Free Speech

Court Refuses to Issue Gag Order and Sealing Order in Sexual Harassment Suit Against YMCA of Pikes Peak

(Disclosure: I had filed an objection, on my own behalf, to the motion to seal.)

|The Volokh Conspiracy |


Julie Slivka sued her former employer, the YMCA of the Pikes Peak Region, and her former coworker (and fellow manager) Carlos Lozano, claiming that Lozano had forcibly groped her, and the YMCA didn't properly react when she complained. The lawsuit is pending, and I can't speak to whose factual story is correct.

But what interested me is that the YMCA had tried to (1) get a gag order "imposing reasonable restrictions on the release of information to the media and members of the public by any parties or counsel in this litigation," and to (2) get the case sealed, or at least to seal various allegations from Slivka's complaint, including that,

18…. A binge drinking culture is prevalent at the YMCA and Mr. Lozano was perpetuating that by purchasing Ms. Slivka unwanted alcoholic beverages and pressuring her into consuming them.

19. Older men in positions of power sleeping with young women in subordinate positions is also prevalent at the YMCA and, that night, Mr. Lozano was trying to join this club of men who preyed on the women working for them….

64. Upon information and belief, it is common knowledge at the YMCA that female employees who have sex with [a particular top executive at the YMCA of the Pikes Peak Region] are more likely to be promoted within the organization than female employees who do not.

65. This behavior sets the tone for the organization; it lets subordinates know that using their power in the workplace to obtain sex is acceptable….

69. Not only did a colleague that she looked up to sexually assault her that night, but Ms. Slivka would bear the unfortunate reality that the organization that she worked for and admired would be complicit in protecting Mr. Lozano from discipline, create a hostile working environment, retaliate against her, and fail to make reasonable accommodations for the Post-Traumatic Stress Disorder she suffered after the assault.

Again, I can't speak to whether these allegations are correct, but in our legal system, court proceedings are supposed to be open, not sealed. I therefore filed an objection to the motion to seal (as third parties are allowed to do, because sealing implicates the public's right of access); and I'm pleased to say that on Friday Chief Judge Philip A. Brimmer (D. Colo.) denied the motions.

First, the court rejected the proposed gag order, concluding that there was no "'reasonable likelihood' that media attention or extrajudicial commentary will prejudice a fair trial," given the modest media coverage that the case had gotten, and given the availability of "other, less-restrictive measures [that] may be taken to mitigate any potential prejudice caused by press coverage of the case" (such as questioning prospective jurors about whether they had heard about the case).

Then, the court rejected the motion to seal:

The Supreme Court has acknowledged a common law right of the public to access judicial records. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978). This right is premised upon the recognition that public monitoring of the courts fosters important values such as respect for the legal system. There is a presumption that documents essential to the judicial process are to be available to the public, but they may be restricted when the public's right of access is outweighed by interests which favor non-disclosure….

"[A] movant [must] articulate a real and substantial interest that justifies depriving the public of access to documents that inform[] the court's decision-making process." … The fact that the parties agree on restriction is insufficient to overcome the presumption that court proceedings and documents must be available to the public….

YMCA has set forth no law suggesting that closing the entirety of these civil proceedings to the public is warranted in this case….

In the alternative, YMCA argues that the Court should [in effect seal] plaintiff's complaint, its motion for a gag order, and its "motion to strike" [which appears to have been an incorrectly filed document, not containing a motion to strike -EV]. The Court finds that YMCA has failed to meet its pleading burden under D.C.COLO.LCivR 7.2 [the local sealing rule].

First, it has failed to "identify a clearly defined and serious injury that would result if access is not restricted."  YMCA states that "[t]he threatened harm to Defendant YMCA is profound," but does not specify what it believes the purportedly profound harm to be.  To the extent that YMCA implies that its reputation will be damaged absent restriction, see id. at 3-4 (describing plaintiff's complaint as containing "baseless, per se defamatory, tangential, and extremely prejudicial accusations" and "ad hominem attacks … which are prejudicial or, in part, defamatory in nature"), YMCA does not identify a "clearly defined and serious injury" that would result if access is not restricted. Thus, it has failed to meet its burden under the Local Rules.

