Tea Party Groups Support Unsealing Documents in Case Against IRS

NORCAL TEA PARTY PATRIOTS, et al.,
ON BEHALF OF THEMSELVES,
THEIR MEMBERS, and THE CLASS THEY REPRESENT,
Plaintiffs,
v.
THE INTERNAL REVENUE SERVICE, et al.,
Defendants.

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO, WESTERN DIVISION

Judge Michael R. Barrett

PLAINTIFFS' REPLY IN
SUPPORT OF THEIR MOTION TO UNSEAL COURT FILINGS

Plaintiffs NorCal Tea Party Patriots, South Dakota Citizens for Liberty, Inc., Americans Against Oppressive Laws, Inc., Texas Patriots Tea Party, and San Angelo Tea Party (collectively, “Plaintiffs”), hereby submit their Reply in Support of their Motion to Unseal Court Filings (Doc. #340). Plaintiffs also file this Reply in support of the Cincinnati Enquirer's Motion to Unseal (Doc. #386) and in opposition to the Motion to Seal subsequently filed by Lois Lerner and Holly Paz (Doc. #392). Plaintiffs further support the Motion for Leave to File Amicus Opposition Brief by the State of Ohio and attached brief (Doc. #394).

Introduction

This case involves conduct by government officials that are “[a]mong the most serious allegations a federal court can address[.]” In re United States, 817 F.3d 953, 955 (6th Cir. 2016) (Kethledge, J.). Plaintiffs assert that the Internal Revenue Service — one of the most powerful governmental entities in the country — targeted conservative organizations for heightened scrutiny and delay because of their viewpoints. These allegations, along with the facts that support them, have a profound significance to not just the American public at large, but also the Class Members that will need to consider the proposed settlement of their claims.

Lerner and Paz seek to have the core facts of this scheme shrouded in secrecy, covering the settlement process with the same darkness that enabled the years-long targeting in the first place. It cannot stand. Lerner and Paz might not have been the puppet masters, but they were the puppeteers: exercising direct control over the strings of government used to target Plaintiffs and the Class. Class members must know the contents of their testimony to consider the fairness of the settlement, and the public must have access to help ensure that similar conduct never occurs again.

Lerner and Paz have failed to satisfy their heavy burden of showing a “most compelling reason” for secrecy here. They have made no effort to tie their fears of harassment or threats to the contents of the documents they seek to maintain under seal — they claim instead that they will suffer threats and harassment regardless of the contents of the records. The instances of harassment they allege last occurred in early 2014, despite more than three years of litigation since then. Lastly, their requested relief is not narrowly tailored. The Court should deny the request by Lerner and Paz to seal court records and open the docket for public inspection.¹

Factual and Procedural Background

On April 12, 2017, Lerner and Paz filed a Motion for Protective Order seeking to conduct their upcoming depositions under seal. Doc. 330. They also moved the Court to have briefing and oral argument on the Motion sealed and closed to the Court, which the Court provisionally granted. On May 10, 2017, Plaintiffs filed a Motion to Unseal Court Filings seeking to unseal the court filings and remove secrecy restrictions for the depositions. Doc. 340.

On May 18, 2017, the Court issued an order declining to “pre-authorize the sealing of yet-to-be-taken depositions.” Doc. 345 at 3. Instead, the Court denied Lerner and Paz's motion to seal the depositions, established a procedure for Lerner and Paz to designate the portions of their depositions confidential under a protective order, and reserved ruling on the portions of Plaintiffs' motion seeking to unseal the depositions. Id. at 4. Plaintiffs took Lerner's deposition on June 8, 2017, and Paz's deposition on July 7, 2017. Lerner and Paz designated their entire deposition transcripts as secret.

On July 21, 2017, The Government relied on Lerner's and Paz's transcripts throughout its Motion for Summary Judgment. Doc. 355-17; Doc. 355-18. It filed full transcripts of both depositions under seal and redacted its citations to and summaries of those transcripts. Similarly, on September 8, 2017, Plaintiffs relied on Lerner's and Paz's transcripts in their opposition to the Government's Motion for Summary Judgment. In accordance with the Court's orders, Plaintiffs filed full transcripts of both depositions under seal and redacted their citations to and summaries of those transcripts. Doc. 374.

