The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MONICA F. JACKSON,
Plaintiff,
Case No. 1:19-cv-629
v. JUDGE DOUGLAS R. COLE
GENERAL ELECTRIC AVIATION,
Defendant.
OPINION AND ORDER
This cause comes before the Court on General Electric Aviation’s (“GE”) Motion
to Permanently Seal [The] Temporary Seal (Doc. 30) and Monica Jackson’s Motion To
File Document Under Seal (Doc. 32). For the reasons explained below, the Court
GRANTS IN PART and DENIES IN PART GE’s Motion (Doc. 30), DENIES
Jackson’s Motion (Doc. 32), and directs the parties to refile the documents discussed
below consistent with this Opinion and Order.
BACKGROUND AND PROCEDURAL HISTORY
The Court keeps the factual section of this Opinion and Order brief, as this
Order is not meant to address the underlying merits of the case, but merely whether
the Court can seal certain documents. In that regard, the only necessary factual
information is that Jackson sued GE for discrimination and breach of contract,
claiming that GE refused to promote her because of her race. (See generally Compl.,
Doc. 1, #1–21). At the preliminary pretrial conference, the parties asked the Court to
refer them to a Magistrate Judge so they could try to settle the case. (Oct. 28, 2019
Min. Entry & Notation Order). The Court obliged, and Magistrate Judge Bowman
conducted a settlement conference on January 23, 2020. (Jan. 23, 2020 Min, Entry).
A few days later, the parties reported to the Court that they settled the case, and on
January 27, 2020, the Court dismissed the action without prejudice. (See Order, Doc.
16, #186). In that order, the Court “expressly and explicitly retain[ed] jurisdiction to
enforce the settlement agreement of the parties.” (Id.).
About a month later, the Court was informed that, notwithstanding their
previous representations, the parties had not yet executed a written settlement
agreement. Over the next few months, the parties attempted to work out the issues
that had arisen, but they reached an impasse. Jackson’s counsel withdrew from the
representation. The parties then requested that the Court intervene. The Court
provided Jackson time to secure new counsel, and then set a schedule for the parties
to brief their issues relating to the existence and terms of the alleged settlement
agreement. (See June 17, 2020 Min. Entry).
As the alleged settlement agreement was confidential, and as the arguments
relating to that alleged settlement agreement involved settlement discussions, which
were likewise confidential, GE filed one of the two motions under consideration here,
seeking to seal certain confidential information in its briefing on the Motion to
Enforce the Settlement Agreement. (See GE’s Mot. to Permanently Seal Temporary
Seal (“GE’s Mot. to Permanently Seal”), Doc. 30, #320–38). Jackson does not oppose
GE’s motion, and indeed seeks leave to file her own brief under seal. (See Pl.’s Mot.
for Leave to File Under Seal (“Pl.’s Mot. for Leave”), Doc. 32, #342–43). Both motions
are currently before the Court.
LAW AND ANALYSIS
A district court’s decision to seal court records is reviewed for an abuse of
discretion. Klingenberg v. Fed. Home Loan Mortg. Co., 658 F. App’x 202, 207 (6th Cir.
2016) (citing Shane Grp., Inc. v. Blue Cross Blue Shield, 825 F.3d 299, 306 (6th Cir.
2016)). But in the sealing context, that “decision is not accorded the deference that
standard normally brings.” Id. To avoid abusing its discretion, the Sixth Circuit
requires a district court faced with a motion to seal to “set forth specific findings and
conclusions ‘which justify nondisclosure to the public.’” Shane Grp., 825 F.3d at 306
(quoting Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1176 (6th Cir.
1983)).
A. The Court Must Decide For Itself Whether Sealing Is Appropriate.
Notwithstanding the parties’ agreement that something warrants sealing, a
district court retains an independent obligation to determine if a seal is justified. See
Proctor [sic] & Gamble Co. v. Ranir, LLC, No. 1:17-cv-185, 2017 WL 3537195, at *2
(S.D. Ohio Aug. 17, 2017) (citing Rudd Equip. Co. v. John Deere Constr. & Forestry
Co., 834 F.3d 589, 595 (6th Cir. 2016)) (“A movant’s obligation to provide compelling
reasons justifying the seal exists even if the parties agree that the filings should be
sealed, because litigants cannot waive the public’s First Amendment and common
law right of access to court filings.”). This independent obligation on the Court also
exists regardless of any protective order to which the parties may have agreed. See
Bourne v. Provider Servs. Holdings, LLC, No. 1:12-cv-935, 2020 WL 106734, at *3
(S.D. Ohio Jan. 9, 2020) (citing Rudd Equip., 834 F.3d at 595).
In making that assessment, the Court must determine whether the party
moving for a seal overcomes the “strong presumption in favor of openness.” Brown &
Williamson, 710 F.2d at 1179. The Court must then justify “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.” Shane Grp., 825 F.3d at 306.
And as the Sixth Circuit has repeatedly cautioned, “only the most compelling reasons
can justify non-disclosure of judicial records.” In re Nat’l Prescription Opiate Litig.,
927 F.3d 919, 940 (6th Cir. 2019) (cleaned up). On top of this, the Court must ensure
that any sealing order be “narrowly tailored” to serve the reason asserted. Shane
Grp., 825 F.3d at 305.
