Opinion
Cause No. 1:00-CV-468.
February 1, 2002
ORDER
This matter is before the Court on the Defendants' motion to file under seal their Motion for Summary Judgment, Memorandum of Law, and Designation of Evidence.
On December 15, 2000, the Plaintiff filed this 42 U.S.C. § 1983 action against the Defendants alleging failure to prevent the molestation of the Plaintiff by an adult when she was a minor. Simultaneously, the Plaintiff filed a motion for leave to file and prosecute this matter as a Jane Doe action, which we granted on December 18, 2000.
While we initially granted the Plaintiff's motion to prosecute this matter as a Jane Doe action, we continue to have strong reservations about allowing it to proceed as a "Doe" case. The Seventh Circuit has held that "[t]he use of fictitious names is disfavored, and the judge has an independent duty to determine whether exceptional circumstances justify such a departure from the normal method of proceeding in federal courts." Doe v. Blue Cross Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997). Nevertheless, we recognize that one of the exceptions to this rule might apply here, because "fictitious names are allowed when necessary to protect the privacy of children, rape victims, and other particularly vulnerable parties and witnesses." Id.; Jessup v. Luther, ___ F.3d ___, 2002 WL 73721 (7th Cir. January 17, 2002) (hereinafter "Jessup II") (the privacy of children may constitute a compelling interest in secrecy). Additionally, while not dispositive, none of the Defendants, and no one else for that matter, have objected to the Plaintiff's proceeding in this matter under the fictitious name "Jane Doe." See Blue Cross Blue Shield, 112 F.3d at 872 ("the privilege of suing or defending under a fictitious name should not be granted automatically even if the opposing party does not object"). Accordingly, until further order, we will allow this to proceed as a Jane Doe action, despite our serious reservations.
Turning now to the instant motion, the Defendants seek leave to file under seal the above referenced materials because they reveal the name and identity of the Plaintiff. However, "the decision to seal court records requires a delicate balancing of the parties' right to a fair trial and the public's right to an open court record[.]" In re Associated Press, 163 F.3d 503, 509 (7th Cir. 1998).
Indeed, the common law and the First Amendment to the Constitution together give rise to the fundamental proposition that the "public's right of access to court proceedings and documents is well established." Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994); In re Associated Press, 162 F.3d 503, 506 (7th Cir. 1998); cf. Globe Newspapers Co. v. Superior Court, 457 U.S. 596, 603 (1982). Instructively, the Seventh Circuit has maintained that the open court system (1) promotes community respect for the rule of law, (2) provides a check on the activities of judges and litigants, and (3) fosters more accurate fact finding." Grove Fresh, 24 F.3d at 897 (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)); Jessup v. Luther, 227 F.3d 993, 997 (7th Cir. 2000). These principles lead to a rebuttable presumption that there is a public right of access, which can be overcome when it is demonstrated that suppression is necessary to preserve "higher values" and when that suppression is "narrowly tailored" to serve those interests. Grove Fresh, 24 F.3d at 897
The Seventh Circuit has counseled that the privacy interests of the litigants may be protected by sealing part or all of a record when those interests predominate, or stated somewhat differently, only when there is "good cause" to seal the record. Citizens First Nat.'l Bank of Princeton v. Cincinnati Insurance Co., 178 F.3d 943, 945 (7th Cir. 1999).
Here, the litigants seek to keep the identity of the Plaintiff confidential because this matter concerns the sexual molestation of the Plaintiff while a child. Therefore, while the parties have, until now, submitted court filings all in the name "Jane Doe," the Defendants now wish to file their entire motion for summary judgment, its supporting memorandum and numerous evidentiary documents under seal, because they reveal the identity of the Plaintiff. However, this request to seal only appears necessary because the Defendants, in their motion and memorandum, drop any reference to the Plaintiff as "Jane Doe" and use her actual name throughout.
The Plaintiff has now attained the age of majority.
Although we agree that this case touches on naturally sensitive matters, we do not believe the wholesale sealing of the Defendants' motion, memorandum, and supporting materials is "narrowly tailored" to protect any privacy interest. Grove Fresh, 24 F.3d at 897.
Indeed, while no formal protective order has been entered, we find that any privacy interests here can be adequately addressed by redacting references to the Plaintiff's identity in the Defendant's Motion for Summary Judgment and their Memorandum in Support thereof, and replacing them with the pseudonym, Jane Doe. Therefore, the Defendant's motion to file its Motion for Summary Judgement and it Memorandum in support thereof under seal will be denied.
Nevertheless, we also recognize that the Defendant's Designation of Evidence is quite voluminous, and redacting references to the Plaintiff's true identity there cannot be so easily accomplished. See Citizens First National Bank, 178 F.3d at 946 (document-by-document review may impose an undue burden); e.g., Jessup II, 2002 WL 73721, at * 1 (portion of record may be sealed to protect privacy of children). Therefore, they will be granted leave to file their Designation of Evidence under seal.
CONCLUSION
For the foregoing reasons, the Defendants' motion to file materials under seal is DENIED as to their Motion for Summary Judgment and Memorandum in Support thereof, but GRANTED as to their Designation of Evidence. The Defendants are to substitute Jane Doe for any references to the Plaintiff's true name in their motion and supporting memorandum. Finally, although we are allowing some limited sealing of the record here, we also make explicit that either party or any interested member of the public may challenge the secreting of these materials. See Citizens First National Bank, 178 F.3d at 945 (requiring the court to make explicit that either party or interested member of public may challenge the sealing of documents). The Defendants are granted until February 7, 2002, to file a conforming motion and memorandum.