The Court set a briefing schedule on Plaintiffs' still-pending Motion to Unseal to begin after submission of all summary judgment filings. On October 25, the Cincinnati Enquirer moved to unseal the unredacted summary judgment papers, including Lerner's and Paz's deposition transcripts. Doc. 386. On November 16, 2017, Lerner and Paz moved to seal their transcripts, opposing the Enquirer's motion. Doc. 392.

Argument and Authorities

I. The Applicable Legal Standard

The secrecy requested by Lerner and Paz gives rise to important interests founded in the common law and the First Amendment. See Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1177 (6th Cir. 1983); Newsday LLC v. City of Nassau, 730 F.3d 156, 163 (2d Cir. 2013); In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(d), 707 F.3d 283, 290 (4th Cir. 2013).

A. Lerner and Paz Must Demonstrate Compelling Reasons to Justify Secrecy

Under the common law, a “right of access generally applies to all public records and documents, including judicial records and documents.” In re Morning Song Bird Food Litig., 831 F.3d 765, 777-78 (6th Cir. 2016). There is a “strong presumption in favor of openness as to court records,” and “[o]nly the most compelling reasons can justify non-disclosure of judicial records.” Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 305 (6th Cir. 2016) (Kethledge, J.) (quotations 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.” Id. The proponent of the sealing must “analyze in detail, document by document, the propriety of secrecy, providing reasons and legal citations.” Id. at 305-06 (quoting Baxter Int'l v. Abbott Labs., 297 F.3d 544, 548 (7th Cir. 2002)).

Independent of the common law, the First Amendment also protects the public's right of access to the records of civil proceedings. See, e.g., Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 659 (3d Cir. 1991); Doe v. Public Citizen, 749 F.3d 246, 267 (4th Cir. 2014); Newsday, 730 F.3d at 163; In re Providence Journal Co., 293 F.3d 1, 11 (1st Cir. 2002); United States v. Corbitt, 879 F.2d 224, 228 (7th Cir. 1989). The First Amendment right of access arises where: (1) the proceeding or document to which access is sought has historically been open to the press and general public and (2) public access plays a significant positive role in the functioning of the particular process in question. In re Morning Song Bird Food Litig., 831 F.3d at 777. The presumption in favor of access can only be overcome “by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” In re Providence Journal Co., 293 F.3d at 11 (quoting Press-Enterprise Co. v. Super. Ct., 464 U.S. 501, 510 (1984)). Courts have tended to employ the First Amendment standard where the situation implicates both rights. Id.

B. The Facts of this Case Warrant the Highest Required Showing

The greater the public's interest in the litigation's subject matter, the greater showing required to overcome the presumption of access. Shane Grp., 825 F.3d at 305 (citing Brown & Williamson, 710 F.2d at 1179). The public has a “strong interest in obtaining the information contained in the court record.” Brown & Williamson, 710 F.2d at 1180. In some cases, the public's interest is in the result of the case, such as whether a right exists or a statute is constitutional. Shane Grp., 825 F.3d at 305. In other cases, “the public's interest is focused not only on the result, but also on the conduct giving rise to the case.” Id.; Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 593–94 (6th Cir. 2016). In the latter cases, “secrecy insulates the participants, masking impropriety, obscuring incompetence, and concealing corruption.” Shane Grp., 825 F.3d at 305 (quoting Brown & Williamson, 710 F.2d at 1180).

The circumstances of this case dictate an even higher showing than ordinarily required for sealed filings. In class actions, where “some members of the public are also parties to the [case],” the standards for denying public access to the record “should be applied . . . with particular strictness.” Shane Grp., 825 F.3d at 305 (quoting In re Cendant, 260 F.3d 183, 194 (3d Cir. 2001)). The sealing of judicial records — especially those with a direct bearing on the plaintiff's likelihood of success on the merits — impairs the unnamed class members' ability to “participate meaningfully in the process contemplated by Federal Rule of Civil Procedure 23(e).” Id. at 309. Guaranteeing class members' access to records promotes confidence in the administration of the case, diminishes the possibility that “injustice, incompetence, perjury, [or] fraud” will be perpetrated against the class members, and provides the class members with a more complete understanding of the process and a better perception of its fairness. In re Cendant, 260 F.3d at 192.

