recognizing the legitimacy of the courts’ interest in “refus[ing] to permit their files to serve as . . . sources of business information that might harm a litigant's competitive standing”
How later courts described this case
- recognizing the legitimacy of the courts’ interest in “refus[ing] to permit their files to serve as . . . sources of business information that might harm a litigant's competitive standing”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
NIKKI BOLLINGER GRAE, Individually )
and on Behalf of All Others Similarly )
Situated, )
)
Plaintiff, )
)
v. ) Case No. 3:16-cv-2267
) Judge Aleta A. Trauger
CORRECTIONS CORPORATION OF )
AMERICA, DAMON T. HININGER, )
DAVID M. GARFINKLE, TODD J. )
MULLENGER, and HARLEY G. LAPPIN, )
)
Defendants. )
MEMORANDUM & ORDER
The Nashville Banner (“Banner”) has filed a Motion to Intervene and Unseal Documents
and Exhibits (Doc. No. 503), to which the defendants and the Bureau of Prisons (“BOP”) have
filed Responses (Doc. Nos. 512 & 513), and the Banner has filed a Reply (Doc. No. 514). For the
reasons set out herein, the motion will be granted in part and denied in part.
This is the second time that a party represented by the Banner’s attorney has filed a
motion seeking to have the seal lifted from portions of the record. On February 18, 2022, he filed
a similar motion on behalf of an individual client, Marie Newby, who was involved in separate
litigation against the primary defendant in this case, CoreCivic.1 (Doc. No. 481.) CoreCivic
opposed that motion only in part, taking the position that some of the underlying documents
could be safely unsealed, but that others were entitled to various protections, including those
involving CoreCivic’s confidential business information. (See Doc. No. 492 at 1–2.) The BOP—
which was not a party to the underlying litigation but played a central role in the events at
1 The other defendants are current or former CoreCivic officers and executives.
issue—similarly took no issue with a partial lift of the seal but opposed the unsealing of a
number of documents based on its assertion of confidentiality regarding “source selection
information”2 that was “prepared for use by an agency for the purpose of evaluating a bid or
proposal to enter into an agency procurement contract” and “has not been previously made
available to the public or disclosed publicly.” (Doc. No. 490 at 7 (quoting 48 C.F.R. § 2.101).)
On April 8, 2022, the court entered an Order granting the motion in part and denying it in part.
The court ordered the unsealing of a long list of documents that, CoreCivic and BOP agreed, did
not warrant a continuing seal, but the court otherwise found that Newby had identified no basis
for revisiting the court’s earlier decisions sealing some documents. (Doc. No. 494 at 4–6.)
Newby appealed. While that appeal was pending, however, Newby settled her lawsuit
with CoreCivic and moved to voluntarily dismiss her appeal. Rather than dismissing the appeal,
however, Newby’s attorney filed a motion on behalf of another individual, Eddie Tardy, who
wished to take Newby’s place. The Sixth Circuit did not resolve Tardy’s motion immediately
but, instead, proceeded to oral argument. During that oral argument, Tardy’s attorney “conceded
that [Tardy had not] suffered any adverse effects from the” unavailability of the documents.
Grae v. Corr. Corp. of Am., 57 F.4th 567, 569 (6th Cir. 2023). Based on that concession, the
Sixth Circuit held that Tardy lacked standing, denied his motion, and dismissed the appeal. Id. at
572. Tardy sought to appeal to the Supreme Court, but the Supreme Court denied a writ of
certiorari on October 10, 2023. Tardy v. Corr. Corp. of Am., 144 S. Ct. 285 (2023).
A few weeks later, the Nashville Banner filed its motion, asking the court to permit it to
intervene and to unseal all sealed documents on the docket. (Doc. No. 503 at 1.) The Banner is a
newspaper that has covered a number of stories related to CoreCivic. Its asserted interests,
2 Federal contracting rules require that “source selection information must be protected from unauthorized
disclosure” in accordance with the law. 48 C.F.R. § 3.104-4(b); accord Torres Advanced Enter. Sols.,
LLC v. United States, 135 Fed. Cl. 1, 6 (2017).
therefore, are different than Newby’s or Tardy’s, and, unlike Newby, the Banner is not using its
motion in an attempt to bypass the ordinary discovery process in another lawsuit. The Banner
has, moreover, established a concrete and particularized journalistic interest in obtaining
information regarding CoreCivic’s operations, as depicted in the underlying documents.
Although CoreCivic criticizes the motion as untimely and prejudicial, it has not identified any
time limit on seeking journalistic access to judicial records, and the ordinary prudential
considerations governing timeliness of intervention do not counsel against it here. See Kirsch v.
