UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JACK J. GRYNBERG, et al.,

Plaintiffs,

v. Civil Action No. 08-301 (JDB) BP P.L.C., et al.,

Defendants.

MEMORANDUM OPINION

Today the Court has issued a memorandum opinion denying plaintiff Jack Grynberg’s Rule

60 motion. Also pending before the Court is defendants’ motion to seal the exhibits attached to

their Rule 60 opposition. 1 See Defs.’ Rule 60 Mot. to Seal [ECF No. 129]. While briefing

defendants’ motion, the parties successfully narrowed the range of disputed exhibits. Grynberg

has agreed that seven exhibits may remain under seal. Defendants have agreed that more than two

dozen others should be unsealed. Ten exhibits remain in dispute. See Stipulation [ECF No. 143]

at 2. The disputed exhibits include two complaints filed by Grynberg and his corporations in the

underlying arbitration, the arbitrator’s 2013 award, the transcript of the September 2013 arbitration

meeting, and various written correspondence related to the arbitration. 2 As to those ten exhibits,

defendants’ motion to seal will be denied.

1 The parties have already worked through a similar sealing dispute, which related to exhibits filed by defendants in opposition to Grynberg’s motion for a Rule 26 conference. That sealing dispute was resolved by a stipulation of the parties that was subsequently memorialized in a March 1, 2016 Court Order. See Order [ECF No. 135]. Briefs submitted during that dispute contain analysis relevant to this one and will therefore be cited throughout this Memorandum Opinion. 2 The ten disputed exhibits are docketed at ECF Nos. 129-15, 24, 25, 30, 31, 33, 39, 44, 48, 49. See Stipulation at 2.

1 “[T]he starting point in considering a motion to seal court records is a strong presumption

in favor of public access to judicial proceedings.” EEOC v. Nat’l Children’s Ctr., Inc.,

(D.C. Cir. 1996) (internal quotation marks omitted). The D.C. Circuit has identified

six factors that might act to overcome this presumption:

(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interest asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.

(citing United States v. Hubbard,

, 317–22 (D.C. Cir. 1980)). Barely engaging

with the Hubbard factors, the defendants fail to rebut the strong presumption that the disputed

exhibits should be filed on the public docket. 3 Some of the Hubbard factors actually weigh in

favor of public access. Others, to the extent they weigh against disclosure, are not sufficiently

weighty to overcome the presumption.

First, “there is a need for public access in those instances where the documents at issue are

specifically referred to in the trial judge’s public decision.” Nat’l Children’s Ctr.,

(internal quotation marks and alterations omitted). Here, the Court has found it necessary to rely

extensively in its Rule 60 decision on the arbitrator’s 2013 award and the September 2013

arbitration meeting transcript. As a result, there is a strong public need for those exhibits. The

sixth Hubbard factor also favors disclosure of all the disputed exhibits. Defendants submitted the

exhibits in order to convince the Court that Grynberg’s claims of arbitral bias are unsubstantiated.

3 Arguing that Hubbard does not apply, defendants relegate any analysis of its factors to the footnotes of their papers. See, e.g., Defs.’ Rule 26 Sealing Reply [ECF No. 130] at 7–8 & n.4. The Court thinks that position is incorrect—and confusing. In support of their present motion, defendants rely on briefs submitted in support of prior sealing requests. And in those briefs, defendants rely on the Hubbard factors to structure the analysis. See Ex. A to Defs.’ Rule 26 Sealing Reply [ECF No. 130-2] at 4–5.

2 Having done so, they cannot easily claim that the exhibits must remain sealed. See, e.g., Zapp v.

Zhenli Ye Gon,

(D.D.C. 2010) (explaining that factor six favors

disclosure of exhibits submitted to the court with the intent that the court will rely on them in

adjudicating a dispute).

In an attempt to rebut the strong presumption of public access, defendants contend that the

disputed exhibits are not yet publicly available. See Defs.’ Rule 26 Sealing Reply at 8 n.4. That

may be so. But because “the second Hubbard factor is neutral where there has been no previous

access” to a disputed exhibit, Am. Prof’l Agency v. NASW Assurance Servs.,

(D.D.C. 2013) (internal quotation marks omitted), that observation gains defendants little

traction.

