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: