Case: 1:17-cv-02521-DAP Doc #: 29 Filed: 01/17/18 1 of 14.

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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

W.6 Restaurant Group Ltd.,

d/b/a The Barley House of Cleveland, et Case No. 1:17-cv-02521
al.,

Plaintiffs, Judge Dan Aaron Polster

v.

Richard Bengtson, et al.,

Defendants.

MOTION OF EUGENE VOLOKH TO INTERVENE

AND GAIN ACCESS TO A JUDICIAL DOCUMENT

Movant Eugene Volokh respectfully seeks leave to intervene in this case for

the limited purpose of asserting the public’s First Amendment and common-law

rights of access to judicial records, including the Partial Settlement Agreement dated

December 13, 2017 that appears to be the basis for pending contempt proceedings.

Plaintiffs and Defendants have been asked whether they consent to this

Motion. Defendants do not consent, and Plaintiffs have not responded.

Prof. Volokh’s motion is supported by the attached memorandum.

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MEMORANDUM IN SUPPORT

This lawsuit raises important issues in the roiling public debate about the

rights and responsibilities of online speakers. It also implicates important questions

about the role of the courts in policing this speech. And it has been hotly litigated,

giving rise to contempt proceedings before this Court arising from a partial

settlement agreement between the parties.

The public has a right to access these proceedings and records. Secured by the

First Amendment and Sixth Circuit common law, that right is independent of the

parties’ substantive claims and interests, and enforceable by members of the public.

And the right cannot be limited until the parties make specific factual showings, and

after the Court (after providing an opportunity for the public to be heard) makes

specific findings justifying redaction or partial sealing of documents.

Here, the parties have made no such showings to justify restricting public

access to records in the contempt proceedings, including the settlement agreement

that appears to undergird the dispute they have presented to the Court. And based

on the information presently available to the public, they cannot.

Movant Eugene Volokh is a law professor who focuses on First Amendment

and Internet law. He has written about this suit on his Washington Post blog.1

1Prof. Volokh’s eponymous blog, The Volokh Conspiracy, was then hosted by The
Washington Post. Eugene Volokh, Business gets order against two customers,
barring them from ‘publishing on social media platforms any statements’ about the
business (WASH. POST Dec. 2, 2017), https://www.washingtonpost.com/news/volokh-
conspiracy/wp/2017/12/02/business-gets-order-against-two-customers-barring-them-

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Prof. Volokh’s right of access to the documents based on which the Court

adjudicates the parties’ disputes, including the settlement agreement at issue in the

contempt proceedings, is vital to his continued coverage of this important controversy.

He therefore requests leave to intervene and be heard to assert the public’s right of

access, and that the Partial Settlement Agreement (the “Agreement”) be docketed

and made publicly available.

I. Documents used in contempt proceedings, and settlement

agreements considered by courts, are subject to public access.

The public’s right of access to civil proceedings is guaranteed by the First

Amendment and the common law. Brown & Williamson Tobacco Corp. v. FTC, 710

F.2d 1165, 1177 (6th Cir. 1983); see also Karl v. Bizar, 2009 WL 3644115, at *2 (S.D.

Ohio Oct. 28, 2009) (public right of access to “documents forming the basis for

adjudication” is not outweighed by commercial self-interest or parties’ interests in

avoiding adverse publicity) (applying Brown); Wedgewood Ltd. v. Twp. of Liberty,

2007 WL 1796089, at *3 (S.D. Ohio June 21, 2007) (“a strong public right of access

attaches when a document is filed or utilized in public proceedings”) (citing Brown).

from-publishing-on-social-media-platforms-any-statements-about-the-business/;
Eugene Volokh, Update on the Barley House Injunction (WASH. POST Dec. 4, 2017),
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/04/update-on-
the-barley-house-injunction/; Eugene Volokh, When speech criticizing people leads to
threats against them, (WASH. POST Dec. 4, 2017),
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/04/when-
speech-criticizing-people-leads-to-threats-against-them/. His blog is now hosted by
Reason Magazine, http://reason.com/volokh.

