United States District Court, N.D. Illinois, Eastern Division
August 5, 2004.
In re BANK ONE SECURITIES LITIGATION, First Chicago Shareholder Claims.
The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Throughout the history of this country, documents that at one
point were classified because of their political significance and
sensitivity have been disclosed because they have become
politically stale yet remain historically significant. The same
is true with regard to the documents in this case. At one point,
the information contained in the documents that were sealed in
this case was financially sensitive and proprietary. However, as
a result of the significant events that have occurred during the
years following the sealing of those documents, the reasons for
keeping the documents under seal have disappeared, yet the
documents remain historically significant for the purpose of this
litigation. The time has come to unseal the documents in this
case and to permit the public to enjoy the right of free access
to which it is entitled.
This case comes before this Court on a motion by lead Plaintiff
Naomi Bowell Trust on behalf of the First Chicago NBD Plaintiffs
("Plaintiffs") to unseal the district court record in this action
against Bank One ("Defendant"), and other individual defendants.
This motion presents the issue whether certain pleadings,
motions, and attached exhibits that have been sealed by an agreed
protective order should be unsealed to allow public access to
materials filed with the district court and to give putative
class members sufficient notice and information under Federal Rule of Civil Procedure 23(c)(2) to
appraise class claims and defenses. Defendant proposes that
putative class members receive access to the record only after
they sign a protective order. Plaintiffs claim that Defendant has
not presented evidence to show "good cause" to keep the record
sealed and that Defendant's solution is inconsistent with Rule 23
and the public's interest in access to court documents. For the
following reasons, Plaintiffs' motion to unseal the district
court record is granted.
I. BACKGROUND FACTS
This case arises from the October 2, 1998 merger (the "Merger")
between Defendant and First Chicago NBD. Plaintiffs allege
Defendant violated federal securities laws by issuing a
materially false and misleading Joint Proxy Statement and
Prospectus in connection with the Merger. A previous opinion
entered by this Court on July 31, 2002 details the background
facts in this case. See In re Bank One Secs. Litig., First
Chicago Shareholder Claims, 209 F.R.D. 418 (N.D. Ill. 2002). For
the purpose of brevity, this opinion will discuss only the
information relevant to the present issue.
The issue currently before this Court stems from a protective
order entered on December 12, 2001. The order was agreed upon by
the parties, governs all discovery material produced during the
pretrial discovery stage of this action, and permits the
producing party to designate as "Confidential" any material that:
(a) is or contains non-public financial data,
marketing and advertising data and plans, strategic
or long-range plans, internal cost data, performance
data, customer or vendor data, contracts and
agreements with third parties, or technological data;
and (b) is designated by a party in good faith as confidential because it contains or is information
protected from disclosure by Fed.R. Civ. P.
26(c)(7). Material produced by third parties may, at
the option of that party, be deemed "Confidential"
under the terms of this Protective Order.
Protective Order of Dec. 12, 2001, at 2. Additionally, the order
provides that confidential information could be disclosed to the
Court and its staff, as well as to "Qualified Persons," including
parties and class representatives, when necessary to "aid in the
prosecution, defense, or settlement" of this action. Under the
order, such information would be made part of the public record
only when authorized by the Court. Until then, "any person may
seek to unseal any pleading or other court paper at any time upon
motion to the Court." The order further provides:
A party or other person objecting to the designation
of Confidential Material shall provide written notice
of the objection to the designating party, specifying
the materials that are the subject of the objection.
The parties and any other objecting person(s) shall
confer in good faith. . . . If such conference does
not resolve the objection, . . . the designating
person(s) may apply to the Court, by motion or
petition, for a ruling that material designated by a
party as Confidential shall be treated as provided in
this Order or the Confidential designation shall
lapse. The party that opposes the designation of the
material as Confidential shall be given notice of the
application and an opportunity to respond. Pending
determination by the Court, material designated by a
party as Confidential shall be treated as provided in
Id. ¶ 12, at 6-7.
