IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

JERRY ALLEN, )

)

Plaintiff, )

v. ) Case No. 1:06-cv-681-MEF

)

CHAMPION ENTERPRISES, )

INC., et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This case was filed in the Circuit Court of Geneva County on June 19, 2006 and was

removed to this Court on August 2, 2006. On August 7, 2006, Defendant Champion

Enterprises, Inc. (hereinafter “Champion”) filed a Motion to Dismiss, or, in the Alternative,

Motion for Summary Judgment (Doc. # 5). The Court construed the portion of the motion

asserting a Rule 12(b)(6) claim to be a Motion for Summary Judgment, and denied that

motion as premature (Doc. # 11). It gave Plaintiff leave to conduct limited discovery only

on the issue of personal jurisdiction and required Plaintiff to respond to the Motion to

Dismiss by November 28, 2006.

On September 28, 2006, during discovery on personal jurisdiction, Plaintiff moved

for a protective order governing the production and filing of purportedly confidential or

sensitive discovery materials, which was unopposed by Defendants (Doc. # 12). On October

3, 2006, the Court granted the motion and entered a Protective Order (Doc. # 13), which

provided that all documents produced in the course of the litigation would be presumed to

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contain confidential information.

On November 28, 2006, Plaintiff filed a Motion for Leave to Seal (Doc. # 16). He

also filed a Response to the Motion to Dismiss, which was not docketed due to the pendency

of the Motion for Leave to Seal. The Motion for Leave to Seal requests that Plaintiff’s

Response to the Motion to Dismiss and the exhibits thereto be sealed. It stated that those the

exhibits “were either introduced during Champion Enterprises Inc.’s Corporate

Representative’s deposition, obtained from Champion Enterprises Inc.’s website, or

documents produced by Plaintiff’s expert, Edward W. Sauls.” Id. On November 29, 2006,

Plaintiff filed a Motion for Leave to Seal Plaintiff’s Supplemental Response to Defendants’

Motion to Dismiss (Doc. # 17) and a Motion for Leave to File Supplemental Response to

Defendant’s Motion to Dismiss (Doc. # 18). The Motion for Leave to Seal Plaintiff’s

Supplemental Response relied upon the same grounds as the earlier Motion for Leave to Seal

(Doc. # 16).

On December 4, 2006, Defendants filed what the Court construes as a motion to seal

exhibits to its Reply to the Motion to Dismiss and Motion to Seal (Doc. # 20). Defendants

state that they request these exhibits be sealed pursuant to the Protective Order, but provide

no further explanation.

A federal court’s authority to seal or otherwise prevent public access to documents or

proceedings is derived from Rule 26(c) of the Federal Rules of Civil Procedure. See Fed. R.

Civ. P. 26(c); see also In re Estate of Martin Luther King, Jr., Inc., v. CBS, Inc., 184 F. Supp.

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2d 1353, 1362 (N.D. Ga. 2002). In relevant part, Rule 26(c) provides:

Protective Orders. Upon motion by a party or by the person

from whom discovery is sought . . . for good cause shown, the

court . . . may make any order which justice requires to protect

a party or person from annoyance, embarrassment, oppression,

or undue burden or expense, including one or more of the

following:

. . . .

(6) that a deposition, after being sealed, be opened only by order

of the court;

(7) that a trade secret or other confidential research,

development, or commercial information not be revealed or be

revealed only in a designated way; and

(8) that the parties simultaneously file specified documents or

information enclosed in sealed envelopes to be opened as

directed by the court.

Fed. R. Civ. P. 26(c) (emphasis added). While parties often stipulate to a protective order

designating particular documents as confidential, such a stipulation only “postpones the

necessary showing of ‘good cause’ required for entry of a protective order until the

confidential designation is challenged.” Chicago Tribune Co. v. Bridgestone/Firestone, Inc.,

263 F.3d 1304, 1307 (11th Cir. 2001) (citing In re Alexander Grant & Co. Litig., 820 F.2d

352, 356 (11th Cir. 1987)).

