The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION - CINCINNATI
ROBERT L. REESE, Derivatively on Behalf : Case No. 1:20-cv-886
of Nominal Defendant FIFTH THIRD :
BANCORP, : Judge Matthew W. McFarland
Plaintiff, :
GREG D. CARMICHAEL, et al.,
Defendants.
ORDER ON PLAINTIFF’S MOTION TO SEAL VERIFIED SHAREHOLDER
DERIVATIVE COMPLAINT (Doc. 2)
On November 4, 2020, Plaintiff Robert L. Reese brought a shareholder derivative
action, on behalf of nominal Defendant Fifth Third Bancorp, against Fifth Third’s Board
of Directors. (Doc. 1.) The case is now before the Court on Plaintiff's Motion to Seal the
Verified Shareholder Derivative Complaint (Doc. 2), wherein Plaintiff requests that the
Court to file his entire Complaint under seal.
LAW
Federal courts have long recognized a strong presumption in favor of openness
which can only be overcome by “the most compelling reasons.” Shane Group., Inc. v.
Blue Cross Blue Shield of Michigan, 825 F.3d 299, 305 (6th Cir. 2016) (citing In re Knoxville
News-Sentinel Co., 723 F.2d 470, 476 (6th Cir. 1983)). Accordingly, “[t]he burden of
overcoming that presumption is borne by the party that seeks to seal them.” Brown &
Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1180 (6th Cir. 1983). “To meet this
burden, the party must show three things: (1) a compelling interest in sealing the
records; (2) that the interest in sealing outweighs the public’s interest in accessing the
records; and (3) that the request is narrowly tailored.” Kondash v. Kia Motors Am., Inc.,
767 F. App'x 635, 637 (6th Cir. 2019). To do so, the party must “analyze in detail,
document by document, the propriety of secrecy, providing reasons and legal
citations.” Id. (citing Shane Group., 825 F.3d at 305). And typically, in civil litigation,
only trade secrets, information covered by a recognized privilege, and information
required by statute to be maintained in confidence is typically enough to overcome this
presumption. Shane Group., 825 F.3d at 305.
ANALYSIS
Plaintiff asserts that, prior to filing suit, he made a demand to inspect Fifth
Third's books and records pursuant to Ohio Revised Code Section 1701.37(c). Fifth
Third agreed to produce certain responsive documents subject to a confidentiality
agreement negotiated between the parties. Fifth Third believes the books and records it
produced contain non-public and confidential business, financial, proprietary, or
commercially sensitive information of the Company. As such, Plaintiff argues that the
Complaint should be filed under seal since “Fifth Third voluntarily produced the
confidential information to plaintiff after negotiation of the confidentiality agreement
and should not now be penalized for fulfilling its obligations under Ohio law in
response to a shareholder inspection demand.” (Doc. 2.)
Although Plaintiff has proffered a compelling interest in sealing information
obtained from Fifth Third’s books and records, Plaintiff's proposal does not comport
with Sixth Circuit law. See Kondash, 767 F. App'x at 637. Plaintiff requests that the
Court file the entire 70-page Complaint under seal. Such a request is not narrowly
tailored. See id. Accordingly, Plaintiff's Motion to Seal (Doc. 2) is DENIED.
However, Plaintiff may still seek leave to file a version of his Complaint with the
portions containing confidential proprietary information redacted. Such redactions
must comply with the requirements set forth by the Sixth Circuit. See Shane Group, 825
F.3d at 305; Kondash, 767 F. App'x at 637. If Plaintiff so chooses, he must submit a
motion and supporting memorandum (not to exceed five pages), along with the
proposed redacted version his Complaint, within fourteen days of this Order. The
Complaint that is already filed (Doc. 1) shall remain sealed conditioned upon the Court
granting a request by Plaintiff to file a redacted version of his Complaint under seal.
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
YW dal
By:
JUDGE MATTHEW W. McFARLAND