Lastly, the public's interest is strongest when “the conduct of public officials is at issue.” See United States v. Beckham, 789 F.2d 401, 413 (6th Cir. 1986). “[W]hen the conduct of public officials is at issue, the public's interest in the operation of government adds weight in the balance toward allowing permission to copy judicial records.” United States v. Beckham, 789 F.2d 401, 413 (6th Cir. 1986); see Sanchez v. MTV Networks, 525 Fed. Appx. 4, 7 (2d Cir. 2013) (“[T]he adequacy of Sanchez's compensation was the very subject of this litigation, and the public is entitled to understand the nature of the dispute and the reasons for the rulings of this Court and the district court.”). The public also has a strong interest in monitoring “the positions that its elected officials and government agencies take in litigation.” Doe v. Pub. Citizen, 749 F.3d 246, 271 (4th Cir. 2014) (citing Fed. Trade Comm'n v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987)).

II. Lerner and Paz Attempt to Satisfy the Incorrect Legal Standard

Lerner and Paz endeavor to satisfy the “good cause” standard of Rule 26(c), arguing that the deposition transcripts and summary judgment papers are not judicial records. Id. They claim that, due to the proposed settlement, the deposition transcripts and summary judgment filings will not be used to adjudicate substantive legal rights and need not be disclosed to the public. In essence, they argue that the transcripts, summary judgment filings, and presumably their arguments in support of sealing (which they fail to address) are not adjudicatory records.

Lerner and Paz apply the wrong standard. Lerner and Paz already received relief under Rule 26(c) for purposes of discovery. Now they seek something more: perpetual secrecy of materials that have been entered into the judicial record for purposes of a dispositive motion and which impact the relative considerations of settlement.

A. The Difference between Discovery and Adjudicatory Materials

Lerner and Paz overlook the “stark difference” between protective orders issued under Rule 26, which govern the discovery stage, and orders to seal court records used to adjudicate rights or issues. Shane Grp., 825 F.3d at 305, 307. “Secrecy is fine at the discovery stage, before the material enters the judicial record.” Id. (quoting Baxter, 297 F.3d at 545). During the discovery stage, the parties exchange information that may or may not be relevant; the Court may properly enter blanket orders limiting the disclosure of this information on a showing of “good cause.” Id.; see Fed. R. Civ. P. 26(c)(1).

“The line between these two stages, discovery and adjudicative, is crossed when the parties place material in the court record.” Shane Grp., 825 F.3d at 305 (citing Baxter, 297 F.3d at 545). This occurs when parties file records with the Court which they intend for it to rely on, or on which it actually relies, “to determin[e] the parties' substantive rights.” See In re Providence Journal, 293 F.3d at 11; In re United States, 707 F.3d at 290 (records filed “with the objective of obtaining judicial action or relief”). As a result, “documents and exhibits filed with or introduced into evidence in a federal court are public records.” Wash. Legal Found. v. U.S. Sentencing Comm'n, 89 F.3d 897, 906 (D.C. Cir. 1996). It is the “act of filing vel non that trigger[s] the presumption of access.” Leucadia, Inc. v. Applied Extrusion Tech., Inc., 998 F.2d 157, 161 (3d Cir. 1993). Filing of a document “clearly establishes” its status as a “judicial record.” In re Cendant, 260 F.3d at 192. “Numerous other courts have also recognized the principle that the filing of a document gives rise to a presumptive right of public access.” Leucadia, 998 F.2d at 161-62 (citing FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 409 (1st Cir. 1987); Crystal Grower's Corp. v. Dobbins, 616 F.2d 458, 460-61 (10th Cir. 1980); Pratt & Whitney Canada, Inc. v. United States, 14 Cl. Ct. 268, 273 (1988); In re “Agent Orange” Prod. Liab. Litig., 96 F.R.D. 582, 584 (E.D.N.Y. 1983); In re Johnson, 598 N.E.2d 406, 410 (Ill. App. 1992)); see United States v. Hubbard, 650 F.2d 293, 321 (D.C. Cir. 1980) (treating filed documents seized as judicial documents even though their “only relevance to the proceeding derived from the contention that many of them were not relevant to the proceedings”); cf. N. Jersey Media Grp. Inc. v. United States, 836 F.3d 421, 435 (3d Cir. 2016) (noting that “the act of filing” is “the most significant consideration,” but limiting Leucadia to non-discovery motions).