B. The Court Finds That The Parties Have Identified A Sufficient Basis
For Sealing Certain Materials In This Case.
GE and Jackson claim they have made the necessary showing to warrant a
seal. They ask the Court to seal several documents, some of them in part, through
specific redactions, and others entirely. (See GE’s Mot. to Permanently Seal at #320–
24; Pl.’s Mot. for Leave at #342–43). They argue that (1) their interest in maintaining
the privacy and confidentiality of their settlement overcomes any presumption of
public access to those documents, (2) the settlement discussions are not relevant to
the facts underlying the litigation, and thus are not a matter of public concern, and
(3) the settlement itself is not a matter of public concern generally because it involves
a private settlement with a private individual. (See GE’s Mot. to Permanently Seal at
#321–23). Because the interests of encouraging open and honest communications
during settlement and then preserving that confidentiality when it is tested in court
are compelling interests, the Court agrees that these interests overcome the
presumption in favor of public access and bar the public from accessing these records.
There is a long-standing tradition that settlement discussions should remain
confidential. Indeed, the Sixth Circuit “has always recognized the need for, and the
constitutionality of, secrecy in settlement agreements.” Goodyear Tire & Rubber Co.
v. Chiles Power Supply, Inc., 332 F.3d 976, 980 (6th Cir. 2003). And “while there is
no recognized settlement-negotiations privilege per se, there is a policy interest in
facilitating and encouraging settlements, an interest which is well-served by
preserving the confidentiality of parties’ communications during the mediation
process.” Davis v. Alcoa, Inc., No. 17-13658, 2019 WL 3346075, at *1 (E.D. Mich. June
10, 2019). Thus, private parties’ interest in maintaining the confidentiality of their
settlement discussions can provide a basis to overcome the presumption of public
access to those records.
Plus, the information the parties seek to seal is not a matter of public concern.
The information here relates to a private settlement between private parties, which
does not reflect anything about the underlying merits of Jackson’s Complaint. See
Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., No. 2:07-cv-116, 2016 WL
9403903, at *1 (S.D. Ohio Aug. 3, 2016) (sealing an exhibit containing a settlement
agreement in part because the “private settlement of a private dispute involving
private entities” did not involve issues of “great public concern”). And the public does
not have a high interest in the subject matter of this litigation. It is not akin to a class
action lawsuit like in Shane Group, see 825 F.3d at 305, but instead involves a dispute
between a single individual and her employer.
As a result, the Court finds the parties made the necessary showing that a seal
is appropriate.
C. Some, But Not All, Of The Parties’ Proposed Sealed Filings Are
Narrowly Tailored.
In addition to finding that the parties have overcome the presumption of public
access to the records here based on the confidentiality of their settlement discussions,
the Court must next ensure that any sealing order be “narrowly tailored” to serve this
interest. Shane Grp., 825 F.3d at 305. The Court finds that only some of the parties’
filings meet this criterion.
The redactions GE seeks as to its Motion to Enforce Settlement Agreement
(Doc. 27) provide a good example of the required narrow tailoring. GE seeks to redact
only those specific portions of the motion that contain either verbatim references to
discussions the parties had during the settlement conference, discussions between
counsel for both parties after the settlement conference about drafting the settlement
agreement, or the terms of the settlement agreement itself. (See Mot. to Permanently
Seal at #323). In a similar vein, GE redacts only certain paragraphs of the Bond
Declaration attached to its Motion to Enforce Settlement Agreement that discuss the
same information. (See id.). Lastly, GE proposes to seal the entirety of Exhibit A to
the Bond Declaration because it contains confidential communications between
counsel discussing memorializing the terms of the settlement agreement. (See id. at
#324). This is narrowly tailored to seal only the information necessary to serve the
interests here. Accordingly, the Court grants GE’s request as to this filing.
The parties’ proposed sealing as to the other briefs, however, does not reflect
this same careful approach. Jackson seeks to file her entire response brief under seal.
(See Pl.’s Mot. for Leave at #342–43). She makes no attempts to tailor her sealing
request to the specific portions of her brief that warrant it. To be narrowly tailored,
Jackson’s motion must instead identify the specific portions of her brief that should
be sealed and then redact only those portions.
GE’s reply in support of its motion also falls short. (See Doc. 34 at #351–59,
373–89). Eschewing the narrow tailoring evident in its proposed redactions on its
opening brief, GE inexplicably fails to make any effort at such tailoring as to its reply
brief. Instead, GE proposes redacting its entire brief, right down to the page numbers.
(See id.). That doesn’t cut it. Rather, GE, like Jackson, must identify the specific
portions of its reply that warrant sealing and redact only those portions.
CONCLUSION
Based on the foregoing, the Court GRANTS IN PART and DENIES IN
PART GE’s Motion to Permanently Seal (Doc. 30) and DENIES Jackson’s Motion To
File Document Under Seal (Doc. 32). The Court directs Jackson to refile her response
in opposition, and GE to refile its reply in support (Doc. 34), with redactions that are
consistent with the Court’s instructions above.
SO ORDERED.
September 4, 2020
DATE DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE