Opinion
Civil Action 19-cv-01130-RM-NYW
09-14-2021
DARREN MARKLEY, Plaintiff, v. U.S. BANK NATIONAL ASSOCIATION d/b/a U.S. BANK, Defendant.
MINUTE ORDER
Nina Y. Wang, Magistrate Judge
This matter comes before the court on Defendant U.S. Bank National Association d/b/a U.S. Bank's (“Defendant” or “U.S. Bank”) Unopposed Motion to Restrict Access (“Motion” or “Motion to Restrict”) [Doc. 109, filed August 20, 2021]. This matter was referred to the undersigned pursuant to the Order Referring Case dated May 24, 2019 [Doc. 14], and the Memorandum dated March 24, 2021 [Doc. 111].
As repeatedly discussed in this court's prior ruling on similar motions filed in this action, “‘[c]ourts have long recognized a common-law right of access to judicial records,' but this right ‘is not absolute.'” JetAway Aviation, LLC v. Bd. of Cty. Comm'rs of Cty. of Montrose, Colo., 754 F.3d 824, 826 (10th Cir. 2014) (quoting Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007)). Judges have a responsibility to avoid secrecy in court proceedings because “secret court proceedings are anathema to a free society.” M.M. v. Zavaras, 939 F.Supp. 799, 801 (D. Colo. 1996). There is a presumption that documents essential to the judicial process are to be available to the public, but access to them may be restricted when the public's right of access is outweighed by interests which favor nondisclosure. See United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997). Accordingly, courts may exercise discretion and restrict a public's right to access judicial records if that “‘right of access is outweighed by competing interests.'” JetAway, 754 F.3d at 826 (quoting Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir. 2011)); cf. United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985) (“[T]he question of limiting access is necessarily fact-bound, [therefore] there can be no comprehensive formula for decisionmaking.”).
In exercising that discretion, the court “‘weigh[s] the interests of the public, which are presumptively paramount, against those advanced by the parties.'” United States v. Dillard, 795 F.3d 1191, 1205 (10th Cir. 2015) (quoting Crystal Grower's Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir. 1980)). The presumption against restriction may be overcome if the party seeking to restrict access to records “articulate[s] a real and substantial interest that justifies depriving the public of access to the records that inform [the court's] decision-making process.” JetAway, 754 F.3d at 826 (quotation marks and citation omitted); Pine Tele. Co. v. Alcatel-Lucent USA Inc., 617 Fed.Appx. 846, 852 (10th Cir. 2015) (showing of “significant interest” required). “[A] generalized allusion to confidential information” is insufficient; as is the bare reliance on the existence of a protective order pursuant to which the documents were filed. JetAway, 754 F.3d at 826-27; see also D.C.COLO.LCivR 7.2 (stipulations between parties or stipulated protective orders regarding discovery, standing alone, are insufficient to support restriction). But a party may overcome the presumption of public access where the records contain trade secrets, Alcatel-Lucent, 617 Fed.Appx. at 852; “business information that might harm a litigant's competitive standing, ” Nixon v. Warner Comm'ns, Inc., 435 U.S. 589, 598 (1978); information which “could harm the competitive interests of third parties, ” Hershey v. ExxonMobil Oil Corp., 550 Fed.Appx. 566, 574 (10th Cir. 2013); or private or personally identifiable information, Fed.R.Civ.P. 5.2, or otherwise invade privacy interests, Huddleson v. City of Pueblo, Colo., 270 F.R.D. 635, 637 (D. Colo. 2010), such as personal medical information, Dillard, 795 F.3d at 1205 (citing Nixon, 435 U.S. at 599).
These principles are reflected in D.C.COLO.LCivR 7.2(a). Local Rule 7.2(c) is quite clear that a party seeking to restrict access must make a multi-part showing. It must: (1) identify the specific document for which restriction is sought; (2) identify the interest to be protected and the reasons why that interest outweighs the presumption of public access; (3) identify a clear injury that would result if access is not restricted; and (4) explain why alternatives to restricted access- such as redaction, summarization, stipulation, or partial restriction-are not adequate. D.C.COLO.LCivR 7.2(c)(1)-(4).
