Free Speech

Plaintiff Can't Seal Case He Brought Against Ex-Employer

"Protection against the possibility of future adverse impact on employment does not overcome the presumption of public access."

|The Volokh Conspiracy |

In Badinelli v. Tuxedo Club, 2018 WL 6411275 (S.D.N.Y. Dec. 6, 2018), plaintiff sued his ex-employer for breach of contract, retaliation, and age discrimination; the parties eventually settled the case. But then plaintiff sought to seal the case. Defendant didn't oppose the motion to seal, but Judge Vincent Briccetti rejected it nonetheless:

[P]laintiff seeks to seal this case's entire record, including the complaint and papers submitted in support and opposition to a motion to compel arbitration and dismiss or stay. Plaintiff's motion thus seeks to seal judicial documents entitled to the right of public access [such as complaints and decisions on motions to compel arbitration]….

Plaintiff argues his interest in privacy, professional reputation, and earning capacity outweigh the interest in public access to the record.

The Court is not persuaded. Protection against the possibility of future adverse impact on employment does not overcome the presumption of public access. See, e.g., Bernsten v. O'Reilly, 307 F. Supp. 3d at 169 (citing Alexandria Real Estate Equities, Inc. v. Fair, 2011 WL 6015646, at *3). Moreover, plaintiff presumably considered the possibility of future adverse impact when he chose to commence the case in federal court. If he did not, he should have, especially since he had an arbitration agreement with defendant and therefore could have brought the case in arbitration rather than in a judicial forum….

Finally, the Court notes plaintiff's motion to seal is largely based on a desire to remove information from the Internet. But at the very least the Court's decision compelling arbitration is a "matter[ ] of public record appearing not only on the docket of this Court and in search engine results, but … also published in law reporters. 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." Ferrand v. Lyonnais, 106 F. Supp. 3d 452, 455 (S.D.N.Y. 2015) (internal citations omitted); see also Badinelli v. The Tuxedo Club, 183 F. Supp. 3d 450 (S.D.N.Y. 2016).

Accordingly, plaintiff fails to make a sufficient showing to overcome the common law presumption of access. Thus, the Court need not analyze whether the First Amendment presumption also applies….

The recent Furtado v. Napolitano, 2018 WL 6521914, (D. Mass. Nov. 26, 2018), reached a similar result. There, the file was unsealed for several years, then briefly sealed, for reasons similar to those given by Mr. Badinelli, but then the court promptly unsealed it (based on a motion to unseal that I had filed, because I'm researching such sealing cases). The rationale was somewhat narrower than that in Badinelli, but consistent with it:

Mr. Furtado argues that the public's access to court records in these cases [in which he had sued his former employer, a government agency] has caused him significant hardships, including emotional trauma and an inability to find work.

The Court is sympathetic to any harm that has come to Mr. Furtado as a result of public access to court records of his case. However, Mr. Furtado has not articulated any specific basis on which sealing these records, after they have been publicly accessible for years, will remedy these hardships, particularly given that they will almost certainly remain available elsewhere on the Internet. "Only the most compelling reasons can justify non-disclosure of judicial records." Here, Mr. Furtado has not offered any compelling justification to seal the records in these now years-old cases.

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41 responses to “Plaintiff Can't Seal Case He Brought Against Ex-Employer

  1. I’m somewhat sympathetic to the plaintiffs. Open access has a long history, but the roots of open access existed in a time when court proceedings were open to the public, but written records were largely limited to lawyers (i.e., the various reporters), whereas today’s court records are broadly available to the public. I usually side with “more information is better”, but I can see the counter-argument… if filing a lawsuit affects your future employment, then that functions as a bar to seeking justice to the courts. The business of the courts is justice. Any other principle is subservient to that one… including defaulting to open records.

    1. Closed courts don’t help the cause of justice, either generally or in this particular case. These plaintiffs want to use the power of government to get something of value from another party, but don’t want their to be any public record that it ever happened? That’s not justice. They made the choice to seek redress in the courts.

      1. “They made the choice to seek redress in the courts.”

        And people ALWAYS know the full and complete consequences of their choices and actions, right?

        In law school, I was taught that the right answer to any legal question is “it depends”.
        So… should lawsuits be sealed to protect plaintiff’s or defendant’s future interests? My answer is “it depends” rather than “no”. That’s a case-by-case decision, with balanced factors, rather than a categorical answer.

        1. It seems difficult to come up with a principled basis for determining when an employee litigant’s employment prospects are diminished unfairly, and when they are diminished fairly. Indeed, it depends.

        2. In order to balance factors, you have to state a cognizable interest in the first place.

          1. “Making this public harms me” sounds cognizable to me.

    2. That sounds a lot like the equilibrium-balancing view of rights. In another context, we’ve always said that police have the right to watch and even follow individuals while they are out in public. Should that judgement change because now it’s so easy to watch and follow everyone with GPS, drones, etc? Or phone records being subject to the third-party doctrine. That made sense when actually digging through the phone records was slow, expensive and geographically limited. Now, anyone with a laptop can use your phone records to build up an insanely detailed view of your entire life.