The line from discovery to adjudicatory in nature is also crossed if the material filed with the Court is relevant. Documents that “properly come before the court in the course of an adjudicatory proceeding and which are relevant to that adjudication” are presumptively public. In re Providence Journal, 293 F.3d at 9 (emphasis supplied); United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995).

The fact that public records were first obtained through discovery is of no significance at this stage. “[T]he public has a presumptive right to access discovery materials that are filed with the court, used in a judicial proceeding, or otherwise constitute 'judicial records.'” Bond v. Utreras, 585 F.3d 1061, 1073 (7th Cir. 2009); see Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1134-35 (9th Cir. 2003). “The rights of the public kick in when material produced during discovery is filed with the court.” Bond, 585 F.3d at 1075 (citing Seattle Times v. Rhinehart, 467 U.S. 20, 33 & n.19 (1984)). “Once filed with the court, . . . '[d]ocuments that affect the disposition of federal litigation are presumptively open to public view . . . unless a statute, rule, or privilege justifies confidentiality.'” City of Greenville, Ill. v. Syngenta Crop Protection, LLC, 764 F.3d 695, 697 (7th Cir. 2014) (quoting In re Specht, 622 F.3d 697, 701 (7th Cir. 2010)). “[D]iscovery material filed in connection with pretrial motions that require judicial resolution of the merits is subject to the common-law right. . . .” Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312–13 (11th Cir. 2001).

B. Records Filed in Support or Opposition of Summary Judgment or for Sealing Records Require the Highest Showing

The materials sought to be sealed by Lerner and Paz are each adjudicatory in nature because they are relevant to the lawsuit, were intended to be relied on for purposes of adjudication, and will be relied on for purposes of considering the proposed settlement.

Summary judgment briefs and exhibits are inherently adjudicatory in nature. “[D]ocuments used by parties moving for, or opposing, summary judgment should not remain under seal absent the most compelling reasons.” Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982). “An adjudication is a formal act of government, the basis of which should, absent exceptional circumstances, be subject to public scrutiny. . . . Indeed, any other rule might well create serious constitutional issues.” Id. “[T]here is a presumption of access to documents submitted on a summary judgment motion.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 121 (2d Cir. 2006); Foltz, 331 F.3d at 1135; Leucadia, 998 F.2d at 161; Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252 (4th Cir. 1988); Anderson v. Cryovac, Inc., 805 F.2d 1, 13 (1st Cir. 1986); Joy, 692 F.2d at 893. “Our precedents indicate that documents submitted to a court for its consideration in a summary judgment motion are — as a matter of law — judicial documents to which a strong presumption of access attaches, under both the common law and the First Amendment.” Lugosch, 435 F.3d at 121.

The deposition transcripts, which were cited throughout the summary judgment filings and filed in full with the Court, are intertwined with the summary judgment issues. See Shane Grp., 825 F.3d at 305; Doc. 355-17; Doc. 355-18; Doc. 357, ¶¶ 15, 19, 21, 25, 28, 37-42, 44, 48, 50-52, 68, 69, 72-73, 75, 93, 95, 97-99, 114, 122, 124-25, 139, 152, 157, 172. Plaintiffs attached Lerner's and Paz's deposition transcripts to their Response and Statement of Additional Facts. Doc. 375-1, ¶¶ P43, P46, P85, P121, P134, P143, P154, P164, P168, P169, P171, P192, P196, P199, P232, P304, P309, P311; Doc. 375-2; Doc. 375-4. Because of Lerner's and Paz's central roles in the events giving rise to this litigation, these records permeate the summary judgment filings.

The purpose of these filings is apparent. The Government requested summary judgment “in the hope that it would be a dispositive motion, and with the belief that [they were] entitled to such relief.” Lugosch, 435 F.3d at 122 (citing Fed. R. Civ. P. 11) (quoting Westinghouse, 949 F.2d at 660). The Government apparently believed that large portions of Lerner's and Paz's transcripts advanced their arguments. As documents filed with the Court, their status as judicial records is established. In re Cendant, 260 F.3d at 192; Wash. Legal Found., 89 F.3d at 906; see Lugosch, 435 F.3d at 121 (documents submitted with summary judgment motion are judicial records “as a matter of law”).

