The Volokh Conspiracy

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Free Speech

Court Refuses to Seal File in Libel Lawsuit


Here's the motion, in Martin v. Marshall (the same case that yielded the Order Staying Case that I blogged this morning):

Plaintiff moves the Court for an Order Sealing the File since the file contains sensitive information about the Plaintiff, and the Defendant, and in support thereof would show unto the Court the following:

[1.] Plaintiff filed a Complaint against Defendant, Patricia Marshall, on June 9, 2020. The case has been diligently litigated. A number of records and documents have been filed with the Court and exchanged among the parties. Many of the records and documents are sensitive and contained confidential information and other information should not be disclosed and used only in the litigation of this case.

[2.] Plaintiff has provided a broad range of information and documents, including manipulated photos of herself posted by the Defendant, libelous postings about herself made by the Defendant, private conversations between herself and third parties, and other confidential information.

[3.] The information and documents provided could be detrimental to the Plaintiff and the Plaintiff's career and reputation. Some of the documents contain false accusations made by the Defendant claiming that the Plaintiff engages in prostitution, as well as other vile and disgusting acts. The Defendant also incorrectly accused the Plaintiff of being a Nazi, and other dangerous moral ideologies. The various postings made by the Defendant about the Plaintiff are injurious to the Plaintiff's character and legal career, and as such, these documents and the file should be sealed.

[4.] The Plaintiff requests this Court to enter an order sealing the court file and record during the course of this litigation, and that the documents used and produced in this litigation remain confidential, and that they be used only for purposes of this litigation.

[5.] In support of her Motion, the Plaintiff relies upon the pleadings and other papers filed in this matter to date.

[6.] Plaintiff requests a waiver of the requirement for a brief in support of this Motion.

WHEREFORE, PREMISES CONSIDERED Plaintiff moves the Court for an Order sealing the court file and record during the course of this litigation, ordering that the documents used and produced in this litigation remain confidential, and ordering that they be used only for purposes of this litigation.

Judge Carlton Reeves denied the motion today, "essentially for the reasons stated in the defendant's opposition brief[]," which points to various procedural defects in the motion (and in particular the lack of legal argument). But I think that the motion was likewise substantively unsound: In our legal system, lawsuits generally can't take place under seal—and that's especially so, I think, when the lawsuits are aimed at suppressing defendants' speech.

The public is entitled to monitor how the legal system deals with such attempts to restrict speech; and while that does further highlight the allegedly libelous material, I think that's a necessary function of a system which doesn't just say "trust us to decide things in secret" but rather "we are your public servants, and you can monitor how we are deciding things." For more, see Fargo v. Tejas, Manhattan Telecommunications Corp. [MetTel] v. Granite Telecommunications, LLC, and Parson v. Farley.

Here, by the way, are Judge Reeves' general views on sealing from a different case:

This case began when Jason Anderson filed a discrimination action with the Equal Employment Opportunity Commission against Halliburton. Halliburton then agreed to mediate with Anderson through the Commission's alternative dispute resolution program. Mediation led to a settlement agreement, in which Halliburton agreed to "rehire [Anderson] as a Project-Specialist Safeguard III; BC503-ESG or comparable position based on [the] successful completion of pre-employment screening." Two years after the agreement was signed, the Commission filed this suit, alleging that Halliburton violated the agreement by refusing to hire Anderson.

After the close of discovery, Halliburton moved for summary judgment. Halliburton submitted documents in support of that motion, and has asked the Court to place some under seal. The Commission has made a similar request regarding documents submitted in opposition to Halliburton's motion.

Citizens have a common law right to view public documents, including those submitted to a court. This is an important right, as citizen inspection of court records can uncover abuses of the judicial system. For this reason, courts in the Southern District of Mississippi require "clear and compelling reasons" to shield a document from public view.

Halliburton asks that certain documents be sealed because they contain Anderson's sensitive medical information. In the Southern District, this is a clear and compelling reason to seal documents. As Halliburton has taken great care to designate only relevant portions of its exhibits for sealing, the relevant documents — parts of Exhibits 1, 5, 7, and 11 attached to its motion for summary judgment — will be "sealed from public access only, with CM/ECF access permitted to the litigants' counsel."

Halliburton's request to seal its entire memorandum in support of its motion is another matter. Halliburton has yet to "fil[e a] properly redacted versio[n]" of that memo in the docket, a step courts in the Southern District typically require before sealing an unredacted pleading. Halliburton's motion to seal its memo is DENIED without prejudice to its refiling.

The Commission says that all the documents it submitted in opposition to Halliburton's motion should be sealed, as they "include Mr. Anderson's personal information, such as his home address, date of birth, and medical information." This is a curious assertion, as many of the referenced documents contain little or no reference to Anderson, let alone any sensitive information about him. For example, one document is merely screenshots of a public webpage. Furthermore, unlike Halliburton, the Commission moved to seal documents after placing them on the Court's docket. Such prior placement of documents in the public view suggests that the reasons for shielding them are neither clear nor compelling.

In short, the Commission has not requested a surgical sealing that carefully balances the public's right to inspect documents against Anderson's right to privacy. Instead, it has simply asked to seal every document related to its opposition to Halliburton's motion for summary judgment. Granting the Commission's request would bar the public from seeing any of its opposition to Halliburton's motion. Such privacy is appropriate for private arbitration, not public adjudication particularly given that "the documents sought to be sealed are exhibits to a dispositive motion," which means that "the weight afforded to the public's common-law right of access is necessarily greater."

The Court will not scrutinize every one of the Commission's exhibits to determine which portions may require sealing. If the Commission believes that there are interests strong enough to justify removing currently public documents from the Court's docket, it may file a motion explaining those interests in detail. The Commission's motion to seal is DENIED in its entirety, without prejudice to its refiling.