Le v. Exeter Fin

Case: 20-10377     Document: 00515768605        Page: 1    Date Filed: 03/05/2021

           United States Court of Appeals
                for the Fifth Circuit
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                                                        March 5, 2021
                                 No. 20-10377                          Lyle W. Cayce

   Binh Hoa Le,



   Exeter Finance Corporation; Enzo Parent, L.L.C.,


                  Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:15-CV-3839

   Before King, Elrod, and Willett, Circuit Judges.
   Don R. Willett, Circuit Judge:
         After being fired, Bihn Hoa Le sued Exeter Finance Corporation and
   Exeter’s parent company, Enzo Parent, L.L.C, for breach of contract, fraud,
   and quantum meruit. The district court granted summary judgment for
   Exeter. On appeal, Le argues that the district court improperly excluded
   certain evidence and erred in granting summary judgment against him. On
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   this record—three-quarters of which is troublingly sealed from the public—
   we AFFIRM summary judgment in favor of Exeter. 1
            After leaving a previous employer, Lennox, Le began working for
   Exeter as the Chief Human Resources Officer and Executive Vice President.
   When Exeter hired him, Le signed an Employment Agreement that
   contemplated he would have the option to enter a severance and non-
   compete agreement. Le was later presented with such an agreement but did
   not sign it.
            At Exeter, Le participated in an Executive Team profits interest pool,
   which entitled him to compensation in the form of Profits Interest Units
   (PIUs)—that is, an equity interest in Enzo (Exeter’s parent company).
   Approximately eight months after Le started working at Exeter, he executed
   a PIU Agreement and received PIUs. The PIU Agreement provided that
   the board would conclusively determine the fair market value of PIUs in the
   event of a call.
            Exeter fired Le after eighteen months. At this point, Enzo provided Le
   with a call notice, seeking to exercise the option to purchase Le’s earned
   PIUs. The board determined that the fair market value of the PIUs was
            Le sued Exeter in state court for breach of contract, fraudulent
   inducement, quantum meruit, violations of the Texas Commission on Human
   Rights Act, and violations of federal law. Exeter removed the case to federal
   court. Following prolonged litigation and discovery disputes, Exeter moved

                Judge King concurs in the judgment.

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   for summary judgment. The district court resolved several pending motions
   and granted summary judgment for Exeter on all claims.
           Le timely raises two issues on appeal. First, Le argues that the district
   court abused its discretion by excluding certain evidence. Second, Le argues
   that the district court erred in granting summary judgment against him on his
   contract, fraudulent inducement, and quantum meruit claims. We disagree.
       A. Excluded Evidence
           Le contends the district court improperly excluded evidence in two
   ways: (1) by denying a continuance to resolve discovery disputes over audit
   reports; and (2) by declining to consider Le’s filings and evidence that
   supplemented his response in opposition to summary judgment.
           Le first challenges the district court’s denial of his motion to continue
   summary-judgment deadlines. This denial effectively precluded Le’s use of
   a set of financial audit reports. Every year, Duff & Phelps, an outside
   accounting firm, independently audited the PIUs and ascribed some value to
   them; the value of the PIUs and the reports, to the extent they reflect that
   value, are at the core of this dispute.
           We review a district court’s ruling on a motion for a continuance for
   abuse of discretion. 2 “When a party requests a continuance of a summary
   judgment       motion      to     conduct        discovery,     the    moving       party
   must . . . (1) ʻdemonstrat[e] . . . specifically how the requested discovery
   pertains to the pending motion,’ and (2) ʻdiligently pursue relevant

             Cf. Resolution Tr. Corp. v. Sharif-Munir-Davidson Dev. Corp., 

992 F.2d 1398

, 1401
   (5th Cir. 1993).

