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Motions to Seal Should Themselves Generally Not Be Sealed

So holds Judge Gregory H. Woods (S.D.N.Y.), I think correctly, in Zabolotsky v. Experian (decided Tuesday):

On December 4, 2020, Plaintiff emailed the Court requesting that this case be sealed. The email was not styled as a motion, but the Court construes the submission as a motion to seal because “[t]he submissions of a pro se litigant must be construed liberally and interpreted ‘to raise the strongest arguments that they suggest.'” Plaintiff also complained of a press article about her case that she asserts is misleading and improperly paints her as having mental health issues.

On December 9, 2020, the Court informed Plaintiff that “the Court anticipate[d] posting Plaintiff’s email to the docket in this case, unless the Court grants a motion to seal that communication.” On December 30, 2020, Plaintiff filed a motion to seal her email correspondence. While the Court understands Plaintiff’s privacy concerns, Plaintiff has not overcome the strong presumption of public access to judicial documents. As a result, Plaintiff’s motions to seal this case and her email correspondence are DENIED and Plaintiff’s email will be docketed.

There is a long-established “general presumption in favor of public access to judicial documents.” The Second Circuit has defined “judicial documents” as documents filed with a court that are “relevant to the performance of the judicial function and useful in the judicial process[.]” The presumption of access is “based on the need for federal courts … to have a measure of accountability and for the public to have confidence in the administration of justice.”

Applications to seal documents must therefore be “carefully and skeptically review[ed] … to insure that there really is an extraordinary circumstance or compelling need” to seal the documents from public inspection. “Documents may be sealed if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest. Higher values that may justify the sealing of documents include national security concerns, attorney-client privilege, law enforcement interests, or the privacy interests of third-parties.

“The burden of demonstrating that a document submitted to a court should be sealed rests on the party seeking such action[.]” To meet its heavy burden, the moving party “must offer specific facts demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” …

Plaintiff has failed to meet the burden of proof required for this case to be sealed…. [S]ealing the entire case would result in sealing numerous judicial documents that are both “relevant to the performance of the judicial function and useful in the judicial process[.]” Plaintiff notes that she and the last remaining defendant have settled this case, but that does not mean those documents are no longer judicial documents. …

[And] the presumption of public access to the information Plaintiff seeks to shield from the public has extraordinarily substantial weight. Plaintiff seeks to hide the entirety of the case from the public eye. This is at the core of the judicial function….. The public cannot evaluate a case that is sealed in its entirety …. The need for the public to be able to evaluate a case does not dissipate once the case is over….

Plaintiff argues that the case should be sealed “for the sake of [her] livelihood and professional and personal reputation.” However, the only aspect of this case that she argues has an adverse effect on her is financial information filed in connection with her application to proceed in forma pauperis. She argues that this information is “not relevant and embarrassing enough as is.” But “[t]he mere fact that judicial records may reveal potentially embarrassing information is not in itself sufficient reason to block public access.” Moreover, “[i]t is well-settled that neither ‘generalized concerns of adverse publicity’ nor the ‘possibility of future adverse impact on employment’ outweigh” the presumption of public access. Thus, while the Court understands Plaintiff’s desire to seal this case, the justifications provided by Plaintiff are insufficient to overcome the presumption of public access.

Plaintiff also has not made a showing sufficient to seal her email correspondence requesting that the case be sealed. Plaintiff’s email requesting relief from the Court was a judicial document because it was “relevant to the performance of the judicial function and useful in the judicial process.” And the weight accorded to the presumption of access to Plaintiff’s email is high because it was a motion seeking relief from the Court.

Plaintiff has not demonstrated that countervailing interests outweigh the heavy presumption that attaches to her motion to seal. In her motion to seal the email, Plaintiff stated that she wanted to keep the email private for fear of retaliation by the author of the article “by way of unwarranted reputational injury or worse G-d forbid.” But again, “concerns of adverse publicity” or the “possibility of future adverse impact on employment” do not outweigh the presumption of public access. And Plaintiff has not provided any facts on which the Court can conclude that she may suffer the worse consequences about which she is worried….

The Court … understands that Plaintiff did not contemplate the possibility that her email would be posted on the public docket. But for precisely that reason, Rule 2(D) of the Court’s Individual Rules of Practice in Civil Pro Se Cases provides that “[a]bsent a request to file a communication with the Court under seal, the Court will docket any substantive communication with the Court on ECF, a publicly accessible database.” The Court’s Individual Rules of Practice in Civil Pro Se Cases were attached to the order setting the initial pretrial conference in this case.

If the request was just for some limited redactions, the analysis might be different. The movant still bears the burden of justifying such redactions, but that’s an easier burden to discharge (e.g., if the motion needs to discuss in detail the very information that is being sealed) than for a request to seal the whole motion.


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Eugene Volokh

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