Defendant seeks Level I Restriction of Plaintiff's unredacted Response in Support of Defendant's Motion for Summary Judgment (“Response”) [Doc. 75]; Exhibit A through Exhibit D [Doc. 75-1 through 75-4], Exhibit F through Exhibit V [Doc. 75-6 through 75-22], and Exhibit X [Doc. 75-24] attached thereto; and Plaintiff's Statement of Undisputed Material Facts [Doc. 76], filed February 3, 2021. See [Doc. 109].
Exhibit A [Doc. 75-1] contains excerpts from the deposition transcript of Mary Martuscelli; Exhibit B [Doc. 75-2] includes excerpts from the deposition transcript of Renee Santanni; Exhibit C [Doc. 75-3] contains U.S. Bank's internal compensation plan; Exhibit D [Doc. 75-4] contains excerpts from the deposition transcript of Darren Markley; Exhibit F [Doc. 75-6] contains excerpts from the deposition transcript of Michael Ott; Exhibit G [Doc. 75-7] contains excerpts from the deposition transcript of Katie Lawler; Exhibit H [75-8] includes excerpts from the deposition transcript of Jeffrey Wahl; Exhibit I [Doc. 75-9] contains internal U.S. Bank emails dated December 18, 2019 to December 19, 2019; Exhibit J [Doc. 75-10] is spreadsheet reflecting U.S. Bank client account information; Exhibit K [Doc. 75-11] contains internal U.S. Bank emails dated February 6, 2018 to February 7, 2018, as well as a document titled “Colorado HR Vacancies and Priorities”; Exhibit L [Doc. 75-12] is a document dated February 13, 2018 which contains discussions of U.S. Banks disciplinary processes; Exhibit M [Doc. 75-13] is a document titled “Sales Misconduct Procedure Guide” which contains discussions of U.S. Banks disciplinary processes; Exhibit N [Doc. 75-14] contains excerpts from the deposition transcript of David Crittendon; Exhibit O [Doc. 75-15] contains excerpts from the deposition transcript of Mario Plazola; Exhibit P [Doc. 75-16] is an investigation document that contains U.S. Bank employee information; Exhibit Q [Doc. 75-17] contains U.S. Bank internal emails dated February 8, 2018 to February 22, 2018; Exhibit R [Doc. 75-18] contains investigation documents; Exhibit S [Doc. 19] contains investigation documents; Exhibit T [Doc. 75-20] contains excerpts from the deposition transcript of Susie Roh; Exhibit U [Doc. 75-21] contains U.S. Bank internal emails dated February 27, 2018; Exhibit V [Doc. 75-22] contains excerpts from the deposition transcript of Tiffani Boskovich; Exhibit W [Doc. 75-23] contains excerpts from the deposition transcript of Zac Nicol; and Exhibit X [Doc. 75-24] contains emails U.S. Bank internal emails dated February 28, 2018 to March 1, 2018, as well as investigation documents.
At the outset, and as explained in my order on a prior motion to restrict in this case [Doc. 92, filed March 26, 2021], I note that supporting documents to Defendant's Motion for Summary Judgment [Doc. 63] were granted Level 1 Restriction by the Honorable Raymond P. Moore, the presiding judge in this matter. See [Doc. 69, filed January 28, 2021]. Judge Moore granted Defendant's Unopposed Motion to Restrict Access (“First Motion to Restrict”) [Doc. 68, filed January 27, 2021]. See [Doc. 69]. In the First Motion to Restrict, Defendant sought Level 1 restriction of its Statement of Undisputed Material Facts and Supporting Evidence [#65] and Exhibits 2 through 6, 10, and 13 through 16 thereto [#65-1 through #65-13]; and Amended Exhibits 3-2, 3-3, 5, and 7 to the same [#67, #67-1 through #67-4].
Defendant filed another Motion to Restrict Access on February 2, 2021. See [Doc. 82 (“Second Motion to Restrict”)]. In that Motion, Defendant similarly sought Level I restriction of its Unredacted Reply in Support of its Motion for Summary Judgment [Doc. 80], its Reply to the Undisputed Material Facts and Supporting Evidence [Doc. 81], and Exhibits 17 through 32 attached thereto [Doc. 81-1 through Doc. 81-16], filed February 17, 2021. See [Doc. 82]. On March 26, 2021, this court granted in part and denied in part the Second Motion to Restrict, finding that some documents were appropriate for Level I restriction while other documents were more appropriate for redaction. See [Doc. 92].