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   discovery.’” 3 As to the first requirement, the party must explain “how the
   additional discovery will create a genuine issue of material fact.” 4
           The district court concluded that Le did not demonstrate the second
   requirement because he failed to diligently pursue discovery within the
   relevant deadlines. Specifically, Le moved to continue based on a lingering
   discovery dispute that arose after the court-ordered discovery deadline.
   Granting this untimely motion would, the district court explained, “violate[]
   the court’s prohibition against such continuances.” The district court then
   assessed the first requirement (though Le had already flunked the second) by
   considering whether the Duff & Phelps audit reports would have affected the
   summary-judgment analysis. The analysis would not have changed, the court
   concluded, because the reports did not create a genuine dispute of material
           We agree. The PIU Agreement assigns to the board of directors the
   task of determining the fair market value of PIUs at the time of a call. The
   Duff & Phelps audit reports indicate that their PIU valuations rely on
   methods and dates tailored to the limited financial-reporting purpose of the
   reports. The reports do not provide a valuation of the PIUs using the
   methods or dates required by the PIU Agreement. Therefore, on the record
   before us, the audit reports do not create a genuine dispute of material fact as
   to the PIUs’ value under the PIU Agreement’s terms. 5 The district court

             Campbell Harrison & Dagley, L.L.P. v. PBL Multi-Strate� Fund, L.P., 744 F.
   App’x 192, 197 (5th Cir. 2018) (quoting Wichita Falls Off. Assocs. v. Banc One Corp., 

978 F.2d 915

, 919 (5th Cir. 1992)).
               Krim v. BancTexas Grp., Inc., 

989 F.2d 1435

, 1442 (5th Cir. 1993).
             See Anderson v. Liberty Lobby, Inc., 

477 U.S. 242

, 250 (1986) (noting that evidence
   that is “merely colorable,” “or is not significantly probative,” does not preclude summary
   judgment (citations omitted)).

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   did not abuse its discretion in denying the motion for a continuance. 6 Le’s
   challenge based on the exclusion of the Duff & Phelps audit reports fails.
           Next, Le challenges the district court’s exclusion of filings and
   evidence to supplement his response in opposition to summary judgment,
   pointing to a case stating that courts shouldn’t summarily exclude relevant
   evidence that doesn’t unfairly prejudice the opposing party. But Le does not
   specify which of his many supplemental filings the district court should have
   considered. And Le does not explain what legal standard the district court
   violated by declining to do so. When a party pursues an argument on appeal
   but does not analyze relevant legal authority, the party abandons that
   argument. 7 Le has not identified the relevant legal standards, nor has he
   pointed us in the direction of any relevant Fifth Circuit cases. Accordingly,
   Le has abandoned his remaining arguments challenging the exclusion of his
       B. Summary Judgment
           Next, Le asks us to reverse summary judgment against him on his
   claims for breach of contract, fraudulent inducement, and quantum meruit.
           We review de novo a district court’s grant of summary judgment,
   applying the same standards as the district court. Our inquiry is limited to the

               See Campbell Harrison, 744 F. App’x at 198; 

Krim, 989 F.2d at 1443

             DeVoss v. Sw. Airlines Co., 

903 F.3d 487

, 489 n.1 (5th Cir. 2018) (failure to
   adequately brief an argument forfeits the claim on appeal); Willis v. Cleco Corp., 

749 F.3d 314

, 318 n.3 (5th Cir. 2014) (disregarding an argument “giv[ing] scant, if not conclusory
   attention to the record: citations are minimal, and legal analysis relating facts to the law is
   largely absent”); United States v. Torres-Aguilar, 

352 F.3d 934

, 936 n.2 (5th Cir. 2003)
   (abandoned argument was “only briefly mention[ed] it in a footnote of [the] opening brief
   without providing any legal citation or analysis”). See also Fed. R. App. P. 28(a)(8).

