Free Speech

Litigant Can't Seal Case to "Improve Her Chances of Employment"

A federal magistrate holds that the right of access to court records precludes such sealing.

|The Volokh Conspiracy |

From Magistrate Judge Irma Carrillo Ramirez Thursday in Abibou v. Rho Inc., 2020 WL 1808608 (N.D. Tex.):

[Plaintiff] seeks to seal the record of his case permanently …. [The case was a sex and national origin discrimination case that plaintiff had filed, without a lawyer, in 2016, and that had been dismissed when she failed to prosecute the case and to supply the court with an updated address. The plaintiff is a woman, but the Magistrate Judge apparently incorrectly refers to her as "he." -EV.]

"'[C]ourts have recognized that the public has a [presumptive] common law right to inspect and copy judicial records.'" SEC v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir.1993) (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978))…. [T]he discretion to seal judicial records and files should be exercised "charily." Id. "In exercising its discretion to seal judicial records, the court must balance the public's common law right of access against the interests favoring nondisclosure." Having public access to judicial records "serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of its fairness."

Here, the plaintiff seeks to seal the record of his case permanently in order to "greatly improve [his] chances of employment." In Macias v. Aaron Rents, Inc., 288 F. App'x 913, 915 (5th Cir. 2008), the plaintiff moved to seal the record of his employment discrimination lawsuit because of the alleged "lack of importance to the public and the potential for employer retaliation against litigious employees." Finding that the plaintiff's concerns could apply to nearly all cases, especially those involving employment discrimination, the Fifth Circuit Court of Appeals found that the district court had not abused its discretion in denying the motion and affirmed the decision.

Likewise, in Elbertson v. Chevron, U.S.A., Inc., No. H-10-0153, 2010 WL 4642963, at (S.D. Tex. Nov. 9, 2010), the plaintiff sought to seal the record of her employment discrimination case based on her belief that it could be detrimental to her current and future employment, arguing that her job security outweighed the public's right of access. The district court denied the motion, noting that "[t]he harm feared by the plaintiff here is precisely the same harm that most employment discrimination plaintiffs face, and yet there is no tradition of sealing all such records." The court also noted that the fact that the public had already had access to the documents was a factor weighing in favor of continued access.

As in those cases, the plaintiff in this case has presented nothing to overcome the presumption of public access to the record in this employment discrimination case, which was closed more than three years ago. The motion to seal this case is DENIED.

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  1. Let’s look for a moment at interests on the other side. There is obviously some interest in settling cases, especially frivolous or weak cases. One way of doing that is simply being allowed to walk away without consequences.

    If a plaintiff who has filed a weak case and thinks better of it is not allowed to simply walk away, this might be an inventive not to file another lawsuit. But it is also an incentive to keep going.

    People are imperfect. They get angry at each other. When they get angry, conserving the peace means we would rather they file a frivolous lawsuit in a rage than do something with a knife or a gun. Because lawsuits are ways of dealing with anger and other hard to control emotions and potential sources of violence, channeling them into pathways less destructive to society than vigilanteism, primitive justice and the fundamental principal of conserving the peace suggests perhaps it shouldn’t be made too difficult to file such a suit and think better of it and walk away.

    One of my difficulties with some of the Conspirators, including at times Professor Volokh, is that I think their ideals can at times get in the ways of values, including things like conserving the peace and the very existence of civil society, that I think society must Keep at the center of its focus.

    Because the lawsuit was never prosecuted, it provides no information about how the courts function or make decisions. The traditional rationale for publicizing judicial documents seems very weak here. This lawsuit never saw a courtroom. One can easily preserve the principal of keeping courtrooms open without extending it so maximally that things like thos must also be aired, and once you file a lawsuit, you can never walk away.

    The public peace is not preseved by this. Nor is any really fumdamental societal value advanced.

    1. I agree. For all we know, this was an impecunious person, who had a strong case, but didn’t know any lawyers, and then due to being unemployed was evicted (hence the change of address) and couldn’t continue the suit.

      1. Fortunately, because the case wasn’t sealed, we look at what she filed and get some sense of whether it was in fact meritorious. (It seems like it pretty clearly wasn’t to me, for what that’s worth.) The docket number is 3:16-cv-02418, if you want to look yourself.