However, the documents subject to, and the bases for restriction articulated in, the First Motion to Restrict, the Second Motion to Restrict, and the instant Motion to Restrict are not the same. Compare [#68 at ¶ 7] with [Doc. 82 at ¶ 9] and [Doc. 109 at ¶ 11]. Accordingly, this court finds it necessary and appropriate to consider again the merits of Defendant's arguments for restriction as asserted in the instant Motion to Restrict, notwithstanding Judge Moore's Order granting Defendant's First Motion to Restrict [Doc. 69] and this court's Order granting Defendant's Second Motion to Restrict [Doc. 92].
Here, Defendant asserts that Plaintiff's Response [Doc. 75], Statement of Undisputed Facts [Doc. 76], and Exhibits, including the deposition transcripts, “contain highly confidential internal U.S. Bank information, Personally Identifiable Information (‘PII') of U.S. Bank employees (including birth years), and U.S. Bank's client information.” [Doc. 109 at ¶ 6]. According to Defendant, Exhibits B [Doc. 75-2], D [Doc. 75-4], F [Doc. 75-6], H through J [Doc. 75-8 to 7510], L [Doc. 75-12], N [Doc. 75-14], O [Doc. 75-15], Q [Doc. 75-17], S [Doc. 75-19], T [Doc. 7520], V [Doc. 75-22] and X [Doc. 75-24] contain U.S. Bank's client “names” or “information.” See [Doc. 109 at ¶ 11]. Defendant asserts that Exhibits B [Doc. 75-2], C [Doc. 75-3], F through I [Doc. 75-6 to Doc. 75-9], K through M [Doc. 75-11 to Doc. 75-13], O through S [Doc. 75-15 to Doc. 75-19] U [Doc. 75-21], and X [Doc. 75-24] contain, among other information, confidential internal documents concerning U.S. Bank's compensation structure, email communications, investigation documents, and discussions of U.S. Bank's disciplinary processes. [Id.]. In addition, Exhibit F [Doc. 75-6] also contains the name of a non-party, former U.S. Bank employee accused of sales misconduct, and Exhibit T [Doc. 75-20] contains the birth date of another non-party, former U.S. Bank employee. [Id.]. Defendant also seeks restriction of Exhibit F [Doc. 75-6], as well as Exhibit A [Doc. 75-1] because those documents contain private information related to non-party Ms. Martuscelli's family. [Doc. 109 at ¶ 11]. Finally, Defendant seeks restriction of Exhibit K [Doc. 75-11] because it contains internal information regarding U.S. Bank's hiring of a third-party. [Id.].
Consistent with the Second Motion to Restrict [Doc. 82], Defendant argues here that Level 1 Restriction of the documents is necessary to protect the interests of U.S. Bank, its employees, and its clients. Defendant argues that, absent restriction, the interests of (a) U.S. Bank would be harmed because “its confidential and proprietary documents about compensation plans and fraud investigation [sic] remains available to the public, opening it up to both internal and external queries regarding confidential issues far beyond the scope of this case, ” [Doc. 109 at ¶ 16]; (b) U.S. Bank employees would suffer because their personally-identifiable “and private family information would be open to public consumption, and available to those individuals who may seek to use it to commit identify [sic] fraud or other illicit acts, ” [id. at ¶ 17]; and (c) U.S. Bank clients would be harmed by an invasion of privacy, insofar as its clients' “private information about the financial institution with which they choose to work and the types of financial products they have pursued or purchased would be available to the public, ” [id. at ¶ 18].
