United States District Court, D. Maine
KAYLA MARIE COLE and TERESA L. GORDON, Plaintiffs,
STATE OF MAINE, OFFICE OF INFORMATION TECHNOLOGY, Defendant.
ORDER ON MOTION TO SEAL
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
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.
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).
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).
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).
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
The Consent Confidentiality Agreement and Order
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.
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).
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