Perhaps most importantly, these materials play an important role in both the Court and the Class's consideration of the proposed settlement. To assess the fairness of the settlement, the Court must assess Plaintiffs' likelihood of success in the lawsuit compared to the concrete benefits afforded by the settlement. Shane Grp., 825 F.3d at 309 (a district court “cannot judge the fairness of a proposed compromise without weighing the plaintiff's likelihood of success on the merits against the amount and form of the relief offered in the settlement.”) (quotes omitted)). The district court must “specifically examine what the unnamed class members would give up in the proposed settlement, and then explain why — given their likelihood of success on the merits — the tradeoff embodied in the settlement is fair to unnamed members of the class.” Id.

As the Government's filings demonstrate, the testimony by both Lerner and Paz are intertwined within that analysis and will undoubtedly be considered by the Court in whether to approve the settlement. See Standard Financial Mgmt. Corp., 830 F.2d at 409 (“Once those submissions come to the attention of the district judge, they can fairly be assumed to play a role in the court's deliberations.”); see also Shane Grp., 824 F.3d at 309-10; see Joy, 692 F.2d at 893 (“An adjudication is a formal act of government, the basis of which should, absent exceptional circumstances, be subject to public scrutiny.”). Therefore, the transcripts are adjudicatory in nature, requiring the highest showing to justify secrecy, not mere good cause.

Lastly, the filings pertaining to Lerner and Paz's motion for protective order and related filings are adjudicatory in nature. That issue is being adjudicated this very moment.

III. Lerner and Paz Have Not Satisfied their Heavy Burden to Show a Most Compelling Reason

Lerner and Paz argue that “publicizing their participation in this litigation poses a credible safety risk.” Doc. 392-1 at 11. On this basis, they ask the Court to seal the transcripts of their testimony indefinitely. Lerner and Paz have not met their burden.

To prevail, Lerner and Paz must “analyze in detail, document by document, the propriety of secrecy, providing reasons and legal citations.” Baxter, 297 F.3d at 548. “In delineating the injury to be prevented, specificity is essential. Broad allegations of harm, bereft of specific examples or articulated reasoning, are insufficient.” In re Cendant, 260 F.3d at 194 (internal citations omitted); see Lugosch, 435 F.3d at 120. They must provide “specific compelling reasons” to justify withholding each document; “[s]imply mentioning a general category of privilege, without any further elaboration or any specific linkage with the documents, does not satisfy the burden.” Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1183-84 (9th Cir. 2006); Foltz, 331 F.3d at 1138. Their showing must be based on current evidence. Westinghouse, 949 F.2d at 663.

Similarly, in order to seal records, the Court must conduct a “stringent” analysis and articulate the factual basis for its ruling “without relying on hypothesis or conjecture.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096-97 (9th Cir. 2016). A court “that chooses to seal court records must set forth specific findings and conclusions 'which justify nondisclosure to the public.'” Shane Grp., 825 F.3d at 306 (quoting Brown & Williamson, 710 F.2d at 1176). “[A] court's failure to set forth those reasons — as to why the interests in support of nondisclosure are compelling, why the interests supporting access are less so, and why the seal is no broader than necessary — itself is grounds to vacate an order to seal.” Id.; see Danley v. Encore Capital Grp., Inc., 680 Fed. Appx. 394, 399 (6th Cir. 2017). “We caution that this inquiry requires specific findings; the First Amendment right of public access is too precious to be foreclosed by conclusory assertions or unsupported speculation.” In re Providence Journal, 293 F.3d at 13.

In “civil litigation, only trade secrets, information covered by a recognized privilege (such as the attorney-client privilege), and information required by statute to be maintained in confidence (such as the name of a minor victim of a sexual assault),” is typically enough to overcome the presumption of access. Rudd, 834 F.3d at 594-95 (quoting Baxter, 297 F.3d at 546). “The mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records.” Kamakana, 447 F.3d at 1179.