Upon review of Plaintiff's Response to Defendant's Motion for Summary Judgment [Doc. 75]; Exhibits A through D [Doc. 75-1 through 75-4], F through V [Doc. 75-6 through 75-22], and X [Doc. 75-24] attached thereto; Plaintiff's Statement of Undisputed Material Facts [Doc. 76]; the docket; and the applicable case law, the court agrees that the foregoing documents contain information that should be restricted from public disclosure. Specifically, the public disclosure of (1) U.S. Bank's internal compensation plan; (2) U.S. Bank's payment schedule for particular employees; (3) internal documents concerning U.S. Bank's client relations; (4) the private email addresses of current and former U.S. Bank employees; (5) internal discussions of U.S. Bank's disciplinary process; (6) specific details of confidential internal investigations of employee misconduct; and (7) U.S. Bank's clients' names and account numbers, would reveal Defendant's sensitive commercial and proprietary information. See Rickaby v. Hartford Life & Accident Ins. Co., No. 11-cv-00520-RM-BNB, 2016 WL 1597589, at *5 (D. Colo. Apr. 21, 2016) (granting motion to restrict where public disclosure of documents would reveal commercial and financial information of both a party and third party); Hershey v. ExxonMobil Oil Corp., 550 Fed.Appx. 566, 574 (10th Cir. 2013) (information which “could harm the competitive interests of third parties” may be properly restricted).
Additionally, the court finds that public disclosure of specific information contained in Plaintiff's unredacted Response [Doc. 75], Statement of Undisputed Material Facts [Doc. 76], Exhibit F [Doc. 75-6], and Exhibit K [75-11] would reveal confidential information related to employees who are not parties to the instant action, and agrees that the non-party employees have a significant privacy interest in these records that outweighs the public's interest in access to the same. See Lee v. Avago Tech. U.S., Inc., No. 13-cv-03450-RM-KMT, 2015 WL 9810344, at *2 (D. Colo. July 8, 2015) (finding Level 1 Restriction proper where non-party privacy interests would be compromised by public dissemination of the information contained in employment records); EEOC v. Wal-Mart Stores East LP, No. 17-C-70, 2020 WL 470012, at *2 (E.D. Wis. Jan. 29, 2020) (finding that non-party employees had a significant privacy interest in attendance records that outweighed the public's interest in access to those documents); Kalberer v. Am. Family Mut. Ins. Co., No. 2:13-cv-02278, 2014 WL 5780383, at *1 (D. Nev. Nov. 5, 2014) (recognizing the “significant interest of non-party employees in keeping their employment files . . . secret” (alterations in original) (citation omitted)); Rossbach v. Rundle, 128 F.Supp.2d 1348, 1353 (S.D. Fla. 2000) (finding that the privacy rights of non-parties outweighed the public's interest in unfettered access to court records).
Similarly, this court finds that public disclosure of the names and/or personally identifying information of U.S. Bank clients as contained in Plaintiff's unredacted Response [Doc. 75]. Plaintiff's Statement of Undisputed Material Facts [Doc. 76], Exhibits B [Doc. 75-2], D [Doc. 754], F [Doc. 75-5], H [Doc. 75-8], I [Doc. 75-9], J [Doc. 75-10], L [Doc. 75-12], N [Doc. 75-14], O [Doc. 75-15], Q [Doc. 75-17], S [Doc. 75-19], T [Doc. 75-20], V [Doc. 75-22], and X [Doc. 7524] would reveal sensitive, personal financial information about non-parties, and agrees that nonparty clients of Defendant have a significant privacy interest in their wealth management accounts and choices that outweighs the public's interest in access to the same. See Rickaby, 2016 WL 1597589, at *5 (granting motion to restrict where public disclosure of documents would reveal, inter alia, financial information of a third party); Rossbach, 128 F.Supp.2d at 1353 (finding that the privacy rights of non-parties outweighed the public's interest in unfettered access to court records). Given that the foregoing documents include information properly restricted from unfettered public access, Defendant's Motion to Restrict is GRANTED IN PART, insofar as Defendant seeks restriction of the specific information enumerated above. Accordingly, the Clerk of the Court is DIRECTED to RESTRICT under Level 1 Restriction [Doc. 75], [Doc. 75-1], [Doc. 75-2], [Doc. 75-3], [Doc. 75-7], [Doc. 75-8], [Doc. 75-10], [Doc. 75-11], [Doc. 75-12]; [Doc. 75-13], [Doc. 75-15], [Doc. 75-16], [Doc. 75-18], [Doc. 75-19], [Doc. 75-21], [Doc. 75-24], and [Doc. 76].
