The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"Plaintiff Simply Wants to Erase Any Evidence That He Initiated a Case," but "Plaintiff Cannot Unring a Bell"
"Furthermore, the Court is not in the business of scouring and removing data from GovInfo.gov, PACERMonitor, CaseText, and Justia" (which is what the Plaintiff had requested).
From Magistrate Judge Anthony Patti (E.D. Mich.) Report and Recommendation in Lopez v. Chase, just adopted Thursday by Judge Shalina Kumar (quite correctly, I think):
Seven months [after filing this pro se case], Plaintiff filed three successive motions, all aiming to erase his case from the court docket in some fashion…. [A]ll three of Plaintiff's motions seek to seal this case, and order third parties to cease any publication or dissemination thereof. The Court should deny all three motions.
Unlike information merely exchanged between the parties, "[t]he public has a strong interest in obtaining the information contained in the court record." There is a "strong presumption" in favor of open court records. The party seeking to seal records before the court has the burden of overcoming that presumption and "[t]he burden is a heavier one than for a protective order [as]: 'Only the most compelling reasons can justify non-disclosure of judicial records.'" …
Here, Plaintiff does not overcome the strong presumption against sealing records in civil cases. He requests sealing the case "due to concerns about privacy, security, and the potential for misuse of sensitive information." He further states that the risk of harm includes potential for identify theft, fraudulent use of personal details, reputational damage, and "physical security risks if sensitive information is misused." There is simply not enough information provided to meet Plaintiff's burden. This case has been closed for almost a year, and the documents which are apparently of concern to Plaintiff have been in the public record since that time. Moreover, it is Plaintiff himself who filed the documents in the public record, so this is not a situation where Plaintiff is timely objecting to private information being filed by an adversary.
Finally, and most importantly, Plaintiff fails to identify what precisely is private or sensitive in his 227-page, case-initiating document. Even if a party can demonstrate a compelling reason for sealing a document, or portions of a document, "the seal itself must be narrowly tailored to serve that reason." A "brief, perfunctory, and patently inadequate" explanation for the purported need to seal a document will not suffice. It is not the Court's responsibility to comb through his expansive filing to potentially guess at what Plaintiff contends is of concern. It seems to the Court that Plaintiff simply wants to erase any evidence that he initiated a case that was subsequently dismissed. But Plaintiff cannot unring a bell.
A party's fear of embarrassment or harm to reputation, or a fear of a negative impact on future employment, does not provide grounds for sealing a public record. Put succinctly, "a record may not be sealed 'merely because it could lead to a litigant's embarrassment.'" In a case of civil litigation, only information covered by a recognized privilege (attorney-client), information required by statute, and trade secrets are typically found to be enough to overcome the presumption of access. Thus, the Court should deny Plaintiff's requests to seal his court records, and the attendant request to somehow direct third parties to prevent their dissemination, which the Court is likely without authority to order in any event….
Furthermore, the Court is not in the business of scouring and removing data from GovInfo.gov, PACERMonitor, CaseText, and Justia [as the Plaintiff had requested]. When Plaintiff chose to file a lawsuit, he placed himself at risk that the information would be picked up by various legal databases, as courthouses and court records are, with few and narrow exceptions, an inherently public space. As such, "Plaintiff is trying to slam the door of the barn after the horses are long gone." …