    2. I disagree. It does provide information — that the person filed a claim and did not follow through. If it was a good case, why not? If it was a poor case, why was it filed? Either way is background on this person. It may not enlighten us as to how courts work, but I have never understood that to be the reason for public access. I want public access because I pay for these cases and I am expected to uphold rulings. Yes, there is no ruling here, but this person used my tax dollars for some personal gain, then gave up, and now wants that forgotten. If a friend had asked to borrow some money, I loaned them some, and then they said Oh well, that didn’t work, forget it, and refused to either pay me back or even tell me why. No, it doesn’t work that way. You use my tax dollars, then I want a record of it. The fact that employers may see this and think poorly is something which ought to have been thought of beforehand.

      How often do employers even check court records? I’ve been to small claims court three times, won by settlement all three times. Made no different to employment that I can tell. Should the settlements be sealed since they don’t illuminate any court activity?

      1. I agree with your bottom line that the case should not be sealed. But there’s a long list of reasons why a case may not have been pursued that have nothing to do with whether it was a good or bad case. For example, she may have run out of money and not had the means to pursue it. Also, sometimes people file what they think are good cases, and don’t realize until discovery takes place that they don’t have as good a case as they thought.

        The only way to tell what happened here would be to actually read the entire court file, and even that may not have full details. However, I do think that court records should generally be left open, and buyer’s remorse by the plaintiff is not a sufficient reason to seal them.

        1. If the case was good enough, surely a contingency lawyer would have taken it. The fact that no such lawyer could be found means either it wasn’t as good as the plaintiff thought, or that the plaintiff ignored lawyers who said it was not a good case.

          If someone only finds out a case is bad during discovery, then I want that known. The case was filed prematurely and wasted everybody’s time and money. I want that known — this person files for fun.

          1. You don’t know that a contingency lawyer could or could not be found. You don’t know if she looked, how hard she looked, what she was told by any of the lawyers she talked to. You’re making a whole boatload of assumptions that may or may not be true.

            As for finding out during discovery whether it’s a good case, I’ve had clients who were sincerely mistaken as to what the facts are, or who were unaware of other, additional facts. You don’t know what you don’t know. One tries to investigate before filing a lawsuit, but sometimes there are limits on how much of that can be done.

            1. I am making the basic assumption that she filed the case. Did she file prematurely? Did she file what lawyers advised against?

              Does not matter. *She* filed. *She* bears responsibility. *She* abused the court system. *She* does not get to say “Whoops! my bad” and pretend it never happened. If someone misled her, she should make them bear responsibility — file a complaint with the bar association or courts, and don’t try takesie-backsie on that.

              1. Well, since we don’t know if it was filed prematurely, or if lawyers advised against it, we can’t say, can we?

                All we know is that she filed a suit and she did not complete the litigation process. That happens for many different reasons. Please try not to assume the worst.

            2. You don’t know that a contingency lawyer could or could not be found. You don’t know if she looked, how hard she looked, what she was told by any of the lawyers she talked to. You’re making a whole boatload of assumptions that may or may not be true.

              In a literal sense, that’s true: we don’t know the facts of the specific situation. But employment cases are fee shifting cases. If you can’t find a lawyer to take one on, it’s because the case is awful. (Given the crap cases I’ve seen over the years that lawyers have been willing to take, it’s really really really awful.)

              1. Given the crap cases I’ve seen over the years that lawyers have been willing to take, it’s really really really awful.)

                Is it that, or is it that the “good” ones are settled with nondisclosure agreements so you don’t ever see them?

                I have to ask that as a researcher — a lot *are* settled with nondisclosure agreements, and what would the statistics of merit be if those were also public information?

                1. As I read it, David Nieporent’s point isn’t about the ratio of good cases to bad, but merely that lawyers are quite willing to take on bad cases in the area of employment discrimination. And that if lawyers are willing to take on bad cases in this area, what does that say about the case of a plaintiff who couldn’t find a lawyer?

                  1. I remain unconvinced that it tells us anything about the plaintiff or the merits of her case. We don’t know that she tried to find a lawyer, or that she knew that lawyers take employment discrimination cases on contingency. She may have thought it was a simple case she could handle herself, only to find out after she was already into it that there is no such thing as a simple case. We just don’t know.

                    Maybe this really was a bad case. Maybe David’s and Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf’s suspicions are correct. But then again, maybe not. As I already said, try not to assume the worst.

