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Guttenberg v. Emery

United States District Court, D. Columbia.

March 19, 2014

DR. STEVEN A. GUTTENBERG, et al., Plaintiffs,
DR. ROBERT W. EMERY, et al., Defendants

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[Copyrighted Material Omitted]

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For ROBERT W. EMERY, KATHY BORG-EMERY, Defendants: Angela Donovan Sheehan, LEAD ATTORNEY, GORMAN & WILLIAMS, Baltimore, MD; Brian L Schwalb, Moxila A. Upadhyaya, LEAD ATTORNEYS, Seth A. Rosenthal, VENABLE LLP, Washington, DC.

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JOHN D. BATES, United States District Judge.

This case involves a dispute over alleged breaches of a non-disparagement provision in a settlement agreement between two former business partners. Currently before the Court are [ECF No. 11] plaintiffs' motion to file an amended complaint and to seal the case or, in the alternative, to seal portions of the record; [ECF No. 7] plaintiffs' motion for expedited discovery and to set a status conference; and [ECF No. 10] plaintiffs' motion for a preliminary injunction.


Dr. Guttenberg and Dr. Emery were joint shareholders of an oral surgery practice for about twenty years before their relationship soured. Pls.' Memo. in Supp. of Mot. for Prelim. Inj. [ECF No. 10-1] 2. Dr. Guttenberg filed a lawsuit against Dr. Emery back in 2008 over some issues that arose during the fallout of their professional relationship, but the parties quickly settled that case. Id. The settlement agreement entered into by Drs. Guttenberg and Emery contained, among other things, a non-disparagement provision. Id. That provision, and the alleged breach of that provision, is what this case is about. Plaintiffs, Dr. Guttenberg and his professional corporation, allege that purported violations of the non-disparagement provision by defendants, Dr. Emery and his wife, are causing them to lose referral sources and thus clients.

Plaintiffs initially filed this case in D.C. Superior Court in November 2013, and defendants removed it to this Court in late December 2013. Notice of Removal [ECF No. 1] (" Notice of Removal" ). A week later, defendants filed a motion to dismiss. Defs.' Mot. to Dismiss [ECF No. 3] (" Defs.' Mot. to Dismiss" ). Plaintiffs opposed that motion, and filed three motions of their own: a motion to amend and seal, a motion to expedite discovery and to set a status conference, and a motion for a preliminary injunction. See Pls.' Mot. to Amend & to Seal Case [ECF No. 11] (" Pls.' Mot. to Amend & Seal" ); Pls.' Mot. to Expedite Disc. & to Set a Status Conf. [ECF No. 7] (" Pls.' Mot. to Expedite Disc." ); Pls.' Mot. for Prelim. Inj. [ECF No. 10] (" Pls.' Mot. for Prelim. Inj." ). Those motions have now been fully briefed, with the exception of defendants' motion to dismiss, which the Court does not decide at this time. The Court will consider each of the other motions in turn.


Under Federal Civil Rule 15, plaintiffs may amend their complaint once as a matter of right within twenty-one days after service of a motion under Rule 12(b). Fed.R.Civ.P. 15(a)(1)(B). Defendants electronically served their motion to dismiss on plaintiffs on December 31, 2013, and plaintiffs filed a motion to amend on January 22, 2014, twenty-two days later. See Defs.' Mot. to Dismiss; Pls.' Mot. to Amend & Seal. The Court was closed due to inclement weather on the twenty-first day after defendants served their motion to dismiss--January 21, 2014--and because plaintiffs sought to file their amended complaint under seal, they could not file electronically. Under Federal Civil Rule 6, if the Clerk's office is inaccessible on the last day for filing, as it was here, then the time for filing is extended to the first accessible day, and in this case that day was January 22, 2014, the day plaintiffs filed their motion to amend. Fed.R.Civ.P. 6(a)(3)(A); see Pls.' Mot. to Amend & Seal. Hence, plaintiffs timely filed their amended complaint, and thus amendment is as of right under Rule 15. The Court will

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therefore order the Clerk to file plaintiffs' proposed amended complaint, attached as Exhibit 1 to plaintiffs' motion to amend, as their amended complaint.