Dean, 733 F. App'x 268, 278–80 (6th Cir. 2018). The Banner filed its motion shortly after it
became clear that the documents would not otherwise be unsealed, and, while CoreCivic is no
doubt inconvenienced by that motion, it was CoreCivic’s seal requests that made such a motion
necessary, and the court does not find the prejudice to CoreCivic or BOP to be prohibitive. The
court, accordingly, will permit the Banner to intervene for the limited purpose of seeking the
sealed documents, as courts routinely do when journalists and journalistic entities file such
motions. See E.E.O.C. v. Nat'l Children's Ctr., Inc., 146 F.3d 1042, 1045 (D.C. Cir. 1998)
(collecting cases).
Many of the Banner’s substantive arguments, however, are the same as Newby’s—and
are, indeed, based on concerns that this court has kept in mind throughout the underlying
litigation. The Banner asserts—and no party connected to this litigation denies—that there is a
“‘strong presumption in favor of openness’ as to court records.” Shane Grp., Inc. v. Blue Cross
Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016) (quoting Brown & Williamson Tobacco
Corp. v. F.T.C., 710 F.2d 1165, 1180 (6th Cir. 1983)). “Shielding material in court records, then,
should be done only if there is a ‘compelling reason why certain documents or portions thereof
should be sealed.’” Rudd Equip. Co., Inc. v. John Deere Constr. & Forestry Co., 834 F.3d 589,
593 (6th Cir. 2016) (quoting Shane Grp., 825 F.3d at 305). As this court previously recognized,
moreover, the public interest in these documents—which involve a government contractor
entrusted with the safety of a large population of prisoners—is substantial. (See Doc. No. 494 at
4–5.) Just as before, however, these substantive issues are ones that the court already considered.
The general framework governing the court’s determinations remains the same.
The application of that framework, however, may legitimately change over time,
particularly with regard to confidential business information. Assertions of confidentiality are
inherently contextual, and there is not a guarantee that they will retain their force in the face of
changing events. In CoreCivic’s Response, it states that it has again reviewed the documents to
determine whether it continues to see a need for a seal, and it has agreed to the unsealing of most
of the remaining items on the docket, either because there is no longer a need for a seal or
because specific documents were sealed (or kept sealed) erroneously. For other documents,
however, CoreCivic has set forth specific arguments in favor of a continued seal, largely
mirroring the arguments asserted during active litigation. In the BOP’s Response, it identifies a
number of documents for which it continues to assert protection of confidential source selection
information. For many documents, however, there is no longer any assertion of a need for
sealing, and those documents will be unsealed.
With regard to the contested documents, the Banner complains of both the grounds for
sealing and the court’s failure to “set forth specific findings and conclusions” justifying its initial
decisions, as the Sixth Circuit has required since its decision in Shane Group, Inc. v. Blue Cross
Blue Shield of Michigan. Shane Grp., 825 F.3d at 306. Compliance with Shane Group can be a
serious challenge in major, document-heavy litigation. This was a complex case with over 500
separate filings—not counting individual attachments, which would push that number far higher.
CoreCivic’s seal requests, moreover, typically involved asserting variations on the same basic set
of reasons over and over—often regarding the same or very similar documents. The court does
not read Shane Group to require the court to go through an empty exercise of reinventing the
wheel for every successive filing in such a case. Nevertheless, the Banner’s complaint regarding
the sealing orders is legitimate and supported. Under the law of this Circuit, the public has an
entitlement to express findings explaining why potential documents of interest are placed under
or remain under seal—particularly when journalists have articulated a plausible basis for seeking
those documents, as Banner Editor Steve Cavendish has done by Declaration. (See Doc. No. 504-
1.) Accordingly, the court makes the following findings, which it is basing on its review of the
briefing and the underlying docket entries.
1. Attorney-Client Privilege
This case included extensive litigation regarding CoreCivic’s assertions of attorney-client
privilege. The court entertained a number of motions related to the issue and ultimately took the
rare step of appointing a Special Master for the specific purpose of evaluating CoreCivic’s
assertions. At the end of that lengthy and expensive process, the court ultimately concluded that,
while CoreCivic’s assertions of privilege had not been perfect, any deficiencies were “entirely
unremarkable in the context of the massive electronic discovery burdens that characterize
modern civil litigation.” (Doc. No. 381 at 5.) Based on the court’s prior determinations and its
review of the cited documents, the continued seal of the following docket entries is justified by
CoreCivic’s assertion of attorney-client privilege:
• Doc. No. 195. A redacted version of this document is available at Doc. No. 200-1.
• Doc. Nos. 196-1, 196-2, 196-3, and 196-5;
• Doc. Nos. 204, 204-1, 204-2, 204-3, 204-4, and 204-5.
2. Confidential Business Information
As the Banner correctly points out, “the natural desire of parties to shield prejudicial
information contained in judicial records from competitors and the public” is not, in and of itself,
sufficient to support a seal. Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1180
(6th Cir. 1983). The court has not suggested otherwise; the docket of this case has long included
a great deal of never-sealed information that is likely harmful to CoreCivic’s reputation and, by
extension, its business. Dressing up ordinary reputational injuries as a competitive harm does not
transform them into valid grounds for a seal.
