United States District Court, D. Colorado
ORDER ON MOTION TO RESTRICT PUBLIC ACCESS
S. Krieger, United States District Court.
MATTER comes before the Court upon the
Defendant's Motion to Restrict Public Access (#
Defendants seek Level 1 Restriction for two exhibits
(## 91-1, 91-2) filed by
the Plaintiff in connection with his reply (#
89) to his Motion to Amend the Scheduling Order
(# 71). In their motion to restrict, the
Defendants state that the exhibits contain confidential
information as defined in the parties' Stipulated
Protective Order (# 43) and that the
exhibits' filing was gratuitous and unjustified because
they were examples. The Defendants argue that these exhibits
are unnecessary for the Court's adjudication of the
motion to amend.
is a well-established common-law right of access to judicial
records. See Nixon v. Warner Commc'ns Inc., 435
U.S. 589, 597 (1978). This right is premised upon the idea
that the public must retain the ability to evaluate a
court's decision-making process and ensure that it is
promoting justice by acting as a neutral arbitrator. See
United States v. McVeigh, 119 F.3d 806, 814 (10th Cir.
1997); see also United States v. Amodeo, 71 F.3d
1044, 1048 (2d Cir. 1995) (“The presumption of access
is based on the need for federal courts . . . to have a
measure of accountability and for the public to have
confidence in the administration of justice.”).
Accordingly, there is a strong presumption that documents
filed in a lawsuit that are pertinent to a judicial
determination should be freely available to the public.
Colony Ins. Co. v. Burke, 68 F.2d 1222, 1242 (10th
Cir. 2012). Access to court filings may, however, be
restricted when the public's right of access is
outweighed by interests favoring non-disclosure. See
McVeigh, 119 F.3d at 811. A party seeking to restrict
public access bears the burden to demonstrate compelling
reasons justifying restriction. See Eugene S. v. Horizon
Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1135-36
(10th Cir. 2011); see also McVeigh, 119 F.3d at 814.
Thus, a movant must articulate a real and substantial
interest that justifies depriving the public of access to
documents that informed the court's decision-making
process. See Helm v. Kansas, 656 F.3d 1277, 1292
(10th Cir. 2011).
with these precepts, Local Civil Rule 7.2 governs motions to
restrict (whether unopposed or contested). This rule requires
that a party seeking restriction: (1) identify the document
for which restriction is sought; (2) address the interest to
be protected and why such interest outweighs the presumption
of public access; (3) identify a clearly defined and serious
injury that would result if access is not restricted; and (4)
explain why no alternative to restriction will suffice.
See D.C. Colo. L. Civ. R. 7.2. The fact that the
parties agree to a Protective Order is in place is of no
moment. It does not dictate the Court's decision or
change its analysis, as the right of access belongs to the
public who, necessarily, was not a party to such an
agreement. See D.C. Colo. L. Civ. R. 7.2(c)(2).
1 to the Plaintiff's reply (# 91-1)
shows a series of wire transfers between one of the
defendants and one of its suppliers, including the amounts,
bank entities, and account numbers, etc. It was offered by
the Plaintiff as an example of discovery documents the
Defendants produced in redacted form, supporting his argument
that such redaction “makes it difficult, if not
impossible, to know which invoices were paid by which
Defendant.” # 89 at 2. This proposition bears little to
no relationship to the voluminous information contained in
the exhibit. It would have been perfectly sufficient to
describe the nature of the redaction - which the Plaintiff
did, in essence - without including the exhibit as a visual
2 to the Plaintiff's reply (# 91-2)
shows part of a project report for a woodworking project that
one of the Defendants performed for a client. It includes a
list of invoices from vendors, the vendors' names, the
invoiced amounts, and the amounts paid. It was offered by the
Plaintiff to establish that many of the Defendants'
purported costs include “millions of dollars paid by
Imperial Woodworking Company to Imperial Woodworking
Enterprises, ” for which the Defendants have not
produced any invoices or checks to substantiate. # 89-2.
Again, this proposition has very little to do with the
specific amounts listed in the exhibit; the Plaintiff's
description of the exhibit in the reply is almost enough on
its own for the Court to glean the exhibit's contents,
making its filing superfluous. To the extent an exhibit was
necessary, the exhibit could have been redacted to remove all
but the entry showing “millions of dollars” being
paid from one entity to the other. The Plaintiff made no
effort to make such redactions.
the Court agrees with the Defendants. Because the exhibits
are unnecessary and extraneous, they are irrelevant to
consideration of the motion to amend. The documents will
remain under restriction, as there is no public interest in
access to documents the Court does not consider. The parties
are cautioned to exercise more restraint and thoughtfulness
going forward when determining what exhibits ...