The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

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."


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.