However, courts have also long recognized that it is sometimes appropriate to seal
confidential corporate information that is of limited public concern, in order to avoid an
unnecessary competitive injury to a party and a disruption of ordinary competition in the
underlying field. See Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978) (recognizing
the legitimacy of the courts’ interest in “refus[ing] to permit their files to serve as . . . sources of
business information that might harm a litigant's competitive standing”). A company’s interest in
maintaining the confidentiality of its internal processes is far from absolute, and it should not be
misconstrued as a right to demand a seal simply to avoid looking bad. Nevertheless, it is within
the court’s power to shield from disclosure specific information that a party legitimately seeks to
keep out of the public record for reasons of confidentiality, as long as the public’s interest in the
requested information does not outweigh the risk of improper competitive harm.
The court finds that the continued seal of the following docket entries is justified by
CoreCivic’s assertion of protection in confidential business information, weighed against the
public interest in the specific information sought:
• Doc. No. 399-25. A redacted version of this document is available at Doc. No. 413-5.
The court has reviewed a sampling of the redacted material and has confirmed that it
consists of internal discussions of CoreCivic’s dealings with clients. The information
therein deals chiefly with strategic and transactional details that do not appear to bear
significantly on matters of demonstrated public importance and which pose a plausible
risk of improper competitive harm if disclosed.
• Doc. No. 401-13. A redacted version of this document is available at Doc. No. 413-6.
The court has reviewed a sampling of the redacted material and has confirmed that it
consists chiefly of financial information that appears to be of minimal demonstrated
public importance but which could plausibly result in improper competitive harm to
CoreCivic.
2. Operations and Safety
The continued seal of the following docket entries is justified by the inclusion of sensitive
information related to the operations and safety of prison facilities:
• Doc. Nos. 229-1, 229-2, 229-3, 229-4, and 229-5. The docket includes redacted versions
of these documents at Doc. Nos. 513-3, 513-4, 513-5, 513-6, and 513-7. The redactions
appear to involve details of CoreCivic operations that could plausibly endanger inmate
and/or employee safety if publicly divulged, and no party has identified a need for these
specific unredacted documents that would overcome that basis for continuing the seal.
3. Personal Information
A handful of the documents under seal include private information regarding specific
individuals, such as home addresses and telephone numbers. The court finds that the public
interest in the redacted information is minimal and that the relevant individuals’ interests in
preventing the exposure of their personal information supports the continuing redaction of the
limited information that remains under seal. Accordingly, the continued seal of the following
docket entries is justified by the presence of private personal information:
• Doc. No. 356-7. A redacted version of this document is available at Doc. No. 513-9;
• Doc. Nos. 367-17 and 367-18. Redacted versions of these documents are available at
Doc. Nos. 361-25 and 361-26.
4. Full Depositions
The docket includes full transcripts of a number of depositions taken in this case.
CoreCivic asks the court to maintain the seal of those full transcripts on the ground that they are
replete with discussions of confidential information. CoreCivic, however, states that it does not
assert any right to the continued seal of the particular portions of the transcripts that were
actually relevant to substantive matters decided by the court, and it has filed a compendium of
those excerpts at Doc. No. 513-8.
Litigants in this court are typically not required to file full deposition transcripts, if they
wish to rely only on portions of the underlying testimony. Accordingly, the full deposition
transcripts sought by the Banner were not strictly a necessary component of this litigation. The
filing of complete transcripts is, however, frequently helpful to the court. If the court were not
able to assure parties that supplemental complete transcripts would remain under seal, the result
would not be greater transparency, but rather a likely refusal to file such transcripts at all. The
court finds that its interest in encouraging parties to file supplemental full transcripts, combined
with CoreCivic’s assertion of its interests in confidential information, supports the continued
sealing of the following docket entries:
• Doc. Nos. 267-1; 267-2; 267-3; 267-4; 267-15; and 267-16;
• Doc. Nos. 387-1 and 387-2;
• Doc. Nos. 389-1; and 389-2; 389-4;
• Doc. Nos. 398-2; 398-3; and 398-8;
• Doc. Nos. 399-10 and 399-11;
• Doc. Nos. 400-6; 400-12; and 400-13;
• Doc. Nos. 401-15; 401-18; 401-20; 401-24; and 401-26.
5. Source Selection Information
Federal regulations provide that “no person or other entity may disclose contractor bid or
proposal information or source selection information to any person other than a person
authorized, in accordance with applicable agency regulations or procedures, by the agency head
or the contracting officer to receive such information.” 48 C.F.R. § 3.104-4(a). That regulation
expressly does not authorize “[t]he release of information after award of a contract or
cancellation of a procurement if such information is contractor bid or proposal information or
source selection information that pertains to another procurement.” 48 C.F.R. § 3.104-4. The
Banner argues that that provision suggests that, if the relevant agency does not identify a specific
pending or future procurement to which the information sought is relevant, then the protection
afforded to source selection information does not apply.
