Dunn v. Pascoe

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION STEPHANIE DUNN, ) ) Plaintiff, ) ) v. ) ) CV420-090 ) BRITTNEY PASCOE, ) ) ) Defendant. ) ORDER Defendant Pascoe has moved to file a document under seal. Doc.

158. That Motion stands unopposed. See generally docket; see also S.D. Ga. L. Civ. R. 7.5. The parties have each filed motions in limine, docs.

160 & 161, which are opposed, see docs. 168 & 170. See doc. 166. The motions in limine are pending before the District Judge. The Motion to Seal is addressed below.

Defendant Pascoe moves to seal “documentary evidence” that is subject to a confidentiality agreement with an unidentified third party.

See doc. 158 at 1. Defendant proffers her “understanding [that it] is the position of the third party that the documentary evidence contains sensitive financial information that should not be available for public inspection.” Id. at 1. Despite that “understanding,” Pascoe does not venture her own assessment of the evidence in question. See generally id. Moreover, she notes that “this same exhibit (although only a portion of the same) was admitted into evidence in Lowe v. Difei Transport, LLC,” after the Honorable Charles A. Pannell, Jr. denied a motion to seal it.1 Id. at 2 n. 1. The evidence, which was submitted for the Court’s in camera inspection is over 1,000 pages long and appears to propose redacting certain information, rather than sealing the document entirely. Under the circumstances, the Court cannot conclude that the document should be sealed.

Even when a request to seal material is unopposed, the Court must still determine whether such exceptional treatment is appropriate, since “the parties to a lawsuit lack the authority to determine which documents outweigh the public’s common law right of access.” Usry v. EquityExperts.org, LLC, 2020 WL 9127714, at *2 (S.D. Ga. Apr. 13, 2020) (citing Wilson v. Am. Motors Corp., 759 F.2d 1568, 1571 (11th Cir. 1985)).

The Eleventh Circuit has explained that “[t]he operations of the courts and the judicial conduct of judges are matters of utmost public concern and the common-law right of access to judicial proceedings, an essential component of our system of justice, is instrumental in securing the integrity of the process.” Romero v. Drummond Co., 480 F.3d 1234, 1245 (11th Cir. 2007) (internal quotation marks omitted) (quoting Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 839 (1978), and Chi. Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001)). “[T]he common-law right of access includes the right to inspect and copy public records and documents.” Chi. Tribune Co., 263 F.3d at 1311 (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (referencing specifically the right to inspect and copy “judicial records and documents.”)). “A trial is a public proceeding, and the public has a right of access to evidence and testimony admitted at trail.” Hyundai Motor Am. Corp. v. EFN W. Palm Motor Sales, LLC, 2022 WL 17987526, at *1 (S.D. Fla. Dec. 12, 2022) (citing Nixon, 435 U.S. at 597; Chi. Tribune Co., 263 F.3d at 1311).

A party can overcome the common-law right of access by a showing of good cause. Callahan v. United Network for Organ Sharing, 17 F.4th 1356, 1363 (11th Cir. 2021). A good cause determination “requires balancing the asserted right of access against the other party’s interest in keeping the information confidential.” Romero, 480 F.3d at 1246 (internal quotation marks and alterations omitted) (quoting Chi. Tribune Co., 263 F.3d at 1309). In weighing these competing interests, the Court considers “a number of important questions,” which the Eleventh Circuit discussed in Callahan: [W]hether allowing access would impair court functions or harm legitimate privacy interests, the degree of and likelihood of injury if made public, the reliability of the information, whether there will be an opportunity to respond to the information, whether the information concerns public officials or public concerns, and the availability of a less onerous alternative to sealing the documents. Concerns about trade secrets or other proprietary information, for example, can overcome the public interest in access to judicial documents. Indeed, a court should consider whether the records are sought for such illegitimate purposes as to promote public scandal or gain unfair commercial advantage.

Callahan, 17 F.4th at 1363 (internal quotation marks and citations omitted). The decision of whether good cause exists rests with the sound discretion of the district court judge, is based on the “nature and character of the information in question,” and “should be informed by a sensitive appreciation of the circumstances that led to the production of the particular document in question.” Chi. Tribune Co., 263 F.3d at 1311 (quoting Nixon, 435 U.S. at 603) (internal quotation marks and alterations omitted), 1315.

Pascoe has failed to show good cause sufficient to overcome the public’s right of access. First, Defendant refers to a “confidentiality agreement,” between it and an unidentified third party, but does not produce the agreement. See generally doc. 158. To the extent that the Court can discern the basis for the Motion, it appears that Pascoe is permitted under the agreement to proffer the evidence “subject to the ‘presiding Court’s confidentiality provisions’ and with appropriate redactions.” Id. at 1. This Court has no “confidentiality provisions,” beyond the presumption of publicity, discussed above. See also S.D. Ga. L. Civ. R. 79.7(d) (“The party seeking to have any matter placed under seal must rebut the presumption of openness derived from the First Amendment by showing that closure is essential to preserve some higher interest and is narrowly tailored to serve that interest.”). Second, given the complete lack of meaningful information about Defendant’s obligation under her agreement with the unidentified third party, it is unclear whether she has any cognizable interest in her request.2 Finally,

SO ORDERED, this 6th day of November, 2023.

LIn~Z.

CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA Court notes that it appears that the third party in question filed that Motion, asserting its own confidentiality interest. See Lowe v. Difet Transp., LLC, 1:20-ev- 05224-CAP, doc. 208 (N.D. Ga. June 9, 2023).