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   summary-judgment record, and new theories not raised before the district
   court may not be advanced for the first time on appeal. 8
           1. Breach of Contract
           Le presents two breach-of-contract theories: (1) that Exeter breached
   the PIU Agreement when it called his vested equity at $0.00; and (2) that
   Exeter breached a severance agreement by terminating him.
           The elements of a breach of contract claim under Texas law are:
   “(1) the existence of a valid contract; (2) performance or tendered
   performance by the plaintiff; (3) breach of the contract by the defendant; and
   (4) damages sustained by the plaintiff as a result of the breach.” 9
           Le’s first contract claim, based on the PIU Agreement, is premised
   on the fact that the board ascribed a value of $0.00 to his PIUs on the call
   date. But this was the board’s prerogative under the contract. As Le
   acknowledged before the district court, the board was “entitled to call the
   PIUs, and the valuation of those PIUs is governed by the PIU Agreement’s
   method for calculating the fair market value of his PIUs.” Le points to the
   non-zero PIU projected values in 2013 when he was hired, and to non-zero
   PIU values from subsequent Duff & Phelps audit reports. But neither has
   any bearing on whether the board properly determined the fair market value
   of Le’s PIUs at the time of the call. The PIU Agreement demands a
   valuation using specific methods and dates. Le cannot demonstrate that the
   board improperly valued his PIUs by setting forth evidence that uses the
   wrong methods and dates. Because, on this record, there is no evidence that

               Little v. Liquid Air Corp., 

37 F.3d 1069

, 1071 n.1 (5th Cir. 1994).
            Smith Int’l, Inc. v. Egle Grp., LLC, 

490 F.3d 380

, 387 (5th Cir. 2007) (applying
   Texas law and citing Valero Mktg. & Supply Co. v. Kalama Int’l, 

51 S.W.3d 345

, 351 (Tex.
   App.—Houston [1st Dist.] 2001, no pet.)).

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                                           No. 20-10377

   the board did anything but value the PIUs pursuant to the terms of the PIU
   Agreement, there is no evidence of breach. And so, the district court
   correctly concluded that Le’s contract claim, based on the PIU Agreement,
   fails as a matter of law.
           For his second claim, Le says that a severance agreement was formed
   when he signed Exeter’s Employment Agreement and that his termination
   constitutes a breach of this severance agreement. But Le’s Employment
   Agreement indicated that he would later have the option of entering a
   severance and non-compete agreement. Indeed, he later had that option, but
   he declined to sign the severance agreement that was offered to him.
   Therefore, no severance agreement was ever fully formed. Under the terms
   of the Employment Agreement, the parties had nothing more than an
   “unenforceable agreement to agree” as to the severance. 10 The district court
   correctly concluded that, absent evidence of a valid severance agreement,
   Le’s breach of contract claim fails as a matter of law.
           2. Fraudulent Inducement
           We turn now to Le’s fraudulent inducement claims. Insofar as Le
   argues that he was fraudulently induced to enter into a severance agreement,
   no severance agreement was ever formed, as explained above. Le could not
   have been fraudulently induced to enter into a nonexistent agreement. 11

             Musallam v. Ali, 

560 S.W.3d 636

, 639 (Tex. 2018); see also Fischer v. CTMI,

479 S.W.3d 231

, 237 (Tex. 2016) (“If an agreement to make a future agreement is
   not sufficiently definite as to all of the future agreement’s essential and material terms, the
   agreement to agree is nugatory.” (quotation omitted)).
              See Haase v. Glazner, 

62 S.W.3d 795

, 798 (Tex. 2001) (“Fraudulent
   inducement . . . is a particular species of fraud that arises only in the context of a contract
   and requires the existence of a contract as part of its proof.”).

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           Likewise, we reject Le’s contention that he was fraudulently induced
   to join Exeter based on misrepresentations as to the PIUs’ projected value.
   Under Texas law, a plaintiff claiming fraud in the inducement must show:
   (1) the defendant knowingly or recklessly made a material representation;
   (2) the representation was false; (3) the defendant intended the plaintiff to
   act on the representation; (4) the plaintiff actually and justifiably relied on the
   representation; and (5) the plaintiff thereby suffered an injury. 12
           As the district court concluded, the undisputed record evidence
   shows that Le did not rely on Exeter’s representations as to the PIUs’
   projected value when he decided to join the company. Whatever Le now says
   he relied on, the record contains ample evidence that Le himself believed that
   PIUs were inherently risky; for instance, Le stated that the PIU opportunity
   sounded “outlandish.” The record evidence does not give rise to a genuine
   dispute as to whether Le, a sophisticated party who understood the volatility
   of PIUs, actually—much less justifiably—relied on the representations that
   form the basis of his fraud claim. 13 The district court properly adjudicated
   Le’s fraud claims as a matter of law.
           3. Quantum Meruit
           Last, we address Le’s contention that, in lieu of recovering on a
   contract theory, he was entitled to recover promised pay in the form of

