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simultaneously filing them as exhibits attached to their motion for summary judgment.
First, despite the presumption of public access to judicial records, simply attaching
documents to a dispositive motion does not make them judicial records requiring their public
disclosure; rather, the Tenth Circuit has held that the presumption of public access only applies to
judicial records, defined as those used to determine litigants substantive legal rights. Colony
Ins. Co. v. Burke, 698 F.3d 1222, 1242 (10th Cir. 2012); U.S. v. Pickard, 733 F.3d 1297 (10th Cir.
2013). If that were not the case, parties could circumvent Court rulings by simply attaching
confidential documents as exhibits, declare them to be judicial records on that basis and then
demand that they be disclosed to the public. Because the documents do not resolve the two issues
raised in Plaintiffs summary judgment motion, the presumption of public access does not attach.
Second, when balancing the specific interests of the public and the government relative
to the factual circumstances of the case, as this Court must do under United States v. Apperson,
642 F. App'x 892, 900 (10th Cir. 2016), the governments specific interests in preventing the
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documents from being publicly disseminated outweigh the ACLUs political agenda and financial
interest in publishing them. Plaintiffs have made no showing as to how their interests in publishing
For all these reasons, fully briefed below, Defendant respectfully requests the Court deny
Plaintiffs motion.
LEGAL STANDARD
This Courts decision to seal or unseal the documents is reviewed for an abuse of discretion.
U.S. v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997). Courts have a responsibility not to become
a partner in the use of confidential case materials to gratify private spite or promote public
scandal with no corresponding assurance of public benefit. Nixon v. Warner Commcns Inc., 435
While federal courts have long recognized a common-law right of access to judicial
records, the publics right of access is not absolute. Mann v. Boatright, 477 F.3d 1140, 1149 (10th
Cir. 2007). The Court therefore has discretion to seal documents if competing interests outweigh
the public's right of access. Id. The district court must analyze the governments interests in the
context of the specific case- with respect to the particular documents or categories of documents-
and explicitly undergird their conclusions with fact-specific analysis. United States v. Apperson,
642 F. App'x 892, 900 (10th Cir. 2016). Absent a particularized analysis of this type, a district
court has no sound legal basis for ruling on the sealing question. Id.
ARGUMENT
I. The Common-Law Right of Access to Judicial Records Does Not Apply to All Documents a
Party Chooses to Attach to Dispositive Motions
It should first be noted that Defendant has no intention of filing the two sealed documents
as exhibits to any dispositive motion because they are irrelevant to the issues in this case.
Case 2:16-cv-02105-JAR-JPO Document 376 Filed 07/28/17 Page 3 of 14
Plaintiffs statement that they documents are being submitted in connection with the parties
motions for summary judgment is inaccurate. See Plaintiffs Motion to Unseal, ECF 369, p. 6.
But regardless, a mere filing fee or simply attaching a document to a motion does not guarantee a
Instead, there are two doctrines that provide for access to judicial court records. The first
is the First Amendment right of access to criminal cases. McVeigh, 119 F. 3d at 811. The First
Amendment protects the right of the public and the press to attend criminal trials. Globe
Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). Plaintiffs have not raised this issue in
their motion. The second is the common-law right of access to judicial records. Mann v. Boatright,
477 F.3d 1140, 1149 (10th Cir. 2007). Because this is not a criminal matter, Plaintiffs motion to
unseal must be analyzed under the common-law right of access. This is the basis for Plaintiffs
motion to unseal the two documents, ECF 369 at 4, and what will be addressed in this Response.
A. Purpose of the Common Law Access Doctrine is to Protect the Publics Interest in
the Neutrality of Judges and Equal Treatment of Parties
In their Motion to Unseal, Plaintiffs miss the mark on the purpose of the public access
doctrine. While the right derives from the public's interest in understanding disputes that are
presented to a public forum for resolution, the underlying rationale is intended to ensure that courts
are fair and judges are honest. Crystal Grower's Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir.