A. The Circumstances Unequivocally Support Public Access

The circumstances of this case weigh heavily in favor of public access. “The greater the public interest in the litigation's subject matter, the greater the showing necessary to overcome the presumption of access.” Shane Grp., 825 F.3d at 305 (citing Brown & Williamson, 710 F.2d at 1179); Westinghouse, 949 F.2d at 664 (“Access to civil proceedings and records also acts as a valuable source of information in civil cases that have a 'public' character.”). The public interest in this case is patent: the events giving rise to this litigation have been the subject of congressional inquiries and reports, inspector general inquiries and reports, and involve the IRS's viewpoint-based targeting of more than four hundred public interest groups from coast to coast. The Attorney General of the United States issued a press release regarding the Government's agreement to settle this litigation.

Here, Lerner's and Paz's decisions, instructions, and actions as public officials lay at the heart of the parties' dispute. Both held public positions that afforded them direct knowledge and control of the IRS's targeting of the Plaintiff Class. The parties' summary judgment briefing confirms this: the United States's Statement of Material Facts references Lerner 51 times and Paz 57 times, Doc. 357; the Plaintiff's Response references Lerner 285 times and Paz 253 times, Doc. 375-1.

This is also a class action with a pending settlement, which requires the standards to be applied “with particular strictness.” Shane Grp., 825 F.3d at 305 (quoting In re Cendant, 260 F.3d at 194). Once a class is certified, its claims, issues, or defenses may be settled only with the Court's approval after finding the settlement fair, reasonable, and accurate. Fed. R. Civ. P. 23(e). Class members may object to any settlement. Id. Records showing the “likelihood of success on the merits” must be unsealed so that the unnamed class members can evaluate the settlement. In Shane Group, the Sixth Circuit vacated a district court's approval of a class action settlement because the court had “sealed from public view most of the court filings and exhibits that underlay the proposed settlement.” 825 F.3d at 304-05.

“Class members cannot participate meaningfully in the process contemplated by Federal Rule of Civil Procedure 23(e) unless they can review the bases of the proposed settlement and the other documents in the court record.” Id. at 309. This included the Amended Complaint, the Motion for Class Certification and response, the defendant's motion to strike the report and testimony of the plaintiff's expert, and 194 associated exhibits (including the expert's report). Id. at 306. Because the Court had sealed these materials, “both the general public and the class were able to access only fragmentary information about the conduct giving rise to this litigation, and next to nothing about the bases of the settlement itself.” Id. The named parties “signed on to the proposed settlement only after reviewing the expert report and other sealed documents in the record. The unnamed class members are entitled to do the same, subject to the rights of the parties and third parties to make the showings necessary to seal.” Id. at 309. Because of the district court's order sealing the records, “[t]he Rule 23(e) objection process seriously malfunctioned in this case, and that is reason enough to vacate the district court's approval of the settlement.” Id.

B. Lerner and Paz Have Not Established that Sealing Will Serve a Compelling Interest

It is Lerner and Paz's burden to present specific, compelling reasons to withhold each document or line of testimony sought to be held secret. Hypothesis and conjecture are not enough. However, their arguments rely on a daisy chain of causation: If the court releases testimony, the media will write stories about it, and as a result of the stories, we will receive threats. There are flaws in each link in the chain.

First, they have not shown a causal link between specific testimony and publication. To support their request to seal their entire testimony in this case, Lerner and Paz argue that they will suffer threats from the publication of the testimony regardless of its contents. Doc. 392-1 at 13 (“[R]eturning Mss. Lerner and Paz to the media spotlight places them at risk, regardless of what they actually said in those depositions.”). This is insufficient. They do not argue that publication of the contents would defame them, present them in a false light, or reveal a trade secret or information protected by a recognized privilege or statute. See Rudd, 834 F.3d at 594-95. Presumably they maintain that their testimony in the depositions is true; it is the publication of those truths that they fear.

What Lerner and Paz effectively seek a prior restraint on the publication of that testimony. “Any prior restraint on expression comes to this Court with a heavy presumption against its constitutional validity.” Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 558 (1976) (internal quotations omitted). This is particularly true when the expression involves the public acts of public officials. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (noting the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials). Public officials must accept that their official acts will be “commented upon and criticized.” Id. at 299 (Goldberg, J., concurring).

