In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1248
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M AURICE F OSTER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 95 CR 242-12—Robert W. Gettleman, Judge.
No. 09-1686
A HMAD M ILAM , et al.,
Plaintiffs-Appellants,
v.
D OMINICK’S F INER F OODS, INC., et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 03 C 9343—Joan Humphrey Lefkow, Judge.
D ECIDED M AY 1, 2009
2 Nos. 09-1248 & 09-1686
Before E ASTERBROOK, Chief Judge, in chambers.
E ASTERBROOK, Chief Judge. Information that affects the
disposition of litigation belongs in the public record
unless a statute or privilege justifies nondisclosure.
This court explained in Baxter International, Inc. v. Abbott
Laboratories, 297 F.3d 544, 545–46 (7th Cir. 2002), that
“[s]ecrecy is fine at the discovery stage, before the material
enters the judicial record. See Seattle Times Co. v. Rhinehart,
467 U.S. 20 (1984). But those documents, usually a small
subset of all discovery, that influence or underpin the
judicial decision are open to public inspection unless
they meet the definition of trade secrets or other
categories of bona fide long-term confidentiality. See, e.g.,
Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d
893 (7th Cir. 1994); In re Continental Illinois Securities
Litigation, 732 F.2d 1302 (7th Cir. 1984). Information
transmitted to the court of appeals is presumptively
public because the appellate record normally is vital to
the case’s outcome. Agreements that were appropriate
at the discovery stage are no longer appropriate for
the few documents that determine the resolution of
an appeal, so any claim of secrecy must be reviewed
independently in this court. See this circuit’s Operating
Procedure 10.” See also, e.g., Nixon v. Warner Communica-
tions, Inc., 435 U.S. 589 (1978); Union Oil Co. v. Leavell,
220 F.3d 562 (7th Cir. 2000).
Motions under Operating Procedure 10 that propose
sealing documents in the appellate record are presented
to the motions judge. I have consolidated for decision
two such motions, resolving them in a published decision
Nos. 09-1248 & 09-1686 3
to reiterate the criteria of Baxter International—and to
remind counsel that it is often better to exclude the docu-
ments from the appellate record than to analyze at
length the reasons why they should or should not be
sealed.
The first appeal is United States v. Foster, No. 09-1248, a
criminal prosecution commenced almost 15 years ago.
After the Sentencing Commission lowered the guide-
line ranges for crack-cocaine offenses, and made that
change retroactive, Foster asked the district judge to
reduce his sentence. The district court granted the
motion, cutting Foster’s sentence from 360 months to 324
months. Foster then filed a notice of appeal to argue
that the reduction should have been greater. The district
court transmitted to the court of appeals a considerable
volume of materials that had been filed in the 1990s,
before the jury’s verdict and the 360-month sentence.
Thirty-four of these items have been maintained under
seal in the district court. The clerk’s office notified counsel
that they would be opened to the public under Operating
Procedure 10 unless an appropriate motion were made
and granted. The United States Attorney filed a motion to
maintain the secrecy, but the motion did not give any
reasons; indeed, it suggested that counsel for the United
States had no idea what was in the sealed envelopes
and did not plan to inquire. That motion, egregiously
deficient under this circuit’s precedent, was denied, though
without prejudice. The order informed counsel that
any future motion must meet the standards of Baxter
International.
4 Nos. 09-1248 & 09-1686
Extra time to file a proper motion was sought and
granted. The extended deadline passed without a mo-
tion. Four days later a motion arrived, together with a
motion to file instanter. The justification for lateness—that
the Assistant United States Attorney is busy—is inade-
quate; counsel did not try to explain why a request for
more time could not have been filed before the deadline
passed. And the motion to maintain the documents
under seal does not make a serious attempt to apply the
criteria of Baxter International. It does not cite that
decision, or any other. Nor does it cite any statute, rule,
or privilege. The motion says, over and over, that one
or another document should “remain sealed in order to
protect the privacy interests of the . . . witness involved.”
The motion does not mention that both Baxter
International and Union Oil disapproved any general
“privacy” rationale for keeping documents confidential.