      Personally, I am skeptical about the equilibrium-balancing view. I think these examples are hints that we got the rule wrong in the first place. If it’s wrong now that it’s easy, it was probably wrong even back when it was hard.

      Part of why I say that is that equilibrium-balancing can work the other way just as easily. For example, it used to be expensive, clumsy and rare to covertly record public officials. Now it’s easy. Should that create a right of police to now be free from monitoring? The equilibrium-balancing view does not prevent that outcome. (Thankfully, this argument was not raised in the Massachusetts case.)

      1. To the situation above, I think the case is closer to recordings of police than the third-party doctrine. While there are some negative consequences and while those consequences are somewhat greater now that it’s easier, the original decision (presumption of openness) was and remains correct. The third-party doctrine was probably wrong in the first place and is now more obviously so.

  2. “The business of the courts is justice.”

    Justice for whom though?

    I assume you meant the plaintiff, but what about me, a taxpayer and a member of society–which the courts also serve?

    1. “I assume you meant the plaintiff, but what about me, a taxpayer and a member of society–which the courts also serve?”

      What’s your complaint, exactly? I mean, you ask “what about me?”, and the only response possible is “what about you?”

  3. The courts are a public function.
    The reasons for blocking public access should be very few, based on specific circumstances of potentially great harm. Not just “gee, I want the courts to help me out, but in secret”.

    1. Tax collection is a public functions. Should taxpayers be entitled to secrecy with respect to tax filings?

      Clingers should consider Trump-related circumstances carefully before responding, and remember that they’ll be free to change their tunes later, after Trump is no longer the Goober King.

      1. “Should taxpayers be entitled to secrecy with respect to tax filings?”

        Yeah, they should. And are.

  4. Sometimes arbitration isn’t such a bad idea after all.

    1. Depends on who gets to pick the arbitrator, and how often they offer return business.

  5. Sigh. As an officially “older than dirt” attorney, I sympathize with the plaintiff in this case. While court records were historically “open”, what that MEANT was that an actual human being had to truck down to the Clerk of Courts and request to look at physical, paper indexes and physical, paper files. As a practical matter, this rendered much of one’s civil litigation history invisible–once a case was settled, usually with some sort of confidentiality clause negotiated, the litigation was not only concluded, but the fact of the dispute was not easy to dig up. Occasionally employers would hire an investigative firm to check courthouse records of places a potential key employee had lived in the past to see if there was a hidden issue, but the vast majority of hires took place without extraordinary searches into one’s past.

    Fast forward and whether you were the unjustly accused or or the righteous accuser, a few clicks of the keyboard will allow anyone to search out your litigation history. The ease of access encourages people to feel more and more entitled–and for less and less important threshold reasons–to snoop into what previously were “private” (for all practical purposes) records. In 1999, some techie CEO said something like, “There is no privacy–get over it.” Thus, it’s all open now, whether you are a “concerned law professor” or a nosy neighbor or nervous prospective employer.

    1. How many people are going to bother with Joe Blow’s pleadings even from home?

      Federal court cases require a PACER subscription and cost, further reducing people looking.

      The opinion [and this post] on his ill conceived motion made it more likely people will look at the case.

      1. “How many people are going to bother with Joe Blow’s pleadings even from home?”

        Have employers recently stopped Googling potential employees?

        1. Unless there was a news article or social media on the case, a google search is unlikely to pull up anything.

          I just did my own full name. My last name is uncommon. The one suit I was involved in does not show up.

          1. I notice you’re… wary… of actually using that name, in public, on the Internet.

          2. Yes, Mr. FromOhio.

            But every federal suit will show up in a google search. (In general, not the actual filings — one would indeed need to toss some money PACER’s way to get those — but the existence of the suit would be revealed.)

          3. I’m not sure what Google does or does not draw from PACER, but I know that at least some mere filings can be found in Google. I can find quite a few briefs that I wrote or edited using my name. Granted, using just the name doesn’t pull up many in the early results; I can find many more knowing other words likely to appear in a particular brief.

  6. I as citizen and taxpayer and voter, am expected to support the justice system.

    How can I do that when its operations are secret?

    If you want secrecy, find some private justice system which all parties can agree on. Apparently arbitration was available.

    No sympathy from me.

    1. What is your position on tax returns? Feel free to be consistent.

      1. Is filing one’s tax return voluntary?

        1. Yep. Anyone can avoid filing one by the simple expedient of not having any income.

          1. That’s like the asinine argument that the statists use to justify the intrusive TSA procedures. “If you don’t like it, drive.”

            1. Yeah, I guess all jokes DO sound alike, to people who lack a sense of humor.

  7. I have serious misgivings about the idea that open courts were okay back when it took more effort to get information but now it’s bad. Where do you draw the line? How much labor should be necessary, i.e. how rich should somebody be to get information from the court?