YMCA has also failed to explain why no alternative to restriction is practicable or why restriction is the only remedy that will adequately protect its interests…. The Court finds that there are less restrictive means through which YMCA could obtain the relief sought. For example, with regard to plaintiff's complaint, YMCA could file a motion under Rule 12 to strike the paragraphs in the complaint that it contends contain inappropriate allegations.[Shortly after the order was issued, the YMCA did file a motion to strike; but even if that is granted, the grant would not have the effect of sealing the original complaint. -EV] Or it could file a motion for sanctions under Rule 11 based on its argument that plaintiff's allegations were "brought in bad[] faith" or were intended to "taint the prospective jury pool."

As to the other documents it seeks to restrict, YMCA could have filed them as restricted documents along with a motion to restrict. See D.C.Colo.LCivR. 7.2(e) ("A document subject to a motion to restrict shall be filed as a restricted document and shall be subject to restriction until the motion is determined by the court."). Because YMCA "failed to avail [itself] of the protections provided by the District's local rules …, any claim to confidentiality has been waived." …

Here, by the way, are excerpts of my objection, which Colorado Public Radio and the Colorado Freedom of Information Coalition joined:

I. The public has a presumptive right to access all the documents in the file

 "A party seeking to file court records under seal must overcome a presumption, long supported by courts, that the public has a common-law right of access to judicial records." Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1135 (10th Cir. 2011). "[S]ecret court proceedings are anathema to a free society." M.M. v. Zavaras, 939 F. Supp. 799, 801 (D. Colo. 1996).

In addition to this common-law right of access, there is also a First Amendment right of access to court documents in civil proceedings. The Supreme Court has expressly held that there is a First Amendment right of access to criminal trials, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality op.); id. at 585 (Brennan, J., concurring in the judgment), and courts have concluded that "the justifications for access to the criminal courtroom apply as well to the civil trial." Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178 (6th Cir. 1983). "[T]he First Amendment does secure to the public and to the press a right of access to civil proceedings." Westmoreland v. Columbia Broad. Sys. Inc., 752 F.2d 16, 23 (2d Cir. 1984); see also Matter of Continental Illinois Securities Litigation, 732 F.2d 1302, 1308 (7th Cir. 1984) ("the policy reasons for granting public access to criminal proceedings apply to civil proceedings as well").

"Public access to civil trials also provides information leading to a better understanding of the operation of government as well as confidence in and respect for our judicial system." Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984). This right extends to "pretrial court records" as much as to trial proceedings. Mokhiber v. Davis, 537 A.2d 1100, 1119 (D.C. Cir. 1988); see also Republic of Philippines v. Westinghouse Elec. Corp., 139 F.R.D. 50, 56 (D. N.J. 1991) ("[p]ublic access to court records is protected by both the common law and the First Amendment"). The Tenth Circuit has not yet ruled on whether such a First Amendment right of access exists in civil cases, see United States v. Pickard, 733 F.3d 1297, 1302 n.4 (10th Cir. 2013), but the body of precedents from other circuits—indeed, the view of every circuit that has passed judgment on the question—counsels in favor of recognizing such a right.

In any event, whether under the common-law right of access or under the First Amendment right of access, Volokh is entitled to access to the documents in this case.

"A complaint, which initiates judicial proceedings, is the cornerstone of every case, the very architecture of the lawsuit, and access to the complaint is almost always necessary if the public is to understand a court's decision." FTC v. Abbvie Prods. LLC, 713 F.3d 54, 62 (11th Cir. 2013). This includes paragraphs 18, 19, 63-67, and 69, which are directly germane to the plaintiff's theory of the case.

