Opinion
Cause No. IP 99-9313-C-H/G.
July 6, 2001
ENTRY ON MOTION FOR LEAVE TO SUBMIT FILINGS UNDER SEAL
Plaintiffs have moved for leave to file under seal several documents in opposition to defendants' motion to decertify the nationwide class previously certified by the state court in Hinshaw. Defendants assert that most of the materials plaintiffs offer should not be sealed but that a few specific items should be sealed. The court has examined the materials in question and sees no legitimate basis for sealing any of the matters in question. See generally Citizens First National Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943 (7th Cir. 1999) (directing closer scrutiny of protective orders sealing access to documents in public courts).
1. One item is plaintiffs' "Research Appendix," which reviews and compares the law of different states on different subjects. Plaintiffs' counsel concede that such information is "not technically protected" by the protective order in this case. Counsel assert, however, that the Research Appendix contains attorney work product resulting from counsel's investment of time. Counsel suggest this work product should be kept under seal because the work "could be used by counsel in other cases without having to incur the time and expense incurred by Class Counsel."
This unusual request, made without citation of any supporting authority, reflects an extraordinary view of the public courts and the processes by which they resolve disputes. This judge has never heard of a brief to a public court being sealed because another lawyer might read it and save time in her similar case. Plaintiffs' counsel want the court to consider the fruits of their work in the law library, and the court will do so, but there is no basis for sealing that work upon which plaintiffs want this court to base its decision.
2. Plaintiffs seek to file under seal the declaration of attorney Nels Ackerson, which summarizes Mr. Ackerson's recent experience as class counsel. There is no apparent reason for filing that document under seal.
3. Plaintiffs originally tried to file under seal their Appendix of Authority. They now acknowledge that the appendix, which includes only copies of unpublished court decision that are matters of public record, should not be filed under seal.
4. The Affidavit of attorney John B. Massopust contains documents and deposition testimony developed in discovery in this and other cases. Defendants contend that Tabs 2, 4, 5, 6, 7, and 10 of his affidavit, and that deposition testimony contained in Tabs 8, 9, and 13, as well as portions of plaintiffs' brief referring to or quoting from these items should be sealed. The court has reviewed these materials. The documents in question appear to be internal ATT documents, including some that date from 1981 and 1982 (several eras ago in the fast-changing world of telecommunications, before the break-up of the old ATT), as well as an excerpt from an ATT "Right-of-Way Manual" dated October 1996. Nothing in these documents or in the deposition testimony resembles a trade secret or other legitimately confidential material.
In Citizens First National Bank, the Seventh Circuit explained there would be no difficulty with an order that allows the parties to keep trade secrets out of the public record, provided that the judge, among other requirements, "satisfies himself that the parties know what a trade secret is and are acting in good faith in deciding which parts of the record are trade secrets." 178 F.3d at 946; accord, Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000) (ordering court documents unsealed); In re Bridgestone/Firestone Inc., 198 F.R.D. 654, 656-57 (S.D.Ind. 2001) (allowing press to intervene to seek unsealing of court documents).
The court does not question counsel's subjective good faith here. Filing materials under seal is often the path of least resistance and lowest cost. However, the submissions in question here strongly indicate that those involved in this case either do not know what a real trade secret looks like or have not thought it worth their while to apply their knowledge to these matters. Cf. New York Times Co. v. United States, 403 U.S. 713, 729 (1971) (Stewart, J., concurring) ("For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless . . . * * * [S]ecrecy can best be preserved only when credibility is truly maintained."). Accordingly, the previous protective order in this case is hereby MODIFIED to require, with any submission to the court sought to be made under seal, an affidavit from senior counsel in the case explaining why the submission contains truly confidential material that meets the standards of Citizens First National Bank.
Plaintiffs' motion for leave to submit matters under seal in opposition to the motion to decertify the Hinshaw class is hereby DENIED in its entirety. The clerk is directed to file all of the items submitted and to treat them as public documents.
So ordered.