Opinion
Case No. 2:05-cv-0976.
June 4, 2008
OPINION AND ORDER
This employment discrimination case is once again before the Court on a motion by defendant Nestle Purina PetCare Company to unseal the deposition transcript of Nancy Goss. The factual background of this case has been discussed previously by the Court and will not be set forth in any detail here. For purposes of the current motion, Ms. Goss is a former Nestle employee, she is a key witness in this case, and, at Ms. Goss's request, the parties previously had agreed to treat her deposition testimony as confidential. For the following reasons, Nestle's current motion to unseal will be temporarily stayed pending further submissions, as outlined below.
I.
Nestle's first motion to unseal this deposition transcript was denied without prejudice by order filed September 24, 2007. (Doc. #97). In that order, the Court directed Nestle to identify, for Mr. McKenna's benefit, the portions of the transcript it wished to file in support of its summary judgment motion. Order at 3. As the Court explained, this identification was necessary to allow Mr. McKenna the opportunity to review the relevant portions and advise Nestle of his reasons in support of confidentiality. Id. Mr. McKenna was specifically instructed "that, in order to maintain the confidentiality of the transcript, he needs to do more than simply show that Nestle originally agreed to keeping it sealed and that Ms. Goss was told by him prior to her deposition that the transcript would not be public." Id. Further, the parties were advised that, if this procedure did not produce an agreement, Nestle could renew its motion to unseal at which time Mr. McKenna would be required to demonstrate what harm would result to himself, Ms. Goss, or others from the public filing of these transcript portions. Id.
In its current motion, Nestle contends that it identified the portions of the transcript as directed. According to Nestle, Mr. McKenna did not comply with the Court's directive but continued to rely solely on Ms. Goss's request that the testimony be treated as confidential. Nestle asserts that Ms. Goss no longer objects to the public filing of her deposition. In support of this assertion, Nestle has provided copies of what appears to be e-mail correspondence between Ms. Goss and counsel for Nestle.See Exhibit F attached to the Motion to Unseal (doc. 121).
In response, Mr. McKenna contends, among other things, that Nestle has not provided any "legally recognized consent" from Ms. Goss authorizing the filing of her deposition testimony. Mr. McKenna notes that, while the e-mail correspondence indicates that Nestle will provide Ms. Goss with an authorization form, Nestle has failed to produce any form.
II.
The Sixth Circuit has recognized that "[t]here is a presumptive right of public access to court records." Gookin v. Altus Capital Partners, Inc., slip op. 2006 WL 782456 (E.D. Ky., March 23, 2006) at *2 (citing In re Knoxville News-Sentinel Co., Inc., 723 F.2d 470, 473 (6th Cir. 1983); Brown Williamson Tobacco Corp. v. Federal Trade Comm'n, 710 F.2d 1165 (6th Cir. 1983)). On the other hand, a court may limit public access to certain information to protect "privacy rights of participants and third parties, trade secrets and national security." Brown Williamson, 720 F.2d at 1179. Consequently, the right of access is not absolute. However, "only the most compelling reasons can justify the non-disclosure of judicial records." Gookin at *2. Generally, "simple embarrassment or harm to one's reputation are insufficient to preclude the release of information." Id.
In considering a request to unseal, a Court must weigh a variety of factors. These factors include "the right of the public to have access to information used in the deliberative process; whether the matter involves public parties or issues of legitimate public concern; and the legitimate privacy concerns of the parties." Gookin at *2 (citing Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 (3d Cir. 1994)). It is with these factors in mind that the Court will address Nestle's current motion to unseal the deposition transcript of Ms. Goss.
III.
Initially, the Court notes that Mr. McKenna has not complied with the previous order of this Court directing him to set forth any harm he or others, including Ms. Goss, might suffer if her deposition testimony is filed publicly. This fact, coupled with the presumption in favor of public disclosure discussed above, might, under different circumstances, be enough to allow the Court to conclude that the deposition should no longer remain sealed. However, as the record currently stands, the Court's consideration of this issue simply cannot end there for two reasons. First, the highly sensitive nature of Ms. Goss's testimony is well documented. Further, Ms. Goss is not a party in this case and, as a result, is without personal representation to address the issue of her privacy concerns. See generally McConell v. Federal Election Commission, 251 F.Supp.2d 919 (D.D.C. 2003) (recognizing the potentially greater privacy interest of non-parties).
There is no dispute here that Nestle agreed to treat Ms. Goss's deposition testimony as confidential based upon her request as well as Mr. McKenna's representations to her. Presumably, at that point, Nestle recognized, and felt obligated to address, Ms. Goss's privacy concerns. Nestle now seeks to file her testimony publicly and its sole argument in support is that Ms. Goss has given her consent. However, Nestle has not provided any competent evidence from which this Court reasonably could conclude that Ms. Goss has consented to the filing. Rather, Nestle has provided hard copies of what appears to be a brief e-mail exchange between Ms. Goss and counsel for Nestle on December 14 and 15, 2007. This alleged exchange, which begins with counsel's explanation of Nestle's intent to request that the deposition be unsealed, concludes with Ms. Goss stating, ". . . [i]t's fine then."
The Court simply cannot be expected to rely on such unauthenticated documentation in ruling on this matter. See,e.g., Anthony v. Assisted Lifestyles of Kansas, Inc., slip op. 2007 WL 2900223 (D. Kan. Oct. 1, 2007) at *1 (unauthenticated e-mail not competent evidence of parties' settlement agreement). Absent any affidavit or other competent evidence indicating Ms. Goss's consent to the public filing of her deposition, the Court is in no position to evaluate whether she continues to assert a privacy interest in any or all of her deposition testimony. Although this factor is not necessarily dispositive, it is important, and the Court is reluctant to proceed given the ambiguity of the record on this point. Should Nestle continue to seek to unseal Ms. Goss's deposition, it shall provide an affidavit from Ms. Goss affirmatively stating her consent and her understanding of the information on which that consent is based.