Fact discovery in this case has ended, and the parties are
proceeding on expert discovery. Plaintiffs' Amended Complaint,
the Answers, several motions, briefs, and attached discovery
currently remain sealed pursuant to the December 12, 2001 order. Plaintiffs have informed Defendant of their intent to disseminate
notice to the class members, and they have filed a motion to
unseal the district court record to give class members an
adequate opportunity to evaluate the action, as well as to afford
public access to materials filed with the Court.
Defendant contends that no compelling reason exists to unseal
the records, that the records contain trade secrets worthy of
concealment, that Plaintiffs have violated the terms of the
agreed protective order governing challenges to confidentiality,
and that the matter should be resolved by permitting putative
class members access to the court filings only if they first
agree to abide by a protective order. Plaintiffs argue Defendant
has not shown "good cause" to maintain the seal on the record
pursuant to Federal Rule of Civil Procedure 26(c) and that
Defendant's solution is inconsistent with Rule 23 and the
public's interest in access to court documents.
On July 14, 2004, oral arguments were held with regard to the
issue of "good cause." Prior to this event, the parties met to
try to resolve their disagreements. As a result of the meeting,
Defendant agreed to unseal much of the record. However, at oral
argument Defendant argued that the documents remaining under seal
contained confidential information that could compromise
Defendant's marketplace position. Additionally, Defendant alleges
the existence of a confidentiality requirement with regard to
documents related to the Office of the Comptroller of the
Currency ("OCC") that were produced during discovery. At the
close of the oral argument, this Court issued a ruling from the
bench that unsealed all documents in the record except OCC-related
documents, including those pleadings that reference the OCC or
its involvement in the case, for which this Court reserved
Later that same day, a telephone conference call between this
Court, Defendant, and Plaintiffs determined the necessity of an
additional appearance by the parties before this Court to address
the alleged confidentiality of the OCC-related documents. That
appearance occurred on July 21, 2004 and resulted in this Court
taking the matter under advisement. This opinion serves to
elaborate upon the Court's rulings from the bench and to declare
its determination of the confidential nature of the OCC-related
II. LEGAL STANDARD FOR ISSUING AND MAINTAINING A PROTECTIVE
There is a strong presumption toward public disclosure of court
files and documents, Globe Newspaper Co. v. Superior Court,
457 U.S. 596
, 603 (1982), as the "public at large pays for the courts
and therefore has an interest in what goes on at all stages of a
judicial proceeding," Grove Fresh Distrib., Inc. v. Everfresh
Juice Co., 24 F.3d 893
, 897 (7th Cir. 1994). Public disclosure
is justified further by the First Amendment. Globe Newspaper
Co., 457 U.S. at 603. However, Federal Rule of Civil Procedure
26(c) governs protective orders and allows court material to be
sealed under certain circumstances. Rule 26(c) states in relevant
part that, upon motion by a party or person from whom discovery
for good cause shown, the court . . . may make any
order which justice requires to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . (7) that a
trade secret or other confidential research,
development, or commercial information not be
revealed or be revealed only in a designated way.
Fed.R. Civ. P. 26(c).
As concealment from the public is disfavored, any "step that
withdraws an element of the judicial process . . . requires
rigorous justification." In re Krynicki, 983 F.2d 74, 75 (7th
Cir. 1992). The party seeking confidentiality has the burden of
showing good cause for the protective order. Fed.R. Civ. P.
26(c); Seattle Times Co. v. Rhinehart, 467 U.S. 20, 37 (1984);
In re Matter of Cont'l Ill. Secs. Litig., 732 F.2d 1302, 1310
(7th Cir. 1984). Establishing good cause requires a party to
present "a particular and specific demonstration of fact, as
distinguished from stereotyped and conclusory statements." Gulf
Oil Co. v. Bernard, 452 U.S. 89, 102 (1984).
If good cause is shown, a court then must balance the public's
interest in access to the record against the interest of the
party seeking confidentiality to determine whether to seal the
record. In re Matter of Cont'l Ill. Secs. Litig.,
732 F.2d at 1313. If there is any doubt as to whether the material should be
sealed, it is resolved in favor of disclosure. Id.
