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DeLaittre v. Berryhill

United States District Court, W.D. Washington, Seattle

December 11, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendants.


          Mary Alice Theiler, United States Magistrate Judge.


         In motions before the Court (Dkts. 28, 42, 57), plaintiff David DeLaittre seeks to unseal his pending motion for partial summary judgment regarding retaliation (see Dkt. 30), his reply to defendant's opposition to that motion (see Dkt. 54), and his opposition to defendant's pending motion for partial summary judgment (see Dkt. 39). Plaintiff also seeks removal of confidentiality designations made by the Social Security Administration (SSA) and sanctions for overbroad designations. Defendant Nancy A. Berryhill opposes plaintiff's motions and moves to seal her opposition to plaintiff's motion for partial summary judgment (see Dkt. 46). (Dkt. 44.) For the reasons set forth below, plaintiff's motions (Dkts. 28, 42, 57) are DENIED and defendant's motion (Dkt. 44) is GRANTED.[1]


         Plaintiff is a Regional Chief Administrative Law Judge in the Office of Hearing Operations (formerly the Office of Disability Adjudication and Review (ODAR)) for the SSA. He alleges violation of the Americans with Disabilities Act and his civil rights through adverse employment actions by the SSA and ODAR. (Dkt. 1.) Among other claims, plaintiff alleges retaliation for his engagement in protected activity (id. at 10), including, as addressed in his motion for partial summary judgment (see Dkt. 30), retaliation resulting from the filing of his lawsuit.

         The parties in this case entered into a Stipulated Protective Order governing the designation and treatment of confidential, proprietary, or private information or materials produced in discovery. (Dkt. 17.) The order does not confer blanket protection on all disclosures or discovery responses, extends only to information or items “entitled to confidential treatment under applicable legal principles, ” and does not presumptively entitle the parties to file confidential information under seal. (Id. at 1-2.) Confidential material includes medical records and information, personnel and employment-related records, tax records, statements of any current or former government employee regarding a workplace or Office of Inspector General investigation, complaint, or allegation, documents related to any current or former government employee's protected activity, and any other records the release of which without a protective order would potentially violate the Privacy Act, 5 U.S.C. § 552a. The parties must designate only the parts of documents or other material that qualify for protection and clearly identify the protected portions. (Id. at 4-5.)

         Plaintiff now moves to unseal briefing and attachments associated with pending motions for partial summary judgment, to remove confidentiality designations, and for sanctions. Defendant argues the propriety of the confidentiality designations and the filing of the summary judgment briefing and attachments under seal pursuant to the protective order and in compliance with applicable laws and policies.


         There is a “general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978). The Court starts with a strong presumption favoring the public's access to court records. Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). Accord Local Civil Rule (LCR) 5(g) (“There is a strong presumption of public access to the court's files.”) This presumption is “‘based on the need for federal courts . . . to have a measure of accountability and for the public to have confidence in the administration of justice.'” Ctr. for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoted and cited sources omitted). The presumption applies fully to dispositive pleadings and attachments. Kamakana v. City of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006).

         The public right of access is qualified, not absolute. United States v. Bus. of the Custer Battlefield Museum, 658 F.3d 1188, 1192 (9th Cir. 2011). Accord Nixon, 435 U.S. at 597. Documents attached to a summary judgment motion may be filed or maintained under seal when a party can “‘articulate[] compelling reasons supported by specific factual findings'” that outweigh the public's interest in access. Kamakana, 447 F.3d at 1178 (quoted source omitted).[2]

         As a general matter, compelling reasons sufficient to outweigh the public interest and justify maintaining court records under seal “exist when such ‘court files might have become a vehicle for improper purposes, ' such as the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets.” Id. at 1179 (quoting Nixon, 435 U.S. at 598).

         The decision on access rests within the discretion of the district court, exercised with consideration of the facts and circumstances at issue. Nixon, 435 U.S. at 599. In sealing or retaining a seal, the court must “‘base its decision on a compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture.'” Kamakana, 447 F.3d at 1179 (quoted source omitted).

         Plaintiff's summary judgment briefing is supported by and contains quotes from documents and deposition transcripts designated confidential by defendant. Plaintiff states the quoted portions do not contain personal or identifying information, and are no more than excerpts of witness statements and transcripts establishing discriminatory conduct by ODAR managers and employees. He avers defendant designated as confidential nearly every page of documents produced and most witness deposition transcripts in their entirety.

         Prior to filing his summary judgment briefing, plaintiff rejected redactions to certain documents proposed by defendant as an alternative to filing under seal. He maintains the proposed redactions conceal information necessary for proving his claim, do not allow the reader to determine the information concealed, and present an attempt to hide SSA employees' misconduct. He contends the proposed redaction of the name of a specific email author and interviewee make it difficult, if not impossible, to use one of the most important documents supporting his theory of liability, and deny him the ability to attribute discriminatory and retaliatory acts to the individual accused. (Dkt. 28 at 4-5 (citing ...

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