  8. My impression is sealing used to be rare but became too common.

    Good to see push back.

    Even when sealing is appropriate, I see no reason why everything has to be sealed.

  9. Plaintiff argues his interest in privacy, professional reputation, and earning capacity outweigh the interest in public access to the record.

    The first element of the list make sense, but that second two are really fascinating. The plaintiff is claiming that his reputation and earning capacity would be adversely impacted by disclosure of true facts about reality. He appears to be literally claiming that people will think less of him and pay him less if they knew the truth.

    Assuming this is an accurate prediction, it doesn’t seem like valid grounds for a court to even balance because it doesn’t state a cognizable interest. How could you even phrase such an interest? The interest in not earning less money because potential business partners learned the truth?

    If it is a cognizable interest, then I think OJ has a very strong case to made for sealing his cases as well. After all, taking his legal foibles aside, he enjoyed a good reputation as a former athlete and significant earning capacity through celebrity endorsements. It seems like a slam dunk claim that both of those were adversely impacted . . .

    1. “If it is a cognizable interest, then I think OJ has a very strong case to made for sealing his cases as well”

      OJ doesn’t mind that his income is limited, because he doesn’t want to pay the Goldman family

      1. You do raise a valid point, though.

        Maybe satisfying the judgment should be part of the requirements to get the case sealed.

  10. I make a complaint that I’ve been sexually harassed, retaliated against for reporting such harassment, and go to court. I win.

    Joe Blow on the street really doesn’t care or have any interest in the matter.

    Employers, however, might be a bit skittish about hiring someone who’s reported sexual harassment and sued – might think I’m a lawsuit waiting to happen. So my reputation and earning power are greatly diminished.

    Seems like insisting that the records of that suit remain public accomplishes 2 things:
    1. Exists as a disincentive for anyone to make such a suit in the future – because anyone with any sense knows that their records will be made public as well, even if they win.
    2. Exists as an excellent database for employers to find and weed out lawsuit-happy potential employees.

    As to the exact legal theories that would apply here, IANAL, so I have no idea.

    But as a matter of public benefit, following this policy of strict public access even in such cases as this seems to be VERY bad public policy.

    1. Is there any evidence about such skittishness on the part if employers?

      1. You want evidence that employers run background checks on potential employees?

        1. Of course they do. A trucking company is not exactly eager to hire someone with a DUI conviction within the last ten (let alone last) years.

          Any evidence that they want to look for lawsuits?

      2. The people who know for a fact it happens won’t say so because if they did it would tarnish the reputation of their company.

    2. Is it good that future employers (business partners, love interests, …) can learn about prior lawsuits? I think it depends. Consider these two people:

      1)John has a long history of vexatious lawsuits. He seems like he sues half the people he meets – employers, doctors, landlords, tenants, people he does business with, neighbors, you name it.

      2)Alice suffers terrible harassment from a supervisor. She complains to the powers that be at her company, who dismiss her claims. She needs the job, so she suffers terribly for an extended period. Finally she can bear it no longer and sues.

      A future employer does some casual googling and finds mention of lawsuits. The employer is unlikely to want to do a deep dive to find out how many suits each filed, or dig into the merits. That does an injustice to Alice, IMHO, but is just karma settling with John.

      If the suits are public, Alice suffers. If not, the employer suffers. I don’t think there is an easy way to do right by everyone. You could seal only successful suits, but perhaps some of the people John sued made token settlements just for the sake of expedience; those are hard to distinguish from the settlement Alice made.

      1. ” I don’t think there is an easy way to do right by everyone.”

        Right. It calls for the exercise of judgment.
        Who’s best situated to exercise judgment on whether a particular case, or elements thereof, should be sealed? In most cases, it’s going to be the judge who heard the case in the first place.

  11. I’ll pass on the question highlighted by Mr. Pollock whether litigants should be given some additional privacy protections.

    An easier question relates to interests of non-parties whose alleged sins end up being recounted in someone else’s suit.

    This happens often, though not only, in employment suits. Plaintiff argues that he was disciplined more harshly than another employee who allegedly did something worse. Or plaintiff argues that another employee got promoted even though her performance was allegedly worse. In almost all cases, filings describe (more or less necessarily) the substance of the allegations against the non-party comparator. In some cases, the court does not resolve whether the non-party did commit the alleged misdeed or perform poorly (“even if . . .”); in other cases, the misdeed or poor performance of the comparator is found to have occurred. In almost none of these cases, is the non-party comparator represented.

    Probably, nothing should be done about those circumstances. But it is also the case that the comparators in almost all of these cases are named. That, it seems to me, is something that courts should address. A few attorneys and courts use pseudonyms for comparators. That should be more widespread. I recognize that such a change would not be costless: judge and attorney time is expensive and translating the names of each of the comparators would require some extra work. But, on balance, it seems worth it to me.

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