[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Sazerac Co., Inc. v. Republic Nat’l. Distributing Co., LLC, 2024 WL 3905739 (W. D. Ky. Aug. 21, 2024), the court wrote: “Before the Court are a litany of motions to seal exhibits to contemporaneously filed briefing on discovery disputes.”
The Sazerac court granted a number of those motions; however, it denied the motion to seal a privilege log that had been filed as an exhibit.
The court stated that a stipulation of the parties to file documents under seal is insufficient to justify sealing. It wrote:
Trial courts have the authority to seal their records under certain circumstances.… While courts have long recognized … a strong presumption in favor of openness as to court records, … the presumptive right of the public to inspect and copy judicial documents and files may be overcome where the interests of privacy outweigh the public’s right to know.… Thus, documents that reveal sensitive information may properly be subject to sealing….
To maintain files under seal, a party must provide compelling reasons to seal the documents and demonstrate that the sealing is narrowly tailored to those reasons…. The moving party may satisfy its burden on a motion to seal filings by showing that disclosure will work a clearly defined and serious injury…. The moving party must analyze in detail, document by document, the propriety of secrecy, providing reasons and legal citations…. Identification that documents are legitimate trade secrets is typically enough to overcome the presumption of access and justify a permanent sealing of the document in the record.… This Court has also previously recognized that revealing contractual terms with third parties would undermine a company’s bargaining power if its competitors learned of these terms….
Sazerac Co., Inc. v. Republic Nat’l. Distributing Co., LLC, 2024 WL 3905739, at *1 (W. D. Ky. Aug. 21, 2024)(cleaned up; citations and quotations omitted; emphasis added).
This blog focuses solely on the privilege log aspect of Sazerac. One litigant, RNDC, moved to seal certain exhibits to its response to a motion, including a privilege log. Id. at *6. It argued that privilege logs “invoke either work-product or attorney-client privilege[,] implicate … privacy rights[,] and should be sealed.” Id.
The Sazerac court denied that request:
RNDC fails to show good cause to seal Exhibit D. Exhibit D, as a privilege log, is intended to create a document which can be viewed by others for the purpose of adjudicating whether documents are properly protected by privilege. Fed. R. Civ. P. 26(b)(5). RNDC does not provide, nor has the Court been able to identify, any case in this Circuit where courts have sealed a privilege log.
Sazerac Co., Inc. v. Republic Nat’l. Distributing Co., LLC, 2024 WL 3905739 (W. D. Ky. Aug. 21, 2024)(emphasis added).
The court explained that: “Where other courts have assessed whether a privilege log should be sealed, they have refused to do so absent attestations that the privilege log reveals the substance of privileged communications.”
Where other courts have assessed whether a privilege log should be sealed, they have refused to do so absent attestations that the privilege log reveals the substance of privileged communications.
Sazerac Co., Inc. v. Republic Nat’l. Distributing Co., LLC, 2024 WL 3905739 (W. D. Ky. Aug. 21, 2024).
Many courts have procedural rules or local rules that govern filing under seal.
For example, in the United States District Court for the District of Maryland, Local Rules 104.13 and 105.11 explain the procedure. Under the latter rule:
Any motion seeking the sealing of pleadings, motions, exhibits, or other documents to be filed in the Court record shall include (a) proposed reasons supported by specific factual representations to justify the sealing and (b) an explanation why alternatives to sealing would not provide sufficient protection. The Court will not rule upon the motion until at least fourteen (14) days after it is entered on the public docket to permit the filing of objections by interested parties. Materials that are the subject of the motion shall remain temporarily sealed pending a ruling by the Court. If the motion is denied, the party making the filing will be given an opportunity to withdraw the materials. Upon termination of the action, sealed materials will be disposed of in accordance with L.R. 113
United States District Court for the District of Maryland, Local Rule 105.11.
In Maryland State courts, access to judicial records is governed by Subtitle 9 of Title 16 of the Maryland Rules and by decisions such as Administrative Ofc. Of the Courts v. Abell Foundation, 480 Md. 63, 68-69 (2022).