Second, Lerner and Paz have made no attempt to identify a causal relationship between publication of their testimony and additional threats or harm. They have made no effort to separate the likelihood that threats will result from publication of their deposition testimony from those threats that they may or may not suffer as a result of the publication of their official acts through other means, either in this litigation, other litigation, or independent reporting. The Parties relied on significant amounts of Lerner's and Paz's correspondence, as well as correspondence and testimony about Lerner and Paz, to their summary judgment papers and other public filings in this lawsuit. These filings have been reported on by the news media.² Lerner, through her public apology for the targeting, invited news coverage. See, e.g., Doc. 375-1, ¶¶ P252-P260. Lerner and Paz both invited additional scrutiny by seeking to keep their testimony under seal.³ While Lerner and Paz should not suffer threats of harm in any instance, they have made no showing that sealing these records will reduce the likelihood of any threats in the future.

* * *

Lerner and Paz cite several cases in support of their position, but none supports their position. Kallstrom v. City of Columbus, 136 F.3d 1055, 1062-63 (6th Cir. 1998), concerned a much more limited intrusion into the public's right of access: the court limits its seal to threatened persons' addresses, phone numbers, and driver's licenses. This is a narrowly tailored and reasonable holding to which the Plaintiffs would agree in this case.

In Doe v. Stegall, 653 F.2d 180, 186 (6th Cir. 1981), the Court permitted the plaintiffs to withhold their identities so that they would not have to reveal their private, intimately held religious beliefs in their suit against the government, the “quintessentially private matter.” Even there, the court was hesitant: “The threat of hostile public reaction to a lawsuit, standing alone, will only with great rarity warrant public anonymity.” Id. Here, precisely the opposite pattern holds: the Plaintiffs challenge Lerner's and Paz's public acts as public officials. Unlike the plaintiffs in Doe, Lerner and Paz do not and cannot claim that their depositions reveal private or intimate information about their religious beliefs. The public's interest in access is strongest where the acts and litigation positions of public officials are in question. Beckham, 789 F.2d at 413; Doe v. Pub. Citizen, 749 F.3d at 271.

United States v. McCraney, 99 F. Supp. 3d 651, 659 (E.D. Tex. 2015), involved sealing the identities of co-defendant confidential informants who are imprisoned together. Lerner and Paz do not claim to be confidential informants. The threats faced by confidential informants are of a different quality than those alleged by Lerner and Paz. For instance, Lerner and Paz do not claim to be incarcerated with violent criminals, nor do they claim to have close, personal interactions with those against whom they have or will testify in a criminal matter.

Moreover, McCraney narrowly limited its seal to the identities of the informants; the Court unsealed the plea agreements and the factual bases for the pleas. Dish Network, L.L.C. v. SonicView USA, Inc., 09-cv-1553-L (S.D. Cal. Aug. 20, 2009), also involved the identities of confidential informants and is similarly inapposite.⁴ Note that the court narrowly tailored its seal order on a page-by-page and document-by-document basis.

Likewise, United States ex rel. Floyd v. Vincent, 520 F.2d 1272, 1274 (2d Cir. 1975), involved closing a courtroom during the testimony of agents who were currently undercover. Lerner and Paz do not claim to be active undercover agents.

United States Tobacco Coop., Inc. v. Big. S. Wholesale of Va., No. 5:13-cv-00527 (E.D.N.C. July 26, 2016), demonstrates the problem with sealing.⁵ In two orders granted that day, the court says with no analysis that “The Court again finds that these individuals' interests in their safety outweigh the public's interest in access to the relevant documents.” The court referred to its previous order on November 12, 2013, for a fuller discussion.⁶ In that prior order, the court stated that “certain information contained in the Complaint could subject certain individuals to physical harm and/or harassment.” The court then sealed the various requests for sealing, making it impossible for others in the public — such as litigants and the Court here — to understand the facts supporting its holding.

Lastly, Center for National Security Studies v. U.S. Department of Justice, 215 F. Supp. 2d 94, 106 (D.D.C. 2002), aff'd in part and rev'd in part, 331 F.3d 918 (D.C. Cir. 2013), involves a claim under the Freedom of Information Act and the applications of its exceptions. This case has nothing to do with public access to court records.

