United States District Court, District of Columbia
JACK J. GRYNBERG, et al., Plaintiffs,
BP P.L.C., et al., Defendants.
D. BATES United States District Judge.
the Court has issued a memorandum opinion denying plaintiff
JackGrynberg's Rule 60 motion. Also pending before the
Court is defendants' motion to seal the exhibits attached
to their Rule 60 opposition. See Defs.' Rule 60 Mot. to
Seal [ECF No. 129]. While briefing defendants' motion,
the parties successfully narrowed the range of disputed
exhibits. Grynberg has agreed that seven exhibits may remain
under seal. Defendants have agreed that more than two dozen
others should be unsealed. Ten exhibits remain in dispute.
See Stipulation [ECF No. 143] at 2. The disputed
exhibits include two complaints filed by Grynberg and his
corporations in the underlying arbitration, the
arbitrator's 2013 award, the transcript of the September
2013 arbitration meeting, and various written correspondence
related to the arbitration. As to those ten exhibits,
defendants' motion to seal will be denied.
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 (D.C. Cir. 1996) (internal
quotation marks omitted). The D.C. Circuit has identified six
factors that might act to overcome this presumption:
(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 and
privacy interest asserted; (5) the possibility of prejudice
to those opposing disclosure; and (6) the purposes for which
the documents were introduced during the judicial
Id. (citing United States v. Hubbard, 650
F.2d 293, 317-22 (D.C. Cir. 1980)). Barely engaging with the
Hubbard factors, the defendants fail to rebut the
strong presumption that the disputed exhibits should be filed
on the public docket. Some of the Hubbard factors
actually weigh in favor of public access. Others, to the
extent they weigh against disclosure, are not sufficiently
weighty to overcome the presumption.
"there is a need for public access in those instances
where the documents at issue are specifically referred to in
the trial judge's public decision." Nat'l
Children's Ctr., 98 F.3d at 1409 (internal quotation
marks and alterations omitted). Here, the Court has found it
necessary to rely extensively in its Rule 60 decision on the
arbitrator's 2013 award and the September 2013
arbitration meeting transcript. As a result, there is a
strong public need for those exhibits. The sixth
Hubbard factor also favors disclosure of all the
disputed exhibits. Defendants submitted the exhibits in order
to convince the Court that Grynberg's claims of arbitral
bias are unsubstantiated. Having done so, they cannot easily
claim that the exhibits must remain sealed. See,
e.g., Zapp v. Zhenli Ye Gon, 746 F.Supp.2d 145,
151 (D.D.C. 2010) (explaining that factor six favors
disclosure of exhibits submitted to the court with the intent
that the court will rely on them in adjudicating a dispute).
attempt to rebut the strong presumption of public access,
defendants contend that the disputed exhibits are not yet
publicly available. See Defs.' Rule 26 Sealing Reply at 8
n.4. That may be so. But because "the second
Hubbard factor is neutral where there has been no
previous access" to a disputed exhibit, Am. Prof T
Agency v. NASW Assurance Servs., 121 F.Supp.3d 21, 24
(D.D.C. 2013) (internal quotation marks omitted), that
observation gains defendants little traction.
strongest arguments relate to factors three, four, and five.
See Am. Prof 1 Agency, 121 F.Supp.3d at 25 (noting
that Hubbard factors three, four, and five are
interrelated). In short, defendants contend that the 1999
Settlement Agreements and a follow-on Confidentiality
Agreement from 2002 require that all documents related to the
arbitration remain under seal. See Defs.' Rule
26 Sealing Reply at 1-2. For many years, Grynberg agreed. And
various courts- including this one-have previously entered
sealing orders upon the parties' request. Now, defendants
argue, Grynberg is attempting to reverse course, in violation
of the parties' agreements and several court orders-all
to the prejudice of defendants.
end of the day, however, defendants have failed to explain
what prejudice would result from the disclosure of these
exhibits. Defendants contend that disclosure would violate
the terms of their settlement and confidentiality agreements.
Even if that were true, it would not suffice to carry
defendants' burden. Although confidentiality agreements
between private parties may weigh against disclosure, they do
not dictate whether documents can be filed under seal.
See, e.g., In re Fort Totten Metrorail
Cases, 960 F.Supp.2d 2, 9-11 (D.D.C.2013) (ordering
disclosure even though confidentiality agreements weighed
against it). In any event, it is unclear whether the
settlement and confidentiality agreements here actually
protect the disputed exhibits from disclosure. Those
agreements protect "Confidential Information, "
which is defined to include various categories of commercial
information. Insofar as the agreements restrict public
access to sensitive commercial information, they are
consistent with D.C. Circuit precedent regarding the sealing
of "business information that might harm a
litigant's competitive standing." See
Hubbard, 650 F.2d at 315 (internal quotation marks
omitted). Defendants, however, have not explained what
material in the disputed exhibits falls within that category.
That failure also undermines their claim to prejudice.
Defendants repeatedly state that disclosure would be
"per se prejudicial" to then-interests.
See, e.g., Defs.' Rule 26 Sealing Reply at 8
n.4. Perhaps the Court would agree if the material subject to
disclosure was confidential business information. But again,
defendants have barely tried to show that is the case. Nor
have they articulated an alternate theory of prejudice. Such
"vague assertions" of prejudice do not convince the
Court that the disputed documents should be sealed. See
Am. Prof 1 Agency, 121 F.Supp.3d at 25. When all is said
and done, then, all the defendants have is their
agreements. And to the extent the agreements apply
here at all, they are outweighed by other factors favoring
disclosure-most importantly, the absence of prejudice.
foregoing reasons, defendants have failed to rebut the
"strong presumption" in favor of public access to
judicial proceedings. EEOC, 98 F.3d at 1409. The
disputed exhibits must therefore be unsealed and filed on the
public docket. The Court is aware that defendants would also
like to seal some of the exhibits that Grynberg has filed
publicly in connection with his Rule 60 motion and reply. See
Defs.' Rule 60 Sealing Reply [ECF No. 140] at 8. But much
of the preceding analysis applies to these exhibits as well.
The Court relied on several of those documents in its opinion
denying Grynberg's Rule 60 motion. It is unclear which,
if any, of the documents properly fall within the ambit of
the settlement and confidentiality agreements. And defendants
have failed to articulate a cogent theory of prejudice. Plus,
at this point, the documents attached to Grynberg's Rule
60 motion and reply have been available on the public docket
for several months. Given all these factors, the Court
declines to try to force the genie back into the bottle, and
hence defendants' motion to seal exhibits attached to
Grynberg's Rule 60 motion and reply is denied as well.
separate Order has issued on this date.
 The parties have already worked
through a similar sealing dispute, which related to exhibits
filed by defendants in opposition to Grynberg's motion
for a Rule 26 conference. That sealing dispute was resolved
by a stipulation of the parties that was subsequently
memorialized in a March 1, 2016 Court Order. See
Order [ECF No. 135]. Briefs submitted during that dispute