                    1. We don’t know that she tried to find a lawyer,

                      If she didn’t, that would be even more revealing.

          2. Alternatively, pursuing a discrimination case is very emotionally taxing. The greatest irony is that if the discrimination is bad, really bad, it makes it all the harder to have the emotional wherewithal to pursue the claim.

          3. “If the case was good enough, surely a contingency lawyer would have taken it”

            No. If the case had enough money in it, a contingency lawyer would have taken it. That’s not the same thing as merits of the case.

            For example, UMass gets away with a *lot* because it knows that the $100K cap of the state tort claims act means that there won’t be enough money to interest any contingency fee lawyer — with the limit there will neither be a reasonable settlement offer nor the possibility of a large jury award.

            1. Good point.

            2. Successful Title VII plaintiffs can recover attorney’s fees, so by definition they have “enough money” to satisfy a lawyer who is confident in prevailing.

      2. “How often do employers even check court records?”

        I can’t speak to employers, but as to landlords, at least in Massachusetts, you’d be amazed. There is a service that takes the applicant’s name and goes to all the local courthouses wherever the person has lived and looks for anything including arrest reports. And as to wherever a person has lived, NEXIS Peoplefinder is nice enough to provide a listing of that.

        It could theoretically be problematic for someone like me who was sued personally as a public employee.

        1. That example is unrelated to sealing.

          The government has made housing so scarce and expensive that landlords have the upper hand for no good market reason.

          The government has made it so hard to evict bad tenants that landlords will go to extremes in their background checks.

          Did you read about the Seattle law that tried to force more bandaids on landlords to solve problems created by government? It would be illegal to check criminal records, and landlords had to take the first applicant; they could not take several and choose the best.

          This sealing nonsense si just more of the same. Government makes some things so hard to do (find suitable employees or tenants, evict bad tenants, fire bad employees) that the only solution people can think of is to make it easier for bad tenants and employees to hide from prospective landlords and employers.

          1. I stand corrected — the Massachusetts Criminal Offender Act has been amended and landlords now have access to all convictions for murder, manslaughter and sex offenses; misdemeanor convictions within five years; felony convictions within ten years; and all pending offenses. See https://www.mass.gov/files/documents/2017/09/05/iCori%20Individual%20Training.pdf

            The public *still* does not have access to this information — and landlords didn’t used to. Hence my reference to sealing, as the records essentially were.

      3. Let’s follow the logic. Consider people who call 911 -police, fire, ambulance, etc. They too are using taxpayer dollars, just like here. Shouldn’t they have to pay for the calls? Why is it fair that they be permitted to use up taxpayer dollars without having responsibility to society? If there is a real emeegency, more taxpayer dollars are used. So shouldn’t the caller have to pay more?

        There is a reason we don’t require it – to give people an incentive to call for help during an emergency, we need to avoid making doing so too costly, which includes shouldering some of the risks of honestly mistaken calls. My argument is that the incentives are, or should be, similar here. We want people to use peaceable means to try to resolve their disputes. That’s something that societies have traditionally regarded as worth paying a price for.

        If we lived by strict justice, we’d all be dead.

        1. There’s a reason making false calls to 9-1-1 is a crime. People have to pay for abusing the system.

          So let’s follow that example — you file a claim and drop it, then we charge you with abusing the court system.

          1. I was talking about charging people who make valid calls. Or honestly mistaken calls. Or calls that could have been addressed with a lesser response.

            There’s a lot, a lot of gray between an unequivocal utter emergency and an unequivocal crank call. The state pays for the gray. That’s the rule I’m talking about. We let people walk away from calling 911 by honest mistake without charge.

            Going back to the lawsuit case, there’s a lot of gray here too. The fact that she dropped the lawsuit doesn’t demonstrate that it was malicious, or even lacked merit.

    3. “Let’s look for a moment at interests on the other side. There is obviously some interest in settling cases, especially frivolous or weak cases. One way of doing that is simply being allowed to walk away without consequences.”

      The flip side of that is permitting them to be settled with nondisclosure agreements.

      Your argument about “walking away without consequences” would also apply to a nondisclosure agreement because it also permits a party to “walk away without consequences” — e.g. Donald Trump and Stormy Daniels. The nondisclosure agreement offers one side the same thing that you would deny the other — and do not forget the calculus of the Ford Pinto and it being cheaper to pay off the estates of incinerated passengers than to pay an extra couple dollars to fix the exploding gas tanks.