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The public’s right of access attaches to civil-contempt proceedings, and

“documents necessary to understand the merits of a civil contempt proceeding are

covered by the First Amendment’s presumptive right of access.” Newsday v. Cty. of

Nassau, 730 F.3d 156, 164 (2d Cir. 2013); In re Iowa Freedom of Info. Council, 724

F.2d 658, 661 (8th Cir. 1983) (“the protection of the First Amendment extends to

proceedings for contempt”); In re Motion for Civil Contempt by John Doe, 2016 WL

3460368, at *3 (E.D.N.Y. June 22, 2016) (First Amendment right of access applies to

contempt proceedings and documents that are a “necessary corollary of the capacity

to attend” those proceedings).2

The public’s right of access also attaches to settlement documents, particularly

when they are presented for consideration by the court, or subject to enforcement in

court. United States v. Erie Cty., N.Y., 763 F.3d 235, 242-43 (2d Cir. 2014); Goesel v.

Boley Int’l (H.K.) Ltd., 738 F.3d 831, 834 (7th Cir. 2013) (“the presumption of a right

of public access to court documents should apply” where “the settlement is sought to

be enforced.”); Wells Fargo Bank, N.A. v. Wales LLC, 993 F. Supp. 2d 409, 414

(S.D.N.Y. 2014) (enforcing public’s right of access to “documents that were integral to

its approval” of a settlement agreement).

2 The common-law right of access also applies to documents considered by courts

in civil-contempt proceedings. See, e.g., BASF Agro B.V. v. Makhteshim Agan of N.
Am., Inc., 2015 WL 12991090, at *3 (M.D.N.C. July 21, 2015) (documents that “will
be used in adjudicating the motion for contempt” are “judicial documents” subject to
the common-law right of access).

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The Agreement is therefore subject to the public’s right of access. The parties

disagree about how it should be interpreted and enforced, and they have presented

their dispute to the Court for adjudication. This Court has “considered,” “used,” and

“utilized” the Agreement to adjudicate potential sanctions arising from its alleged

violation. The Agreement should therefore be docketed,3 and may only be lawfully

withdrawn from public access in whole or part after the parties satisfy mandatory

legal burdens, and the Court makes mandatory on-the-record findings. Rudd Equip.

Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 594 (6th Cir. 2016) (“When a

district court opts to seal court records, it must set forth specific findings and

conclusions ‘which justify nondisclosure to the public.’”) (quoting Brown, 710 F.2d at

1176); United States v. DeJournett, 817 F.3d 479, 485 (6th Cir. 2016) (“The interest

[justifying nondisclosure] is to be articulated along with findings specific enough that

a reviewing court can determine whether” access was lawfully restricted).

3 Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (2d Cir. 2004) (holding that the
First Amendment right of access extends to docket information, noting that docketing
“endow[s] the public and press with the capacity to exercise their rights guaranteed
by the First Amendment,” and without docketing sealed records and proceedings, the
public’s right of access “would be merely theoretical”).
The Agreement does not appear to have been electronically docketed, whether
under seal or otherwise, but appears to have been submitted to the Court for
consideration and adjudication. The Jan. 16, 2018 minutes, as well as the briefs filed
related to the contempt hearing (ECF Doc. Nos. 24, 25, and 26) reflect that the
contempt proceedings will focus closely on whether the Agreement has been
knowingly violated—something that will surely require further “consideration,”
“use,” and “utilization” of that document. And if the Notice of Partial Settlement, ECF
No. 15, is correct in stating that “the Court shall retain jurisdiction to enforce [the
Agreement’s] terms and conditions,” that enforcement must likewise “consider” “use,”
and “utilize” the document.

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II. There is no lawful basis to restrict public access to the Agreement.

