Free Speech

District Court Reverses Own Right-to-Be-Forgotten-Like Decision

The judge had earlier ordered search engines and web sites to remove materials about a employment discrimination lawsuit


From Monday's order in Allen v. Chanel, Inc., by Judge Loretta A. Preska:

Before the Court are submissions … regarding the Court's Order, dated August 21, 2020, that directed search engines and websites to remove materials discussing the [case] following the Court's sealing of the docket …. Also before the Court is a motion to intervene filed by the Electronic Frontier Foundation, Inc. and Professor Eugene Volokh of UCLA School of Law.

Having reviewed these comments from non-parties and from Ms. Allen, the Court has reconsidered the August 21, 2020 Order as well as the March 10, 2020 Order that originally sealed this case's docket….

In 2012, following termination of her employment, Plaintiff Anu Allen filed suit against her former employer, Chanel, Inc. ("Chanel"), asserting claims for, inter alia, employment discrimination. The Court later granted Chanel's motion for summary judgment as to each of Ms. Allen's claims and ruled in favor of Chanel on its counterclaim for unjust enrichment.

As the Court recounted in its summary judgment opinion, in anticipation of making a severance payment to Ms. Allen, Chanel sent Ms. Allen an agreement that contained a provision by which Ms. Allen would waive her right to bring certain lawsuits against Chanel, "including" employment discrimination and harassment claims, in exchange for that payment. When Ms. Allen returned the signed agreement to Chanel, the word "including" was revised to "excluding." With respect to Chanel's counterclaim, the Court found that, because a material term was modified, the parties never achieved a meeting of the minds, and Ms. Allen was thus required to return her severance payment to Chanel. The Parties ultimately stipulated to dismissal of the case's remaining claims.

On January 10, 2020, Ms. Allen filed a motion to seal her case. Ms. Allen explained that at the time of her separation from Chanel, having no legal background, she had relied on her attorney's advice when she returned the revised separation agreement to Chanel with a Post-It note on the revised page. She also stated that her attorney had insisted that she submit an affidavit stating that she, rather than her attorney, had modified the agreement. She also stated that the public availability of her case's docket through online search engines, and commentary on her case in online media, rendered difficult her attempts to gain new employment.

After considering Ms. Allen's submission, the Court granted Ms. Allen's request to seal the docket in light of her difficulty finding employment. On August 21, 2020, the Court also directed websites hosting filings from the now-sealed docket, and materials discussing those sealed filings, to remove those materials.

After receiving inquiries from non-parties following the August 21, 2020 Takedown Order, the Court invited comment from the non-parties who had submitted inquiries, as well as from Chanel.

Duck Duck Go, Inc., which operates the fourth-largest search engine in the United States, submitted a comment on October 21, 2020. (Letter from Daniel L. Schmutter, Megan E. Gray & Eugene Volokh ("DuckDuckGo Letter").) In its submission, DuckDuckGo argued that the Court's August 21 Takedown Order should be vacated on the basis that: (1) DuckDuckGo could not be bound by the order under Federal Rule of Civil Procedure 65; (2) DuckDuckGo did not have an opportunity to be heard; and (3) the First Amendment protected (i) DuckDuckGo's right to publish the information disclosed by the government, i.e., the docket entries in this case and (ii) the rights of websites to which DuckDuckGo would point its users.

Free Law Project, which provides free, public, and permanent access to primary legal materials on the Internet for educational, charitable, and scientific purposes, also submitted comment (Letter from Catherine Crump & Megan Graham, dated Oct. 21, 2020.) Free Law Project submitted that it should not be bound by the Court's August 21, 2020 Order under F.R.C.P. 65 because it was a non-party that obtained the case materials independently and had no opportunity to be heard, and because the First Amendment protects Free Law Project's right to publish the information it lawfully obtained. Moreover, Free Law Project advocated that the submissions in response to the Court's September 30 Order should be docketed and that the entire docket in this case should be unsealed.

Ms. Allen submitted by email responses to the non-parties' comments. She reiterated her struggle finding employment because of the public access to the docket of her cases, which had been compounded by additional recent personal hardship. DuckDuckGo submitted a response letter acknowledging Ms. Allen's professional and personal difficulties but maintained that these interests were insufficient to overcome the due process and First Amendment rights of DuckDuckGo and those similarly situated and the Rule 65 limitations on the scope of injunctions

Additionally, on October 28, 2020, counsel for the Electronic Frontier Foundation and Professor Eugene Volokh of UCLA School of Law filed a motion to intervene (see Letter from Daniel L. Schmutter, dated Oct. 28, 2020), which Ms. Allen opposed (Letter from Marshall Bellovin, dated Oct. 30, 2020)….

"The First Amendment accords a strong presumption of public access to pleadings and other judicial documents that 'have historically been open to the press and general public' and 'play a significant positive role in the functioning of the judicial process.'" It is well-settled that "documents submitted to a court for its consideration in a summary judgment motion are—as a matter of law—judicial documents to which a strong presumption of access attaches, under both the common law and the First Amendment." Although this presumption applies most strongly to materials such as those produced at trial or filed in support of dispositive motions, such as the summary judgment motion here, it extends to "pretrial motions and written documents submitted in connection with them, and docket sheets."

Although this presumption in favor of public access is fundamental, private litigants can in some cases overcome it and shield docketed materials from the public eye…. For sealing to be justified on any basis, however, a court must make "specific, on-the-record findings that sealing is necessary to preserve higher values." Moreover, the nature and extent of the sealing must be narrowly tailored to serve these interests.