Even when no third party challenges a motion to seal, however, the Court must still

ensure that the motion is supported by good cause. See Estate of Martin Luther King, Jr.,

184 F. Supp. 2d at 1363. “The judge is the primary representative of the public interest in

the judicial process and is duty-bound therefore to review any request to seal the record (or

part of it). He may not rubber stamp a stipulation to seal the record.” Citizens First Nat’l

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While discovery materials are not generally subject to the common-law right of access, 1

discovery materials filed as part of a dispositive motion are “judicial records” subject to the

common-law right of access. See, e.g., Chicago Tribune, 263 F.3d at 1312; Estate of Martin Luther

King, Jr., 184 F. Supp. 2d at 1365. Obviously, briefs filed in support of or in opposition to

dispositive motions are also “judicial records” subject to the common-law right of access.

4

Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999) (internal citation

omitted).

“Once a matter is brought before a court for resolution, it is no longer solely the

parties’ case, but also the public’s case.” Brown v. Advantage Eng’g, Inc., 960 F.2d 1013,

1016 (11th Cir. 1992). There is a limited First Amendment right of access to civil trial

proceedings. See Chicago Tribune, 263 F.3d at 1310. In addition, the public has a commonlaw right to inspect and copy judicial records, although the right is not absolute. See Nixon 1

v. Warner Comms., Inc., 435 U.S. 589, 597-98 (1978). Absent a showing that the interests

of non-disclosure outweigh the public’s common law right of access, courts often deny even

joint motions to seal in civil cases. See, e.g., Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544

(7th Cir. 2002) (denying joint motion to maintain certain documents under seal); Jaufre ex

rel. Jaufre v. Taylor, 351 F. Supp. 2d 514 (E.D. La. 2005) (denying joint motion to seal court

record); Stamp v. Overnite Transp. Co., No. Civ. A. 96-2320-GTV, 1998 WL 229538 (D.

Kan. Apr. 10, 1998) (denying joint motion to seal court record).

Analysis of whether materials submitted in conjunction with the motions in this case

are subject to either the common-law right of access or the First Amendment right of access

requires the Court to assess whether the proponent of sealing the documents has satisfied the

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“good cause” showing required by Federal Rule of Civil Procedure 26(c). See, e.g., Chicago

Tribune, 263 F.3d at 1310-15; Estate of Martin Luther King, Jr., 184 F. Supp. 2d at 1365-67.

This analysis requires the Court to (1) determine whether valid grounds for the issuance of

a protective order have been presented; and (2) balance the public’s interest in access against

the litigant’s interest in confidentiality. Estate of Martin Luther King, Jr., 184 F. Supp. 2d

at 1366. The parties have failed to present the Court with sufficient grounds for sealing the

documents pursuant to Federal Rule of Civil Procedure 26(c). Therefore, in light of the

foregoing authorities, it is hereby ORDERED that:

(1) Plaintiff show cause in writing on or before December 28, 2006, as to why

Plaintiff’s undocketed Response to Defendants’ Motion to Dismiss and the exhibits attached

thereto, and Plaintiff’s Supplemental Response and any exhibits attached thereto, should be

filed under seal. Plaintiff’s submission in response to this Order should cite legal precedent

and make specific arguments as to why that precedent supports his position with respect to

filing the Response and attached exhibits under seal.

(2) Defendants show cause in writing on or before December 28, 2006, as to why the

exhibits to their Reply (Doc. # 20) should be sealed. Defendants’ submission in response to

this Order should cite legal precedent and make specific arguments as to why that precedent

supports their position with respect to filing the exhibits under seal.

It is further ORDERED that Plaintiff’s Motion for Leave to File Supplemental

Response (Doc. # 18) is GRANTED.

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The Clerk of the Court is DIRECTED not to docket the Supplemental Response and

any exhibits attached thereto until the Court rules on Plaintiff’s Motion for Leave to Seal

Supplemental Response (Doc. # 17).

DONE this the 19 day of December, 2006. th

 /s/ Mark E. Fuller 

CHIEF UNITED STATES DISTRICT JUDGE

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