IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

RALPH BROWN, )

)

Plaintiff, )

)

v. ) Case No. 2:06-cv-642-MEF

) (WO)

CHAMPION ENTERPRISES, INC., et. al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

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

removed to thisCourt on July 19, 2006. On July 26, 2006, Defendant Champion Enterprises,

Inc. 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. # 8). 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 September 25, 2006. See id.

Plaintiff filed a motion for an enlargement of time (Doc. # 9), which the Court granted (Doc.

# 10), giving Plaintiff until November 28, 2006 to respond to the Motion to Dismiss.

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. # 15), which

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

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 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. # 18). 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.

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

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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

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

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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.

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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

“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

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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 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. # 18) 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.

DONE this the 18 day of December, 2006. th

 /s/ Mark E. Fuller 

CHIEF UNITED STATES DISTRICT JUDGE

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