Once a protective order is entered, a party must continue to
show good cause for confidentiality when challenged. Union Oil
Co. of Cal. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000). If a
party does not show good cause to justify the ongoing concealment
of certain information, the protective order may be dissolved or
modified to unseal that information. Id.; see also Jepson, Inc. v. Makita Elec. Works,
30 F.3d 854, 861 (7th Cir. 1994). If a party does identify specific
genuine confidential material within documents concealed by the
protective order, a court nevertheless may place the documents in
the public record following redaction of the confidential
material. Methodist Hosps., Inc. v. Sullivan, 91 F.3d 1026,
1032 (7th Cir. 1996).
Under Federal Rule of Civil Procedure 23(c)(2), class members
are entitled to "the best practicable notice under the
circumstances, including individual notice to all members who can
be identified through reasonable effort." Fed.R. Civ. P.
23(c)(2). Further, Rule 23 provides that the notice allows
members to make a determination as to whether to opt out of the
The notice shall advise each member that (A) the
court will exclude the member from the class if the
member so requests by a specific date; (B) the
judgment, whether favorable or not, will include all
members who do not request exclusion; and (C) any
member who does not request exclusion may, if the
member desires, enter an appearance through counsel.
Thus the notice should include the class claims and defenses,
as well as indicate the nature of the class action. Plaintiffs in
this case allege that proper notice is impossible so long as the
current protective order remains in place with its current scope.
However, the issue here is not whether the putative class members
should receive all relevant information available in order to
adequately assess the case, but rather whether the documents
originally filed under seal pursuant to the December 12, 2001 protective
order were properly designated as confidential, and if so,
whether good cause continues to exist to maintain the seal on
each document. The documents under seal in this case fall into
three general categories: (1) pleadings, briefs, memoranda, and
motions; (2) discovery that is not related to the OCC; and (3)
OCC-related discovery and references. This Court will address
each category in turn.
A. PLEADINGS, BRIEFS, MEMORANDA, AND MOTIONS GENERALLY SHOULD
NOT BE SEALED.
The Seventh Circuit routinely discourages the sealing of entire
pleadings and briefs. See, e.g., Pepsico, Inc. v. Redmond,
46 F.3d 29, 30 (7th Cir. 1995); In re Krynicki, 983 F.2d 74, 75
(7th Cir. 1992). Finding that "such an extraordinary request
requires an extraordinary justification," the Seventh Circuit has
ruled that "holding trade secrets in confidence is one thing,
holding entire judicial proceedings in confidence quite another."
Redmond, 46 F.3d at 31.
To the extent that a pleading, motion, or brief contains
confidential information, that information may be redacted.
Citizens First Nat'l Bank of Princeton v. Cincinnati Ins. Co.,
178 F.3d 943, 945 (7th Cir. 1999); Sullivan, 91 F.3d at 1032.
However, in the event a party does not show good cause to
maintain the confidentiality of any part of the pleading, the
entire document will be unsealed and no longer removed from
public access. Solaia Tech. LLC v. Arvinmeritor, Inc., No. 02 C
4704, 2004 WL 549449, at *3 (N.D. Ill. Jan. 28, 2004). The good
cause determination is made regardless of technicalities, and,
when satisfied, protects only those portions of the document for which good cause
has been shown. Id. at 2; Sullivan, 91 F.3d at 1032.
Defendant's first challenge to this motion to unseal, however,
is a technical one based upon the procedures outlined in the
protective order. The Court rejects this challenge. Specifically,
Defendant argues that Plaintiffs did not follow the provision of
the December 12, 2001 protective order governing challenges to
confidentiality. However, this Court finds that such an argument
is "immaterial to a determination of whether the information
belongs in the public domain." Solaia Tech. LLC, 2004 WL
549449, at *2 (rejecting a defendant's technical challenge based
on timeliness as irrelevant to a motion to unseal).
Currently, several entire pleadings are filed under seal in
this case. If Defendant wishes to maintain confidentiality of any
portion of these pleadings, briefs, or motions, Defendant must do
more than defend on a procedural technicality arising from a
protective order. Defendant must show, with specificity, genuine
trade secrets or other confidential information within each of
the documents it requests to remain under seal. Although entire
pleadings, briefs, or court opinions should not be sealed,
genuine trade secrets should be protected from disclosure.
