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himself2462Case 8:13-cv-03059-GJH Document 410 Filed 08/16/17 Page 1 of 5
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UNITED STATES DISTRICT COURT t ~)!)__ ~E1,w
FOR THE DISTRICT OF MARYLAND
t.JJS 1 6 2017
GREENBELT DIVISION
BRETT KIMBERLIN, ..- .,
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Plaintiff,
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v. No. PW&13 3059
PATRICK FREY,
Defendant.
MOTION TO UNSEAL RECORDS USED IN SUMMARY JUDGMENT
MOTIONS
Now comes Plaintiff Brett Kimberlin and moves this Court to unseal
the filings and other documents submitted by the parties with respect to
their Summary Judgment motions, all of which were relied on by the
Court in reaching its decision. Plaintiff is preparing to appeal this case
to the Fourth Circuit and has a right under the First Amendment to do
so publicly.
1. The First Amendment provides an affirmative right of public
access to virtually all judicial proceedings involved in civil
proceedings. In Rushford v. New Yorker Magazine, 846 F.2d 249 (4th
Cir. 1988), the Court stated that documents used in a summary
judgment motion must be made public:
Case 8:13-cv-03059-GJH Document 410 Filed 08/16/17 Page 2 of 5
We find The New Yorker's reliance on Seattle Times v. Rhinehart, 467
U.S.20, 104 S.Ct.2199, 81 L.Ed.2d 17 (1984) to be unpersuasive.
In Seattle Times, the Supreme Court merely held that the First
Amendment did not preclude the district court from entering a
protective order limiting disclosure of the products of pretrial
discovery.ld. at 37, 104 S.Ct.at 2209. However, such discovery,
which is ordinarily conducted in private, stands on a wholly different
footing than does a motion filed by a party seeking action by the
court. See Bank of America Nat'l Trust and Sav. Ass'n v. Hotel
Rittenhouse Assoc., 800 F.2d 339, 343 (3d Cir.1986). The counsel for
The New Yorker even acknowledged that if the case had gone to trial
and the documents were thereby submitted to the court as evidence,
such documents would have been revealed to the public and not
protected under the Order. Because summary judgment adjudicates
substantive rights and serves as a substitute for a trial, we fail to see
the difference between a trial and the situation before us
now. See Anderson v. Cryovac, Inc., 805 F.2d 1, 13 (1st
Cir.1986) (recognizing that documents submitted as a part of motions
for summary judgment are subject to public right of access); In re
Continentall/linois Sec. Litig., 732 F.2d 1302, 1308-10 (7th
Cir.1984) (presumption of public right of access applies to motion to
terminate derivative claims); Joy v. North, 692 F.2d 880, 893 (2d
Cir.1982) ("documents used by parties moving for, or opposing,
summary judgment should not remain under seal absent the most
compelling reasons"); cfln re Washington Post Co., 807 F.2d 383, 389
(4th Cir.1986) (because the taking of a guilty plea serves as a
substitute for a trial, it may reasonably be treated in the same
manner as a trial for First Amendment purposes). [846 F.2d at 252].
"In In re Washington Post Co., this Court held that the more rigorous
First Amendment standard should apply to documents filed in
connection with plea hearings and sentencing hearings in criminal
cases. 807 F.2d at 390. We believe that the more rigorous First
Amendment standard should also apply to documents filed in
connection with a summary judgment motion in a civil case. [846 F.2d
at 253] (emphasis added).
Case 8:13-cv-03059-GJH Document 410 Filed 08/16/17 Page 3 of 5
The constitutional access right extends to "documents submitted in
the course of a trial:' In re Time Inc., 182 F.3d at 271, and more
generally to records submitted in connection with proceedings that are
themselves subject to the access right, Doe v. Pub. Citizen, 749 F.3d 246,
267 (4th Cir. 2014).
The right exists because public access is critical to the successful
functioning of the justice system. This is so because "'[p)ublic
confidence cannot long be maintained where important judicial
decisions are made behind closed doors and then announced in
conclusive terms to the public, with the record supporting the court's
decision sealed from public view.''' Gannett Co. v. DePasquale, 443 U.S.
368,429 (1979) (Blackmun, J., dissenting in part) (citation omitted);
see also Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 587 (1976)
(Brennan, J., concurring) ("[s)ecrecy of judicial action can only breed
ignorance and distrust of courts and suspicion concerning the
competence and impartiality of judges").
Indeed, the Fourth Circuit only recently emphasized the importance
of access to court records to promote both "the public's interest in
monitoring the functioning of the courts" and "the integrity of the
judiciary." Pub. Citizen, 749 F.3d at 266. The Supreme Court has also
Case 8:13-cv-03059-GJH Document 410 Filed 08/16/17 Page 4 of 5
stressed that other "crucial prophylactic aspects of the administration of
justice cannot function in the dark; no community catharsis can occur if
justice is 'done in a corner [or] in any covert manner.'" Richmond
Newspapers, 448 U.S.at 571 (citation omitted). None of these goals can
be achieved without public access to the records submitted in federal
litigation.
2. This Court relied on the sealed documents in making its decision.
Plaintiff will be appealing this case and cannot do so without relying on
and extensively discussing the documents and the pleadings. In fact, on
appeal, Plaintiff must refer to the record in this Court.
3. There is no provision under law that allows a party to appeal
under seal in normal civil matters such as the instant case.
Wherefore, Plaintiff moves this Court to order that all the pleadings
filed in the summary judgment proceedings, including all the exhibits
attached to those pleadings be unsealed as soon
erlin
81 eech Tree Road
Bethesda, MD20817
(301) 320 5921
j usticej [email protected]
Case 8:13-cv-03059-GJH Document 410 Filed 08/16/17 Page 5 of 5
Certificate of Service
I certify that I emailed a copy of this motion and attendant exhibits to
Ron Coleman and Bruce Godfrey this 13th day of August, 2017.
