BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA PRODUCTION COMPANY; BP, P.L.C., Requesting Parties - Appellees
CLAIMANT ID 100246928, Objecting Party - Appellant
from the United States District Court for the Eastern
District of Louisiana
J. COSTA UNITED STATES CIRCUIT JUDGE.
ID 100246928-a/k/a the Tampa Bay Buccaneers-asks this court
to seal the courtroom where the team will argue its appeal on
April 1. It also wants to bar public access to the recording
of the argument that this court routinely makes available on
its website. The team's motion is DENIED.
recently, this court filed Deepwater Horizon appeals
under seal when they were first docketed. Even under that
sealing order, however, the court ultimately unsealed many
cases and the vast majority of appeals were argued in a
public courtroom. Reflecting this determination that most BP
cases did not warrant full sealing, an en banc order issued
last month vacating the court's prior sealing order. As
is the situation for other cases, parties in Deepwater
Horizon cases must now justify sealing. The default is
public access. After that order issued, the Buccaneers
succeeded in keeping the record and briefs sealed based on
its concerns that the amount of revenue it receives from the
NFL-a focus of this appeal-is proprietary.
request to seal the courtroom goes too far-by a longshot.
"The right to public access 'serves to promote
trustworthiness of the judicial process, to curb judicial
abuses, and to provide the public with a more complete
understanding of the judicial system, including a better
perception of its fairness.'" United States v.
Holy Land Found. for Relief & Dev., 624 F.3d 685,
690 (5th Cir. 2010) (quoting Littlejohn v. BIC
Corp., 851 F.2d 673, 682 (3d Cir. 1988)). Public
confidence in the courts is the issue: How can the public
know that courts are deciding cases fairly and impartially if
it doesn't know what is being decided? In re Hearst
Newspapers, L.L.C., 641 F.3d 168, 179 (5th Cir. 2011)
(discussing the need for "openness" of court
proceedings in the criminal context); In re High Sulfur
Content Gasoline Prods. Liab. Litig., 517 F.3d 220, 230
(5th Cir. 2008) (noting same interest for attorney's fee
dispute in civil case). Sealing a record undermines that
interest, but shutting the courthouse door poses an even
greater threat to public confidence in the justice system.
"Open trials assure the public that procedural rights
are respected, and that justice is afforded equally. Closed
trials breed suspicion of prejudice and arbitrariness, which
in turn spawns disrespect for law." Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 595 (1980)
(Brennan, J., concurring).
team cites three reasons it believes override this strong
interest in transparency. None of them comes close to doing
first says that the briefs discuss confidential financial
data, which would "likely" come up at oral
argument. But that type of proprietary information is present
in all these BP cases-a claimant has to submit profit and
loss statements to get paid. Yet lawyers have argued these
cases in open court multiple times during recent argument
weeks without disclosing confidential revenue amounts. The
judges have the data at their fingertips, so there is no need
for a lawyer to mention the actual numbers.
the team contends that keeping the courtroom open would
"gratify [BP's] private spite," "promote
public scandal," and "harm [the team's]
competitive standing." See Nixon v. Warner
Commc'ns, Inc., 435 U.S. 589, 598 (1978) (noting
these potential interests in judicial secrecy). It recites an
aside from BP's brief stating that the public would be
"surprised to learn that a professional football team
has claimed spill-related losses." Maybe so. But public
"surprise" at a football team's seeking money
from an oil-spill settlement is not in the same universe as
the types of scandal or spite that warrant closing the
courthouse door. See, e.g., id. (mentioning
these concerns in the context of "the painful and
sometimes disgusting details of a divorce case"
(quotation omitted)). Cases are heard in courtrooms every day
addressing matters so much more sensitive than this
dispute-workplace harassment, sex crimes, or child abuse to
name just a few. Even in those cases the courtroom typically
remains open to the public.
Buccaneers' final justification is an expectation of
secrecy the team says it had throughout the claim process.
Under the classwide agreement, settlement program proceedings
are confidential. But confidentiality agreements entered into
by private parties, even if approved by the district court,
do not bind this court. Baxter Intern., Inc. v. Abbott
Labs., 297 F.3d 544, 545-46 (7th Cir. 2002) (stating
that notwithstanding prior confidentiality agreements,
"any claim of secrecy must be reviewed independently in
[the appellate] court"). Indeed, the standard letter
that is sent to parties in this court states:
Our court has a strong presumption of public access to our
court's records, and the court scrutinizes any request by
a party to seal . . . . Counsel moving to seal matters must
explain in particularity the necessity for sealing in our
court. Counsel do not satisfy this burden by simply stating
that the originating court sealed the matter, as the
circumstances that justified sealing in the originating court
may have changed or may not apply in an appellate proceeding.
there is a more fundamental reason that a sealing agreement
by the parties should not bind a court. It is the
public that has the right of access, so private
litigants should not be able to contract that right away.
Most litigants have no incentive to protect the public's
right of access. Both sides may want confidentiality. Even
when only one party does, the other may be able to extract a
concession by agreeing to a sealing request (this type of
tradeoff is common in settlement agreements). That is why it
is for judges, not litigants, to decide whether the
justification for sealing overcomes the right of access.
end of the day, because this court has maintained
confidential treatment of its financial statements, the
Buccaneers' request for sealing the oral argument is
based on nothing more than a desire to keep secret that it
filed a Deepwater Horizon claim. The court will
leave it to others to guess why the team is so concerned
about public disclosure of its claim when numerous other BP
claimants in the appeals inundating our court are not. Just
three months into this year, at least ten Deepwater
Horizon decisions naming the claimants have issued.
Among them is one from another of Tampa Bay's
professional sports franchises, the NHL's Lightning.
See Claimant ID 100248748 v. BP Expl. & Prod.,
Inc., 2019 WL 1306302 (5th Cir. Mar. 20, 2019). The
court is unable to discern any reason for keeping secret the
oil-spill claim of a football team when the claim of a hockey
team (and of course those of numerous other businesses) is a
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 ...