However, with few exceptions, this court is unpersuaded by Defendant's assertion that redaction of the documents is not a practicable alternative. I turn first to the documents that this court does consider properly restricted in their entirety. Then, I consider the documents for which redaction-rather than wholesale restriction-more properly balances the competing interests of public access and privacy at play.
The redacted version of Plaintiff's Response [Doc. 77] contains redactions limited only to the identities of clients. Compare [Doc. 75] with [Doc. 77]. I find that the publicly available, redacted version of Plaintiff's Response strikes the appropriate balance between the public's interest in unfettered access to court records and the privacy interests implicated by the information contained therein.
Exhibit A [Doc. 75-1] primarily contains private, personal information about non-party Mary Martuscelli's family members. Exhibits B [75-2], C [Doc. 75-3], and J [Doc. 75-10] contain sensitive personal, commercial, and/or financial information to the extent that protection of the privacy interests implicated therein would require heavy redaction of the documents. In addition to client information, Exhibits B [Doc. 75-3], C [Doc. 75-3], and J [Doc. 75-10] contain U.S. Bank compensation information, internal documents related to the compensation of particular employees, and the testimony of Renee Santanni regarding the same. Exhibit J [Doc. 75-10] also contains confidential U.S. Bank client information. Exhibit K [Doc. 75-11] contains sensitive information regarding the hiring of a non-party, including candidates' names. Exhibit O [Doc. 7515] contains detailed testimony concerning Mr. Plazola's investigation, including client names. Defendant seeks restriction of Exhibits G [Doc. 75-7], H [Doc. 75-8], L [Doc. 75-12], M [Doc. 75-13], and O [Doc. 75-15] because they contain “[d]iscussion” of an “internal U.S. Bank disciplinary process.” [Doc. 109 at ¶ 11]. Finally, Defendant seeks restriction of Exhibits P [Doc. 75-16], R, [Doc. 75-18], S [Doc. 75-19], U [Doc. 75-21] and X [Doc. 75-24] because they contain investigation documents. [Doc. 109 at ¶ 11]. Upon review of the foregoing exhibits, this court finds that the documents should be restricted on this basis. Given the volume of sensitive personal, commercial, and/or financial information contained in Exhibit A [Doc. 75-1], Exhibits B [75-2], C [Doc. 75-3], Exhibit F [Doc. 75-6], Exhibits G [Doc. 75-7], H [Doc. 75-8], Exhibit J [Doc. 7510], Exhibit K [Doc. 75-11], L [Doc. 75-12]; M [Doc. 75-13], O [Doc. 75-15], Exhibits P [Doc. 75-16], Exhibit R, [Doc. 75-18], Exhibit S [Doc. 75-19], Exhibit U [Doc. 75-21] and X [Doc. 7524], I find that redaction is not a practicable alternative to wholesale restriction of these documents.
The remaining documents here are more easily redacted. The proffered basis for restriction of Plaintiff's Statement of Undisputed Material Facts [Doc. 76] is limited to the fact that it contains the names of U.S. Bank clients. [Doc. 109 at ¶ 11]. As previously stated in this court's order on Defendant's Second Motion to Restrict [Doc. 92], in Defendant's First Motion to Restrict, Defendant expressly states it “does not ask that ... any fact in its Statement of Undisputed Facts be restricted.” [Doc. 68 at ¶ 9]. Compare [id. at ¶ 7 (omitting Defendant's Undisputed Statement of Facts from table identifying confidential information contained in listed documents)] with [Doc. 109 at ¶ 11 (including Plaintiff's Statement of Undisputed Material Facts in table and identifying “U.S. Bank Client names” as the confidential information contained therein)]. Here, Defendant fails to explain why a wholesale restriction of Plaintiff's Statement of Undisputed Material Facts is more practicable than applying redactions similar to those Defendant applied to its own Reply to Statement of Facts [Doc. 81]. See [Doc. 109]. Exhibit D [Doc. 75-4] contains U.S. Bank client information, e.g., [id. at 11]. Exhibits D [Doc. 75-4] and I [Doc. 75-9] also contains U.S. Bank client information, as well as email addresses of U.S. Bank employees. Notwithstanding the foregoing confidential information contained in Exhibits I, this court finds that Defendant has failed to show that redaction is impracticable. For example, the names and/or ages of non-parties can be redacted, as can the details of Ms. Martuscelli's sensitive personal information, the personal email addresses contained in the internal email communications, and the portions of the documents that identify any U.S. Bank client.
