The Volokh Conspiracy
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I've seen several such attempts to get records of litigation sealed, because the plaintiff concludes that prospective future employers might decline to hire them as a result of such past lawsuits; yesterday's Gilliard v. McWilliams, 2019 WL 3304707, decided by Judge Rudolph Contreras (D.D.C.), is a good summary of why the law favors open access in such cases:
Stephanie Gilliard filed this lawsuit against the Chairman of the Federal Deposit Insurance Corporation … and other FDIC employees, alleging racial discrimination, a hostile work environment, retaliation, and other claims. Ms. Gilliard and the FDIC eventually agreed on a settlement [after two published district court opinions dealing with the case -EV], and the case was dismissed with prejudice.
Now, Ms. Gilliard claims that the public availability of the case has impeded her employment opportunities, so she has asked the Court to seal the entire action. As the Court will explain below, however, there is no legal basis for sealing a case under these circumstances. Ms. Gilliard's motion to seal is therefore denied….
In an attempt to gather evidence in support of her EEO claims, Ms. Gilliard began to surreptitiously record conversations with two of her former supervisors …. In an attempt to prevent the FDIC from obtaining the recordings or retaliating against her for failing to release them, Ms. Gilliard asked the Court for a protective order, temporary restraining order, and preliminary injunction. The Court denied those motions, however [in a published opinion]…
[After the case settled], Ms. Gilliard filed the present motion to seal the entire docket in the case and "the decision regarding the tape recordings." In that motion, she argues that her attempts to become a federal employee have been hindered and that offers of employment have been rescinded after Google searches of her name revealed the events of this case, namely her surreptitious recordings of her co-workers….
Any decision about a party's motion to seal must first begin by "recognizing this country's common law tradition of public access to records of a judicial proceeding." "Access to records serves the important functions of ensuring the integrity of judicial proceedings in particular and of the law enforcement process more generally." However, this tradition of access to judicial records is not without its exceptions. "Every court has supervisory power over its own records and files" and access to those documents may be denied where they might become "a vehicle for improper purposes."
Thus, a "district court has wide discretion" in determining whether to seal a record in its entirety or in part. When making such a determination, the "starting point" is "a 'strong presumption in favor of public access.'" The D.C. Circuit has then identified "six factors that might act to overcome this presumption: (1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings."
Here, Ms. Gilliard does not invoke any of these six factors expressly, but she claims that there is "good cause" for sealing the case, which the Court takes as an implied assertion that the six factors weigh in her favor….
A. The need for public access to the documents
The first factor is a product of the presumption just mentioned—the idea that "the public should have access to court proceedings to 'ensur[e] the integrity of judicial proceedings in particular and of the law enforcement process more generally.'" That presumption "is strongest when 'the documents at issue [are] … specifically referred to in a trial judge's public decision.'" That said, "documents filed with the court or introduced into evidence … often have a private character, diluting their role as public business." Indeed, public access may be denied "to protect trade secrets, or the privacy and reputation of victims of crimes, as well as to guard against risks to national security interests, and to minimize the danger of an unfair trial by adverse publicity." …
Ms. Gilliard's surreptitious taping of her coworkers, like the entirety of this action, was brought into the record by Ms. Gilliard herself, first by filing a complaint and later by filing a motion for a protective order to prevent having to provide the recordings to the FDIC. As a result of Ms. Gilliard's actions, this information entered into the public record, and this Court had to address these recordings in published opinions. The fact that these tapes formed a part of this Court's decision weighs heavily against sealing the record, as it is "a fundamental norm of our judicial system … that judges' decisions and their rationales must be available to the public." …
B. The extent of previous public access to the documents
The second factor to be considered is the extent of the previous public access to the documents in question. If "a document was accessible to the public" for some period of time, and if "much of the critical information is already in the public forum" this second factor then "weighs in favor of unsealing the … materials." …
[Here], the complaint, filed in September 2016, was publicly available for over two years before Ms. Gilliard filed her motion to seal…. Additionally, the Court's two opinions in this case have both been published in a major case law reporter. Gilliard I, 302 F. Supp. 3d 257; Gilliard II, 315 F. Supp. 3d 402. And those opinions have in turn been cited by subsequent decisions in six other cases. This weighs even further against sealing. Removing Ms. Gilliard's information from the public record now would be a disservice to anyone seeking to reference not only the two published opinions in her case, but also any of the subsequent cases that have cited to them.