Redmond, 46 F.3d at 31. Whether the pleadings, motions, and
briefs currently under seal in this case will remain sealed in
their entirety or in redacted form turns on whether Defendant has
shown that the information contained within the documents was obtained from material acquired during discovery that
includes information that has retained its confidential nature.
Therefore, this Court now will discuss the confidentiality of the
source documents from which Plaintiffs have derived the
information in the pleadings.
B. DEFENDANT HAS NOT MET THE BURDEN OF PROOF REQUIRED TO
MAINTAIN THE SEAL ON GENERAL DISCOVERY.
Good cause for the issuance of a protective order can be
demonstrated by the existence of a trade secret in the record.
Leavell, 220 F.3d at 568. A trade secret is defined under the
Illinois Trade Secret Act as:
information, including but not limited to, technical
or nontechnical data, a formula, pattern,
compilation, program, device, method, technique,
drawing, process, financial data, or list of actual
or potential customers or suppliers, that:
(1) is sufficiently secret to derive economic value,
actual or potential, from not being generally known
to other persons who can obtain economic value from
its disclosure or use; and (2) is the subject of
efforts that are reasonable under the circumstances
to maintain its secrecy or confidentiality.
765 ILCS 1065/2(d). A court may order the protection of a trade
secret provided that "the judge (1) satisfies himself that the
parties know what a trade secret is and are acting in good faith
in deciding which parts of the record are trade secrets and (2)
makes explicit that either party can challenge the secreting of
particular documents." Citizens First Nat'l Bank of Princeton,
178 F.3d at 946.
However, it is not enough that a party seeking the protection
of an alleged trade secret simply states that a document contains
a trade secret, as good cause does not permit "stereotyped and
conclusory statements." Bernard, 452 U.S. at 102. Rather, a
party must attempt to "winnow out properly confidential information" in
order to justify sealing and to show good cause. Plair v. E.J.
Brach & Sons, Inc., No. 94 C 244, 1996 WL 67975, at *5 (N.D.
Ill. Feb. 15, 1996). Furthermore, a party claiming that injury
will result from disclosure of certain information must provide
support for such a statement. Baxter Int'l Inc. v. Abbott
Labs., 297 F.3d 544, 547 (7th Cir. 2002).
When the party seeking confidentiality fails to meet its
burdens, the court will unseal the contested material. For
example, in Plair v. E.J. Brach & Sons, the plaintiff employee
brought an action against his employer for discriminatory
termination. 1996 WL 67975, at *1. An agreed protective order was
entered during discovery. Id. The plaintiff alleged that the
defendant abused the order by designating virtually all of the
documents it produced as confidential. Id. Reasoning that
protective orders must be narrowly tailored and that the
defendant did not limit the confidential material to what was
necessary under the existing order, the court granted in part the
plaintiff's motion to modify the agreed protective order,
effectively unsealing nearly all of the pleadings and the
Similarly, in Baxter International Inc. v. Abbott
Laboratories, the parties appealed the district court's decision
to deny their joint motion to maintain documents under seal.
297 F.3d at 545. The motion stated that the parties "had agreed on
secrecy, . . . but omitted details[, and] . . . did not attempt
to separate genuinely secret documents from others." Id. In
response, the district court denied the motion without prejudice.
Id. at 546. The parties filed a renewed motion to place
documents under seal, recognizing that most of the documents could be revealed to the public without harm, but
maintaining that some should remain confidential. Id. However,
the defendant did not explain how disclosure could harm it but
rather relied on the parties' agreement as the reason for
maintaining confidentiality. Id. at 546-47. The appellate court
denied the motion, reasoning that defendant asserted "a
conclusion without the required reasoning" and therefore had "no
prospect of success." Id. at 548.
The situations in Plair and in Baxter International are
similar to the situation in this case. The parties in each
instance agreed to a protective order for entry by the court.
However, none of the parties made enough of an effort to protect
solely confidential information, and therefore could not overcome
the burden of showing good cause. Like the plaintiff in Plair,
Plaintiffs in this case allege Defendant's designation of
documents as confidential has been overly broad. Plaintiffs
question whether Defendant reviewed the documents for
confidential information that could harm Defendant's business,
pointing out that Defendant designated as confidential every
single document produced. Pl. Reply Memo. at 3. Plaintiffs'
concerns were largely alleviated after Defendants agreed to
unseal much of the previously protected record prior to oral
argument. However, good cause must be shown to maintain the seal
on the remaining documents.