              See Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 

341 S.W.3d 323

   337 (Tex. 2011); Grant Thornton LLP v. Prospect High Income Fund, 

314 S.W.3d 913

, 923
   (Tex. 2010); Taft v. Sherman, 

301 S.W.3d 452

, 457 (Tex. App.—Amarillo 2009, no pet.)
   (fraud in the inducement).

Grant, 314 S.W.3d at 923

(explaining that “given a fraud plaintiff’s individual
   characteristics, abilities, and appreciation of facts . . . it is extremely unlikely that there is
   actual reliance on the plaintiff’s part”).

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                                            No. 20-10377

   severance under a quantum meruit theory. The district court concluded that
   Le acted with unclean hands, foreclosing equitable relief. We agree.
          Quantum meruit is an equitable theory of recovery based on an implied
   agreement to pay for benefits received. 14 “[T]he doctrine of ʻunclean hands’
   allows a court to ʻrefuse to grant equitable relief . . . sought by one whose
   conduct in connection with the same matter or transaction has . . . violated
   the principles of equity and righteous dealing.’” 15
          The district court’s unclean hands determination turns on whether Le
   misrepresented his relationship with his previous employer, Lennox, when
   negotiating his employment with Exeter. The record establishes that Le
   made statements referencing his employment with Lennox that were not
   true. Therefore, the district court correctly determined that Le’s conduct in
   connection with the transactions before the court was inequitable, precluding
   any equitable remedy.
          Having decided the substantive issues, we hasten to add a peripheral-
   yet-essential point: Judicial records are public records. And public records,
   by definition, presume public access.
          In this case, the district court granted an agreed protective order,
   authorizing the sealing, in perpetuity, of any documents that the parties
   themselves labeled confidential. Result: nearly three-quarters of the record—

               Heldenfels Bros., Inc. v. City of Corpus Christi, 

832 S.W.2d 39

, 41 (Tex. 1992).
            Stewart Beach Condo. Homeowners Ass’n, Inc. v. Gili N Prop Invs., LLC, 

481 S.W.3d 336

, 351 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (quoting Park v. Escalera
   Ranch Owners’ Ass’n, Inc., 

457 S.W.3d 571

, 597 (Tex. App.—Austin 2015, no pet.)).

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   3,202 of 4,391 pages—is hidden from public view, for no discernable reason
   other than both parties wanted it that way.
           The public deserves better. The presumption of openness is Law 101:
   “The public’s right of access to judicial records is a fundamental element of
   the rule of law.” 16 Openness is also Civics 101. The Constitution’s first three
   words make clear that ultimate sovereignty is wielded not by government but
   by the governed. 17 And because “We the People” are not meant to be
   bystanders, the default expectation is transparency—that what happens in
   the halls of government happens in public view. Americans cannot keep a
   watchful eye, either in capitols or in courthouses, if they are wearing
           “Providing public access to judicial records is the duty and
   responsibility of the Judicial Branch.” 18 Why is this important? Because
   accessibility enhances legitimacy, the assurance that things are on the level.
   Article III courts are independent, and it is “particularly because they are
   independent” that the access presumption is so vital—it gives the federal
   judiciary “a measure of accountability,” in turn giving the public
   “confidence in the administration of justice.” 19 Put simply, protecting the
   public’s right of access is “important to maintaining the integrity and

              In re Leopold to Unseal Certain Elec. Surveillance Applications & Orders, 

964 F.3d 1121

, 1123 (D.C. Cir. 2020).
             Collins v. Mnuchin, 

938 F.3d 553

, 562 (5th Cir. 2019) (en banc), cert. granted, 

141 S. Ct. 193

(2020) (“No mere tinkerers, the Founders’ upended things. Three rival
   branches deriving power from three unrivaled words—ʻWe the People’—inscribed on the
   page in supersize script. In an era of kings and sultans, nothing was more audacious than
   the Preamble’s first three words, a script-flipping declaration that ultimate sovereignty
   resides not in the government but in the governed.”).

