Hardesty v. Kroger Co.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION - CINCINNATI

HARDESTY, et al., : Case No. 1:16-cv-298

Plaintiffs, Judge Matthew W. McFarland

v :

KROGER CO., et al.,

Defendants.

ORDER GRANTING SUPPLEMENTAL MOTION FOR LEAVE TO FILE

DOCUMENTS UNDER SEAL (Doc. 82)

This matter is before the Court on Plaintiffs’ Supplemental Motion for Leave to

File Documents Under Seal. (Doc. 82.) Plaintiffs Joseph Hardesty, Madeline Hickey, and

Derek Chipman (“Plaintiffs”) brought this action against Defendants Kroger G.O., LLC,

and The Kroger Co., Inc. (“Defendants”) alleging violation of Fair Labor Standards Act,

29 US.C. §§ 201, et seq., and applicable Ohio labor laws to recover unpaid overtime

compensation. This Court previously issued an order conditionally granting Plaintiffs’

motion to file under seal. (Doc. 77.) Plaintiffs have filed a supplemental motion for leave

to file under seal and represent that Defendants are not opposed. (Doc. 82).

Plaintiffs seek to file Exhibit 1 of the Affidavit of Joshua M. Smith (Doc. 78-1) under

seal. This document contains the names of almost 200 former and current employees,

both parties and nonparties to the case, along with their email addresses, home addresses,

employment and termination dates, and job titles. Plaintiffs contend that the information

contained in Exhibit 1 is personal and sensitive for the Plaintiffs and non-party

employees, both of whom would be harmed by publication of this information.

The Sixth Circuit recognizes the strong presumption in favor of openness as to

court records. Shane Group, Inc. v. Blue Cross Blue Shield of MI, 825 F.3d 299, 305 (6th Cir.

2016). Two broad categorical exceptions to that presumption apply when restricting

access is necessary to (1) promote the order and dignity of the courtroom or (2) protect

competing interests, including the privacy interests of participants or third parties. Brown

& Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179 (6th Cir. 1983). The party seeking

to seal any part of the court record has the heavy burden of overcoming the presumption

of public access by showing that (1) a compelling interest warrants sealing the records;

(2) the interest in sealing outweighs the public’s interest in accessing the records; and (3)

the request is narrowly tailored. Kondash v. Kia Motors Am., Inc., 767 F. App'x 635, 637

(6th Cir. 2019) (citing Shane Group, 825 F.3d at 305). The proponent of sealing must

analyze in detail the need for secrecy and provide a reason each document should be filed

under seal. Shane Group, 825 F.3d at 305-06.

The Court has a burden, too; it must lay out its findings and conclusions that justify

sealing court records from public disclosure. Specifically, the court ordering records to

be sealed must say “why the interests in support of nondisclosure are compelling, why

the interests supporting access are less so, and why the seal itself is no broader than

necessary.” Id. at306. Therefore, even for an unopposed motion (like this one), this Court

has an independent duty to ensure that the court records in question are appropriate for

sealing. Id. (“a court's obligation to explain the basis for sealing court records is

independent of whether anyone objects to it”).

Plaintiffs seek to file Exhibit 1 under seal because of the personal and sensitive

nature of the information contained therein. (Doc. 82 at 3.) They claim that allowing

public access to the data would put the employees at risk of identity theft, phishing

scams, fraudulent emails, and more. Id. Plaintiffs assert that courts have considered

privacy, especially that of nonparties, a compelling interest to support filing under seal.

Plaintiffs are correct that the privacy of employees, especially those who are not

parties to the case, is a compelling interest in favor of nondisclosure of the document.

Abraham, Inc. v. United States, 18-cv-1306, 2020 WL 3173036, at *1 (S.D. Ohio, June 15, 2020)

(granting seal of personal identifying information). Courts often construe private

personal information as a “compelling reason” for a party to file a document under seal.

See id. Here, the information contained in Exhibit 1 is personal, sensitive information and

to allow access to it would compromise the individuals’ privacy. Thus, Plaintiffs have

met the first prong proving nondisclosure serves a compelling interest.

Furthermore, the privacy interests at stake outweigh the public’s interest.

Plaintiffs contend that the public would not gain much from access to this information

for the purpose of understanding the merits of the Court's decision; in fact, the personal

information has little relevance to the case itself and only acts as confirmation of

employment dates and job titles. (Doc. 82 at 3-4.) While the Court generally must disclose

judicial records so the public can assess the merits of the adjudication, the Plaintiffs are

correct that employees’ personal information, such as names and home addresses, will

not assist the public in its review of the judicial process of this case. Therefore, the

public’s interests in access to these sensitive data are less than the privacy interests in

support of nondisclosure.

Finally, because Plaintiffs only seek to file this single document under seal, which

contains only the aforementioned personal information, their request is narrowly tailored

to serve the interest of protecting employees’ privacy. Plaintiffs’ request here is

sufficiently specific to protect only information which can be deemed sensitive and

deserving of protection; it is no broader than necessary.

For the foregoing reasons, the Court GRANTS Plaintiffs’ Supplemental Motion

for Leave to File Documents Under Seal (Doc. 82).

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

By:

JUDGE MATTHEW W. McFARLAND

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