Like the defendant in Baxter International, Defendant in this
case did not explain adequately how disclosure of the sealed
information could harm it but instead relied on the fact that the parties agreed to the December 12, 2001 order, and
uses that agreement as the justification for the sealing of the
district court record:
Plaintiffs bring this Motion and seek to completely
vitiate the Stipulated Protective Order they agreed
to over two years ago on behalf of themselves and the
class. After having placed Defendant's confidential
documents into the court's litigation files over a
period of approximately two years, Plaintiffs here
perform an about-face by now contending that many of
the documents previously designated confidential
should be unsealed for public view.
Def. Resp. to Mot. to Unseal, at 1.
In this case, Defendant merely alleges that "the filings at
issue in Plaintiffs' Motion either attach or quote from hundreds
of documents that have been properly deemed . . . confidential"
because they contain either a trade secret or other confidential
information pursuant to Federal Rule of Civil Procedure 26(c)(7).
Id. at 5. Defendant further states that there is "good cause"
to maintain confidentiality because Defendant will be
"competitively disadvantaged" if the information is unsealed.
Id. Defendant thus presents a "conclusion without the required
reasoning" that will not pass muster under the good cause
standard of Federal Rule of Civil Procedure 26(c)(7).
Defendant failed to justify properly the continued sealing of
any portion of the district court record. At oral arguments,
Defendant specifically referenced certain documents within the
record, yet could not explain in adequate detail how the
information contained within those documents was still sensitive
and confidential, and thus validly sealed. For example, at oral
argument Defendant specifically indicated that the first amended
complaint (Dkt. No. 180) should remain under seal. Defendant argued that the industry
itself maintains the confidentiality of the attrition rates such
as the ones referenced within the documents. However, although
the complaint and corresponding answers may or may not reference
a trade secret, good cause was not shown as Defendant did not
adequately specify how unsealing the document would harm
Defendant in its current state.*fn1
Defendant also argues that an exhibit consisting of meeting
minutes is confidential simply because the information was
conveyed during a board meeting, which traditionally is private,
and thus should not be in the public domain. Although this Court
recognizes that this information and other information within the
district court record may have had some proprietary value worthy
of protection years ago, Defendant fails to demonstrate that the
information has any current significance worthy of protection.
Therefore, in recognition of the heavy burden on Defendant to
show good cause for the maintenance of the seal on the district
court record and the fact that the information Defendant claims
to be confidential is now stale, this Court grants Plaintiffs'
motion to unseal all documents filed of record in this case that
have not been identified by Defendant as containing OCC-related
C. OCC-RELATED INFORMATION IS UNSEALED.
Several of the pleadings and written discovery documents in
this case contain references to the OCC or OCC-related issues, or
were created in response to actions or requirements of the OCC. Defendant maintains that this
information is protected by the bank examination privilege and
therefore the seal can not be removed. Defendant further argues
that those documents the OCC agreed to produce were produced only
for the purpose of the litigation and with the understanding that
they would be protected from public scrutiny.
On the other hand, Plaintiffs allege that the OCC's production
of these documents was a waiver of any privilege or duty of
confidentiality that may apply and that any other OCC-related
documents referenced in the complaint or otherwise spread of
record in this case were obtained not from the OCC itself but
rather from Bank One, First USA, or Arthur Andersen, that they do
not fall under the bank examination privilege, and that without a
showing of good cause should be removed from under seal. At issue
are docket numbers 152, 161, 180, 205, 215, 216, 217, 218, 219,
220, and 226. The Court finds that all docket numbers and
requested redacted portions thereof will be unsealed.
1. The OCC Waived the Bank Examination Privilege and Released
the Banks from Their Duty of Confidentiality with Regard to Bank
and Arthur Andersen Documents Created in Response to OCC Opinions
or Recommendations and Produced in this Litigation.