Plaintiffs seek to seal the entire case or, in the alternative, to file their amended complaint with certain proposed redactions. See Pls.' Mot. to Amend & Seal. Defendants oppose both requests. This Court has the discretion to decide whether this case should remain under seal, United States v. Hubbard, 650 F.2d 293, 316 (D.C. Cir. 1980) (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 599, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978)), and " the starting point in considering a motion to seal court records is a 'strong presumption in favor of public access to judicial proceedings,'" EEOC v. Nat'l Children's Ctr. Inc., 98 F.3d 1406, 1409, 321 U.S.App.D.C. 243 (D.C. Cir. 1996) (quoting Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268, 1277, 293 U.S.App.D.C. 1 (D.C. Cir. 1991)). The D.C. Circuit has laid out six factors for courts to consider when determining whether to seal court records: (1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property or privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceeding. Hubbard, 650 F.2d at 316-17.

a. The Need for Public Access to the Documents

Public access to judicial records is " fundamental to a democratic state" and " serves the important function[] of ensuring the integrity of judicial proceedings . . . ." Id. at 315 & n.79. Plaintiffs argue that because " this case is a private dispute between private individuals" involving the alleged breach of a non-disparagement provision, the need for public access is low. Pls.' Memo. in Supp. of Mot. to Amend & Seal at 5. But the purpose of ensuring the integrity of judicial proceedings is not served by the public having access only to cases involving " public" disputes between " public" parties. See Upshaw v. United States, 754 F.Supp.2d 24, 28 (D.D.C. 2010) (" Plaintiff, quite simply, misconstrues the relevant inquiry and completely ignores the strong public interest in the openness of judicial proceedings, which exists irrespective of whether the proceedings at issue relate to disputes among private litigants." ). Few civil cases are of interest to anyone but the litigants and the courts; most involve " private" disputes. The public's access to civil cases involving private disputes is intended to serve as a check on the judiciary: because judicial proceedings are by default public, litigants can be confident that they will be treated fairly and justly. Hence, this factor weighs against sealing the entire case.

Plaintiffs argue, however, that even if sealing the entire case is not appropriate, the Court should permit plaintiffs to redact certain information contained in their amended complaint. The only material not already accessible to the public is plaintiffs' amended complaint, their motion to amend under seal, defendants' opposition, and plaintiffs' reply. But plaintiffs object only to disclosure of material contained in new paragraphs 17 and 20 in their amended complaint (and repeated in the briefs on sealing). Paragraph 17 contains a more specific description of the alleged statements purportedly violating the non-disparagement provision and giving rise to this action, while paragraph 20 adds only a more specific--yet still somewhat

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general--description of the third parties to which the statements were purportedly made.[1] In other words, in plaintiffs' previous complaint, they described the offending statements in general terms, and have now described them more specifically, likely in an effort to satisfy Twombly and Iqbal in light of defendants' motion to dismiss for failure to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell A. Corp. v. Twombly, 550 U.S. 544, 558, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The public has at least some interest in understanding what needs to be pleaded to satisfy the pleading standard. Yet while the public may be interested to know the more salacious details of the purported statements, plaintiffs are not public figures, so the public does not have a very compelling need to know the particulars.

At bottom, though, two considerations drive the Court's analysis of this factor. First, the differences between plaintiffs' initial descriptions of the statements and the new, more specific descriptions are not substantial. In both, plaintiffs describe statements that, if true, could be viewed as disparaging: both describe marital infidelity and sexual relationships with coworkers. The only real differences are (1) a particularly specific detail of a sexual encounter, (2) an unfavorable characterization of Dr. Guttenberg, and (3) a more specific--though not fully revealing--description of the person to whom the statements were made.[2]

Second, the interest in public access here would be substantially impeded if the Court were to grant even the proposed redactions. If the Court did so, it would effectively be committing itself to adjudicate the entire case at least partially under seal. Any opinion on defendants' pending motion to dismiss will likely need to analyze whether plaintiffs' allegations are specific enough to state a claim, and plaintiffs would undoubtedly argue (for the same reasons) that specifics of that discussion would need to be redacted. If the case were then to go forward, any summary judgment motion containing evidence supporting the paragraphs at issue would need to be filed partially under seal for the same reason, and any opinion on such a motion would likewise need to be redacted.

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And if the case were to proceed to trial, the Court would likely need to seal the proceedings while receiving testimony on a central issue of the case: whether defendants made a statement or statements that violated the non-disparagement provision. In other words, the public's access to this proceeding would be substantially impeded if the Court were to grant plaintiffs' motion--which, if granted, would protect precious few additional details, hardly justifying the harm to the public's interest. See Hubbard, 650 F.2d at 318 ...

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