1980). It is not grounded on some alleged publics interest in accessing and understanding all the
evidence at issue in this case as Plaintiffs argue. See Plaintiffs Motion to Unseal, ECF 369, p. 2.
Instead, [t]he presumption of access is based on the need for federal courtsto have a measure
of accountability and for the public to have confidence in the administration of justice. U.S. v.
Furthermore, the presumption is not based on the publics right to hold a litigant
accountable to the public; rather, it is based on the right of the public to assess the Courts actions.
It is critical that the public be able to review the factual basis of this Court's decisions and evaluate
the Court's rationale so that it may be confident that the Court is functioning as a neutral arbiter.
Johnstown Feed & Seed, Inc. v. Contl. W. Ins. Co., 07-CV-00290, 2009 WL 866828 at *1 (D.
Colo. Mar. 26, 2009). The rationale underlying the public's right to access is to allow the public
an opportunity to assess the correctness of the judge's decision where the court relied on the
documents in doing so. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 123 (2d Cir. 2006).
Consequently, the Tenth Circuit has stated in the context of a case in which a privilege
issue was raised regarding certain documents, that the public had three possible interests in access
to judicial records: 1) a general interest in understanding disputes presented to a public forum for
resolution, 2) interest in assuring that the courts are fairly run and judges are honest, and 3) interest
in protecting the attorney-client and work product immunity doctrine so that citizens may
communicate freely with their lawyers. Crystal Growers Corp. v. Dobbins, 616 F.2d 458, 461-
62 (10th Cir. 1980). Notably absent was the publics general curiosity in the contents of documents.
The underlying rationale to the public interests expressed by the Court were based on the
publics interest in keeping courts accountable, understanding the dispute in the case, and keeping
their communications with attorneys privileged. The focus on the common-law right of access is
on the actions of the court, not on some general interest in the actions of the litigants as may be
reflected in a sealed document. Barnwell v. Corr. Corp. of Am., No. 08-2151-JWL, 2009 WL
10645266, at *2 (D. Kan. Aug. 27, 2009) (citing Bartelloni v. DeCastro, 2007 WL 2155646, at *1
n.2 (S.D. Fla. July 26, 2007) (principal justification for allowing public access to court records is
Moreover, when weighing the publics three interests, the Tenth Circuit held that where a
party asserted a privilege in the documents, as Defendant has done in this case,1 protecting asserted
privileges, at least for the limited time to resolve the issues, outweighed the publics general
interest in disputes in public courts. Crystal Growers Corp. v. Dobbins, 616 F.2d at 461-62. As
a result, where, as here, the party raised a privilege claim as to the sealed documents, the privilege
interest favored nondisclosure and outweighed the publics other interests. Id. Thus, despite the
fact that Plaintiffs have accessed these documents in discovery and have succeeded in this Court,
Defendant still, under Mohawk, can appeal that decision after this case concludes. This Court
should not keep these documents sealed to restrict further disclosure and revisit the issue later so
motion, the Court must unseal them. Plaintiffs Motion, ECF 369, p. 6. That is simply not true.
The mere filing of a paper or document with the court is insufficient to render that paper a judicial
document subject to the right of public access. U.S. v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995).
In order to be designated a judicial document, the item filed must be relevant to the performance
of the judicial function and useful in the judicial process. Id. Before any such common law right
can attach, however, a court must first conclude that the documents at issue are indeed judicial
1
Defendant has already asserted an attorney-client privilege as well as a deliberative process
privilege, both of which the Court has rejected. Defendant is not waiving this argument, briefed
fully in the record, but is relying on his right under Mohawk Indus. Inc. v. Carpenter, 558 U.S.
100 (2009), adopted by the Tenth Circuit in U.S. v. Copar Pumice Co., Inc., 714 F.3d 1197 (10th
Cir. 2013), to potentially appeal the denial of privileges following the entry of a final judgment.
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Documents will fall somewhere on a continuum from matters that directly affect an
adjudication to matters that come within a courts purview solely to ensure their irrelevance.