Lerner and Paz are public officials who, through their public acts as revealed through public filings in this lawsuit and other public documents, received troubling phone calls and emails three years ago. This is not a compelling reason to deny the public, and the class, information on which the Court and the class members must rely to adjudicate the fairness of this settlement and reveals critical information about how the United States government works.

IV. The Blanket Seal Requested by Lerner and Paz Is Not Narrowly Tailored

Lerner and Paz argue that the Court must maintain their entire deposition transcripts under seal. This is contrary to the requirement that the movant justify sealing records “in detail, document by document.” Shane Grp., 825 F.3d at 305. They claim that sealing their entire testimony is the “only realistic option.” Doc. 392-1 at 13. Their position is that no page, no sentence, no phrase in the hundreds of pages of testimony is sufficiently benign that it may be released to the public without subjecting them to a realistic and credible threat of harm.

To support this position, Lerner and Paz cite United States v. Raffoul, 826 F.2d 218, 226 (3d Cir. 1987). Their recitation of the holding is far from accurate. Raffoul did not “declin[e] to vacate the sealing of testimony transcripts.” Doc. 392-1 at 13. On the contrary, it held: “we will reverse the order denying access to the transcripts” and remand to the district court to consider the existence of a compelling interest and the “workability of less restrictive alternatives such as redacting the transcripts.” Raffoul, 826 F.2d at 227. Lerner and Paz have it backwards.

Lerner and Paz also cite United States v. Hernandez, 608 F.2d 741, 748 (9th Cir. 1979). Hernandez, like McCraney and Dish Network, concerned the testimony of a confidential informant. Id. As noted, Lerner and Paz do not claim to be confidential informants. Further, the district court did not close the courtroom for all of the informant's testimony; on the contrary, the government withdrew its closure request after two hours of direct examination and the entire cross-examination was conducted in open court. Id. at 746.

As an alternative, Lerner and Paz suggest that the Court should seal all portions of their testimony that the parties did not cite in their summary judgment papers. Lerner and Paz cite no reason why the sealing of the uncited portions will protect them from additional threats or harassment. Further, Local Rule 7.2(e) exists because the context of an excerpt matters. Lerner and Paz's claim that testimony that is not cited by line number “will necessarily have no role” in the Court's adjudication is contrary to the weight of the case law and the Court's Local Rule. See MetLife Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 667 (D.C. Cir. 2017) (relying on a local rule to hold that briefs and joint appendix contain “with which the parties hope to influence the court, and upon which the court must base its decision”).

Lerner and Paz must cite the line and page numbers of the testimony they seek to seal and provide compelling reasons for each. Kamakana, 447 F.3d at 1183-84. They have not done so.

Conclusion

For these reasons, Plaintiffs request the Court to grant their Motion to Unseal Court Filings.

Dated: November 30, 2017

Respectfully submitted,

GRAVES GARRETT, LLC

Edward D. Greim (pro hac vice)
Todd P. Graves (pro hac vice)
Dane C. Martin (pro hac vice)
J. Benton Hurst (pro hac vice)
1100 Main Street, Suite 2700
Kansas City, MO 64105
Telephone: (816) 256-3181
Fax: (816) 256-5958
edgreim@gravesgarrett.com
tgraves@gravesgarrett.com
dmartin@gravesgarrett.com
bhurst@gravesgarrett.com

Christopher P. Finney (OH Bar No. 0038998)
FINNEY LAW FIRM LLC
2623 Erie Avenue
Cincinnati, OH 45208
Telephone: (513) 533-2980
Fax: (513) 533-2990
Chris@finneylawfirm.com

David R. Langdon (OH Bar No. 0067046)
Trial Attorney
LANGDON LAW, LLC
8913 Cincinnati-Dayton Road
West Chester, OH 45069
Telephone: (513) 577-7380
Fax: (513) 577-7383
dlangdon@langdonlaw.com

Bill Randles (pro hac vice)
RANDLES & SPLITTGERBER, LLP
N. Cypress Avenue
Kansas City, MO 64119
Telephone: (816) 820-1973
bill@billrandles.com

Class Counsel