On August 11, 2021 we examined a case decided within the federal Sixth Circuit and how the judiciary in that case applied or did not apply Local Rules and the presumption of public access to court files. In today's article we examine a different case decided within the Sixth Circuit by a different District Judge under Local Rules while applying the default presumption of public access to court files.
Arguing two motions to seal would have been a tough assignment in most cases. Defendants wanted to seal parts of their motion for summary judgment in the Flint Water Cases. They also wanted to seal four exhibits to their motion for summary judgment in these consolidated class action cases pending in the Eastern District of Michigan:
- An investigative subpoena transcript obtained from the Michigan Solicitor General's Office;
- Two expert reports, and
- The deposition transcript of an expert's testimony.
However, the defendants' sealing objectives did not stop there. They also filed a motion to seal "'the report and deposition testimony of Class Plaintiffs' expert witness'" which was included in the defendants' motion to exclude or restrict the experts' testimony. See In re Flint Water Cases (This Order Applies to ALL CASES), No. 5:17-cv-10164-JEL-MKM, 2021 WL 2254051, at *1 (E.D. Mich. May 12, 2021).
As the District Court ultimately pointed out in this case, Federal Courts located within the the Sixth Circuit recognize a presumption of public access to Court records. Case law in the Sixth Circuit binds Federal Courts throughout the Circuit to carry out this presumption.
Local Rule 5.3 of the Eastern District of Michigan binds judges in the Eastern District of Michigan in particular, to the same presumption of public access to Court records. The net effect of both the case law and the Local Rule is to require every party which asks for material to be sealed to show a compelling reason, and the District Court must recite specific findings and conclusions about every document which the Court authorizes to be sealed, "[e]ven if no party objects to a motion to seal[.]" In re Flint Water Cases, 2021 WL 2254051, at *1.
Getting a Federal Judge to seal all of these materials, then, was not a task for the light-hearted. It might have been hard to obtain the Court's authorization to seal the materials in question in any case, but it would certainly have looked less difficult given the added fact that the sealing motions were not opposed. The plaintiffs did not oppose sealing any of these materials from public view.
What the Federal Judge did in response to two unopposed sealing motions is instructive to practitioners. She did not grant the relief that the defendants requested.
An unopposed motion is a practitioner's dream. You feel like you cannot lose, even though the final decision is up to the judge of course. The odds do not get any better for your client's request in a case than when your client's request is not opposed by any other party in the litigation. One unopposed motion is unusual; two unopposed motions is very rare, indeed. Still, at the risk of repetition, it is ultimately the judge's job and not a practitioner's job to dispose of any motion.
In this case, the District Judge did not deny the sealing motions but she did not grant them either, even if both of them were unopposed. She had previously entered a Confidentiality Order in the Flint Water Cases that required five things for any documents to be filed under seal with the authorization of the Court. The defendants in this case apparently supplied four of those five things, but not the fifth under a Confidentiality Order prevailing in the case, which was "'a memorandum of legal authority supporting the seal. See E.D. Mich. L.R. 5.3.'" In re Flint Water Cases, 2021 WL 2254051, at *2.
The Court in this case accordingly required the defendants "to supplement their motions with a memorandum of law that sets forth how the [Sixth Circuit] factors apply to the items" that were requested to be sealed. Of course, this was required by the terms of the Court's previous Confidentiality Order, but the Court patiently explained why the memorandum of law is important. A memorandum is important "[i]n order for the Court to properly evaluate [the defendants'] requests to seal[.]" In re Flint Water Cases, 2021 WL 2254051, at *2.
In our adversarial system, the absence of an adversary usually means that the party making its request prevails. When a sealing motion is involved, however, the judge is always present and that means that to some degree, in the Sixth Circuit at least and particularly in the Eastern District of Michigan, the interests of the public in disclosure are represented in every case, even when no-one is present to argue in favor of disclosure to the public.
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