The Volokh Conspiracy
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Anything You File in Court Can and Will Be Used Against You by People Who Google Your Name
A future Miranda warning for litigants? "I wish the SDNY pro se clinic had made me aware that many third-party commercial services download court documents ... and publish this information on the internet."
In Nago v. Bloomberg L.P., decided Apr. 30 by Magistrate Judge Ona T. Wang (S.D.N.Y.), plaintiff asked for "an order to seal the records" of this case, which had been settled and voluntarily dismissed:
Plaintiff expressed feelings of embarrassment and concerns regarding future employment related to the fact that his case information and documents are publicly accessible. While the Court understands Plaintiff's concerns, Plaintiff has not overcome the strong presumption of public access to judicial documents….
Even construing Plaintiff's pro se submissions liberally, the Court finds that Plaintiff has not met his burden of justifying sealing the case records. Step one of the Second Circuit's test [for public access to court documents] is easily satisfied: sealing the case file would result in sealing numerous judicial documents, including pleadings, that are both "relevant to the performance of the judicial function and useful in the judicial process." The fact that this case has settled does not change the analysis.
As to step two, because Plaintiff seeks to shield all case records from the public eye, the presumption of public access has "extraordinarily substantial weight." The "need for the public to be able to evaluate a case does not dissipate once the case is over," and the public simply "cannot evaluate a case that is sealed in its entirety."
Lastly, while the Court understands Plaintiff's desire to seal case records due to social embarrassment and concerns regarding future employment, these justifications are legally insufficient. This Court has repeatedly held that "[t]he potential for a negative impact on a party's future business or social status does not outweigh the presumption of access." Saadeh v. Kagan, No. 20-CV-1945, (PAE)(SN), 2021 WL 965334 (S.D.N.Y. Mar. 15, 2021) (refusing to seal complaint and collecting cases); see, e.g., Zabolotsky, 2021 WL 106416, at *3 (denying motion to seal case file "for the sake of [plaintiff's] livelihood and professional and personal reputation" because "[i]t is well-settled that neither generalized concerns of adverse publicity nor the possibility of future adverse impact on employment outweigh the presumption of public access") (internal quotations omitted); Badinelli v. Tuxedo Club, No. 15-CV-06273 (VB), 2018 WL 6411275, at (S.D.N.Y. Dec. 6, 2018) (refusing to seal case records, finding plaintiff's "interest in privacy, professional reputation, and earning capacity" did not "outweigh the interest in public access to the record"); Under Seal v. Under Seal, 273 F. Supp. 3d 460, 467–68 (S.D.N.Y. 2017)) (lifting seal and emphasizing that "[a] possibility of future adverse impact on employment or the celebrity status of a party is not a higher value sufficient to overcome the presumption of access to judicial documents") (internal quotations omitted). {[And e]ven if the Court granted Plaintiff's motion to seal the case records, the case name and existence of the litigation would still be public.}
And here is the heart of the litigant's letter motion to seal:
You may remember that I filed the above matter pro se and appeared before you in court. The involved parties agreed to a settlement and the case was subsequently dismissed voluntarily. I am writing to seek your order to seal these case records for the following reasons.
I wish the SDNY pro se clinic had made me aware that many third-party commercial services download court documents containing sensitive personal information (information provided solely for the purpose of participating in a vital government service) and publish this information on the internet. Internet search engines have powerful algorithms that are very adept at finding and presenting this information in search results.
I was embarrassed to learn from someone I had just met that the top search result for my name is Case No.: 19-CV-11483-GBD-OTW. After contacting as many of the websites as I could, and Google Search multiple times, to request that the information be removed, this settled case is still the top search result when my name is searched on the internet at this time. Google requires a court order to remove the content and refers me to the website owners for redress. Some of the websites have flatly refused my request without a court order.
Currently, it is common practice for potential employers, HR recruiters and hiring managers to perform internet searches on potential candidates to discover red flags that may eliminate individuals from employment consideration. Potential litigation is one such red flag that can be a decisive eliminatory factor when similarly qualified candidates are being compared. As such, I am arguing herein that I have an overriding interest which is the protection of my ability to obtain employment and thereby earn a fair living. This overriding interest warrants an order to seal the records of this case.
While acknowledging the longstanding First Amendment protection of freedom of the press which I believe underpins the precedent and practice of making civil court records available to the public, I would like to point out that technological changes—namely the internet and internet search algorithms—give nearly instant, easy access to anyone, absent of any legitimate or journalistic interest, to sensitive personal information in unsealed court records. I argue that currently there is no party with any journalistic or legitimate interest in this settled case who would object to the sealing of these records. If such party should materialize in the future, they may petition the court to have these records unsealed.
The court's decision was legally correct, and I think the legal rule is sound: "Once a matter is brought before a court for resolution, it is no longer solely the parties' case, but also the public's case." Public access to information about the case is necessary because the case leads to coercive orders (whether injunctions or damages awards) that are issued in the public's name and using government power. And it's also necessary so the public can monitor what judges do in the cases. Secret justice is less trustworthy justice.
At the same time, the easy searchability of court records can indeed be bad for litigants' career prospects, and can discourage people from filing even meritorious claims. Perhaps there are ways of dealing with these problems (e.g., some sort of pseudonymization, coupled with the ability to link the pseudonym to the real person's name but with some degree of extra work required for that); but for now, at the very least, litigants should be aware that things they file in court will likely become broadly publicly available.