The bank examination privilege is "designed to promote the
effective functioning of an agency by allowing the agency and the
regulated banks the opportunity to be forthright in all
communications." In re Bankers Trust Co., 61 F.3d 465, 471 (6th
Cir. 1995). Only the agency itself can assert the bank
examination privilege. In re Bank One Secs. Litig., First
Chicago Shareholder Claims, 209 F.R.D. 418, 426 (N.D. Ill. 2002)
[hereinafter In re Bank One]. The privilege extends only as far as agency opinions and
recommendations, and therefore any materials pertaining to
"purely factual matters" fall outside the scope of the privilege
and must be produced. Id. Bank responses to agency opinions and
recommendations also may fall within the scope of the privilege.
In re Bankers Trust Co., 61 F.3d at 471. In addition, banks
have a duty of confidentiality as to bank-created documents
submitted to the OCC. See 12 C.F.R. § 4.37(b).
The bank examination privilege is not an absolute privilege and
may be overridden where necessary to promote "the paramount
interest of the Government in having justice done between
litigants." In re Subpoena upon the Comptroller of the
Currency, 967 F.2d 630, 634 (D.C. Cir. 1992). Although the
regulatory agency has the burden of proving that the requested
documents are protected, the party seeking to override the
asserted privilege and to gain access to deliberative materials
must demonstrate good cause for disclosure. In re Bank One,
209 F.R.D. at 427. The court then must balance the competing
interests of the party seeking the document against those of the
(i) the relevance of the evidence sought to be
protected; (ii) the availability of other evidence;
(iii) the `seriousness' of the litigation and the
issues involved; (iv) the role of the government in
the litigation; and (v) the possibility of future
timidity by government employees who will be forced
to recognize that their secrets are violable.
Schreiber v. Soc'y for Sav. Bancorp, Inc., 11 F.3d 217, 220-21
(D.C. Cir. 1993).
Following the entry of a protective order in this case on
October 11, 2001, Plaintiffs and the OCC entered an agreed order
by which the OCC waived the bank examination privilege for documents created and produced by Arthur Andersen
or the banks. In addition, in a July 3, 2002 letter to
Plaintiffs' counsel, the OCC released the banks from their duty
of confidentiality with regard to OCC-related material. The OCC
further stated that it would produce three specific documents.
Those documents are a December 13, 1999 OCC letter to John McCoy
of Bank One, an OCC document dated December 16, 1999 entitled
"Safety and Soundness Notice of Deficiency" addressed to the
Board of Directors of First USA Bank, and a January 14, 2000
First USA Bank letter to the OCC enclosing a "Safety and
Soundness Compliance Plan." Jul. 3, 2002 Letter to Pl. Counsel.
Because First USA Bank asserted a privilege as to the Safety and
Soundness Compliance Plan, the OCC did not produce it. Jul. 16,
2002 Letter to Pl. Counsel.
The OCC did not produce any other OCC-created documents.
Therefore, for the purposes of this opinion, this Court assumes
that all OCC information cited in the record originated either
from bank or Arthur Andersen documents, the December 13, 1999
letter, or the Safety and Soundness Notice of Deficiency.
2. Exhibits B and E of Docket Number 152 Are Unsealed
Defendant maintains that exhibits B and E attached to
Plaintiffs' June 21, 2002 reply brief in support of their motion
to compel (Dkt. No. 152) should remain sealed. Exhibit B,
entitled "Bank One Corporation Management Assessment Required by
Section 112 of FDICIA," is an Arthur Andersen produced*fn2 document
responding to OCC concerns. Exhibit E is an Arthur Andersen
produced memorandum that highlights OCC concerns and the
effectiveness of Defendant's internal control structure. Because
the OCC entered into an agreed order waiving the bank examination
privilege with regard to OCC-related documents created by the
banks or Arthur Andersen, and because the OCC released the banks
from their duty of confidentiality, this Court orders the
unsealing of exhibits B and E of docket number 152.
3. References to OCC-Related Material Shall Not Be Redacted
Defendant requests redaction of certain information in briefs
at docket numbers 152 and 161, and in paragraphs 19, 176-178,
191, 197, 200-202, and 244 of the amended complaint at docket
number 180, as well from the corresponding paragraphs in an
additional amended complaint at docket number 205,*fn3 and
answers at docket numbers 215, 216, 217, 218, 219, 220, and 226.
