The Volokh Conspiracy

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Still No Redaction of Filings Based on Speculation That They'll Lead to "Harassment and Violence" by "Haters"


I wrote in October about the decision by Magistrate Judge Michael Hegarty in Luo v. Wang:

Plaintiff requests that the Court [redact certain documents]…. [Plaintiff] alleges that she faces "harassment and violence" but does not connect any specific harm of harassment or violence to the currently public documents. She cites to a restraining order that she sought against Intervenor [Volokh] but does not connect the information she seeks to restrict to any of her allegations in the restraining order. While the Plaintiff has a general fear that "haters" will threaten and harass her, this Court maintains once again, "the public [should not] be prevented from reaching its own conclusion in this case." ….

[T]he Ninth Circuit has cautioned that Plaintiff's habit of attempting to restrict judicial records could abuse the judicial process. O.L. v. Jara (9th Cir. May 12, 2022). Because Plaintiff fails to provide specific facts, much less explain why filing the documents as restricted outweighs the presumption of public access, Plaintiff's Motion is denied….

Today, Judge Regina Rodriguez affirmed Magistrate Judge Hegarty's decision:

Plaintiff argues that Magistrate Judge Hegarty "clearly erred in concluding that plaintiff did not identify any particular harm or serious injury." Plaintiff contends that Magistrate Judge Hegarty "ignores other facts that Plaintiff does not have other life event that would cause her to experience harassment and violence and Plaintiff did not experience harassment and violence until the improper disclosure of her identity." However, Plaintiff did not raise this argument in her motions to restrict, and the Court is not convinced that such a conclusory statement, unsupported by more specific facts, would bear Plaintiff's burden. Hence, Magistrate Judge Hegarty's Order that Plaintiff failed in those motions to "identify any particular harm that would result if the public documents at issue remained unrestricted" is not "clearly erroneous or contrary to law." …

Plaintiff argues that "the Magistrate Judge fails to identify why redaction would not serve the same purpose while supporting the public's interest in access to judicial records." However, this argument misplaces the burdens. It is Plaintiff's burden to demonstrate that the requirements of D.C.COLO.LCivR 7.2(c) are fulfilled and to overcome the presumption set forth in Local Rule 7.2 that, "[u]nless restricted by statute, rule of civil procedure, or court order, the public shall have access to all documents filed with the court and all court proceedings." D.C.COLO.LCivR 7.2(a); se also, e.g., Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir. 2011) ("The party seeking to overcome the presumption of public access to documents bears the burden of showing some significant interest that outweighs the presumption.") (internal quotations and citation omitted); D.C.COLO.LCivR 7.2(c)(2) (noting the "presumption of public access"). The Court agrees with Magistrate Judge Hegarty that Plaintiff has not met that burden here….

You can also read the plaintiff's motion, and the magistrate judge's earlier decision to depseudonymize the plaintiff (now on appeal to the Tenth Circuit).

Disclosure: Luo has unsuccessfully sued me to try to force me to remove certain posts about her, and to block me from writing more about her, and is appealing her loss. But of course I was writing about her cases even before she sued (that was the whole point of her lawsuit), and am now just continuing my earlier practice.