Amodeo II, 71 F.3d at 1049. Records that inform the Courts decision-making process and those
used to determine litigants' substantive legal rights carry a stronger presumption of access than
those that do not. See Booth v. Davis, CV10-4010, 2016 WL 1170949 at *1 (D. Kan. Mar. 23,
2016); Amodeo II, 71 F.3d at 1049. However, moving down the continuum, away from matters
that directly affect an adjudication and towards matters that come within a court's purview
solely to insure their irrelevance, the weight of the presumption declines. Id. At the low end of
the continuum, [w]here testimony or documents play only a negligible role in the performance of
Article III duties, the weight of the presumption is low and amounts to little more than a prediction
Recently, this Court relied on this same Second Circuit law in determining whether to
unseal confidential documents and make them publicly available. See Lonker v. Chambers, 16-
2097-JWL, 2017 WL 1197640, at *2 (D. Kan. Mar. 31, 2017). There, the Court considered whether
a confidential report attached to a motion for summary judgment should be unsealed. Noting that
the rationale underlying the publics right of access is to allow the public an opportunity to assess
the correctness of the judges decision, this Court held that if an attached document to a summary
judgment did not play a role in the decision on the motion, the need for public access to the
This is consistent with the Tenth Circuits holding that records that inform our decision-
making process should not be sealed absent a substantial interest that would justify doing so.
Helm v. Kansas, 656 F.3d 1277, 129293 (10th Cir. 2011); Colony Ins. Co., 698 F.3d at 1241 (if
documents are used to determine substantive rights, presumption of access attaches). It is also
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consistent with First Circuit law which holds that where documents in question are material and
important to a judicial decision public access is favored. FTC v. Standard Fin. Management
In contrast, where documents play only a negligible role in determining the substantive
rights of a party, the weight of a presumption is low. Amodeo II, 71 F.3d at 1050. The District
of Columbia Circuit is also in accord. See SEC v. Am. Intl Grp., 712 F.3d 1, 3 (D.C. Cir. 2013)
(court must first decide whether the document sought is a judicial record dependent on the role
The question presented, then, is whether the two documents at issue are central to a
determination of substantive rights, making them judicial records to which the public right of
access would attach. If they are not, then there is no presumption of public access and the court
would simply weigh the litigants interests against each other, rather than weighing the publics
C. The Documents Are Not Judicial Records Because They Are Not Dispositive or
Material in Deciding Plaintiffs Motion for Summary Judgment
Plaintiffs identify just two issues to be resolved in their motion: 1) whether substantial
numbers of noncitizens have registered to vote in Kansas, and 2) whether nothing other than a
DPOC requirement is sufficient to enforce Kansass citizenship qualification for voting. Motion
for Summary Judgment, ECF. 367 p. 1. In support of their motion, Plaintiffs attach thirty exhibits,
some with various attachments, totaling a 2,471 pages of evidence. Significantly, the two
documents in question are just one page each, comprising 2 out of 2,471 pages attached to the
motion. And with the Courts redaction of completely irrelevant issues, the two documents
Not surprisingly, Plaintiffs do not structure their arguments around these two documents,
nor even cite them in support of an argument in the body of their brief. Instead, they include them
in a brief reference to footnote 3. ECF 367, p. 22. Despite this reality, Plaintiffs argue in their
motion to unseal that the documents are at the center of the controversy. Motion to Unseal, ECF
369, p. 5. Incredibly, Plaintiffs inform the Court that their desire to unseal is motivated not by the
issues in this case, but because of supposed public statements outside of this case and whether such
But Plaintiffs conflate the center of their social media controversy with the actual legal
arguments they are making in the pending motion for summary judgment. Nowhere in the motion
for summary judgment do Plaintiffs argue that the documents shed light on whether Secretary
Kobachs public statements are credible about the extent of the problem of noncitizen voting.