This information falls within one of four categories consisting
of OCC opinions and recommendations, OCC-related information
obtained from documents created by Arthur Andersen or the banks,
factual material from OCC-created documents, and information repeated elsewhere in the document for which
Defendant does not request redaction. Because only OCC opinions
and recommendations may be redacted, this Court finds that only
one full sentence and three sentence clauses identified by
Defendant contain OCC opinions or recommendations, but should be
unsealed regardless. Therefore, the Court orders the unsealing of
the record in its entirety.
Defendant argues for the redaction of certain information from
document number 161, as well as several paragraphs within the
Plaintiffs' First Amended Consolidated Class Action Complaints
(Dkt. Nos. 180, 204), and the corresponding answers (Dkt. Nos.
215, 216, 217, 218, 219, 220, and 226). Of the multiple
redactions requested by the Defendant, the Court finds that only
one sentence and three sentence clauses contain OCC opinions or
recommendations.*fn4 However, because the paramount interest
of the Government is to have justice done between litigants, In
re Subpoena upon the Comptroller of the Currency, 967 F.2d at 634, this Court finds that the privilege that exists over
these snippets of information should be overridden in this case.
Next, Defendant argues that certain non-privileged information
should be redacted from documents comprising the district court
record. First, Defendant argues that OCC-related information
obtained from certain documents that were not created by the OCC
should be redacted. For example, Defendant argues that a
reference in Plaintiff's June 21, 2001 brief to an internal Bank
One Management Assessment addressing the OCC's concerns and
directions to Defendant should be redacted. Dkt. No. 152, at 8-9.
However, the assessment was created by Arthur Andersen, not the
OCC. No duty of confidentiality or privilege applies because they
have been released or waived, and thus the information will not
be redacted. Therefore, to the extent that information does not
come from an OCC-created document, it will not be redacted.
In addition, Defendant argues that the OCC has not waived the
bank examination privilege with regard to OCC-created documents,
and further argues for the redaction of certain references to
material in OCC-created documents. However, the Court finds that
most of the redacted material is purely factual and therefore the
bank examination privilege does not apply. Therefore, to the
extent that the references to OCC-created documents are purely
factual, they will not be redacted. For example, Defendant argues
that Plaintiffs' reference to the OCC's issuance of the Safety
and Soundness Notice of Deficiency and a one million dollar fine
to First USA Bank for violations of the Truth in Lending Act in
paragraph nineteen of the complaint at docket number 180 is privileged.
However, this information is neither an opinion nor a
recommendation and must not be redacted.
Finally, although Defendant argues that certain references to
OCC-created documents should be redacted, Defendant does not
attempt to redact the same references occurring in other portions
of the same document. For example, Defendant maintains that
Plaintiffs' disclosure of the OCC's assurances of confidentiality
given to Defendant should be redacted on page four of docket
number 161. However, the same information can be gathered from
the footnote at the bottom of page four, as well as from the
first paragraph on page five. Dkt. No. 161 at 4-5. Defendant did
not request redaction of these portions of the brief. Because the
burden is on Defendant to identify all confidential information
that should remain under the protective order, Rhinehart,
467 U.S. at 37, this Court finds that to the extent that Defendant
allows certain information to be unsealed, but argues for the
redaction of the same information from other areas of the record,
the information will not be redacted.
Taking into account the strong presumption toward openness and
access to court records, the fact that previously sensitive and
confidential information can become stale with time, Defendant's
inability to show good cause for maintaining the seal on much of
the district court record, the OCC's waiver of the bank
examination privilege with regard to the OCC-related documents
created by the banks and Arthur Andersen, the OCC's release of
the banks' duty of confidentiality, and the Government's interest
in having justice done between litigants, this Court grants Plaintiffs' motion to unseal the
district court record and orders the record in this case to be
unsealed. Defendant shall notify the OCC of this Court's ruling.
This order is stayed with respect to those documents containing
OCC-related information (Dkt. Nos. 152, 161, 180, 205, 215, 216,
217, 218, 219, 220, and 226) for fourteen days or until a
decision on an objection, if any, to the district court has been