Moreover, removing Ms. Gilliard's information from the public record would fail to address the prejudice that she claims to have suffered…. [E]ven if the Court granted Ms. Gilliard's motion, information would still be publicly available outside of court records. A search of Ms. Gilliard's name, for example, provides an article on Bloomberg Law entitled "FDIC Employee Must Turn Over Secret Recordings." Of course, the Court has no power to compel Bloomberg to remove that article from its site, so Ms. Gilliard's desire to seal the record in this case is misplaced. Regardless of whether the record is sealed, information about Ms. Gilliard's case will remain publicly available. In other words, "[t]he Court cannot unring this bell." …
C. Privacy and property rights at issue
The "third, fourth, and fifth Hubbard factors are interrelated, and require courts to look at the strength of the property and privacy interests involved, and to take into account whether anyone has objected to public disclosure and the possibility of prejudice to that person." First, although not dispositive, the "fact that a party moves to seal the record weighs in favor of the party's motion." Ms. Gilliard, a party to this case, has filed a motion to seal the record, which alone is sufficient for that factor to weigh in favor of Ms. Gilliard's claim. "However, because there will necessarily be a party objecting to disclosure whenever a court is faced with a motion to seal, the inquiry does not end there: the district court must assess whether that party would be prejudiced by disclosure." It is here that Ms. Gilliard's motion falls short.
In order to determine whether a party will be prejudiced by disclosure, the Court must move on to the fourth factor and assess "the strength of any property or privacy interests voiced by the moving party." This is not analyzed by looking at the effect that disclosure of the record "would have on the party's property and privacy interests generally," but rather by "examining the objecting party's privacy interest" in the record. The D.C. Circuit has narrowly construed the privacy interests that would justify sealing the record, limiting them to documents that would "reveal the intimate details of individual lives, sexual or otherwise"—a higher standard than mere embarrassment. Indeed, the circuit court has never recognized a privacy right merely to allow a party "to get on with [their] life." Reputational harm alone is insufficient.
In the present matter, Ms. Gilliard alleges only reputational harm. Indeed, Ms. Gilliard has failed to "articulate [a] privacy interest[ ] in the specific pleadings themselves" that goes beyond a general desire to keep one's identity secret. Moreover, while Ms. Gilliard suggests "that the continued disclosure of the contents of [her] case may 'impair' [her] ability to secure employment in the future … the 'prejudice' has less to do with the contents of the documents themselves than the fact that Plaintiff commenced suit in the first place." And Ms. Gilliard herself introduced the issue of the tapes into the public record by asking this Court to grant a protective order, a temporary restraining order, and a preliminary injunction related to the recordings. This severely undercuts Ms. Gilliard's claim, because a party who "introduce[s] or re-introduce[s] some of the details [of a case] into the public forum [her]self" diminishes any claim for privacy.
Finally, the Court must consider the fifth factor: "whether disclosure of the documents will lead to prejudice in future litigation" if the moving party's motion is denied. The only prejudice relevant to this factor is prejudice regarding "fair trial rights." As noted above, Ms. Gilliard asserts that she has and will continue to lose out on federal government employment opportunities due to the presence of this case. She does not, however, provide any reasons why continued disclosure would lead to prejudice in any future litigation. This Court thus finds that this factor does not weigh in favor of sealing this case.
All told, then, while it is true that Ms. Gilliard herself has objected to disclosure, in the context of a motion to seal there will almost always be a party who objects to disclosure, which severely limits the strength of that factor. Meanwhile, Ms. Gilliard has failed to persuade this Court that there are sufficient privacy or property interests at issue in this case to justify sealing any part of the record. Nor has she shown that she will suffer prejudice in future litigation if the record remains unsealed. The fourth and fifth factors therefore do not weigh in her favor.
D. The purpose for which the documents were introduced during judicial proceedings
The final factor concerns itself with the nature of the records and why they were introduced into the case in the first place. "The more relevant a pleading is to the central claims of the litigation, the stronger the presumption of unsealing the pleading becomes." There is "less of a pressing concern to unseal pleadings if they are not relevant to the claims," such as if the documents were not described or expressly relied on in the trial judge's decision or if the documents were not used in subsequent proceedings.
Here, the issue of the tape recordings was relevant to the merits of Ms. Gilliard's claims, and it was central to the resolution of her motions for a protective order, temporary restraining order, and preliminary injunction. Indeed, as the Court has already said, Ms. Gilliard herself brought this issue before the Court and asked the Court for relief on the issue. As such she "explicitly intended the Court to rely on these materials in adjudicating [the] dispute." And, of course, the Court ultimately had to rely on the materials when deciding whether to grant her the relief that she requested. Because of Ms. Gilliard's own litigation conduct, this information was central to the case. The sixth factor thus weighs against sealing the record….