      So as much as she has to loose for the case being public, the other party does in other situations because of what publication of its conduct would cost it. Case in point Steve Wynn, who has been run out of his profession.

  2. The plaintiff is a woman, but the Magistrate Judge apparently incorrectly refers to her as “he.” -EV.

    Really? How un-woke.
    It is only incorrect if the person them self says it is incorrect.
    The Judge is free to deem the person male until corrected.

  3. Not my area of law, so please correct me if I am wrong, but one of the many problems with employment discrimination cases in future employment is the asymmetry.

    An employee who files a lawsuit has her name on the record, e.g., Smith v. Acme Company. The malfeasor (let’s call him Harvey) would appear in the records of the lawsuit, but would not have been a party to it. Therefore, when Smith applies for more jobs, a background check could show that she sued a former employer for discrimination; however, when Harvey applies for another job, his name would not come up. Then you end up penalising only the victim (actual or alleged), and not the person doing the discriminating.

    1. I would assume the company would punish the bad actor, usually by firing. If you’re a former supervisor applying for a supervisor position you can bet your ass the potential employer will want references, the reason why you left your previous position, and to talk to your previous employer(s). If you don’t tell them the truth then you’re nearly screwed: there’s still the off-chance the previous employer doesn’t say “yeah he cost us a lot of money by discriminating against subordinates.” If you do tell them the truth then you are certainly screwed.

      It’s less likely with other positions but still very likely that it’ll be revealed, unless you aim for positions they wouldn’t care much about checking into anyway.

      The court system may not punish the bad actor directly but that’s because the system assumes that, ultimately, it is the company’s fault in not dealing with a toxic workplace. Of course, if it does rise to criminal levels the bad actor can still be punished directly by the court system.

      1. Few employers give references except dates of employment and maybe job title.

  4. Maybe the moral of the story is don’t file discrimination lawsuits if you don’t plan on fully prosecuting them.

    Coincidentally, civil suits are rarely queried during private background checks for employment. My guess is if prospective employers are finding this litigation it is because the breadcrumbs are elsewhere and they lead to this result. (S)he probably at some point in time trashed the employer online and that is easy to find via an internet search.

  5. I think we should revisit the whole idea of sealing records so to increase sealing.

    In the old days [two decades ago!] one had to go to each court in person to run records. Now a PACER search can be done on a name in the entire federal system immediately and most, if not all, state courts are also on line. Privacy has been reduced quite a bit.

    A case like this is of no public interest whatsoever. No one will be harmed by a sealing order.

    If no one objects, the presumption should be in favor of sealing if one has a decent reason and little potential public interest.

    1. Bob, I go back and forth on this one.

      I really don’t like the idea of sealed court records because, it seems to me, the public has an interest in being able to see how the judiciary conducts its affairs. The knowledge that a court file is public probably does deter some amount of bad behavior.

      On the other hand, this is part of a larger problem of which PACER is only a small part. It used to be that if someone did something stupid, in time it would be forgotten about and they could get a fresh start. Today, thanks to the Internet, if you do something stupid, it will follow you around for the rest of your life. There’s someone in my office with a 35-year-old assault conviction from a time in his life when he had a substance abuse problem. Everyone in the office knows about it because someone found it on google. I just don’t see how that serves anyone.

      1. There is something to be said about the “right to be forgotten”. We used to have it in society just because memories faded, pictures were rarer, video of every day incidents was nonexistent, and not everything was memorialized online in an instant searchable format. If you did something bad in life all you had to do was move states and maybe start going by a nickname. Unless you did something like run for a high public office or need to clear a top secret background check, given a certain amount of time, that dumb thing you did was no longer relevant.

        Maybe the answer is pretty simple. We just don’t put every record online in an easy to search format. They can still be public and open to inspection, but if you want to find the record you have to do it the old fashion way. Why reinvent the wheel. This is how it worked, and worked well, for a long time…

        1. I would be for that. If only you could convince google to do likewise.

  6. The solution is obviously to move to Europe. Then one could assert the right to be forgotten.

  7. No, The Right To Be Forgotten is totalitarian censorship.People must live with the consequences flowing from their own choices.

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