Perhaps those allegations are false; perhaps they are true; but in any event the public is entitled to see them, so that it can monitor the proceedings in the public's courts. "If the charge is proven accurate, the public should have access to that information; if the charge [is] unfounded, the public should be made aware of that fact as well." Anderson v. Home Ins. Co., 924 P.2d 1123, 1128 (Colo. App. 1996).

Moreover, the Complaint was already posted, with no redactions, by Colorado Public Radio, linked to from its story at http://www.cpr.org/news/story/lawsuit-alleges-colorado-springs-ymca-ignored-sexual-assault-created-inappropriate; see http‌:‌//www.‌cpr.org/sites/default/files/original_ymca_lawsuit.pdf. Any attempt to seal the Complaint would thus be futile, for the reasons given in Gunn v. WCA Logistics, LLC, No. 13-cv-02197-WJM-MEH, 2016 WL 7868827, *1 (D. Colo. Jan. 12, 2016) (some citations omitted):

"The documents at issue in Defendants' motion were not filed under restriction…. Only [weeks later] did Defendants seek to restrict the documents. Because Defendants failed to avail themselves of the protections provided by the District's local rules in filing [the document], any claim to confidentiality has been waived. The cat has already been let out of the bag. Cf. Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 n.11 (2d Cir. 2004) ('Once the cat is out of the bag, the ball game is over.') …. After-the-fact sealing should not generally be permitted. See id. at 144 ('… We simply do not have the power, even were we of the mind to use it if we had, to make what has thus become public private again.')."

The right of access also extends to defendant's motion to strike and motion for gag order. When exhibits or other documents "directly bear on a dispositive issue," "a strong presumption of public access applies." Fish v. Kobach, 2017 WL 4422645, *5 (D. Kan. Oct. 5, 2017) (so holding as to "exhibits at issue in this case [that] were attached to the motion for summary judgment"). Such documents would be "materials that formed the basis of the parties' dispute and the district court's resolution," and they must therefore be publicly available. Baxter Int'l Inc. v. Abbott Laboratories, 297 F.3d 544, 548 (7th Cir. 2002).

The motion to strike qualifies under this test, because it seeks to affect what parts of the Complaint are allowed to form the basis of plaintiff's case. The motion for a gag order likewise qualifies, because it seeks to affect whether this Court will impose a prior restraint, thus restricting the First Amendment rights both of the parties and of the public. "[E]njoining speech harms listeners as well as speakers," McCarthy v. Fuller, 810 F.3d 456, 461 (7th Cir 2015), and the public is entitled to know what basis is being offered for imposing such harm on it (even when such harm is found to be legally justified).

Likewise, the right of access applies to any order the court may issue (despite defendant's request that the court seal "any subsequent Order of this Court detailing those offending paragraphs," Def. Motion for Restricted Access 5). The Court "need[s] to provide a proper, publicly available explanation of the Court's decision." Bellwether Community Credit Union v. Chipotle Mexican Grill, Inc., 353 F. Supp. 3d 1070, 1078 n.1 (D. Colo. 2018) (citing D.C.COLO.LCivR 7.2). "[I]t should go without saying that the judge's opinions and orders belong in the public domain." Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000). "There is a particularly strong presumption of public access to [judicial] decisions as well as to the briefs and documents submitted in relation thereto. The Court's decisions are adjudications—direct exercises of judicial power the reasoning and substantive effect of which the public has an important interest in scrutinizing." Encyclopedia Brown Prods., Ltd. v. Home Box Office, Inc., 26 F. Supp. 2d 606, 612 (S.D.N.Y. 1998).

Indeed, the defendant's own motion shows the dangers posed by attempts to seal even narrow categories of information. The defendant seems to particularly care about sealing "paragraphs 18, 19, 63-67, and 69" of the Complaint. Def. Motion for Restricted Access 5. But to make even that modest redaction work would apparently also require sealing the motions that discuss those paragraphs, as well as any court order that discusses them. Id. And indeed the defendant's objections lead it to ask the court to seal "the entirety of these proceedings." Id. Applying the normal strong presumption of open access to all record documents would avoid such snowballing sealing.

