo (2d Cir. 1995). The Court distinguishes the present matter from Amodeo because the documents being sealed in that case were confidential reports prepared for a judge by a court officer pursuant to a consent decree in a Racketeer Influenced and Corrupt Organizations (RICO) action. In the present matter, the Parties seek to seal the entire record, including all motions filed before the court in pursuit of litigation.
The court in Amodeo provides guidance as to the distinction when it states that, "[d]ocuments that play no role in the performance of Article III functions, such as those passed between parties in discovery, lie entirely beyond the presumption [of access's] reach, and 'stand on a different footing than … a motion filed by a party seeking action by the court,' or, indeed, than any other document which is presented to the court to invoke its powers or affect its decisions."
Under this distinction, the documents that the Parties in the present matter seek to seal clearly fall under the presumption of public access as they are documents presented to the court to invoke its powers or affect its decisions. The decision to overcome the presumption of access is not to be made lightly, and "[t]he public's access to judicial records and documents may only be abrogated in unusual circumstances." The Court finds the sui generis scenario claimed by the parties to be unsupported by relevant case law and the circumstances surrounding the motion not unusual enough to overcome the public's "presumption of access that can only be rebutted if countervailing interests heavily outweigh the public interests in access.
[This "sui generis scenario" reference appears to refer to the following argument in the parties' joint brief: "In this matter, there is no question of solidifying public confidence in the judicial system. There is no bright light to shine on possible injustice, incompetence, perjury, or fraud. There is no greater or lesser perception of fairness by the public's viewing of the remaining documents in this matter. Central to this request, is the fact that there has been no adversarial process engaged in in this matter. Virtually all the sealing decisions in this Circuit and elsewhere involve applications for sealing during or after contested litigation. This case does not present that scenario and the sui generis nature of the timing of this sealing request, the parties submit, calls for a more nuanced application of the sealing rubric than might adhere to a situation, unlike this one, in which the public had an actual interest in the facts developed through litigation or the application of Article III judicial reasoning."—EV]
Second, the Parties claim that the allegations contained in the Complaint "detail sensitive information and could lead to reputational injury of the parties." This claim is similar to that made by the parties in Adler v. CFA Inst. (E.D. Va. Aug, 7, 2012). In Adler, "[t]he only interests cited by the parties in support of their request to seal the records … [were] Plaintiff's own reputational and privacy interests …." The court in Adler denied the parties' motion to seal because "[t]he parties offer[ed] no evidence of any likelihood that the documents filed in [the] case [would] be sought and used for improper purposes." Here, like in Adler, the Parties have merely provided the court with a hypothetical scenario where the information in court documents could be used for improper purposes. They have not offered any real evidence that such an event might occur if the record were to be left open to public access….
Seems like the correct result to me, even if one may quibble with some of the details of the analysis. For more on excessive sealing, see this post.
For those interested in more perspective on this particular case, here's a passage from the magistrate's report adopted by the 2014 default judgment (though keep in mind that, as a default judgment, it was based just on plaintiff's allegations, albeit ones that the defendant had an opportunity to challenge but didn't—"Where a defendant has defaulted, the facts set forth in the plaintiff's complaint are deemed admitted."):
FINDINGS OF FACT
Upon a full review of the pleadings, the undersigned Magistrate Judge finds that plaintiff established the following facts.
Plaintiff is a citizen of the Republic of the Philippines, and defendants, husband and wife, are citizens and residents of Qatar. At the time of the events giving rise to this action, defendant Al-Malki was the Medical Attaché for the Embassy of Qatar in Washington, D.C., and lived with his wife, defendant Saeed, in Vienna, Virginia.
Plaintiff applied for a domestic worker position in late 2009 or early 2010 after hearing a radio advertisement by an employment agency based in the Philippines that specializes in placing workers in Dubai, Qatar, and Kuwait. Plaintiff traveled to the agency's Manila office on August 9, 2010, where she received training and signed a contract to work for $400 per week for two years as a domestic servant for a family in Qatar. Pursuant to that contract, plaintiff traveled to Qatar on September 10, 2010.