As an initial matter, parties cannot eliminate the public’s right of access simply

by entering into a confidential agreement, which “does not bind the court in any way.”

Brown, 710 F.2d at 1180 (vacating sealing orders, upon request by non-party public

interest research group, despite confidentiality agreement between plaintiff and the

Federal Trade Commission). Nor do “explicit confidentiality provisions” in settlement

agreements suffice to justify sealing them. See, e.g., Colony Ins. Co. v. Burke, 698 F.3d

1222, 1241 (10th Cir. 2012) (denying unopposed motions to file court records under

seal on the basis that they “involve the terms of confidential settlement agreements,”

even though “preserving the confidentiality of settlement agreements may encourage

settlement” and “denying a motion to seal may chill future settlement discussions”);

Wells Fargo v. Wales, 993 F. Supp. 2d 409, 414 (S.D.N.Y. 2014) (whether settlement

agreement “contains a confidentiality clause is not binding here, given the public’s

right of access to ‘judicial documents’”).

Parties are not the arbiters of the public’s right of access. They cannot, by

agreement among themselves, strip third parties like Prof. Volokh of their right to

understand what transpires in court, or relieve themselves of their burden to justify

limiting access. “The judge is the primary representative of the public interest in the

judicial process and is duty-bound therefore to review any request to seal the record

(or part of it),” Citizens First Nat’l Bank v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th

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Cir. 1999), and courts may not “turn this function over to the parties.” Procter &

Gamble. v. Bankers Tr. Co., 78 F.3d 219, 227 (6th Cir. 1996).

Even reliance on judicial sealing orders is “too thin a reed” to justify

restrictions, and “litigants’ reliance on the confidentiality of certain documents in

reaching a court-approved settlement agreement fails to overcome the presumption

of public access.” Rudd, 834 F.3d at 595 (quoting Johnson v. Corr. Corp. of Am., 2014

WL 3970115, at *2–3 (W.D. Ky. Aug. 13, 2014). To justify a proposed restriction,

parties must prove that (1) it is necessary to prevent harm to a compelling interest;

(2) no alternative will suffice; (3) it is narrowly tailored; and (4) it will be effective.

1. The parties have not established harm to a compelling interest, nor

the existence of any interest capable of justifying sealing.

Public access may only lawfully limited to prevent a substantial probability of

harm to a compelling government interest. See, e.g., Richmond Newspapers v.

Virginia, 448 U.S. 555, 580-81 (1980); Press-Enterprise v. Sup. Ct. of Cal., 464 U.S.

501, 510 (1984) (“Press-Enterprise I”); Press-Enterprise v. Sup. Ct. of Cal., 478 U.S. 1,

13–14 (1986) (“Press Enterprise II”).

Confidentiality is not, per se, a sufficient interest to justify sealing, and parties’

desire to litigate in secret cannot overcome the American tradition of open courts.

See, e.g., Aioi v. ProSight, 2012 WL 3583176, at *6 (S.D.N.Y. Aug. 21, 2012) (“[W]hile

enforcement of contracts is undeniably an important role for a court, it does not

constitute a ‘higher value’ that would outweigh the presumption of public access to

judicial documents.”).

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Nor are the most common reasons parties seek confidentiality agreements

sufficient to justify restricting public access. “[C]ommercial self-interest” does not

justify abrogating the public’s right of access. Procter & Gamble, 78 F.3d at 225. Nor

does a party’s interest “in avoiding adverse publicity,” “particularly where the subject

of the litigation is of great public concern.” Bizar, 2009 WL 3644115, at *2 (internal

quotations omitted).

The subject of this litigation is indisputably of great public concern. It tests the

legal redress available where online speech, amplified by social-media platforms and

celebrities, is alleged to have caused great harm. In this case, the public interests

that animate the public’s right of access are at an apogee:

• Access enables court proceedings to promote “community catharsis,” a

particularly important interest given the allegations in the underlying
lawsuit. Brown, 710 F.2d at 1178 (“When judicial decisions are known to be
just and when the legal system is moving to vindicate societal wrongs,
members of the community are less likely to act as self-appointed law
enforcers or vigilantes.”).

