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Cole v. State

United States District Court, D. Maine

January 3, 2018

KAYLA MARIE COLE and TERESA L. GORDON, Plaintiffs,
v.
STATE OF MAINE, OFFICE OF INFORMATION TECHNOLOGY, Defendant.

          ORDER ON MOTION TO SEAL

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         Raising issues of the right of public access to judicial records, the Court defers ruling on a motion to seal portions of a pending motion for summary judgment and declaration in support of the motion for summary judgment to give the movant an opportunity to reassess its position and file a supplementary memorandum.

         I. BACKGROUND

         On February 23, 2017, Kayla Marie Cole and Teresa L. Gordon filed suit in this Court against the State of Maine Office of Information Technology (OIT), alleging that the OIT, their former employer, violated the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq, (Title VII), the Maine Human Rights Act, 5 M.R.S. §§ 4551 et seq. (MHRA), and the Maine Whistleblowers' Protection Act, 26 M.R.S. §§ 831, et seq. (WPA). Compl. (ECF No. 1). On May 19, 2017, OIT answered the Complaint, denying its essential allegations and raising certain affirmative defenses. Answer to Compl. (ECF No. 5). On August 11, 2017, OIT filed an amended answer. Am. Answer to Compl. (ECF No. 11). On September 13, 2017, OIT filed a motion for court approval of a confidentiality agreement, and on the same day, the Court granted the motion. Consent Mot. for Confidentiality Order (ECF No. 12); Consent Confidentiality Order (ECF No. 13).

         On October 13, 2017, OIT filed a notice of intent to file a motion for summary judgment. Def.'s Notice of Intent to Move for Summ. J. (ECF No. 15). The Court held a Local Rule 56(h) conference on November 8, 2017. Min. Entry (ECF No. 19). On December 15, 2017, OIT moved for an order placing portions of the deposition of James Smith under seal. Def.'s Mot. to Seal (ECF No. 22). On December 17, 2017, the Magistrate Judge granted the motion to seal. Order Granting Mot. to Seal (ECF No. 25).

         On December 21, 2017, OIT moved to seal portions of its motion for summary judgment on the ground that the redacted portions of its filings “contain personnel information about a third party to this matter.” Def.'s Mot. to Seal (ECF No. 26) (Def.'s Mot.). OIT states that the “redacted information is not contained in or related to a ‘final written decision, ' and therefore, is not public information.” Id. at 2. OIT filed public versions of the documents. Id.; (ECF Nos. 27-28).

         II. OIT's POSITION

         OIT presents two reasons for sealing the filed documents: (1) the documents are confidential because the parties must comply with the confidentiality agreement and (2) the sealed information is deemed confidential under 5 M.R.S. § 7070, Maine's Personnel Records statute. Id. at 1-3.

         III. DISCUSSION

         A. The Consent Confidentiality Agreement and Order

         The Court rejects the first basis for the motion to seal, namely the argument that the confidentiality agreement and order require that confidential matters be sealed. In United States v. Kravetz, 706 F.3d 47 (1st Cir. 2013), the First Circuit distinguished between the public right of access to discovery materials and the public right of access to materials submitted by parties to obtain a judicial ruling. Id. at 53-59. The Kravetz Court confirmed that “with respect to civil discovery . . ., there is no right of public access.” Id. at 55. Thus, the public “has no common law or constitutional right of access to materials that are gained through civil discovery but neither introduced as evidence at trial nor submitted to the court as documentation in support of motions or trial papers.” Id.

         Consistent with Kravetz, during discovery, the parties were free to enter into confidentiality agreements, in this case approved by the Court, to control dissemination of the produced information without impinging on the public right of access. But the confidentiality agreement for discovery purposes cannot control the public's right of access to materials “introduced as evidence at trial [or] submitted to the court as documentation in support of motions or trial papers.” Id. Moreover, the confidentiality agreement itself provides that “[n]othing in this Order or any action or agreement of a party under this Order limits the Court's power to make orders concerning the disclosure of documents produced in discovery or at trial.” Consent Confidentiality Order at 6 (ECF No. 13).

         In short, under its own terms and under First Circuit precedent, the confidentiality agreement entered into by the parties and affirmed by the Court has nothing to do with whether the contents of a document submitted by the parties to influence judicial decision-making is protected from disclosure to the public.

         B. Maine's ...


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