United States District Court, N.D. Indiana, Hammond Division
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'
...