Statutes, yes; privileges, yes; trade secrets, yes; risk that
disclosure would lead to retaliation against an
informant, yes; a witness’s or litigant’s preference for
secrecy, no. The law could not be clearer. Yet the motion
essentially asks the court to operate in a law-free zone.
To call the performance of the United States Attorney’s
Office in this case a disappointment would be a gross
understatement.
The second appeal is Milam v. Dominick’s Finer Foods, Inc.,
No. 09-1686, a civil suit under the Fair Labor Standards
Act. This suit began in 2003 and was dismissed by the
district court. In 2006 plaintiffs asked the court to set aside
the dismissal. That motion, which invoked Fed. R. Civ. P.
60(b)(1), was supported by an affidavit submitted under
Nos. 09-1248 & 09-1686 5
seal. The district judge granted the motion and reinstated
the case but eventually again resolved it in defendants’
favor. Plaintiffs appealed, and the district court trans-
mitted to the court of appeals a copy of the sealed affidavit.
Plaintiffs ask us to maintain the affidavit under seal,
because (they say) it “would potentially cause embarrass-
ment and affect [counsel’s] personal and professional
reputation by disclosing personal matters”. Although the
motion cites Baxter International, it does not contend
that confidentiality is justified by any statute or privilege.
Yet the district court did not explain why it has
forbidden public access to this document.
Rule 60(b)(1) permits a judgment to be reopened because
of “excusable neglect”. Just what the “neglect” entailed,
and why it was “excusable,” are questions in which the
public has a legitimate interest when they underlie a
judicial decision. See, e.g., Pioneer Investment Services Co.
v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993).
If the nature of the neglect reflects poorly on counsel,
that supports disclosure rather than confidentiality: a
lawyer’s clients (current and future) are entitled to know
what sort of error or other shortcoming led a district
court to enter judgment against people he represents. A
truck driver’s accident record is a legitimate subject of
inquiry by a prospective employer; just so with a
lawyer’s litigation record, including litigation lost (or
almost lost) because of counsel’s misconduct. A tenor
who can no longer hit high C can’t conceal that fact from
the public, and a lawyer who has lost focus on his clients’
welfare likewise must face exposure. The legal system’s
6 Nos. 09-1248 & 09-1686
goal is to protect the rights of litigants, not to safeguard
the interests of lawyers.
Plaintiffs in Milam say that the grant of relief under
Rule 60(b) is not an issue on appeal. If that is so, then
the affidavit need not be in the appellate record, and it is
unnecessary for me to explore whether some privilege,
or another reason omitted from the motion, might justify
continued confidentiality. Appellants ask me to order
the sealed affidavit returned to the district court without
ruling on the propriety of its sealing. Before doing this,
however, I want to hear from appellees. They might
choose to defend their judgment on the ground that the
district judge should not have revived the case by
granting the Rule 60 motion—and, if they advance such a
contention, it will be essential to decide whether the
basis of the district court’s decision can remain secret.
Appellees will have ten days to address this issue. If
appellees inform me that they plan to challenge the
district judge’s Rule 60 decision, appellants may file a
response within seven days.
I do not understand why the United States failed to
propose a similar disposition in Foster. None of the 34
sealed documents has any apparent bearing on the ap-
pellate issues. The documents concern Foster’s trial and
original sentence, not the extent to which the sentence
is affected by the retroactive crack-cocaine amend-
ments. Foster received the full reduction contemplated
by the amended Sentencing Guidelines. Any argument
that Foster is entitled to more than a 36-month reduction
in his sentence appears to be inconsistent with 18 U.S.C.
Nos. 09-1248 & 09-1686 7
§3582(c)(2). See United States v. Cunningham, 554 F.3d 703
(7th Cir. 2009). This court has directed the parties to
file memoranda on the effect of Cunningham.
Perhaps counsel for Foster or the United States see some
way in which the sealed documents may be relevant.
Neither the memos discussing Cunningham nor any brief
has been filed, so my understanding of the appellate
issues could be mistaken. I give the parties ten days to file
memoranda addressing the question whether the 34
sealed documents should be returned to the district court,
avoiding any need for me to decide whether, if they
remain in the appellate record, they must be opened to
public view.
5-11-09