Defendants’ strongest arguments relate to factors three, four, and five. See Am. Prof’l

Agency,

(noting that Hubbard factors three, four, and five are interrelated).

In short, defendants contend that the 1999 Settlement Agreements and a follow-on Confidentiality

Agreement from 2002 require that all documents related to the arbitration remain under seal. See

Defs.’ Rule 26 Sealing Reply at 1–2. For many years, Grynberg agreed. And various courts—

including this one—have previously entered sealing orders upon the parties’ request. Now,

defendants argue, Grynberg is attempting to reverse course, in violation of the parties’ agreements

and several court orders—all to the prejudice of defendants.

At the end of the day, however, defendants have failed to explain what prejudice would

result from the disclosure of these exhibits. Defendants contend that disclosure would violate the

terms of their settlement and confidentiality agreements. Even if that were true, it would not

suffice to carry defendants’ burden. Although confidentiality agreements between private parties

may weigh against disclosure, they do not dictate whether documents can be filed under seal. See,

3 e.g., In re Fort Totten Metrorail Cases,

, 9–11 (D.D.C. 2013) (ordering disclosure

even though confidentiality agreements weighed against it). In any event, it is unclear whether the

settlement and confidentiality agreements here actually protect the disputed exhibits from

disclosure. Those agreements protect “Confidential Information,” which is defined to include

various categories of commercial information. 4 Insofar as the agreements restrict public access to

sensitive commercial information, they are consistent with D.C. Circuit precedent regarding the

sealing of “business information that might harm a litigant’s competitive standing.” See Hubbard,

(internal quotation marks omitted). Defendants, however, have not explained what

material in the disputed exhibits falls within that category. That failure also undermines their claim

to prejudice. Defendants repeatedly state that disclosure would be “per se prejudicial” to their

interests. See, e.g., Defs.’ Rule 26 Sealing Reply at 8 n.4. Perhaps the Court would agree if the

material subject to disclosure was confidential business information. But again, defendants have

barely tried to show that is the case. Nor have they articulated an alternate theory of prejudice.

Such “vague assertions” of prejudice do not convince the Court that the disputed documents should

be sealed. See Am. Prof’l Agency,

. When all is said and done, then, all the

defendants have is their agreements. 5 And to the extent the agreements apply here at all, they are

outweighed by other factors favoring disclosure—most importantly, the absence of prejudice.

For the foregoing reasons, defendants have failed to rebut the “strong presumption” in

favor of public access to judicial proceedings. EEOC,

. The disputed exhibits

4 The Confidentiality Agreement similarly protects “Produced Information,” defined as “Confidential Information” produced in connection with the arbitration. 5 The Court has considered, as a matter of “comity,” that some of the disputed exhibits may be subject to prior sealing orders by the New York Supreme Court and U.S. Court of Appeals for the Fifth Circuit. See Hubbard,

n.6. But those orders from other jurisdictions cannot relieve the Court of its obligation to apply the Hubbard factors, which are binding D.C. Circuit precedent. And in any event, the Court doubts that the Fifth Circuit panel, which prodded the parties into unsealing some parts of the record before it, would be distressed by this Court’s resolution of this motion. See Defs.’ Rule 26 Sealing Reply at 6–7.

4 must therefore be unsealed and filed on the public docket. The Court is aware that defendants

would also like to seal some of the exhibits that Grynberg has filed publicly in connection with his

Rule 60 motion and reply. See Defs.’ Rule 60 Sealing Reply [ECF No. 140] at 8. But much of

the preceding analysis applies to these exhibits as well. The Court relied on several of those

documents in its opinion denying Grynberg’s Rule 60 motion. It is unclear which, if any, of the

documents properly fall within the ambit of the settlement and confidentiality agreements. And

defendants have failed to articulate a cogent theory of prejudice. Plus, at this point, the documents

attached to Grynberg’s Rule 60 motion and reply have been available on the public docket for

several months. Given all these factors, the Court declines to try to force the genie back into the

bottle, and hence defendants’ motion to seal exhibits attached to Grynberg’s Rule 60 motion and

reply is denied as well.

A separate Order has issued on this date.

/s/ JOHN D. BATES United States District Judge Dated: September 8, 2016

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