Upon her arrival, plaintiff's passport and identification documents were taken from her and remained in possession of defendants. In Qatar, defendant Saeed forced plaintiff to work from 5:00 a.m. until midnight, seven days a week, for meager pay and without any time off. Defendants subjected plaintiff to constant verbal abuse, and only permitted her to eat once a day. Plaintiff told defendant Saeed several times that she wanted to return to the Philippines, but defendant Saeed would not permit her to leave unless she paid all travel and training expenses, which plaintiff could not afford.
In October 2010, defendant Al-Malki returned to Qatar from his diplomatic post in the United States and arranged for his family and plaintiff to move with him to the United States. Pursuant to these arrangements, defendant Al-Malki provided plaintiff with a new contract stipulating that she would be paid $1,500 per month, including health benefits and a food allowance, to work for six hours a day, six days a week, plus an overtime rate of $10 per hour and double pay on holidays. Defendant Al-Malki brought plaintiff to the U.S. Embassy in Qatar for visa processing, and provided the Embassy with plaintiff's employment contract to ensure that it complied with U.S. law. Defendants then trafficked plaintiff from Qatar to the United States on December 10, 2010, and seized her passport and other identification documents upon arrival.
While in the United States, plaintiff worked at defendants' home from 8:00 a.m. until late at night, seven days a week, without any time off. Defendants regularly ridiculed and insulted plaintiff, forced her to sleep on the floor, fed her meager rations, and refused to provide plaintiff access to needed dental care. Furthermore, defendants isolated plaintiff and confined her to their home by restricting her movements, confiscating her travel and identification documents, and refusing to allow her to communicate with the outside world. Though plaintiff wanted to leave defendants' home and return to her family in the Philippines, defendants foreclosed any possibility of her departure by requiring plaintiff to pay defendants far more money than was affordable based on her wages. For her five months' labor in the United States, during which she worked 17 hours a day, seven days a week, defendants paid her approximately $1700.
On April 27, 2011, after returning from a weekend trip, defendants discovered that plaintiff had used defendants' telephone to call home to the Philippines without their permission. Defendants chastised and yelled at plaintiff, and defendant Saeed raised her hand to strike plaintiff. She was prevented from doing so only when defendant Al-Malki stepped between them. After this confrontation, plaintiff fled the home, obtained help from a neighbor, and contacted various organizations that provide social services and pro bono legal services.
Defendants have attempted to track plaintiff down since her escape in April 2011. They have contacted family and friends for information regarding her whereabouts, and called her family in the Philippines on at least two occasions demanding information about plaintiff's location.
In August 2011, defendants called the house where plaintiff had taken shelter, but plaintiff did not answer the phone. Plaintiff, fearful that defendants may attempt to extract revenge, filed this suit on April 26, 2013.
Plaintiff alleges 13 counts in her Complaint: (1) forced labor in violation of the TVPRA [Trafficking Victims Protection Reauthorization Act], 18 U.S.C. §§ 1589(a), 1595; (2) involuntary servitude in violation of TVPRA, 18 U.S.C. §§ 1584, 1595; (3) trafficking with respect to peonage, slavery, involuntary servitude, or forced labor in violation of the TVPRA, 18 U.S.C. §§ 1590, 1595; (4) unlawful conduct with respect to documents in furtherance of trafficking, peonage, slavery, involuntary servitude, or forced labor in violation of the TVPRA, 18 U.S.C. §§ 1592, 1595; (5) benefiting financially from trafficking in persons in violation of the TVPRA, 18 U.S.C. §§ 1593A, 1595; (6) conspiracy to violate TVPRA, 18 U.S.C. §§ 1589, 1590, 1595, 1594, 1595; (7) failure to pay minimum wage in violation of the FLSA, 29 U.S.C. §§ 206, 216; (8) false imprisonment; (9) breach of contract; (10) fraudulent misrepresentation; (11) intentional infliction of emotional distress; (12) assault; and, (13) punitive damages/special damages. Plaintiff brings the assault claim only against defendant Saeed, and all other claims against both defendants.
The default judgment led to an award of $15,000 in unpaid minimum wages, $15,000 in liquidated damages, $62,000 in emotional distress damages ($450/day times 138 days of work in the U.S.) and $400,000 in punitive damages, for a total award of more than $490,000.