Upon reconsideration, the Court finds that Ms. Allen's interest in sealing her case cannot defeat the presumption of public access that attaches to this case's docket and its filings. Ms. Allen proffers her reasons in support of sealing the docket in both her original sealing request and in response to comments from the non-parties. She articulates that the public availability of the docket continued to create enormous challenges in her employment search and has affected her livelihood and wellbeing. She also notes for the Court that the modification of the contract with Chanel recounted in the Court's motion for summary judgment, actions which some online commentators have attributed to her, was done on account of the advice of her attorney and led her to file a formal grievance against him.

Ms. Allen's concerns are evident and undoubtedly significant. As the prospective interveners point out, however, a private litigant's general concerns about reputational harm or negative impact to her employment prospects are not sufficient to counteract the public's First Amendment right to these court filings.

Moreover, the fact that the docket sheet in this case and its filings have been public for years prior to the unsealing request is further dispositive of this issue. Although the Court sympathizes with Ms. Allen's plight, in light of the recognized First Amendment rights of the press and the public, it cannot make the requisite, on the record finding that sealing is proper here. {Sealing the case's docket also would not be a sufficiently narrowly tailored solution under these circumstances.}

As the prospective intervenors point out, however, Ms. Allen may not be completely without recourse…. "The normal remedy for alleged attorney misbehavior is a malpractice lawsuit or a sanctions award …[."]  Although the First Amendment prohibits Ms. Allen from sealing the public record, it gives her the opportunity to correct it.

Accordingly, the Court must vacate the March 10, 2020 Order that originally sealed this case's docket. Moreover, because the Court's August 21, 2020 Takedown Order was issued on the basis of the March 10, 2020 sealing order, the Court also vacates the August 21, 2020 order….

Just as "'[r]epresentatives of the press … must be given an opportunity to be heard on the question of their exclusion' from a court proceeding," the Court of Appeals has "recognized a similar right of news media to intervene in this Court to seek unsealing of documents filed in a court proceeding." Here, the Court has afforded non-parties an opportunity to comment without formal intervention, however, and has vacated its March 10, 2020 order sealing the docket in this case (and thus there are no materials left to be unsealed) and the August 21, 2020 Takedown Order. Accordingly, the Court denies as moot the prospective intervenors' motion to intervene….

Ms. Allen shall transmit a copy of this order to any search engine, news outlet, or other domain to which she sent a copy of this Court's March 10, 2020 Order or August 21, 2020 Takedown Order.

For more, see Free Law Project's Twitter thread on the case.

Many thanks to Dan Schmutter of Hartman & Winnicki for his pro bono help in the case, to UCLA School of Law student Leeza Arbatman for her work on the filings, and to Scott & Cyan Banister for their generous support of our UCLA First Amendment Clinic. Note that some of the recent filings remain sealed, but I think that's just because there's a brief delay with the unsealing.

NEXT: Foot Voting isn't Just About Pursuing Narrow Economic Self-Interest

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  1. Which Volokh Conspiracy fan is Bill Kaetz?

    I am finding it difficult to narrow the list.

    1. Typically off point, irrational, and self-serving whining.

      1. So, you are saying that Bill Kaetz is RAK?

        1. No, he is saying that RAK is like the bird in the cuckoo clock. You expect him to come out regularly and make a lot of noise, but none of it is of any relevance to what you are discussing.

    2. Artie Ray, obviously.

      1. When will Prof. Volokh’s First Amendment clinic exhibit concern with respect to the censorship of Artie Ray Lee Wayne Jim-Bob Kirkland, whose martyrdom stands as valuable indictment of the Volokh Conspiracy’s hypocritical, partisan, viewpoint-driven censorship of liberals and libertarians?

        Faux libertarian hypocrites who lather right-wing losers are among my favorite culture war casualties.

        1. When Artie Ray Lee Wayne Jim-Bob Kirkland makes a valid claim of being censored by a government entity.

          1. The court has just destroyed this woman’s life. No employer will hire her yet they basically don’t give a damn. Why can’t they just change her last name to Smith versus Chanel. So is anybody out there going to hire her or can she petition the court and show them that a potential employer has refused based on this case. Can she submit evidence to support her claim and have this ruling overturned.

  2. The problem is that filing a discrimination complaint precludes future employment elsewhere…

    1. In my first firm (which I left over 20 years ago), a couple of partners did a lot of employment cases. We would always explain to the potential plaintiffs that even if they were fired for a discriminatory reason, under the doctrine of mitigation of damages, they were required to look for more work.

      It often happened that they would look for a job and find one with better pay than the one they were fired from. They would then lose interest in pursuing litigation.

      1. Yeah, but once there are public filings in a discriminations suit for potential future employers to find in a background check, who would want to hire them?

  3. One factor (though I’m not sure it should always be decisive) here is that the person seeking to protect her privacy voluntarily participated in the court system as a plaintiff. Discrimination suits in particular often create reputational harm to non-parties, who made no such choice and have no representation in how their reputations are portrayed. Mostly these are so called comparators. The plaintiff might, for example, say that the discipline he received was discriminatory because different race/younger employee John did [terrible thing] and was given lesser or no discipline. Or the plaintiff complains that she didn’t get the promotion even though the man who got it had such mediocre performance ratings. I remember reading one hiring case (at least I think it was a hiring case, though those are relatively rare) where the court casually dropped a footnote that the school board’s hiring of [named person] accused of sexual misconduct with minors didn’t help plaintiff because the board didn’t know about the alleged misconduct at the time. Courts (and parties’ whose briefs show up on Pacer) should be much more cautious about using the real names of comparators. Where that’s not done, I do think we need to rethink the notion that the full record has to be available online.

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