Leopold, 964 F.3d at 1134

                United States v. Amodeo, 

71 F.3d 1044

, 1048 (2d Cir. 1995) (emphasis added).

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                                              No. 20-10377

   legitimacy of an independent Judicial Branch.” 20 And hopefully, more access
   to judicial records means more trust in judicial officers and more respect for
   judicial orders.
            Judicial records belong to the American people; they are public, not
   private, documents. Certainly, some cases involve sensitive information that,
   if disclosed, could endanger lives or threaten national security. But
   increasingly, courts are sealing documents in run-of-the-mill cases where the
   parties simply prefer to keep things under wraps.
            This is such a case. The secrecy is consensual, and neither party frets
   that 73 percent of the record is sealed. But we do, for three reasons. First,
   courts are duty-bound to protect public access to judicial proceedings and
   records. Second, that duty is easy to overlook in stipulated sealings like this
   one, where the parties agree, the busy district court accommodates, and
   nobody is left in the courtroom to question whether the decision satisfied the
   substantive requirements. Third, this case is not unique, but consistent with
   the growing practice of parties agreeing to private discovery and presuming
   that whatever satisfies the lenient protective-order standard will necessarily
   satisfy the stringent sealing-order standard. 21 Below, we review the interests
   at stake and the exacting standard for sealing that protects those interests.
   Then, we explain the concerns raised by the sealings in this case.
                                          *        *         *

                 MetLife, Inc. v. Fin. Stability Oversight Council, 

865 F.3d 661

, 663 (D.C. Cir.
               See Seth Katsuya Endo, Contracting for Confidential Discovery, 53 U.C. Davis
   L. Rev. 1249, 1283 (2020) (collecting empirical data wherein most agreed sealing orders
   fell short of the substantive requirements to seal).

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           The public’s right of access to judicial proceedings is fundamental.
   The principle traces back to Roman law, where trials were res publica—public
   affairs. 22 Public access was similarly fundamental to English common law.
   Seventeenth-century English jurist Sir Edward Coke explained that “all
   Causes ought to be heard, ordered, and determined before the Judges of the
   King’s Courts openly in the King’s Courts, wither all persons may resort.” 23 A
   century or so later, English philosopher and judge Jeremy Bentham observed,
   “Publicity is the very soul of justice.” 24
           In this tradition, American judicial proceedings are public. 25 And
   judges must protect public accessibility for three mutually reinforcing
   reasons: (1) the public has a right to monitor the exercise of judicial
   authority; 26 (2) judges are “the primary representative[s] of the public
   interest in the judicial process”; 27 and (3) the judiciary’s institutional
   legitimacy depends on public trust. Public trust cannot coexist with a system

             David S. Ardia, Court Transparency and the First Amendment, 38 Cardozo L.
   Rev. 835, 843 (2017) (citing Bruce W. Frier, The Rise of the Roman
   Jurists: Studies In Cicero’s Pro Caecina 57 (1985) (“[T]he Urban Praetor’s
   court was set up in the open air at the southeastern end of the Forum . . . .”)).
          Richmond Newspapers, Inc. v. Virginia, 

448 U.S. 555

, 565 n.6 (1980) (quoting 2 E.
   Coke, Institutes of the Laws of England 103 (6th ed. 1681)).
            Jeremy Bentham, Draught For The Organization Of Judicial Establishments, in 4
   The Works of Jeremy Bentham (John Bowring ed., Edinburgh, William Tait,
   1838–43), available at https://oll.libertyfund.org/title/bowring-the-works-of-jeremy-
                Matter of Krynicki, 

983 F.2d 74

, 75 (7th Cir. 1992) (Easterbrook, J.).
               See Bradley on behalf of AJW v. Ackal, 

954 F.3d 216

, 224 (5th Cir. 2020) (“The
   public ʻhas a common law right to inspect and copy judicial records.’”); Citizens First Nat.
   Bank of Princeton v. Cincinnati Ins. Co., 

178 F.3d 943

, 945 (7th Cir. 1999) (Posner, J.)
   (“[T]he public at large pays for the courts and therefore has an interest in what goes on at
   all stages of a judicial proceeding.”).