• “[P]ublic access provides a check on courts,” and the “remedies or penalties

imposed by the court will be more readily accepted, or corrected if
erroneous, if the public has an opportunity to review the facts presented to
the court. Id. (“Although the federal judiciary is not a majoritarian
institution, public access provides an element of accountability. One of the
ways we minimize judicial error and misconduct is through public scrutiny
and discussion.”).

• Public access promotes “true and accurate fact finding,” by creating “a

critical audience and hence encourages truthful exposition of facts.” Id.
(“When information is disseminated to the public through the media,
previously unidentified witnesses may come forward with evidence,” and
“may be less inclined to perjure themselves.”).

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Without access to the Agreement, the public cannot fully perform this role with

respect to the pending contempt proceedings, which implicate important issues

concerning the adjudication of contempt penalties, see Gascho v. Global Fitness

Holdings, 875 F.3d 795 (6th Cir. 2017), and agreements that purport to waive a

speaker’s First Amendment rights, see Ferlauto v. Hamsher, 74 Cal. App. 4th 1394

(Cal. Ct. App. 1999). Prof. Volokh wants (and is well-positioned) to write about these

issues, but he cannot do so meaningfully without seeing the text of the Agreement.

There may nonetheless be specific reasons for keeping portions of the agree-

ment confidential, such as “if the settlement agreement compromises personal safety,

reveals trade secrets, or identifies a minor.” Hart v. ITC Serv. Grp., 2017 WL 2728439,

at *1 (W.D. Mo. June 23, 2017) (collecting cases). But to movant’s knowledge, there

has been no showing of any kind to that effect, much less any finding on the record

that there is anything of this nature in the Agreement itself.

2. The parties have not shown that sealing, instead of myriad less-
restrictive alternatives, is necessary to protect any valid interest.

Abrogating the public’s right of access is inappropriate if there are alternatives

that can adequately protect a valid and cognizably threatened interest. See, e.g.,

Press-Enterprise II at 13–14. It is difficult to speculate about alternative protections

because no harm has been identified, but limiting the public’s right of access must in

all events be the last resort. Even when public disclosure of inculpatory information

threatens to prejudice a criminal defendant’s right to a fair trial, the First

Amendment requires the use of alternative measures that do not limit public access,

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including jury admonishment and attentive voir dire. In re NBC, 828 F.2d 340, 347

(6th Cir. 1987); see also Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 563–64 (1976)

(listing less restrictive alternatives). First Amendment rights deserve at least as

much protection in a case such as this one, where a criminal defendant’s

countervailing Sixth Amendment rights are not on the line.

3. Limited redaction would adequately protect any valid interest.

In a similar vein, any restriction on access must be narrowly tailored, and no

broader than necessary to protect a threatened interest. See, e.g., Richmond

Newspapers, 448 U.S. at 581; Press-Enterprise II at 14. If a narrower means of

protecting that interest exists, such means must be employed to limit any impact on

the public’s access rights. Press-Enterprise I at 510–11. “Redaction constitutes a time-

tested means of minimizing any intrusion on [the public’s access] right.” In re

Providence Journal, 293 F.3d 1, 15 (1st Cir. 2002).

Even if there were some overriding interest threatened by particular

information in the Agreement, limited redaction would therefore be required as a

more narrowly tailored restriction than withholding the Agreement in its entirety.