II. Defendant's desire to protect its reputation, and to avoid tainting the jury pool, does not overcome the presumption of openness

Before the public's First Amendment right of access may be infringed, "it must be shown that the denial is necessitated by a compelling government interest, and is narrowly tailored to serve that interest." Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 607 (1982). Even under the somewhat less demanding test applicable to the common-law right of access, "the public's right of access … is presumed paramount." Ramirez v. Bravo's Holding Co., 1996 WL 507238, *1 (D. Kan. Aug. 22, 1996). Any part seeking to seal judicial records "must articulate a real and substantial interest that justifies depriving the public of access to the records that inform our decision-making process"—a "heavy burden" to meet. Helm v. Kansas, 656 F.3d 1277, 1292-93 (10th Cir. 2011).

Defendant has not discharged this burden. "[A]n effort to avoid embarrassment or harm to the reputation of parties … is certainly not a compelling reason to grant a confidentiality order." Daines v. Harrison, 838 F. Supp. 1406, 1408 (D. Colo. 1993). "Courts have held that injury to one's reputation and potential embarrassment generally do not outweigh the strong presumption of public access attaching to judicial documents." Parson v. Farley, 352 F. Supp. 3d 1141 (N.D. Okla. 2018). "[T]he personal desire of witnesses to be protected against the disclosure of information relevant to judicial proceedings 'cannot be accommodated by the courts without seriously undermining the tradition of an open justice system,'" Huddleson v. City of Pueblo, Colo., 270 F.R.D. 635, 639 (D. Colo. 2010); and the same logic applies to parties as well as witnesses. See also, e.g., In re Neal, 461 F.3d 1048, 1054 (8th Cir. 2006) ("[I]njury or potential injury to reputation is not enough to deny public access to court documents."); Doe v. Public Citizen, 749 F.3d 246, 269 (4th Cir. 2014) ("We are unaware … of any case in which a court has found a … bare allegation of reputational harm to be a compelling interest sufficient to defeat the public's First Amendment right of access. Conversely, every case we have located has reached the opposite result under the less-demanding common-law standard."); In re Southeastern Milk Antitrust Litigation, 666 F. Supp. 2d 908, 915 (E.D. Tenn. 2009) ("neither harm to reputation … nor conclusory allegations of injury are sufficient to overcome the presumption in favor of public access").

Part of the reason why reputational harm does not justify a seal is that the danger of reputational harm is commonplace in court proceedings—yet "the asserted interests for sealing cannot be generic interests that would apply with equal force to every case." United States v. Apperson, 642 F. App'x 892, 903 (10th Cir. 2016). Indeed, the same reputational arguments for secrecy could be made by defendants in a wide range of other intentional tort cases. And of course some criminal defendants might prefer to have all the allegations against them being tried in secret as well. Yet the First Amendment and common-law rights of access to court records forbid that.

The same is true of the interest in preventing any possible "taint [to] the prospective jury pool," Motion for Restricted Access 4. This risk exists in any case in which a jury trial may eventually occur—which is to say any suit at common law seeking damages of over $20. U.S. Const. amend. VII. To allow such a justification would turn the strong presumption of public access into a rule of routine sealing.

And even if the taint-avoiding justification were to apply only in cases that are likely to draw media attention, that would mean that the public would lose access to the very cases that most arouse the public's interest. Yet "the greater the public interest in the litigation's subject matter, the greater the showing necessary to overcome the presumption of public access." Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 229, 305 (6th Cir. 2016).

Conclusion

The public has a First Amendment and common-law right to access the court record in this case, including the Complaint, all motions, and all orders. Without these materials, the public readers cannot fully analyze the controversy in this case. And the defendant's desire to protect their reputations and prevent prospective jurors from hearing about the case cannot justify the seal. For these reasons, Volokh asks that access to the file not be restricted.