Citizens, 178 F.3d at 945


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   wherein “important judicial decisions are made behind closed doors” and,
   worse, private litigants do the closing. 28
           In our view, courts should be ungenerous with their discretion to seal
   judicial records, 29 which plays out in two legal standards relevant here. The
   first standard, requiring only “good cause,” applies to protective orders
   sealing documents produced in discovery. 30 The second standard, a stricter
   balancing test, applies “[o]nce a document is filed on the public record”—
   when a document “becomes a ʻjudicial record.’” 31 Under both standards,
   the working presumption is that judicial records should not be sealed. 32 That
   must be the default because the opposite would be unworkable: “With

             Vantage Health Plan, Inc. v. Willis-Knighton Med. Ctr., 

913 F.3d 443

, 450 (5th Cir.
   2019) (quoting United States v. Holy Land Found. for Relief & Dev., 

624 F.3d 685

, 690 (5th
   Cir. 2010)); accord 

Bradley, 954 F.3d at 224

(public access to judicial records “promotes
   the trustworthiness of the judicial process, curbs judicial abuses, and provides the public
   with a better understanding of the judicial process, including its fairness[, and] serves as a
   check on the integrity of the system” (quoting United States v. Sealed Search Warrants, 

868 F.3d 385

, 395 (5th Cir. 2017)).

Land, 624 F.3d at 690

(“[T]he power to seal court records must be used
   sparingly in light of the public’s right to access.”); S.E.C. v. Van Waeyenberghe, 

990 F.2d 845

, 848 (5th Cir. 1993) (“[T]he district court’s discretion to seal the record of judicial
   proceedings is to be exercised charily.” (quotation omitted)).
              Harris v. Amoco Prod. Co., 

768 F.2d 669

, 684 (5th Cir. 1985) (discussing Fed. R.
   Civ. P. 26); Fed. R. Civ. P. 26 (c)(1) (requiring good cause for sealing discovery
   documents). See also Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to
   the Courts, 105 Harv. L. Rev. 427, 433 (1991) (describing good cause as a “particularized
   factual showing of the harm” to be avoided by sealing).

Vantage, 913 F.3d at 451

. One explanation of the different sealing standards for
   discovery and judicial records is that “material filed with discovery motions is not subject
   to the common-law right of access, whereas discovery material filed in connection with
   pretrial motions that require judicial resolution of the merits is subject to the common-law
   right.” Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 

263 F.3d 1304

, 1312 (11th Cir.
   2001). Accord 

Endo, supra

n.21, at 1283 (dispositive filings generally subject to a more
   stringent sealing standard than discovery documents).

Vantage, 913 F.3d at 450


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   automatic sealing, the public may never know a document has been filed that
   might be of interest.” 33
            True, even under the stricter balancing standard, litigants sometimes
   have good reasons to file documents (or portions of them) under seal, such
   as protecting trade secrets or the identities of confidential informants. But
   “[m]ost litigants have no incentive to protect the public’s right of access.” 34
   That’s why “judges, not litigants” 35 must undertake a case-by-case,
   “document-by-document,” “line-by-line” balancing of “the public’s
   common law right of access against the interests favoring nondisclosure.” 36
   Sealings must be explained at “a level of detail that will allow for this Court’s
   review.” 37 And a court abuses its discretion if it “ma[kes] no mention of the
   presumption in favor of the public’s access to judicial records” and fails to
   “articulate any reasons that would support sealing.” 38
            Here, there is no separate sealing order at all. There is only the
   protective order entered for purposes of “discovery in this matter.” That
   order granted the parties wide latitude to designate “Confidential” any

             Gregg Costa, Federal Appellate Judge: Too Many Sealed Documents, Nat’l Law
   J. (Feb. 15, 2016, 12:00 AM), https://www.law.com/nationallawjournal/almID/
   (describing the crucial role of unsealed court documents in the Boston Globe exposé of the
   cover-up of sexual abuse by Catholic priests).
                 BP Expl. & Prod., Inc. v. Claimant ID 100246928, 

920 F.3d 209

, 211 (5th Cir.

