UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

United States of America and 

State of Michigan, 

Plaintiffs, 

v. 

W.A. Foote Memorial Hospital, 

d/b/a Allegiance Health, 

Defendant. 

________________________________/

Case No. 15-cv-12311 

Judith E. Levy 

United States District Judge 

Mag. Judge David R. Grand 

OPINION AND ORDER DENYING DEFENDANT’S MOTION TO 

FILE UNDER SEAL [63] WITHOUT PREJUDICE AND 

ORDERING THE PARTIES TO SHOW CAUSE BY JANUARY 27, 

2017 WHY PREVIOUSLY SEALED DOCUMENTS [47] SHOULD 

NOT BE UNSEALED 

 Defendant W.A. Foote Memorial Hospital d/b/a Henry Ford 

Allegiance Health filed a motion for permission to file under seal its 

motion for summary judgment and exhibits containing confidential 

information subject to a previously entered protective order among the 

parties. (Dkt. 63.) According to defendant, the “filing of these 

documents under seal is necessary in this instance, and cannot be 

avoided by other means.” (Id. at 2.) Specifically, defendant notes that 

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its summary judgment motion “relies significantly upon documents 

and/or testimony referencing information designated as ‘Confidential 

Information’ or ‘Highly Confidential Information’ within the meaning of 

Fed. R. Civ. P. 26(c)(1)(G) by either Allegiance, [plaintiffs], or a third 

party, pursuant to the Protective Order.” (Id.) This “information was 

provided in confidence and has been protected generally from public 

disclosure during this matter.” (Id.) For the reasons set forth below, 

defendant’s motion is denied without prejudice. 

 “[T]here is a stark difference between so-called ‘protective orders’ 

entered pursuant to the discovery provisions of Federal Rule of Civil 

Procedure 26, on the one hand, and orders to seal court records, on the 

other.” Shane Grp., Inc. v. Blue Cross Blue Shield, 825 F.3d 299, 305 

(6th Cir. 2016). As noted by the Sixth Circuit, “[d]iscovery concerns the 

parties’ exchange of information that might or might not be relevant to 

their case.” Id. But although “[s]ecrecy is fine at the discovery stage, 

before the material enters the judicial record,” at “the adjudication 

stage, [] very different considerations apply.” Id. (quoting Baxter Int’l, 

Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002); Joy v. North, 692 

F.2d 880, 893 (2d Cir. 1982)). 

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 “Unlike information merely exchanged between the parties, ‘[t]he 

public has a strong interest in obtaining the information contained in 

the court record.’” Id. (quoting Brown & Williamson Tobacco Corp. v. 

F.T.C., 710 F.2d 1165, 1180 (6th Cir. 1983)). In “‘antitrust’ cases,” such 

as this one, “the public’s interest is focused not only on the result, but 

also the conduct giving rise to the case.” Id. (citing Brown & 

Williamson Tobacco Corp., 710 F.2d at 1179). “[S]ecrecy insulates the 

participants, masking impropriety, obscuring incompetence, and 

concealing corruption.” Id. (quoting Brown & Williamson Tobacco 

Corp., 710 F.2d at 1179). 

 There is thus “a ‘strong presumption in favor of openness’ as to the 

court records.” Id. (quoting Brown & Williamson, 710 F.2d at 1179). 

The burden of “overcoming that presumption is borne by the party that 

seeks to seal them,” id., here, defendant Allegiance Health. And if this 

Court were to grant defendant’s motion, it would have to “set forth 

specific findings and conclusions ‘which justify nondisclosure to the 

public.’” Id. at 306 (quoting Brown & Williamson, 710 F.2d at 1176). 

 Here, defendant fails to provide reasons why the documents 

should be filed under sealed, beyond noting that the parties have agreed 

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by protective order not to disclose to the public certain information 

exchanged during discovery. Defendant thus fails to comply with E.D. 

Mich. LR 5.3, which requires the moving party to “state the reason that 

sealing each item is necessary” and “the reason that a means other than 

sealing is not available or unsatisfactory to preserve the interest 

advanced by the movant in support of the seal,” among other things. 

E.D. Mich. LR 5.3(b)(iii)-(iv) (emphasis added). That the parties agreed 

not to disclose certain documents to the public during discovery is not 

itself sufficient reason to seal documents relevant to pleadings filed 

with the Court. See Shane Grp., Inc., 825 F.3d at 305-06. Without 

more, defendant’s motion must be denied. 

 Relatedly, the Court previously entered an order granting 

plaintiffs’ motion to file documents containing confidential information 

under seal (Dkt. 47) that were obtained pursuant to Civil Investigative 

Demands made under 15 U.S.C. § 1312. The parties are ordered to 

show cause why the documents should not be unsealed, given that 15 

U.S.C. § 1313(c)-(d) is a directive to the custodians of the documents 

obtained pursuant to 15 U.S.C. § 1312, not a directive to this Court. 

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The parties must provide the specific authority—by statute, rule, or 

case law—requiring that the documents be sealed. 

 Accordingly, defendant’s motion to seal (Dkt. 63) is DENIED 

WITHOUT PREJUDICE. 

 The parties shall respond to the Court’s order to show cause by 

January 27, 2017, or the documents sealed pursuant to the Court’s 

previous order (Dkt. 47) will be unsealed. 

 IT IS SO ORDERED. 

Dated: January 4, 2017 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on January 4, 2017. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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