Exhibits D [Doc. 75-4], N [Doc. 75-14], and V [Doc. 75-22] contain information about a U.S. Bank client and the account associated with that client. See, e.g., [Doc. 75-4 at 11; Doc. 7514 at 6; 75-22 at 7]. But the presence of “U.S. Bank's Client names” or, relatedly, “U.S. Bank Client information” is the only basis for restriction of Exhibits D [Doc. 75-4], N [Doc. 75-14], and V [Doc. 75-22]. See [Doc. 109 at ¶ 11]. This court finds that redaction of any client names and/or any identifying information is a less-restrictive, more appropriate means of protecting the privacy interests of the non-party client(s). Similarly, in seeking Level 1 Restriction of Exhibits Q [Doc. 75-17], T [Doc. 75-20], and V [Doc. 75-22], Defendant points to “U.S. Bank's client names, ” “[d]iscussion of internal U.S. Bank disciplinary process, ” “[i]nternal email addresses of current and former U.S. Bank [e]mployees, ” and an employee's birth date. [Doc. 109 at ¶ 11]. In the absence of any justification for restriction of these documents, this court is disinclined to grant restriction of Exhibits Q, T, and V in their entirety.
The basis for restriction of Exhibit J [Doc. 75-10] is also “U.S. Bank's client information.” [Doc. 109 at ¶ 11]. However, unlike Exhibits D [Doc. 75-4], N [Doc. 75-14], and V [Doc. 75-22], Exhibit J [Doc. 75] does not contain excerpts from a deposition. Rather, Exhibit J contains a spreadsheet that clearly reflects private U.S. Bank client account information.
Notably, Plaintiff has already filed a redacted, publicly available version of his Response to the Motion for Summary Judgment [Doc. 77]. Yet, other than a perfunctory assertion that “restrictions of the entirety of this set of documents is the only practicable way to protect the information contained therein, ” [Doc. 109 at ¶ 21], Defendant offers no explanation as to why the same approach applied to Plaintiff's Response was somehow rendered impracticable with respect to Plaintiff's Statement of Undisputed Material Facts [Doc. 76] or any of the twenty-two exhibits to Plaintiff's Response. Accordingly, by no later than September 30, 2021, Plaintiff shall FILE redacted versions of its Undisputed Material Facts [Doc. 76] and Exhibits D [Doc. 75-4], F [Doc. 75-6], I [Doc. 75-9], N [Doc. 75-14], Q [Doc. 75-17], T [Doc. 75-20], and V [Doc. 75-22], which redact (a) any confidential commercial or proprietary information of U.S. Bank, (b) Ms. Martuscelli's personal information, (c) the names and/or birth years of any non-parties, and (d) any other identifying or confidential information of non-parties as well as any material not relevant to this lawsuit.
For the reasons set forth herein, IT IS ORDERED that:
(1) Defendant U.S. Bank's Motion to Restrict Access [Doc. 109] is GRANTED IN PART and DENIED IN PART;
(2) The Clerk of Court is DIRECTED to MAINTAIN as Level 1 Restricted [Doc. 75], [Doc. 75-1], [Doc. 75-2], [Doc. 75-3], [Doc. 75-4]; [Doc. 75-6] [Doc. 75-7], [Doc. 75-8], [Doc. 75-9]. [Doc. 75-10], [Doc. 75-11], [Doc. 75-12]; [Doc. 75-13], [Doc. 75-14], [Doc. 75-15], [Doc. 75-16], [Doc. 75-18], [Doc. 75-19], [Doc. 7920], [Doc. 75-21], [Doc. 75-22], [Doc. 75-24], and [Doc. 76];
(3) On or before September 30, 2021, Plaintiff shall FILE redacted versions of [Doc. 75-4], [Doc. 75-6], [Doc. 75-9], [Doc. 75-14], [Doc. 75-17], [Doc. 75-20], [Doc. 75-22], and [Doc. 76] consistent with this Minute Order.