Commercial Litigation and Arbitration

Motion to Seal Summary Judgment Papers to Preserve Confidentiality of Settlement Denied — Standards for Sealing

From TIG Ins. Co. v. Firemen’s Fund Ins. Co., 2010 U.S. Dist. LEXIS 61519 (D.D.C. June 22, 2010):

The [underlying] insurance coverage and liability actions [brought by third parties] against the plaintiff and the defendant were resolved in accordance with a confidential Settlement Agreement and Release (the "Settlement Agreement").... In the Settlement Agreement, the plaintiff assumed the defense of Millennium, 2200 M Street and other related entities in the Resident Lawsuits..., and, the defendant agreed to pay the plaintiff 25% of the attorney's fees and expenses incurred in defending ten of the Resident Lawsuits brought against Millennium***.

In March 2008, the plaintiff filed this suit for breach of contract and a declaratory judgment to establish the defendant's obligation to fund 25% of the legal fees and expenses incurred in defending Millennium and 2200 M Street.***

The plaintiff moves for leave to file its summary judgment motion under seal and to place any future filings which discuss or disclose any of the terms or conditions of the Settlement Agreement under seal, citing as authority Federal Rule of Civil Procedure 7 and Local Civil Rule 5.1(j).... The plaintiff asserts that its motion for summary judgment should be sealed because it discusses and attaches the terms of the confidential Settlement Agreement.... Additionally, the plaintiff argues that a seal is necessary because the motion for summary judgment will necessarily contain confidential information.... The defendant counters that the plaintiff has not satisfied its burden, having failed to provide any support or citation to any relevant authority.... Specifically, the defendant asserts that the plaintiff's motion merely cites to the instructions regarding the general form of sealed pleadings and the procedure for placing a matter under seal, but provides no authority relevant to whether its summary judgment motion ought to be sealed. ***

When considering a motion to seal, the court begins with a "strong presumption in favor of public access to judicial proceedings." United States ex rel. Schweitzer v. Oce, N.V., 577 F. Supp. 2d 169, 171 (D.D.C. 2008) (quoting Equal Employment Opportunity Comm'n v. Nat'l Children's Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996)); see also In re Sealed Case, 237 F.3d 657, 666 (D.C. Cir. 2001) (citations omitted). Although strong, this presumption is not irrebutable. The Supreme Court has stated that "[e]very court has supervisory power over its own records and file, and access has been denied where court files might have become a vehicle for improper purposes." Nixon v. Warner Commc'ns, Inc. , 435 U.S. 589, 589 (1978) (internal citations omitted).

Whether the public should have access to judicial records and proceedings is a decision "best left to the sound discretion of the trial court, discretion to be exercised in light of the relevant facts and circumstances of the particular case." Nixon, 435 U.S. at 599 (cited in United States v. Hubbard, 650 F.2d 293, 316-17 (D.C. Cir. 1980)). To aid the court's analysis, the D.C. Circuit has established a six-factor balancing test for determining whether documents should be sealed. These factors are:

(1) the need for public access to the documents at issue; (2) the extent to which the public had access to the document prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity of that party; (4) the strength of the property and privacy interests involved; (5) the possibility of prejudice to those opposing disclosure; and (6) the purpose for which the documents were introduced.

Johnson v. Greater Se. Cmty. Hosp., 951 F.2d 1268, 1277 n.14 (D.C. Cir. 1991) (citing Hubbard 650 F.2d at 317-22).

In the present case, the plaintiff's motion simply asserts that the documents at issue contain confidential information.... Yet this assertion alone is not sufficient to properly evaluate the instant motion under the six-part balancing test articulated by this Circuit. See Johnstown Feed & Seed, Inc. v. Cont'l W. Ins. Co., 2009 WL 866828, at *2 (D. Colo. Mar. 26, 2009) (recognizing that a motion setting forth only that the documents at issue were "confidential" and under the court's protective order was not compelling enough to grant a motion to seal). Accordingly, the court denies without prejudice the plaintiff's motion for leave to file its summary judgment motion under seal. See DBI Architects, P.C. v. Am. Express Travel Related Servs. Co., 462 F. Supp. 2d 1, 7 (D.D.C. 2006) (denying a motion for leave to file under seal because the movant failed to provide legal authority for its request); accord Interspan Distrib. Corp. v. Liberty Ins. Underwriters, Inc., 2009 WL 2588733, at *1 (S.D. Tex. Aug. 21, 2009).

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