Id. 36

             Sealed Search 

Warrants, 868 F.3d at 390

(case-specific approach (citing Nixon v.
   Warner Commc’ns, Inc., 

435 U.S. 589

, 599 (1978)); 

Vantage, 913 F.3d at 451


Bradley, 954 F.3d at 225

(quoting Van 

Waeyenberghe, 990 F.2d at 850

                 Sealed Search 

Warrants, 868 F.3d at 397


Waeyenberghe, 990 F.2d at 849

. In our court, although we sometimes allow
   information to be sealed, we may require parties to file a redacted copy for the public.

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                                           No. 20-10377

   information they believed in good faith was “not generally known” and
   would ordinarily be revealed in confidence or not at all. In addition, if
   confidential information appeared “in any affidavits, briefs, memoranda of
   law or other papers filed in court in this action,” the entire document was filed
   under seal. 39 Not only that, the order “survive[s] the final termination of this
   action.” In other words, the parties decided unilaterally what judicial records
   to keep secret, and their decision was permanent; once sealed, the records
   would stay that way.
           And because there is no sealing order, there is no sealing analysis—no
   reasons given, no authorities cited, no document-by-document inquiry.
   Instead, the parties wielded nigh-boundless discretion to label things
   confidential. And again, the secrecy they granted is “perpetual” and
   “wholesale.” 40 Perhaps most disquieting, documents marked confidential
   provided the basis for summary judgment—a dispositive order adjudicating
   the litigants’ substantive rights (essentially a substitute for trial)—yet there
   was “no mention of the presumption in favor of the public’s access to judicial
   records.” 41 There was no grappling with public and private interests, no

              Practically speaking, this provision of the parties’ agreed protective order
   doubles as the court’s sealing order. It authorizes sealing for “all documents and all
   transcripts of deposition testimony,” labeled confidential “in whole or in part,” “including
   all pleadings, deposition transcripts, exhibits, discovery responses or memoranda
   purporting to reproduce or paraphrase such information.”

Krynicki, 983 F.2d at 77

(perpetual); United States v. Corbitt, 

879 F.2d 224

, 228
   (7th Cir. 1989) (rejecting “wholesale sealing”); In re Providence Journal Co., Inc., 

293 F.3d 1

, 15 (1st Cir. 2002) (citing United States v. Biagi, 

828 F.2d 110

, 116 (2d Cir. 1987) (same));
   Leucadia, Inc. v. Applied Extrusion Techs., Inc., 

998 F.2d 157

, 165 (3d Cir. 1993) (same).

Waeyenberghe, 990 F.2d at 849

. See also Laurie Kratky Dore, Secrecy by
   Consent: The Use and Limits of Confidentiality in the Pursuit of Settlement, 74 Notre Dame
   L. Rev. 283, 375 (1999) (“[M]aterials used by a court in granting summary judgment, a
   dispositive motion that adjudicates the legal merits of a case and that essentially substitutes
   for trial, present the clearest example of judicial records presumptively subject to public
   scrutiny.”). Whatever its relevance in this case, the good-cause standard would not justify

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                                             No. 20-10377

   consideration of less drastic alternatives. There was no assurance that the
   extent of sealing was congruent to the need. 42
           At the discovery stage, when parties are exchanging information, a
   stipulated protective order under Rule 26(c) may well be proper. Party-
   agreed secrecy has its place—for example, honoring legitimate privacy
   interests and facilitating the efficient exchange of information. 43 But at the
   adjudicative stage, when materials enter the court record, the standard for
   shielding records from public view is far more arduous. This conflation
   error—equating the standard for keeping unfiled discovery confidential with
   the standard for placing filed materials under seal—is a common one and one
   that over-privileges secrecy and devalues transparency.
           Given the judiciary’s solemn duty to promote judicial transparency,
   we must be alert to conflation errors (extending protective-order standards
   to material filed with the court). 44 The secrecy of judicial records, including
   stipulated secrecy, must be justified and weighed against the presumption of

   sealing documents filed on the record in support of summary judgment. 