That purported issue is not raised. Put another way, it is irrelevant what controversy is posted
on social media by the ACLU about this case; the documents must be determinative of the
substantive rights at issue in the pending motion to be judicial records. They are not.
their brief. The documents are not material to Plaintiffs motion, nor are they determinative of
either of the two issues raised in the motion.2 They are irrelevant to the claims in this case and not
central to the case. See Colony Ins. Co., 698 F.3d at 1241 (holding that, due to the centrality of
the documents to the adjudication of the issues, they should be disclosed). They are not discussed
or relied on by Plaintiffs in their arguments within the brief regarding either issue pending before
the court (the number of noncitizens registered to vote in Kansas and whether nothing other than
a DPOC requirement can sufficiently enforce Kansas law), but instead limited to one footnote.
2
Although the Court found the two documents to be relevant under the discovery standard, that
standard no longer applies as the Court stated in its Order. ECF 355, p. 18.
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In order for the documents to be judicial records and the presumption to attach, their content
must be central and dispositive to the determination of Plaintiffs pending motion and they simply
are not. Tenth Circuit precedent holds that documents that are pertinent to a judicial determination
should be available to the public, not documents that are simply found to be relevant in a discovery
dispute.3 Colony Ins. Co. v. Burke, 68 F.2d 1222, 1242 (10th Cir. 2012). Because they are not
determinative, they are not judicial records and the Court should deny the motion to unseal.
Lugosch, 435 F.3d at 121; SEC, 712 F.3d at 3; FTC, 830 F.2d at 408.
II. Defendants Specific Articulated Interests of Sealing Documents Outweigh Plaintiffs and
the ACLUs General Interests Relative to the Factual Circumstances of the Case
Even if the Court were to find that the six sentences of the two documents were central and
dispositive to Plaintiffs motion for summary judgment and resolved the substantive rights of the
parties, Plaintiffs motion to unseal would fail because Defendants specific and articulated
In determining whether documents should be sealed, the Tenth Circuit requires that the
competing interests of each side be weighed. Crystal Growers Corp., 616 F.2d at 461-62. The
specific interests of the public and the government relative to the factual circumstances of the
case, must be weighed. Apperson, 642 F. App'x at 900. Here, Defendant can articulate several
interests that would each be adversely impacted with public disclosure of the confidential
documents:
First, it would harm the ability to deliberate and advise as identified by Magistrate OHara.
ECF 355, p. 16. Plaintiffs ignore the fact that the Court has already recognized that these
3
Plaintiffs once again blatantly misstate Magistrate Judge OHaras rulings in this regard. On
page 4 of Plaintiffs Motion to Unseal, they quote the Court as saying that the two documents are
unquestionably relevant to the legal issues in this case. That is not what the Court stated; rather,
the Court stated that the documents were unquestionably relevant in the context of a discovery
request, which of course is a much broader standard. See ECF 320, p.2.
Case 2:16-cv-02105-JAR-JPO Document 376 Filed 07/28/17 Page 10 of 14
documents should not be disseminated to the public because disclosure is both protected by statute
and would make it less likely that defendant would, in the future, seek or give candid advice on
matters of public importance. ECF 355, p. 16. If otherwise protected documents involving advise
are otherwise simply unsealed when attached to a motion, it would severely temper the ability to
have such discussions in the future. That interest is not diminished simply because Plaintiffs have
decided to gratuitously attach the documents to a brief and cite to them in a footnote. Plaintiffs
have presented nothing new here and the interest in deliberations recognized in the denial of the
Second, it would undermine the States ability to maintain the confidentiality of certain
otherwise public documents. The Kansas Legislatures decision should not be overridden by the
interests of a political activist organization wanting to use documents for fundraising by simply
under other KORA requests as well as encourage costly future litigation. The Secretary maintains
that these documents are exempt from KORA and permitting them to be disclosed simply because
Plaintiffs have attached them to a summary judgment motion, particularly without satisfying the
judicial records requirement, would undermine his position in KORA generally. Furthermore, it
would generally undermine any protections of documents in the future. Plaintiffs seek to set a
precedent where they can make KORA a dead letter in Kansas by filing a lawsuit, utilizing broad
discovery requests, and then attaching confidential documents produced in litigation to some
unrelated motion. If this Court permits the end-run around the KORA protections that the State
Legislature deemed important enough to exempt from public disclosure, the State will face and
Case 2:16-cv-02105-JAR-JPO Document 376 Filed 07/28/17 Page 11 of 14
have to defend many more costly lawsuits in the future under this same strategy employed by
Plaintiffs. This would usurp the states power and increase costs to taxpayers.
