Mangosoft v . Oracle 02-CV-545-SM 09/09/05
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Mangosoft, Inc. and
Mangosoft Corporation,
Plaintiffs
v. Civil N o . 02-cv-545-SM
Opinion N o . 2005 DNH 128
Oracle Corporation,
Defendant
O R D E R
In February of 2004, Mangosoft filed a motion for protective
order to which Oracle objected. Following a hearing on the
matter, the parties were able to reach an agreement regarding a
joint protective order. Accordingly, the court denied
Mangosoft’s motion as moot. Subsequently, pursuant to Fed. R.
Civ. P. 26(c), the parties jointly submitted a proposed
“Protective Order Regarding Confidentiality,” which was entered
as an order of the court.
That protective order governs the parties’ production and
use of various materials in the course of discovery. Among other
things, it provides that the parties may designate documents
produced during discovery as falling within three different
levels of confidentiality. Importantly (and necessarily),
however, the protective order specifically states that all
documents produced during discovery may be disclosed to the
court, court personnel, and, if the matter proceeds to trial, the
jury.
On August 2 5 , 2005, the parties filed opposing motions for
summary judgment. Filed along with those dispositive motions was
a “Joint Motion for Leave to File Summary Judgment Pleadings,
Including Declarations, Exhibits, and Unredacted Memoranda Under
Seal” (document n o . 7 3 ) . For the reasons set forth below, that
motion is denied.
Discussion
In support of their respective motions for summary judgment,
the parties have submitted hundreds, if not thousands, of pages
of attachments and exhibits. They jointly move the court to seal
that entire summary judgment record.
While the parties might well consider many of those
documents “confidential,” and while a substantial number of them
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may fall within the scope of the pre-trial discovery protective
order, those factors alone are not sufficient to warrant sealing
the entire summary judgment record in this case. As this court
has previously observed:
There appears to be a growing tendency throughout both
federal and state courts, especially in commercial
cases, for litigants to agree to seal documents
produced during the discovery process as well as
pleadings and exhibits filed with the court. Scholars
have been commenting on the subject with increasing
frequency. Even Professor Miller, who argues at length
for expansive flexibility in protecting litigation
privacy through sealing, cautions against unchecked
secrecy:
Judges must guard against any notion that the
issuance of protective orders is routine, let
alone automatic, even when the application is
supported by all parties. Thus, they must
look carefully at each case and tailor
appropriate responses, which should take
account of a kaleidoscope of factors,
including the likely outcome on the merits,
the value or importance of commercial or
personal data, the identity of the parties
and any apparent outside interests, the
existence of any threat to health and safety,
and the presence of a governmental agency
with primary responsibility for the subject
matter of the data.
Miller, Public Access to the Courts, supra note 1 2 , at
492. And, in a footnote to that text, Professor Miller
cautions:
When all the parties support the protective
order or seal, as often is the case when the
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defendant seeks confidentiality and the
plaintiff wants to facilitate its own access
to discovery materials, the court is faced
with an essentially non-adversarial situation
and must assume the duty of making an
independent inquiry. A useful analogue is
the fiduciary burden assumed by federal
judges in evaluating a proposed class action
settlement under Federal Rule 23(e).
Nault’s Automobile Sales, Inc. v . American Honda Motor Co., 148
F.R.D. 2 5 , 43-44 (D.N.H. 1993) (quoting Arthur R. Miller,
Confidentiality, Protective Orders, and Public Access to the
Courts, 105 Harv. L . Rev. 4 2 7 , 492 (1991)). The court then
concluded that:
Plainly, there are legitimate reasons for protecting
the confidentiality of certain types of information
obtained through the discovery or litigation processes.
Courts should remain sensitive to the need to protect
litigants from discovery abuses in all their invasive
and oppressive forms. However, the decision to seal
pleadings and documents filed with the Court is not one
properly left to the litigants themselves. . . . Due
regard to important common law and Constitutional
interests in public access to judicial records must be
brought to bear by a judicial officer before any court
documents are placed beyond public review.
Id. at 44 (citing Public Citizen v . Liggett Group, Inc.,
858 F.2d
775 (1st Cir. 1988).
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Here, neither party has made an effort to demonstrate “good
cause” for sealing a particular document, attachment, or exhibit
submitted in support of its motion for summary judgment.
Instead, the parties merely invoke the general provisions of the
pre-trial protective order entered to govern the discovery
process. Far more is necessary before the court may properly
seal documents filed in the case. As the Court of Appeals for
the First Circuit has observed:
A plain reading of the language of Rule 26(c)
demonstrates that the party seeking a protective order
has the burden of showing that good cause exists for
issuance of that order. It is equally apparent that
the obverse also is true, i.e., if good cause is not
shown, the discovery materials in question should not
receive judicial protection and therefore would be open
to the public for inspection. Any other conclusion
effectively would negate the good cause requirement of
Rule 26(c): Unless the public has a presumptive right
of access to discovery materials, the party seeking to
protect the materials would have no need for a judicial
order since the public would not be allowed to examine
the materials in any event.
Public Citizen v . Liggett Group, Inc., 858 F.2d 775, 789 (1st
Cir. 1988) (quoting In re Agent Orange Product Liability
Litigation,
821 F.2d 139, 145-46 (2d Cir. 1987)).
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Although the opinion in Liggett issued under former Rule
5(d) of the Federal Rules of Civil Procedure, which required all
discovery materials to be filed with the court (and, therefore,
that they be accessible by the public), the reasoning underlying
the opinion remains valid. Public access to trials, pre-trial
hearings, and pre-trial motions practice is a longstanding
tradition in the American judicial system, protected by the
common law and implicating the First Amendment. See generally
Nixon v . Warner Comms., Inc., 435 U.S. 589, 597 (1978).
Eliminating public access to the summary judgment record in this
case will require more than a mere agreement between or among
parties.
Conclusion
The parties’ “Joint Motion for Leave to File Summary
Judgment Pleadings, Including Declarations, Exhibits, and
Unredacted Memoranda Under Seal” (document n o . 73) is denied.
The court recognizes that the parties have likely filed
their motions for summary judgment and supporting materials under
the mistaken belief that all such materials would be placed under
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seal. Accordingly, on or before September 3 0 , 2005, they shall
either:
(1) Seek the return of all previously submitted
summary judgment materials from the Clerk of
Court. That party shall then have until
October 7 , 2005, to submit a new motion for
summary judgment, with materials that need
not be placed under seal; or
(2) If a party believes that there is good cause
for the court to seal one or more identified
documents that it has already submitted in
support of its motion for summary judgment,
that party shall, on or before September 3 0 ,
2005, submit a motion to seal, accompanied by
a properly supported memorandum of law. In
that legal memorandum, the party shall
specifically identify which documents it
believes should be sealed from public view,
explain why good cause exists to seal each
such document, and provide legal support for
that proposition.
If the parties elect not to avail themselves of either option
presented above, the court shall enter their pending motions for
summary judgment, accompanying legal memoranda, and all
supporting documents into the docket, unsealed, on September 3 0 ,
2005.
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SO ORDERED.
Steven J. McAuliffe
Chief Judge
September 9, 2005
cc: Alexander J. Walker, Esq.
Paul J. Hayes, Esq.
Dorian Daley, Esq.
Martha Van Oot, Esq.
Matthew D. Powers, Esq.
Paul T . Ehrlich, Esq.
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