Opinion
Civil Action 2:08-cv-841.
July 1, 2010
ORDER
This matter is before the Court on defendant Transportation and Security Administration's June 24, 2010 unopposed motion to order filing under seal (doc. 36). Rule 26(c) of the Federal Rules of Civil Procedure provides in pertinent part:
(c) Protective Orders.
(1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending — or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
. . .
(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way. . . .
A protective order may be issued only if the movant demonstrates "good cause." Rule 26(c)(1). It is mandatory for a judge to make that determination before ordering, or permitting, part of a record of a case to be sealed. Seattle Times, 467 U.S. at 37; Jepson, Inc. v. Makita Electric Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994). A judge cannot delegate the determination of whether there is "good cause" to the lawyers in the case. Citizens First National Bank of Princeton v. Cincinnati Insurance Company, 178 F.3d 943, 944 (7th Cir. 1999). Judge Posner held in Citizens First Nat'l Bank, 178 F.3d at 944 that it is improper for a judge to give a party carte blanche to seal documents. The interest of the public at large in what goes on at all stages of a judicial proceeding can be overridden only if the property and privacy interests predominate in particular situation and if good cause for sealing a part or the entirety of the record can be shown. Id. A blanket order allowing the parties to seal whatever they want is too broad. Id. However, an order allowing parties to keep their trade secrets, confidential research, or other commercial information out of the public record may be valid if parties can demonstrate that they understand the concept of confidential information, are acting in good faith in designating parts of the record as such, and the order provides an opportunity for any party or an interested member of the public to challenge the confidentiality designation. See id. at 945-46. The party seeking a protective order must demonstrate that the information sought to be protected is confidential and entitled to Rule 26(c)(1)(G) protection. See, Meyer Goldberg, 823 F.2d at 163; Waelde v. Merck, Sahrp Dohme, 94 F.R.D. 27, 30 (ED Mich. 1981).
Here, defendant fails to explain how their interest in maintaining the confidentiality of the documents and deposition testimony outweighs public's right of access to court proceedings. As a result, defendant Transportation and Security Administration's June 24, 2010 unopposed motion to order filing under seal (doc. 36) is DENIED without prejudice.
On June 30, 2010, counsel participated in a telephone conference with me. The United States' request for leave to file its motion to seal under seal is GRANTED.
Under the provisions of 28 U.S.C. § 636(b)(1)(A), Rule 72(a), Fed.R.Civ.P., and Eastern Division Order No. 91-3, pt. F, 5, either party may, within fourteen (14) days after this Order is filed, file and serve on the opposing party a motion for reconsideration by the District Judge. The motion must specifically designate the Order, or part thereof, in question and the basis for any objection thereto. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.