The Banner, however, is reading a requirement into the regulation that does not exist. The
language of 48 C.F.R. § 3.104-4 is not a model of clarity, but even the reading that is most
favorable to the Banner would, at most, require that the documents be relevant to foreseeable
future procurements—not that the Banner identify a specific procurement about which it is
concerned. The documents at issue include Contractor Performance Assessment Reports and
written Source Selection Decisions that are plainly relevant to BOP’s solicitation and
consideration of future contracts.
There is, admittedly, a public interest in these documents, as they involve the spending of
public dollars for a public purpose. That, though, is true regarding all source selection materials,
and federal authorities across multiple agencies have made a deliberate policy decision that
encouraging full and comprehensive disclosure by potential contractors warrants a limited
reduction in transparency. See 48 C.F.R. § 1.103 (discussing authority for propounding the
Federal Acquisition Regulations System). The court, accordingly, finds that the BOP’s assertion
of source selection privilege supports the continued sealing of the following documents:
• Doc. No. 263-2;
• Doc. Nos. 367-12; 367-21; 367-22; 367-23; 367-24; 367-26; 367-27; 367-28; 367-29;
367-30; 367-31; 367-32; 367-33; 367-34; 367-38; 367-39; 367-40; 367-41; 367-42; 367-
43; 367-44; 367-45; 367-46; 367-47; 367-48; 367-49; 367-50; 367-51;
• Doc. Nos. 398-7; 398-9; 398-10; 398-18; 149-11; 151-11; 398-20; 398-22.
Based on the court’s findings, there are a number of documents that may be unsealed, but
also some that should not be. The court recognizes that an inadvertent unsealing could be
difficult, if not impossible, to rectify, and the court is aware of no reason against allowing a
slight delay for the parties to review this opinion and the docket in order to ensure that the
court’s enumeration of which documents should remain under seal and which should not
matches the parties’ reading of the court’s findings and rationale. The court, accordingly, will
allow for such a delay, before the ultimate unsealing of the documents is to go into effect. During
that time, any party may file a motion to stay the unsealing pending a modification of this Order.
For the foregoing reasons, the Banner’s Motion to Intervene and Unseal Documents and
Exhibits (Doc. No. 503) is hereby GRANTED in part and DENIED in part, and it is hereby
ORDERED that the following docket entries be unsealed on August 30, 2024, unless a party
files a motion to stay the unsealing: Doc. No. 105; Doc. No. 120 and all attachments; Doc. No.
139; Doc. No. 149 and all attachments other than Doc. No. 149-11; Doc. No. 151 and all
attachments other than Doc. No. 151-11; Doc. No. 152; Doc. No. 162; Doc. No. 196 and all
attachments other than Doc. Nos. 196-1, 196-2, 196-3, and 196-5; Doc. No. 204-6; Doc. No.
204-7; Doc. No. 204-8; Doc. No. 204-9; Doc. No. 204-10; Doc. No. 204-11; Doc. No. 214; Doc.
No. 217; Doc. No. 228; Doc. No. 229, but not its attachments, which shall remain under seal;
Doc. No. 262; Doc. No. 263 and all attachments other than Doc. No. 263-2; Doc. No. 266; Doc.
No. 267 and all attachments other than Doc. Nos. 267-1, 267-2, 267-3, 267-4, 267-15, and 267-
16; Doc. No. 278; Doc. No. 280 and all attachments; Doc. No. 316-2; Doc. No. 338 and all
attachments; Doc. No. 342 and all attachments; Doc. No. 354; Doc. No. 356° and all attachments
other than Doc. No. 356-7; Doc. No. 367 and all attachments other than Doc. Nos. 367-12, 367-
17, 367-18, 367-21, 367-22, 367-23, 367-24, 367-26, 367-27, 367-28, 367-29, 367-30, 367-31,
367-32, 367-33, 367-34, 367-38, 367-39, 367-40, 367-41, 367-42, 367-43, 367-44, 367-45, 367-
46, 367-47, 367-48, 367-49, 367-50, and 367-51; Doc. No. 396; Doc. No. 397; Doc. No. 398-11;
Doc. No. 398-17; Doc. No. 399-22; Doc. No. 400 and Doc. No. 400-17, but not the other sealed
attachments; Doc. No. 401-19; Doc. No. 401-30; Doc. No. 422; and Doc. No. 423.
It is so ORDERED. Uy
United States District Judge
3 Doc. No. 356 itself appears to be already unsealed, although its attachments are not. The court is
including it for completeness and clarity.
11