United States District Court, D. Colorado
ORDER
Kristen L. Mix, United States Magistrate Judge
This
matter is before the Court on Plaintiff's Unopposed
Motion to Restrict Public Access to Plaintiff's Motion
for Attorney Fees and Non-taxable Expenses
[#87];[1] on Plaintiff's Unopposed Motion to
Restrict Public Access to Defendant's Response to
Plaintiff's Motion for Attorney's Fees and
Non-taxable Expenses [#95]; on Plaintiff's Unopposed
Motion to Restrict Public Access to Plaintiff's Reply in
Support of His Motion for Attorney Fees and Non-taxable
Expenses [#98]; on Plaintiff's Unopposed Motion to
Restrict Public Access to Defendant's Motion to Strike
or, in the Alternative, for Leave to File a Surreply [#101];
and on Plaintiff's Unopposed Motion to Restrict Public
Access to Plaintiff's Response to Defendant's Motion
to Strike or, in the Alternative, for Leave to File a
Surreply [#103] (collectively, the “Motions”).
In
accordance with D.C.COLO.LCivR 7.2, the Motions were publicly
posted to allow for any objections to the sealing of the
documents. To date, no objections have been filed. However,
“[t]he absence of objection alone shall not result in
the granting” of a motion to restrict. D.C.COLO.LCivR
7.2(d).
“The
Supreme Court has acknowledged a common law right of the
public to access judicial records.” Slivka v. Young
Men's Christian Ass'n of Pikes Peak Region, __
F.Supp.3d __, __, No. 19-cv-00313-PAB, 2019 WL 3059905, at *3
(D. Colo. July 11, 2019) (citing Nixon v. Warner
Commc'ns, Inc., 435 U.S. 589, 597 (1978)).
“This right is premised upon the recognition that
public monitoring of the courts fosters important values such
as respect for the legal system.” Slivka, 2019
WL 3059905, at *3 (citing In re Providence Journal Co.,
Inc., 293 F.3d 1, 9 (1st Cir. 2002)). “There is a
presumption that documents essential to the judicial process
are to be available to the public, but they may be restricted
when the public's right of access is outweighed by
interests which favor non-disclosure.” Slivka,
2019 WL 3059905, at *3 (citing United States v.
McVeigh, 119 F.3d 806, 811 (10th Cir. 1997)).
A
motion to restrict access must (1) “identify the
document or the proceeding 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”; (4) “explain why no alternative to
restriction is practicable or why only restriction will
adequately protect the interest in question”; and (5)
“identify the level of restriction sought.”
D.C.COLO.LCivR 7.2(c).
Pursuant
to D.C.COLO.LCivR 7.2, the Court finds that Plaintiff has not
shown that the presumption of public access to Court files is
outweighed by Plaintiff's interest in privacy, or that a
less restrictive alternative is not practicable. At the
outset, the Court notes that it regularly sees motions
seeking attorney fees, and it is rare for attorneys to seek
full restriction on the briefing and exhibits associated with
such motions, although occasionally minor redactions are
requested. Plaintiff has directed the Court's attention
to no case in which full restriction on these types of
motions and exhibits has been permitted.
In the
Motions, Plaintiff asserts that he (or his counsel) will
incur harm based on “sensitive and confidential
information” in the briefs and exhibits, including
“information on the qualifications/experience and work
of his counsel on sensitive matters for other clients,
” “work product and communications between
Plaintiff and his counsel, ” discussion of “a
confidential arbitration, ” and the “firm's
proprietary information, [such that] publication of
Defendant's claims would be commercially harmful to the
firm's business.” However, Plaintiff does not
direct the Court's attention to which documents contain
which types of information and does not provide any legal
authority supporting his assertion that these types of
information should be restricted.
Regardless,
the Court has briefly looked through the twenty-two documents
Plaintiff asserts should be restricted. See [#86,
#86-1, #86-2, #86-3, #90, #90-1, #90-2, #90-3, #90-4, #97,
#97-1, #97-2, #97-3, #97-4, #97-5, #97-6, #97-7, #97-8,
#97-9, #99, #102, #102-1]. Despite Plaintiff's assertion
to the contrary, very little, if any, of these documents
actually constitutes work product, attorney-client privilege,
or other material that should be fully restricted, or even
redacted. See, e.g., United States v.
Nobles, 422 U.S. 225, 238-39 (1975) (“At its core,
the work-product doctrine shelters the mental processes of
the attorney, providing a privileged area within which he can
analyze and prepare his client's case.”); In re
Grand Jury Subpoenas, 144 F.3d 653, 658 (10th Cir. 1998)
(stating that the attorney-client privilege “is to be
strictly construed” and that its purpose “is to
preserve confidential communications between attorney and
client”). As but one of a plethora of examples, a
billing record that merely states, “Telephone call with
client about claim against Longmont Systems; emails and
telephone call with potential client, start reviewing docs,
” is surely not shielded by either work product or
attorney-client privilege. See Billing Records
[#86-2] at 1. While the Court could, in theory, pore through
each document and determine on its own which statements, if
any, fall into which protected category, that burden resides
with Plaintiff, as the party seeking restriction of these
documents. See Slivka, 2019 WL 3059905, at *3
(citing D.C.COLO.LCivR 7.2) (noting that the burden is on the
party seeking restriction). The Court will not do
Plaintiff's work for him.
Further,
Plaintiff states that he “has considered a less
restrictive alternative; however, due to the nature of the
records at issue and Defendant's decision to contest
Plaintiff's attorney fee request, the information must be
provided, and a less restrictive alternative is not available
at this time.” This statement, however, is
unsupportable. Plaintiff appears to have made no attempt
whatsoever to determine what should be restricted versus what
should be redacted versus what should be public. As one (but
not the only) especially egregious example, Plaintiff seeks
full restriction on the Colorado Bar Association's 2017
Economics of Law Practice Survey [#97-6]. The Court can
fathom no reason why this publicly-available document would
ever need to be restricted or redacted in Court proceedings.
Accordingly,
IT IS HEREBY ORDERED that the Motions [#87, #95, #98, #101,
#103] are DENIED without prejudice. However, given that the
Motions were unopposed, the Court will provide Plaintiff with
one additional, final opportunity to seek appropriate
restriction/redaction on the currently-restricted documents
on the docket: [#86, #86-1, #86-2, #86-3, #90, #90-1, #90-2,
#90-3, #90-4, #97, #97-1, #97-2, #97-3, #97-4, #97-5, #97-6,
#97-7, #97-8, #97-9, #99, #102, #102-1]. It is clear that
very few, if any, of the above-listed documents should be
fully restricted. To the extent Plaintiff believes specific
words or phrases should be redacted, Plaintiff shall file
redacted versions of the documents which carefully and
concisely only redact specific words or phrases. Based on the
Court's initial review of the briefs specifically, the
Court notes that there should be very few, if any,
large-scale redactions, such as entire paragraphs; the Court
will not allow any briefs to be fully restricted. Plaintiff
shall further specify, with legal authority where
appropriate, why the Court should permit each restriction or
redaction. Any unsupported, unnecessary large-scale redaction
of documents will result in the Court denying any
restriction/redaction of that document. Plaintiff may, of
course, voluntarily request that all restrictions be removed
from some or all of the documents at issue. Accordingly, IT
IS FURTHER ORDERED that Plaintiff shall filed a renewed
motion to restrict no later than September 6, 2019 Failure to
do so will result in all restrictions being removed from the
above-named documents without further notice.
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Notes:
[1] “[#87]” is an example of
the convention the Court uses to identify the docket number
assigned to a specific paper by the Court's case
management and electronic case filing system (CM/ECF). This
...