Gubarev v. Buzzfeed, Inc.

365 F.Supp.3d 1250

Aleksej GUBAREV, et al., Plaintiffs,

v.BUZZFEED, INC., et al., Defendants.

Case No. 1:17-cv-60426-UU

United States District Court, S.D. Florida.

Signed February 28, 2019

Valentin Gurvits, Matthew Shayefar, Boston Law Group, PC, Newton Centre, MA, Brady James Cobb, Dylan Michael Fulop, Cobb Eddy PLLC, Fort Lauderdale, FL, Evan Fray-Witzer, Fray-Witzer, LLP, Boston, MA, for Plaintiffs.

Adam Lazier, Katherine M. Bolger, Cary McClelland, Pro Hac Vice, Davis Wright Tremaine, LLC, New York, NY, Alison Schary, Pro Hac Vice, Nathan Siegel, Davis Wright Tremaine LLP, Washington, DC, Jared M. Lopez, Roy Eric Black, Black Srebnick Kornspan & Stumpf, Miami, FL, for Defendants.

ORDER

URSULA UNGARO, UNITED STATES DISTRICT JUDGE

THIS CAUSE comes before the Court upon intervenor The New York Times Company's ("The Times") Motion for Access to Judicial Records (D.E. 254).¹

For the reasons discussed below, the motion is granted as prescribed below.

I. INTRODUCTION

The salient facts of this case are set forth in the Court's Order on the cross-motions for partial summary judgment on public figure status (D.E. 385) and the Court's Order on Defendants' Motion for Summary Judgment (D.E. 388), both of which are incorporated by reference herein.

"For obvious reasons, courts have uniformly approved the practice of provisionally sealing documents pending assessment of justification for a request to seal." In re Reporters Comm'ee for Freedom of the Press , 773 F.2d 1325, 1339 (D.C. Cir. 1985) (Scalia, J.) (collecting cases). Consistent with this practice, the Court permitted the parties to file documents provisionally under seal, pending a later document-by-document determination.

The Court has issued final judgment in this case, has followed the procedures required for potential unsealing (see, e.g., Rushford v. New Yorker Magazine, Inc. , 846 F.2d 249, 253–54 (4th Cir. 1988) (district court must give adequate notice of potential sealing/unsealing and provide interested persons an opportunity to object before the court rules² ) ), and is prepared to state its findings below.

II. LEGAL STANDARD ON SEALING JUDICIAL RECORDS

A. As to Civil Pretrial Matters, Generally

"The operations of the courts and the judicial conduct of judges are matters of utmost public concern." Landmark Commc'ns, Inc. v. Virginia , 435 U.S. 829, 839, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978). "The common-law right of access to judicial proceedings, an essential component of our system of justice, is instrumental in securing the integrity of the process." Chicago Tribune Co. v. Bridgestone/Firestone, Inc. , 263 F.3d 1304, 1311 (11th Cir. 2001). "This preference for public access is rooted in the public's first amendment right to know about the administration of justice." Video Software Dealers Assoc'n v. Orion Pictures Corp. (In re Orion Pictures Corp.) , 21 F.3d 24, 26 (2d Cir. 1994). "Judges deliberate in private but issue public decisions after public arguments based on public records.... Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat and requires rigorous justification." Perez-Guerrero v. U.S. Att'y Gen. , 717 F.3d 1224, 1235 (11th Cir. 2013) (ellipses in original) (quoting Hicklin Eng'g, L.C. v. Bartell , 439 F.3d 346, 348 (7th Cir. 2006) ).

The right of access is not absolute. For example, the right of access does not apply to discovery. Romero v. Drummond Co. , 480 F.3d 1234, 1245 (11th Cir. 2007). Once the discovery is used "in connection with pretrial motions that require judicial resolution of the merits," however, the filed material becomes "subject to the common-law right." Id. (quoting Chicago Tribune , 263 F.3d at 1312 ) ); see also Rushford v. New Yorker Magazine, Inc. , 846 F.2d 249, 252 (4th Cir. 1988) (even though protective order provided some confidentiality to discovery, once the materials become part of a motion, they "lose their status of being ‘raw fruits of discovery’ "). "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 , 960 F.2d 1013, 1016 (11th Cir. 1992). It makes no difference whether the pretrial motions are dispositive: "A motion that is ‘presented to the court to invoke its powers or affect its decisions,’ whether or not characterized as dispositive, is subject to the public right of access." Romero , 480 F.3d at 1246 (quoting United States v. Amodeo , 71 F.3d 1044, 1050 (2d Cir. 1995) ).

