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Malibu Media, LLC v. Doe

United States District Court, N.D. Illinois, Eastern Division

June 4, 2014

JOHN DOE, subscriber assigned to IP address, Defendant.



Before the court is plaintiff Malibu Media's Second Amended Motion to Seal its Motion for a Protective Order. (Pl.'s 2d Am. Mot. Seal.) [Dkt 72.] Defendant has filed a response (Def.'s Resp.) [dkt 76] and Malibu has filed a reply (Pl.'s Reply) [dkt 77].[1] For the following reasons and as detailed below, Malibu's motion is granted in part and denied in part.


The motion to seal presently before this court has its genesis in written discovery served by defendant John Doe. Malibu initially declined to respond to certain discovery requests served by defendant unless he stipulated to a protective order. ( See Dkt. 27, Ex. A.) The court ordered Malibu to respond and instructed Malibu to move for entry of a protective order if it wanted confidentiality in discovery, but directed defendant to keep the responses confidential pending filing of Malibu's anticipated motion. (Order, Jan. 22, 2014.) [Dkt 31.]

Malibu filed a motion for protective order (Pl.'s Mot. Prot. Order) [dkt 41], along with a motion seeking to file the motion for a protective order under seal (Pl.'s First Mot. Seal) [dkt 38]. The motion for leave to file under seal stated, "[t]o explain its good cause basis for seeking a protective order, [Malibu] set forth highly confidential and disturbing information. The only way to evaluate this contention is to read the paper which speaks for itself. [Malibu] is confident that the Court will agree it should remain sealed." ( Id. at 1.)

The docket entry for Malibu's motion for a protective order, which was submitted to the court's electronic docketing system by Malibu's counsel and is available to the public, describes the motion as follows:

SEALED DOCUMENT by Plaintiff Malibu Media LLC (Attachments: #1 Exhibit A Jane's Docket, #2 Exhibit B Twitter Stalking, #3 Exhibit C MLK Twitter, #4 Exhibit D Attorneys' Pages, #5 Exhibit E Twitter False Child Pornography Claims, #6 Exhibit F Ventura County, #7 Exhibit G Sanctions Emails, #8 Exhibit H Counsel's Tweets With Hate Groups, #9 Exhibit I Paige Declaration, #10 Exhibit J Fields Declaration, #11 Exhibit K Lipscomb Declaration) (Schulz, Mary) (Entered: 02/12/2014).

The court allowed Malibu to place its motion for a protective order under seal while that motion was under advisement. (Order, Feb. 13, 2014.) [Dkt 42.]

Malibu's motion for protective order did not focus on the disputed discovery issues pending before the court at the time. Instead, Malibu asked the court to enter a protective order based on alleged harassment of plaintiff and plaintiff's attorneys. To support its motion, Malibu elected to include copies of certain materials publically available, such as a portion of a publicly available federal court docket sheet from another case (dkt 41, Ex. A), posts on Twitter ( id. at 2-5, 7-8, Exs. B, C, E, F, and H), and screenshots from other publicly accessible Internet websites ( id. at 9, Exs. B, C, D, F, and H). In addition, Malibu attached copies of emails sent to its counsel by non-parties and defendant's counsel. ( Id., Exs. B & G.) As relief, Malibu asked the court to enter the Northern District of Illinois' Model Confidentiality Order. ( Id. at 15.) Malibu made many accusations about opposing counsel, but did not state whether defendant opposed the entry of the Model Confidentiality Order to govern discovery in this case. As it turned out, defendant did not oppose it.

On March 14, 2014, non-party Excipio GbmH (the entity whose software was used to investigate defendant's alleged infringement) filed a motion for leave to intervene so it could seek the entry of a protective order covering certain business information. (Excipio Mot.) [Dkt 46.] During a status hearing on March 19, 2014, the court directed the parties to file a joint motion for a protective order addressing both Malibu's and Excipio's requests for protective orders. (Order, Mar. 19, 2014.) [Dkt 53.] In response, the parties filed a renewed joint motion for a protective order (Joint Mot. Prot. Order.) [Dkt 57.] The parties agreed on all of the terms except terms regarding Excipio's computer programming "source code." ( Id. at 2.) The court held that it was premature to address language suggested by Excipio regarding protection of its source code and noted that, aside from that issue, the parties' suggested language did not differ significantly from each other or from the court's Model Confidentiality Order. (Order, Apr. 7, 2014, at 2-3.) [Dkt 63.]

The court then stated:

[P]laintiff's motion for protective order dealt less with the discovery in this case than with other situations involving plaintiff and plaintiff's attorneys. The court allowed plaintiff to file the motion under seal while the motion was under advisement. The Seventh Circuit, however, has been clear that "[d]ocuments that affect the disposition of federal litigation are presumptively open to the public." Goesel v. Boley Intl. (H.K.) Ltd., 738 F.3d 831, 833 (7th Cir. 2013) (quotation and citations omitted).
When [litigants] call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials. Judicial proceedings are public rather than private property.
Union Oil Co. of Cal. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000). There are exceptions to the presumption that court records must be public, but the party seeking to remove from the public viewing material that is on the court's docket must demonstrate that the material justifies an exception. See, e.g., Goesel, 738 F.3d at 833.
Plaintiff's motion was filed to persuade the court to enter a protective order, and the court is now acting on that motion. Upon review, the court questions whether all of plaintiff's motion is entitled to remain under seal under the Seventh Circuit's standards. Accordingly, no later than April 17, 2014, plaintiff may file an amended motion to seal its motion for protective order, identifying any specific portions of the motion that plaintiff believes justify sealing under Seventh Circuit standards, and explaining why they meet the standards. If plaintiff fails to ...

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