4. Continued restrictions are futile.

There is no proper basis to seal records to protect information that is already

largely public. Press-Enterprise II at 14 (requiring that restriction “would prevent”

alleged harm); see also Associated Press v. U.S. Dist. Ct., 705 F.2d 1143, 1146 (9th

Cir. 1983) (“there must be ‘a substantial probability that closure will be effective in

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protecting against the perceived harm’”) (citation omitted). Here, the contempt

proceedings were open to the public, reported in the press,4 and some aspects of the

Agreement have been made public. Not only do these disclosures demonstrate that

access to the Agreement is a “necessary corollary” to the in-person access this Court

properly afforded, they demonstrate the futility of withholding the already-known

portions of the Agreement, and undermine any claim that harm would result from

disclosing related information. At the same time, Prof. Volokh, as an academic legal

commentator, needs access to the entire Agreement—not just press accounts, quotes,

or paraphrases in briefs—to ensure that his analysis of the Agreement is sound.

III. Prof. Volokh has a right to intervene and be heard.

For its right of access to be meaningful, the public must be heard.

[T]he public and press should be afforded, where possible, an

independent opportunity to present their claims. Certainly, the
failure to invite participation of the party seeking to exercise first
amendment [and common law rights] reduces the possibility of a
narrowly drawn order, and substantially imperils the protection
which the amendment [and the common law] seeks to assure. The
importance of the rights involved and interests served by those
rights require that the public and press be given an opportunity
to respond before being denied their presumptive right of access
to judicial records.

In re Knoxville News-Sentinel Co., Inc., 723 F.2d 470, 475 (6th Cir. 1983).

4 See, e.g., Eric Heisig, Judge: YouTube star Ricky ‘Faze’ Banks’ lawyers must
explain whether they OK’d Barley House fracas video (CLEVELAND.COM Jan. 12, 2018),
http://www.cleveland.com/court-
justice/index.ssf/2018/01/judge_youtube_star_ricky_faze.html.

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A limited motion to intervene is the proper vehicle for non-parties to seek

access to court documents. In re Knoxville News-Sentinel, 723 F.2d at 476 (courts

should allow “interested members of the public an opportunity to intervene and

present their views to the court.”); In re Consumers Power Co. Sec. Litig., 109 F.R.D.

45, 47 (E.D. Mich. 1985) (“In re Knoxville recognized a special, limited purpose

intervention to provide the press and/or public a reasonable opportunity to state

objections to a protective order or other obstacle to access to certain information

involved in a litigation.”); U.S. ex rel. Martin v. Life Care Centers of Am., 912 F. Supp.

2d 618, 622 (E.D. Tenn. 2012) (granting limited motion to intervene to challenge

restrictions on access); Application of Storer Commc’ns, Inc., 828 F. 2d 330, 335 (6th

Cir. 1987) (approving media intervention to challenge restrictions on public access to

court proceedings).5

Conclusion

Prof. Volokh thus respectfully requests that this Court grant his Motion to In-

tervene and Gain Access to a Judicial Document, and direct the Clerk to place the

Agreement on the Court’s electronic docket.

5 Prof. Volokh does not seek leave to participate in this litigation beyond his
request for access to documents at issue in the contempt proceedings, and therefore
does not seek leave to be added as a party-in-interest, as is the practice in other
circuits. See Jessup v. Luther, 227 F.3d 993, 997 (7th Cir. 2000) (allowing intervention
under Fed. R. Civ. P. 24). If the Court prefers, he will restyle his Motion and seek
leave to intervene under that Rule.

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/s/ Patrick S. Kabat

Patrick Kabat (NY Bar No. 5280730)
Subodh Chandra (OH Bar No. 0069233)
THE CHANDRA LAW FIRM LLC
The Chandra Law Building
1265 W. 6th St., Suite 400
Cleveland, OH 44113-1326
216.578.1700 Phone
216.578.1800 Fax
[email protected]
[email protected]

Attorneys for Movant Eugene Volokh

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CERTIFICATE OF SERVICE

I certify that on January 17, 2017, I filed this Motion and Memorandum on the

Court’s electronic docket, where it will be served by the Court’s electronic filing

system on all parties of record.

/s/ Patrick S. Kabat

Attorney for Movant Eugene Volokh

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