here previously regarding the Sixth Circuit's decision in
Shane Group v. Blue Cross Blue Shield of
Michigan vacating a class action settlement because the
district court improperly refused to unseal the parties'
substantive filings. In revisiting the district court's sealing
orders, the Court of Appeals found that the parties' cursory
justifications for their sealing requests were "patently
inadequate." And based on this failure to elucidate reasons
for sealing, the Sixth Circuit vacated every one of the
district court's sealing orders. Since its decision in June,
the Sixth Circuit had occasion to interpret and apply Shane
Group, and in doing so, offered key learnings for litigants
seeking to toe the line for compliance with the Sixth Circuit's
In Rudd Equip. Co., Inc. v. John Deere Constr.
& Forestry Co., the Sixth Circuit affirmed the
district court's order granting a supplier's motion to
unseal the entire docket in an action brought by a dealer. Though
the district court initially granted the dealer's motion to
seal early in the litigation, it later revisited the order upon the
supplier's motion to unseal. At the time of its initial sealing
decision, the district court entered a blanket order without making
any findings or setting forth any conclusions justifying sealing.
That alone, the Sixth Circuit concluded, would have been enough
reason for the district court to vacate its earlier sealing
decision. Furthermore, in contesting the motion to seal, the
supplier could not identify any "trade secret, or privacy
right of third parties, that a seal might legitimately
protect." Though the supplier argued that "the very fact
of the lawsuit" could create "devastating consequences
for its business," which could cause a loss of customers,
goodwill, and jobs, such justifications, according to the Sixth
Circuit, actually weighed in favor of public access. Citing Shane Group, the Court noted that
"[T]he greater the public interest in the litigation's
subject matter, the greater the showing necessary to overcome the
presumption of access."
Rudd demonstrates that harm to business alone will not
be enough to keep a case under seal. And even where parties can
successfully obtain sealing orders early on in litigation, if the
justification for sealing does not meet the exacting standards of
Shane Group, litigants risk the court revisiting that
In Beauchamp v. Fed. Home Loan Mortgage
Corp., the Sixth Circuit sua sponte revisited the
district court's decision to seal summary judgment filings,
which included contracts and accompanying documents. Citing
Shane Group, the Court noted that, though neither party
objected to sealing the records, the district court had a duty to
set forth specific findings to justify sealing. Although a
protective order had been entered, the order contemplated that
any document designated confidential shall be sealed. The
Sixth Circuit observed that hundreds of documents had been filed
under seal at the summary judgment phase without the district court
having made any findings, and neither party setting forth
"compelling reasons" to seal such material nor an
assertion that such a sealing order would be "narrowly
tailored." Instead, the only record entry regarding the
sealing was a note that counsel called the district court
requesting that the motion be filed under seal, and that such a
request would be granted pursuant to the protective order. Thus, in
the absence of any record justification, the Sixth Circuit vacated
the orders to seal documents.
Beauchamp makes clear the pronouncement from Shane
Group that reliance on protective orders alone is not enough
to justify sealing orders in the Sixth Circuit. Counsel must be
prepared to file a motion to seal with each docket entry explaining
the justification for non-disclosure, or risk the Court of Appeals
finding that there is no basis for sealing documents. Although
protective orders remain useful and important tools to govern
discovery, Shane Group teaches that different—and
often more rigorous—considerations apply when documents are
placed in the record.
In Schumacher v. SC Data Center, the plaintiff brought three class action claims against SC Data Center, Inc. under the Fair Credit Reporting Act related to its pre-employment background check process.
The uptick in "slack-fill" litigation that we have previously covered in this blog shows no signs of abating — and a spate of recent filings in Missouri state court show that the trend may be expanding.
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