Fink v. BNSF Railway Company

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Michael Fink, )
)
Plaintiff, )
) ORDER DENYING MOTION FOR
vs. ) LEAVE TO FILE UNDER SEAL
)
BNSF Railway Company, ) Case No. 1:20-cv-222
)
Defendant. )
______________________________________________________________________________
Before the Court is a unopposed motion for leave to file exhibits under seal filed on April
20, 2023, by BNSF. See Doc. No. 37. BNSF seek permission to file under seal over two hundred
pages of exhibits to its anticipated motion for summary judgment. BNSF represents the motion is
unopposed. For the reasons set forth below, the motion is denied.
It is well-established that there is a common-law presumption of public access to judicial
records. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). “The presumption is based
on the need for the federal courts to have a measure of accountability and for the public to have
confidence in the administration of justice.” United States v. Gray, 59 F.4th 329, 333 (8th Cir.
2023). This right of access is not absolute, but requires a weighing of competing interests. The
decision to file a document under seal is a matter left to the sound discretion of the trial court. See
Webster Groves Sch. Dist. v. Pulitzer Publ’g Co., 898 F.2d 1371, 1376 (8th Cir. 1990). A party
seeking to seal a judicial record must demonstrate a compelling interest which overrides the qualified
First Amendment right of public access enjoyed by the public and press. United States v. McDougal,
103 F.3d 651, 658 (8th Cir. 1996). A court deciding to seal a document must explain why sealing
was necessary and why less restrictive alternatives were not appropriate. See In re Search Warrant
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for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 574 (8th Cir. 1988); In re Sealed
Documents, Standing Order (D.N.D. Sept. 30, 2011).
Generally, a qualified right of access attaches to dispositive documents and materials filed
in conjunction with dispositive motions. Romero v. Drummond Co., 480 F.3d 1234, 1245 (11th Cir.
2007); Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 546 (7th Cir. 2002) (“[D]ispositive
documents in any litigation enter the public record notwithstanding any earlier agreement. How else
are observers to know what the suit is about or assess the judges’ disposition of it?”); Webster
Groves, 898 F.2d at 1376 (“Where the common-law right of access is implicated, the court must
consider the degree to which sealing a judicial record would interfere with the interests served by
the common-law right of access and balance that interference against the salutary interests served
by maintaining confidentiality of the information sought to be sealed.”).
The Eighth Circuit has stated that “only the most compelling reasons can justify
non-disclosure of judicial records.” In re Neal, 461 F.3d 1048, 1053 (8th Cir. 2006) (internal
quotation marks omitted). “[E]ven where a party can show a compelling reason why certain
documents or portions thereof should be sealed, the seal itself must be narrowly tailored to serve that
reason.” Shane Group, Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016)
(citing Press-Enter. Co. v. Super. Ct. of Cal., 464 U.S. 501, 509-11 (1984)). Therefore, the party
seeking sealing must ‘analyze in detail, document by document, the propriety of secrecy, providing
reasons and legal citations.” Baxter, 297 F.3d at 548.
BNSF provided little in the way of explanation as to why they need to file their exhibits under
seal and no analysis of the relevant case law which provides the public with a right of access to court
records. Citation to the parties’ stipulated protective order (Doc. No. 16), which the Court adopted,
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is insufficient to provide a basis to seal exhibits at the summary judgment stage. Nor has BNSF
discussed the availability of less restrictive options such as redaction. The Court has been left to sift
through over two hundred pages of exhibits in order to decide why it all needs to be sealed. This
burden belongs to the moving party, not the Court. See Crossley v. Georgia-Pac. Corp., 355 F.3d
1112, 1114 (8th Cir. 2004) (judges are not like pigs, hunting for truffles buried in the record). When
the Court rules on BNSF’s motion for summary judgment it has no intention whatsoever of doing
so under seal. In the Court’s experience, exhibits can often simply be redacted. Records should
rarely be unavailable to the public.
Public access is the norm. BNSF has not met its burden. This is not an unusual case or one
involving highly confidential records, at least insofar as the Court can tell from the limited
explanation provided by BNSF. The Court is left to wonder if the parties understand that should the
case proceed to trial, the trial would be conducted in a public courtroom. Under these circumstances
and with little explanation as to the need for filing any documents under seal, the Court is not
inclined to allow the parties to proceed in secret.
For the reasons set forth above, the motion for leave to file under seal (Doc. No. 37) is
DENIED.
IT IS SO ORDERED.
Dated this 21st day of April, 2023.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
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