The right of access creates a rebuttable presumption in favor of openness of court records. Rossbach v. Rundle , 128 F.Supp.2d 1348, 1352 (S.D. Fla. 2000).³ "The common law right of access may be overcome by a showing of good cause, which requires balancing the asserted right of access against the opponent's interest in keeping the information confidential. Whether good cause exists is decided by the nature and character of the information in question." Romero , 480 F.3d at 1246 (internal quotations and alterations omitted). Courts conducting a "good cause" balancing test consider, among other factors:

(1) whether allowing access would impair court functions or harm legitimate privacy interests,

(2) the degree of and likelihood of injury if made public,

(3) the reliability of the information,

(4) whether there will be an opportunity to respond to the information,

(5) whether the information concerns public officials or public concerns,

(6) the availability of a less onerous alternative to sealing the documents,

(7) whether the records are sought for such illegitimate purposes as to promote public scandal or gain unfair commercial advantage,

(8) whether access is likely to promote public understanding of historically significant events, and

(9) whether the press has already been permitted substantial access to the contents of the records.

Id. ; Newman v. Graddick , 696 F.2d 796, 803 (11th Cir. 1983) (citing Nixon v. Warner Commc'ns, Inc. , 435 U.S. 589, 598–603 & n.11, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) ).

A party's privacy or proprietary interest in information sometimes overcomes the interest of the public in accessing the information. Romero , 480 F.3d at 1246 (citing Nixon , 435 U.S. at 598, 98 S.Ct. 1306 ; Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts , 105 Harv. L. Rev. 427, 464–74 (1991) ). For example, when "sensitive information pertains to non-parties who are not public figures, the balancing of interests in favor of protecting the privacy of the non-parties and against uninhibited access to the records is strengthened." Rossbach , 128 F.Supp.2d at 1352. Nevertheless, in cases involving public concerns like "the citizen's desire to keep a watchful eye on ... the operation of government," documents—even sensitive ones—may speak to the "heart of the interest protected by the right of access," making public disclosure paramount. See Romero , 480 F.3d at 1246 (quoting Nixon , 435 U.S. at 598, 98 S.Ct. 1306 ). Additionally, if information is or already has been out in the public domain, sealing is unwarranted. See, e.g., Perez-Guerrero , 717 F.3d at 1235–36 (declining to conceal petitioner's identity in court records because such concealment "would do little to protect his safety" as "his name, photograph, and identity as an informant have been widely reported in the media").

B. Allegedly Libelous or Scandalous Material, Specifically

A district court is afforded discretion in weighing the relative interests, but that discretion "is guided by the presumption of public access to judicial documents." Id. at 1235 ; see also Romero , 480 F.3d at 1242 (refusal to unseal reviewed for abuse of discretion); Chicago Tribune , 263 F.3d at 1309 (denial of sealing order reviewed for abuse of discretion). Plaintiffs emphasize the "public scandal" or "libel" standard in pressing for continued sealing. As a result, the Court finds it appropriate to expound upon when the risk of "public scandal" or "libel" may justify sealing—and when it does not.

It is true that "court files that instigate public scandal or libel may be sealed." See Romero , 480 F.3d at 1247 ; see also Nixon , 435 U.S. at 598, 98 S.Ct. 1306 (noting that "courts have refused to permit their files to serve as reservoirs of libelous statements for press consumption"). But the mere denial of allegedly libelous statements is not, without more, a legitimate basis to seal evidence. See Romero , 480 F.3d at 1247.

The seminal case supporting the sealing of allegedly libelous or scandalous material is In re Caswell's Request , a one paragraph opinion from 1893 where the Supreme Court of Rhode Island precluded a newspaper reporter from examining a divorce petition. 18 R.I. 835, 29 A. 259, 259 (1893). The court held:

To publish broadcast the painful, and sometimes disgusting, details of a divorce case, not only fails to serve any useful purpose in the community, but, on the other hand, directly tends to the demoralization and corruption thereof, by catering to a morbid craving for that which is sensational and impure."

Id. Over the years, Caswell has been cited repeatedly for the broad proposition that "[judicial records] should not be used to gratify private spite or promote public scandal," id. —not for its narrow application. But Caswell and its progeny are unpersuasive here primarily because the records sealed in those cases involved privacy interests of individuals either (1) not involved in the underlying lawsuits or (2) involved in intimately interpersonal disputes (such as the divorce in Caswell ).⁴ Neither of these rationales apply to the instant case. Instead, the Court finds persuasive the case of Jackson v. Deen , cited by Plaintiffs, where the court in an employment discrimination case unsealed all records "that directly and arguably relate to this lawsuit" while sealing only those "matters entirely unrelated to this case (or any other litigation)."

2013 WL 1911445, at *3–4 (S.D....