Szany v. Garcia

          OPINION AND ORDER

          JOSHUA P. KOLAR MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's Motion, Under Protest, to File Under Seal [DE 146], filed by Plaintiff Denise Szany on February 14, 2019. Defendant City of Hammond filed a response on March 15, 2019, and Plaintiff filed a reply on March 17, 2019. For the following reasons, the motion is granted in part and denied in part.

         The sealed documents at issue are excerpts of the deposition transcripts of Hammond Police Department Chief of Police John Doughty and Captain Jeff Long. Szany submitted these transcripts with her response in opposition to the City of Hammond's Second Motion for Protective Order. Szany asserts that the seal should not be maintained on the documents, and the City of Hammond counters that the seal is proper.

         Szany failed to follow Northern District of Indiana Local Rule 5-1, which requires electronic filing. However, the receipt of the physical documents by the Clerk of Court is noted at docket entry number 149, so the Court will excuse the oversight in this instance.

         ANALYSIS

         Federal Rule of Civil Procedure 26 provides that “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1). Pursuant to Northern District of Indiana Local Rule 5-3, “[n]o document will be maintained under seal in the absence of an authorizing statute, Court rule, or Court order.” N.D. Ind. L.R. 5-3(a). The public pays for the courts and, thus, has an interest in judicial records. Forst v. SmithKline Beecham Corp., 602 F.Supp.2d 960, 974 (E.D. Wis. 2009); accord Hicklin Eng'g, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006) (“What happens in the federal courts is presumptively open to public scrutiny.”) abrogation on other grounds recognized by RTP LLC v. ORIX Real Estate Capital, Inc., 827 F.3d 689 (7th Cir. 2016). The general presumption that judicial records are public is overridden when “the property and privacy interests of the litigants . . . predominate in the particular case.” Citizens First Nat'l Bank v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999). “Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat and requires rigorous justification.” Hicklin Eng'g, L.C., 439 F.3d at 348.

         However, “the presumption of public access applies only to the materials that formed the basis of the parties' dispute and the district court's resolution; other materials that may have crept into the record are not subject to the presumption.” Goesel v. Boley Int'l (H.K.) Ltd., 738 F.3d 831, 833 (7th Cir. 2013) (internal quotation marks omitted) (quoting Baxter Int'l, Inc. v. Abbott Labs., 297 F.3d 544, 548 (7th Cir. 2002)). “Public access depends on whether a document ‘influenc[ed] or underpin[ned] the judicial decision.'” City of Greenville, Ill. v. Syngenta Crop Prot., LLC, 764 F.3d 695, 698 (7th Cir. 2014) (quoting Baxter Int'l, Inc. 297 F.3d at 545). “Secrecy persists only if the court does not use the information to reach a decision on the merits.” Cty. Materials Corp. v. Allan Block Corp., 502 F.3d 730, 739 (7th Cir. 2007) (quoting In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992)).

         The fact that a document was filed on the docket may, but does not always, support an inference that the document influenced a judicial decision. City of Greenville, Ill., 764 F.3d at 548. If the mere fact of a document's filing were sufficient to render the document influential in a judicial decision, then unscrupulous parties would be able to abuse the system and force discovery out into the open by filing discovery documents at will. Saunders v. City of Chicago, No. 12-CV-9158, 2017 WL 3082036, at *3 (N.D. Ill. July 19, 2017). As the Saunders court noted, this would render “toothless” Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), which held that some discovery matters “were not open to the public at common law, and, in general, they are conducted in private as a matter of modern practice.” Seattle Times Co., 467 U.S. at 33. The privacy protections handed down in Seattle Times Co. are valuable because they can expedite discovery. Union Oil Co. of Cal. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000) (“Portions of discovery may be conducted in private to expedite disclosure.”).

         The depositions at issue here contain matter pertaining to police discipline and alleged police misconduct. “There is undoubtedly a significant public interest in exposing police misconduct.” Saunders v. City of Chicago, No. 12-cv-9158, 2017 WL 3082036, at *5 (N.D. Ill. July 19, 2017). Courts have come out differently when deciding whether the public's significant interest is overcome by other considerations. See, e.g., Lane v. Salgado, No. 13 C 3764, 2014 WL 889306, at *2 (N.D. Ill. Mar. 5, 2014) (“[I]n the context of the discovery stage of this litigation, the ‘substantial interest' in protecting a defendant police officer's reputation outweighs the public's interest in learning how a municipal government investigates police misconduct claims.”); Doe v. Marsalis, 202 F.R.D. 233, 238-39 (N.D. Ill. 2001) (finding police misconduct, especially in Chicago, to be a matter of general concern that warrants disclosure of discovery documents to the intervenor newspaper).

         Szany argues that Indiana's Open Door Law and law regarding the due process rights of disciplined local government employees require public access to these deposition excerpts. However, these laws are inapplicable because the depositions are not directly connected to public meetings (to which open door laws apply) and because maintaining the seal on the excerpts in this litigation would not prevent a disciplined local government employee from exercising his or her due process rights. The question for the Court is whether to maintain under seal excerpts of deposition testimony filed in this litigation. The question presented to the Court is not whether documents deemed by law to be public record should be maintained under seal. Szany has not identified any law rendering the deposition testimony public record. Further, as noted above, the Court in Seattle Times Co. found that depositions, as a matter of practice, are conducted privately. 467 U.S. at 33. Therefore, Szany's argument is not well-taken.

         The City of Hammond argues that the seal is proper because (1) the Protective Order issued in this case deems the deposition excerpts confidential, (2) the deposition transcript excerpts have only been submitted to the Court regarding discovery arguments and not on the merits of the case, (3) the deposition excerpts do not contain evidence relevant to this case, and (4) the privacy interests at stake warrant the seal. The Court considers each argument below.

         First, the Protective Order specifically provides that “[n]othing in this Order shall preclude a party from seeking leave of Court to file Confidential Matter openly on the docket.” (Protective Order ¶ 6, ECF No. 103). Thus, the provisions of the Protective Order do not control the Court's decision on this motion.

         Second, the City of Hammond argues that the use of these exhibits in arguing a discovery dispute weighs in favor of maintaining the seal. Szany submitted the deposition testimony with her response to the City of Hammond's February 11, 2019 Second Motion for Protective Order. In that motion, the City of Hammond asked the Court to apply previous discovery rulings to all discovery in this litigation, to forbid questioning at Defendant Garcia's deposition regarding information on the document bearing Bates numbers 364-65 (“Document 364-65”), and to forbid questioning regarding most off-duty conduct of City of Hammond police officers. Szany opposed the motion and, in response, argued that questions regarding Document 364-65 must be deemed relevant on the basis of waiver because both Doughty and Long answered questions regarding Document 364-65 at their depositions. The Court ruled that discovery regarding Document 364- 65 was limited to requests and questions that fall within the Court's prior ruling on relevance. The deposition excerpts were cited to only briefly by Plaintiff, and the Court resolved the dispute without referring to the deposition excerpts. Because the deposition excerpts were not used for the Court's decision, the presumption of public access does not apply. See Cty. Materials Corp., 502 F.3d at 739. This does not, however, conclusively determine whether the excerpts should be sealed.

         Next, the City of Hammond asserts that “the excerpts of deposition transcripts that plaintiff filed under seal have no bearing on the merits of the suit because they contain only matter that is irrelevant to the parties' ...