MENU

Reason.com

Free Minds & Free Markets

VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

Court Rejects "Case Shows Up Online" Sealing Request

A sound order from White v. Chenenko, No. 1:18-cv-12108 (D. Mass. Jan. 2, 2019) (Magistrate Judge M. Page Kelley):

The motion to seal 8 is DENIED. The common law presumes a right of access to judicial records, see Nixon v. Warner Commcns, Inc., 435 U.S. 589, 597 (1978), and "[o]nly the most compelling reasons can justify non-disclosure of judicial records," In re Gitto Global Corp., 422 F.3d. 1, 6 (1st Cir. 2005) (alteration in original) (quoting FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987)). Here, in his two-sentence motion, the plaintiff asks that this action be sealed because it "shows up online" and he wants "to avoid backlash and maintain as much privacy for all parties involved since the case never reached court." These bare assertions of harm do not justify sealing the case.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • dwshelf||

    I recall a gas station owner protesting price-signs with the claim that they "increase competition".

    True that.

  • captcrisis||

    But what if it happened to you?

  • apedad||

    You don't have to like the law to comply with it.

  • loveconstitution1789||

    Yup. Bye bye illegals.

    Complying with immigration laws also dont require liking them.

  • James Pollock||

    Cool, now that THEY'RE gone, maybe we can focus on some REAL problems in this country.

  • James Pollock||

    Does he have a malpractice case against the lawyer who drafted the motion, since the court found the request so obviously lacking in merit?
    In other words, would a skilled practitioner have known to write a detailed explanation of why "it shows up online" is a problem for plaintiff (related to actual, and not hypothetical harms).?

    Or is this a case of a pro se plaintiff getting their money's worth?

  • loveconstitution1789||

    More statists who despise the Constitutional Democratic Republic that allow for people to represent themselves and ask that the legal system not destroy their life with the Nanny-State laws and when prosecutors overcharge those Nanny laws.

  • NToJ||

    What are you fucking babbling about?

  • James Pollock||

    "More statists who despise the Constitutional Democratic Republic that allow for people to represent themselves"

    You're an idiot.

    Of the sort who would choose to represent himself despite being an idiot.

  • Eddy||

    "Or is this a case of a pro se plaintiff getting their money's worth?"

    In that case he can sue himself - he's bound to win, the only downside is that he's also bound to lose. So it's a half full/half empty situation.

  • David Bremer||

    No, he doesn't, since he's not in any way injured by this. Maybe if the had been personally sanctioned, but that didn't happen.

    Also, I read comments like this and can't help but wonder how many of you are in private practice. Because, here's how I see this play out. Inexperienced lawyer/solo practitioner gets a client, but client is a pain in the ass. Client demands they try to get case off Pacer. Lawyer says it can't happen absent compelling circumstances, which don't exist. Client thinks he's so special and demands that the motion be made.

    Lawyer rolls his eyes, goes to pre-hearing conference, tells judge that his client would like to make a motion. Says he'll be including the request with the motion for standard protective order. Judge, getting what's going on, says thanks for letting her know. Judge issues the quoted order, denying the request.

    Yes, there are silly cases out there. But sometimes there are practical reasons why they come about. Let's not freak out and demand vengeance over every little issue.

  • James Pollock||

    "No, he doesn't, since he's not in any way injured by this."

    Had he drafted his motion correctly, perhaps they would have considered the merits. As it is, they didn't. That's sounds like an injury. Plus he's out the filing fee.

    "Client demands they try to get case off Pacer. Lawyer says it can't happen absent compelling circumstances, which don't exist. Client thinks he's so special and demands that the motion be made.
    Lawyer rolls his eyes, goes to pre-hearing conference, tells judge that his client would like to make a motion."

    While Lawyer was rolling his/her eyes, did he/she forget the ethical duty to not advance frivolous claims? Or (this is your hypothetical) did Lawyer need the money from this piddling representation so badly as to overlook them?

  • David Nieporent||

    Plus he's out the filing fee.

    While some states have filing fees for motions, federal courts do not.

    While Lawyer was rolling his/her eyes, did he/she forget the ethical duty to not advance frivolous claims?

    This isn't frivolous by the legal (as opposed to colloquial) definition of the term.

    (Also, this is all hypothetical, because he was in fact pro se, so there is no lawyer rolling anybody's eyes here.)

  • David Nieporent||

    I should say that it isn't frivolous by the colloquial definition of the term either. There's nothing wrong with a request to seal a case. I was just pointing out that the legal definition — which is what would be relevant to an ethical duty — is much more narrow than the way people commonly use the term.

  • James Pollock||

    "There's nothing wrong with a request to seal a case."

    Unless, of course, there's no valid reason to make such a request, nor a valid reason to consider changing the law, in which case such a request would be frivolous. By, you know, that narrow legal meaning of the word.

  • David Nieporent||

    "It is harmful to me to have this unsealed" is a valid reason. It is not sufficient to meet one's burden of proving the necessity of sealing, but it is not remotely frivolous. By, I, but apparently not you, know, the narrow legal meaning of the word.

  • James Pollock||

    "'It is harmful to me to have this unsealed' is a valid reason"

    Then perhaps he should have included an argument for such in his motion.

  • David Nieporent||

    If he wanted to win, sure. But that speaks to the merits, not to frivolousness.

  • Alpheus W Drinkwater||

    This decision is surely a product of the millions and millions of dollars generated by the legal blogging industry.

  • captcrisis||

    "since the case never reached court."

    ?

    Then how did it get to the Magistrate? I don't understand.

  • Bored Lawyer||

    I think he meant trial. There were pre-trial filings.

  • NToJ||

    Could it have been that the case has settled?

  • David Nieporent||

    Could be, but not the case here. It appears he changed his mind and voluntarily dismissed it shortly after filing it.

  • Bored Lawyer||

    In my experience, courts are very uneven about this issue -- some carefully scrutinize any sealing request, while others allow it ubiquitously. I was recently counsel in a case where the court allowed massive filing almost all under seal (for example, summary judgment motions where everything but the Notice of Motion was sealed.)

    The two factors I think contribute to this are:

    1) In many cases, both sides want liberal sealing policies. It is only the public interest that is contrary. Since we have an adversarial system, if no one is protesting, many judges allow it.

    2) Limiting what you seal takes a lot of work. In the case I mentioned above, it was much easier to just seal the whole motion, rather then spend time figuring out which specific exhibits or pages of a brief needed to be under seal, and then filing two versions, an unredacted version under seal and a redacted version for public consumption. This is boring work that clients do not like paying for, so it is easier to just go the wholesale route. Especially if your adversary is in the same boat. (See No. 1)

  • David Bremer||

    There's a difference between sealing confidential documents and having the case unavailable on the internet (i.e., inaccessible via Pacer).

    In my experience, issue #2 explains the mass sealing of documents. Especially on large motions filed at or near the deadline. That and the blanket marking of documents as "confidential" because sorting through thousands of emails deciding what can be public and what must be sealed is boring, expensive work that often accomplishes nothing of value.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online