Finally, it would undermine Secretary Kobachs interest in fulfilling his appointed duty
and responsibilities on the Presidential Election Commission which include being able to advise
the President privately on matters within the purview of the Commission. The public broadcast of
the Secretarys documents related to these meetings with the President would hinder his ability to
In contrast, Plaintiffs offer three scant and generalized reasons why the two documents
First, Plaintiffs allege that the documents are relevant. They do not argue how they are
relevant to their pending motion. They also fail to explain how the documents are relevant to the
allegations raised in their Complaint. Instead, they merely cite to a general interest of the public in
understanding how disputes are resolved in court. ECF 369, p. 5. That is insufficient against
articulated interests. Apperson, 642 F. Appx at 904 (interests cannot be just generic interests).
Second, Plaintiffs argue that the documents should be disclosed because Plaintiffs attached
them to their motion for summary judgment. They are missing the point. Documents do not
become judicial records by simply being attached to a motion, infra. Moreover, to the extent that
the exhibits were meant to support any argument in their brief, that argument is in a footnote.
ECF, p. 22, n. 3. Plaintiffs have already been informed in this case that arguments in footnotes are
not arguments, but instead any such argument raised in a footnote is waived. See Order, ECF 247,
p. 7 (Magistrate Judge OHara citing U.S. v. Hardman, 297 F.3d 1116, 1131 (10th Cir. 2002) in
support of his holding that arguments raised in a perfunctory manner, such as in a footnote, are
waived). Thus, rather than being the center of this controversy, ECF 369 at 5, the documents
Case 2:16-cv-02105-JAR-JPO Document 376 Filed 07/28/17 Page 12 of 14
themselves literally support nothing in their summary judgment brief given how the documents
were utilized. As a result, the documents at issue do not determine any substantive rights so there
is no strong presumption of access attached to them, as explained above. See, e.g., U.S. v. Amodeo,
Third, Plaintiffs argue that the rationale presented by Defendant in opposing the
disclosure of the documents does not support keeping them under seal. Plaintiffs appear to be
attempting to relitigate the validity of the documents exemption from production under KORA.
However, this Court has already agreed with Defendant that KORA applied and that it statutorily
exempted the documents from disclosure. ECF 355, p. 15-16 (Secretary Kobach has met his
burden of asserting that his interests could be potentially harmed by the chilling effect the public
disclosure would have . . . the disclosure is restricted by statute). Because Plaintiffs did not file
a Rule 72(a) motion objecting to the Magistrates findings on that matter, they cannot now re-
argue the issue. And regardless, as noted earlier, Defendant still maintains an interest in
confidential advice.
None of Plaintiffs arguments weigh more heavily than Defendants specific interests
enumerated above. As a result, under the Apperson standard applied in the Tenth Circuit, the
CONCLUSION
Plaintiffs have failed to provide evidence that the two documents at issue are central to
the adjudication of any substantive rights requested in their summary judgment motion. Unless a
documents plays some role in the determination of the dispositive issues, it is not a judicial record
and the presumption of access does not attach to it. Colony Ins. Co., 698 F.3d at 1241. For the
Respectfully submitted,
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that, on the 28th day of July, 2017, I electronically filed
the above and foregoing document using the CM/ECF system, which automatically sends notice
/s/Garrett Roe
Garrett Roe
Attorney for Defendant Kobach