The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From today's decision by Judge Jorge Alonso in Orrington v. Humanadental Ins. Co.(N.D. Ill.):
Plaintiffs would like to file an amended complaint under seal, because it would be embarrassing to them to detail the allegations that support plaintiffs' claim for defamation. That is not sufficient grounds for filing a document under seal.
Litigation in federal courts is presumptively public, and people who "call on the courts … must accept the openness that goes with subsidized dispute resolution." Union Oil Co. of Cal. v. Leavell (7th Cir. 2000) ("Many a litigant would prefer that the subject of the case—how much it agreed to pay for the construction of a pipeline, how many tons of coal its plant uses per day, and so on—be kept from the curious (including its business rivals and customers), but the tradition that litigation is open to the public is of very long standing."). "[O]nly trade secrets, information covered by a recognized privilege (such as the attorney-client privilege), and information required by statute to be maintained in confidence … is entitled to be kept secret." Baxter Int'l v. Abbott Labs. (7th Cir. 2002)…. [P]laintiffs have not shown that the standards of Baxter and Union Oil are met, so their motion for leave to file under seal is denied.
I agree with the court, for reasons laid out in Parson v. Farley (N.D. Okla. 2018) and Manhattan Telecommunications Corp v. Granite Telecommunications, LLC (Del. Ch. 2020):
If the information currently redacted remains so, the public will have no means to understand the dispute [plaintiff] has asked the Court to adjudicate. This conflicts with the public's right to "monitor the proceedings and result[s]"—a right, again, that "has been characterized as fundamental to a democratic state." In other words, when "the supposedly-confidential information represents the nature of the dispute itself—the interest of the public in accessing this information outweighs the economic harm to the parties that disclosure may cause." That is the case here.
Here's the plaintiffs' argument that the court rejected:
The primary factual basis for this action is a baseless complaint that Defendants filed with the Illinois Department of Professional and Financial Regulation concerning Orrington. The limited text in the Amended Complaint that Orrington wishes to file under seal concerns the nature of Defendants' defamatory allegations. Revealing the specific nature of Defendants' defamatory allegations will likely further spread those baseless allegations that Defendants have unjustifiably asserted against Orrington….
Orrington respectfully submits that good cause exists for maintaining this material
under seal because further publishing Defendants' defamatory allegations would result in annoyance, embarrassment, oppression, and undue burden or expense to Orrington. See Fed.R.Civ.P. 26(c); Mimms v. CVS Pharmacy, Inc., 1:15-cv-00970-TWP-MJD, 2016 WL 11547243, at *2 (S.D. Ind. Jul. 14, 2016) (granting motion to seal appendix to summary judgment brief where said appendix contained a chart setting forth alleged defamatory statements made by the defendant about the plaintiff).
Note also that the supposedly redacted Complaint was actually misredacted in a way that allowed people to see the redacted material by just copying it and pasting it into a separate document; but that's moot now that the unredacted amended Complaint has been filed, in accordance with the court order denying the motion to seal.