Vantage, 913 F.3d at 451

. Accord Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 

825 F.3d 299

, 307 (6th Cir.
   2016) (Kethledge, J.) (sealing abused discretion where “the parties and the district court
   plainly conflated the standards for entering a protective order under Rule 26 with the vastly
   more demanding standards for sealing off judicial records from public view”). Equating the
   discovery and judicial-record sealing standards appears to be a troublingly common error.

Endo, supra

n.21, at 1254 (empirical data showing frequent conflation of the standard
   to seal records with the standard for confidential discovery).
              E.g., In re Gee, No. 19-30953, slip op. at 6–7 (5th Cir. Nov. 27, 2019) (Elrod, J.,
   concurring) (noting failure to “grapple with the general incongruity of sealing a New York
   Times Op-Ed,” failure to consider redaction instead of sealing, and failure to provide any
   legal reasons to seal).

Endo, supra

n.21, at 1262.
             E.g., In re Gee, slip op. at 6–7 (Elrod, J., concurring) (expressing concern over
   extensive sealings without legal reasoning and without acknowledging the presumption of
   public access).

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                                                No. 20-10377

   openness that can be rebutted only by compelling countervailing interests
   favoring nondisclosure. All too often, judicial records are sealed without any
   showing that secrecy is warranted or why the public’s presumptive right of
   access is subordinated. This mistake harms the public interest, however
   interested the public is likely to be. Sealings are no less rampant in low-profile
   cases (like this one) than in high-profile cases featured on the front page (like
   Bill Cosby’s deposition testimony) or the Oscars stage (like records detailing
   the cover-up of child sexual abuse, as depicted in 2016 Best Picture Winner
   Spotlight). 45 And a steady flow of unjustified low-profile sealings is capable of
   far greater damage—a gradual, sub silentio erosion of public access to the
   judiciary, erosion that occurs with such drop-by-drop gentleness as to be
                                            *        *         *
           The Judicial Branch belongs to the American people. And our
   processes should facilitate public scrutiny rather than frustrate it. Excessive
   secrecy—particularly displacing the high bar for sealing orders with the low
   bar for protective orders—undercuts the public’s right of access and thus
   undermines the public’s faith in our justice system.
           Legal arguments, and the documents underlying them, belong in the
   public domain. American courts are not private tribunals summoned to
   resolve disputes confidentially at taxpayer expense. 46 When it comes to
   protecting the right of access, the judge is the public interest’s principal

                See Costa, supra note 33.
               Accord BP 

Expl., 920 F.3d at 212

(“As is its right, Claimant ID 100246928 has
   used the federal courts in its attempt to obtain millions of dollars it believes BP owes
   because of the oil spill. But it should not able to benefit from this public resource while
   treating it like a private tribunal when there is no good reason to do so.”).

Case: 20-10377     Document: 00515768605            Page: 18   Date Filed: 03/05/2021

                                     No. 20-10377

   champion. And when the parties are mutually interested in secrecy, the judge
   is its only champion.
          To be sure, entrenched litigation practices harden over time,
   including overbroad sealing practices that shield judicial records from public
   view for unconvincing (or unarticulated) reasons. Such stipulated sealings
   are not uncommon. But they are often unjustified. With great respect, we
   urge litigants and our judicial colleagues to zealously guard the public’s right
   of access to judicial records—their judicial records—so “that justice may not
   be done in a corner.” 47
          For the reasons discussed in Part II, summary judgment is

          New Jersey Provincial Charter ch. 23, July 29, 1674, reprinted in
   5 Francis Newton Thorpe, The Federal and State Constitutions,
   Colonial Charters, and Other Organic Laws 2551 (1909).


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