United States District Court, W.D. Texas, El Paso Division
MEMORANDUM ORDER AND TENTATIVE RULINGS
C. GUADERRAMA JUDGE
before the Court is Plaintiff Omar Rodela's "Motion
for Permission to File Plaintiffs Response in Opposition to
Defendant TVI, Inc.'s d/b/a Server's Motion for
Summary Judgment and Brief in Support Under Seal" (ECF
No. 37) filed on November 20, 2019, in the above-captioned
slip-and-fall case. Therein, Plaintiff seeks leave of this
Court to file under seal Exhibits 8 and 11. In turn, he seeks
leave to file his brief in response to Defendant's motion
for summary judgment (now pending), because therein, he
relies upon and quotes from these exhibits. See,
e.g., Pl.'s Resp. at 5, 10, ECF No. 37-2.
appears that during discovery, Defendant produced the
documents contained in the exhibits, but marked them as
"confidential." That, in turn, triggered Plaintiffs
obligation under the Court-approved "Confidentiality and
Protective Order" (ECF No. 17) to seek leave of Court to
file the exhibits under seal. That order provides:
In the event a party wishes to use any Classified Information
in affidavits, declarations, briefs, memoranda of law, or
other papers filed in this litigation, the party shall do one
of the following: (1) with the consent of the producing
party, file only a redacted copy of the information; (2)
where appropriate (e.g., in connection with discovery and
evidentiary motions) provide the information solely for
in camera review; or (3) file such information
under seal with the court consistent with the sealing
requirements of the court."
& Protective Order ¶ 12. It is unclear whether
Plaintiff explored the first option, i.e., seeking
Defendant's consent regarding a redacted copy. Plaintiffs
sealing motion does not clarify, nor does it include any
certificate of conference as required under this Court's
local rules caution litigants that motions to keep
"motions or other submissions requesting or opposing
relief from the court under seal are disfavored." W.D.
Tex. Local Rule CV 5-2 b). "[T]he public has a common
law right to inspect and copy judicial records." SEC
v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir.1993)
(citing Nixon v. Warner Commc'ns, Inc., 435 U.S.
589, 597 (1978)). "The right to public access serves to
promote trustworthiness of the judicial process, to curb
judicial abuses, and to provide the public with a more
complete understanding of the judicial system, including a
better perception of its fairness." United States v.
Holy Land Found, for Relief & Dev., 624 F.3d 685,
690 (5th Cir. 2010) (internal quotes and citations
omitted). In ruling on a sealing motion, "the
court must balance the public's common law right of
access against the interests favoring nondisclosure."
Vantage Health Plan, Inc. v. Willis-Knighton Med.
Ctr., 913 F.3d 443, 450 (5th Cir. 2019). Although
"[u]ndergirding balancing is a presumption in favor of
the public's common law right of access to court
records," id. (internal quotes and citation
omitted), "sealing may be appropriate where orders [or
documents] incorporate confidential business
information," N. Cypress Med. Ctr. Operating Co.,
Ltd. v. Cigna Healthcare, 781 F.3d 182, 204 (5th Cir.
2015), the public disclosure of which "might harm a
litigant's competitive standing," Nixon,
435 U.S. at 598. To aid the court in its balancing task, the
local rules provide that "[t]he sealing motion...
must... state the factual basis for the requested
sealing order, and otherwise comply with the requirements of
Rules CV-7" W.D. Tex. CV-5.2(c) (emphasis added);
see also Id. CV-7(d)(1) ("All motions must
state the grounds therefor and cite any applicable rule,
statute, or other authority, if any, justifying the relief
instant motion, Plaintiff simply states that "[p]ursuant
to CV-5.2 and Confidentiality and Protective Order," he
seeks permission to file the exhibits under seal. That is
insufficient to satisfy the requirements of Local Rule
CV-5.2(c). On the other hand, as discussed supra, it
is Defendant's designation and marking of the exhibits as
"confidential" that led to this motion; thus,
Defendant is in a better position, than Plaintiff, to
articulate the factual basis for the requested sealing order.
But Defendant has not filed a response to Plaintiffs sealing
motion or otherwise briefed why the exhibits warrant sealing
on a cursory review, the Court tentatively finds that the
exhibits should not be sealed. Exhibit 8 contains
Defendant's "Daily Sweep Sheet Policy" (its
title reflects the nature of information contained therein),
and Exhibit 11 contains a single page from Defendant's
"Accident Prevention Program," listing a number of
"good housekeeping" practices to prevent accidents
in its stores. These documents contain information that is
far too common to warrant sealing protection. See
Mitchell v. Home Depot U.S.A., No. 3:1 l-CV-332, 2012 WL
2192279, at *1, *5 (W.D. Ky. June 14, 2012) (holding that
Home Depot's standard operating procedures for safely
stacking and displaying merchandise are not entitled to
protection under Federal Rule of Civil Procedure 26(c) and
denying request to place under seal the portions of
deposition transcripts referring to the procedures);
Zavala v. Wal-Mart Corp., No. CIV. A. 03-5309 JAG,
2007 WL 2688934, at *2, * 10-* 11 (D.N.J. Sept. 12, 2007)
(denying request for an order to seal selected pages from
Walmart's maintenance manual containing instructions on
proper lavatory and trash bin cleaning techniques).
to allow for the following to take place, the Court will
withhold issuing a final ruling on the instant sealing motion
at this time. The parties are instructed to meet and confer,
and assess whether they can agree upon filing a redacted, but
unsealed, version of each of the exhibits: the redacted
exhibits must leave unredacted the specific portions of the
exhibits relied upon by Plaintiff in his response and, to
facilitate reading in context, any other portions that are
not perceived as confidential. If such an agreement is reached,
the parties must file the redacted exhibits; and the Court
will order public docketing of Plaintiff s responsive brief,
keep under seal the unredacted Exhibits 8 and 11 (as
currently submitted), and in deciding Defendant's motion
for summary judgment consider only the redacted exhibits. If,
however, the parties fail to reach such an agreement, the
Court is of the view that Defendant should be given an
opportunity to "vindicate its interests,"
Vantage Health Plan, Inc., 913 F.3d at 451, and
"demonstrate that [Its] interests outweigh the
public's right to access judicial records,"
United States v. Chandler, 732 F.3d 434, 440 (5th
IT IS ORDERED that by December 9, 2019, the parties SHALL
MEET and CONFER in good faith, and SHALL FILE, a Joint Notice
stating whether or not they have agreed to filing of the
redacted versions of Exhibits 8 and 11 as discussed above.
the parties are able to so agree. IT IS FURTHER ORDERED
that by December 9, 2019, the parties SHALL FILE the redacted
versions of the exhibits as attachments to the Joint Notice.
For ease of citation, the parties shall submit the redacted
exhibits as two separate attachments to the Joint Statement
such that each exhibit can be imprinted by the Court's
electronic case filing system by an unique document number
(for example, ECF Nos. 39-1, 39-2, for attachments to ECF No.
39, the main submission).
however, the parties are unable to so agree. IT IS
FURTHER ORDERED that by December 9, 2019, Defendant SHALL
FILE, if necessary under seal, a brief providing the factual
basis for sealing Exhibits 8 and 11 and demonstrating why its
interests outweigh the public's right to access judicial
records regarding the exhibits.
TO TIMELY COMPLY WITH THIS ORDER MAY RESULT IN THE
COURT'S DENIAL OF PLAINTIFF'S SEALING MOTION AND
THEREBY, PUBLIC DOCKETING OF THE EXHIBITS AND PLAINTIFF'S