Havana Docks Corp. v. Carnival Corp.
Havana Docks Corp. v. Carnival Corp.
2020 WL 12814851 (S.D. Fla. 2020)
November 12, 2020

McAliley, Chris,  United States Magistrate Judge

Protective Order
Failure to Produce
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Summary
The Court found that the email and organizational chart produced by the Defendant were not “judicial records” to which there is public right of access. The Court declined to consider whether the documents should no longer be designated confidential or whether the Plaintiff is authorized to file them on the public docket. The Court also recognized the common law right of public access to judicial records, but did not make any specific rulings regarding the use of ESI.
HAVANA DOCKS CORPORATION, Plaintiff,
v.
CARNIVAL CORPORATION, Defendant
CASE NO. 19-cv-21724-BLOOM/MCALILEY
United States District Court, S.D. Florida
Entered on FLSD Docket November 12, 2020

Counsel

Francisco Raul Maderal, Jr., Stephanie Anne Casey, Aziza F. Elayan-Martinez, Zachary Andrew Lipshultz, Roberto Martinez, Colson Hicks Eidson, Coral Gables, FL, Rodney Stuart Margol, Margol, Margol, PA, Jacksonville Beach, FL, Thomas Allen Kroeger, The Florida Bar, Miami, FL, for Plaintiff.
Scott Daniel Ponce, Holland & Knight, Luis Emilio Llamas, Jones Walker LLP, Pedro Armando Freyre, Akerman LLP, Miami, FL, Stuart Harold Singer, Pascual Armando Oliu, Corey Patrick Gray, Boies Schiller Flexner LLP, Fort Lauderdale, FL, George J. Fowler, III, Pro Hac Vice, Jones Walker, LLP, New Orleans, LA, Meredith L. Schultz, Boies, Schiller & Flexner, LLP, Ft. Lauderdale, FL, for Defendant.
McAliley, Chris, United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION TO DE-DESIGNATE CONFIDENTIAL DOCUMENTS

*1 In support of the discovery process, the Court issued a Stipulated Confidentiality and Protective Order, (ECF Nos. 60, 61) (“the Protective Order”). That Order authorizes parties to designate certain discovery as confidential, and imposes limitations on the use of that discovery.
 
Two discovery documents that Defendant, Carnival Corporation, produced to Plaintiff, Havana Docks Corporation, with a confidential designation, are the subject of dispute. Specifically, at the October 21, 2020, discovery hearing, Plaintiff asked the Court to order that the two documents be de-designated as confidential. At the conclusion of that hearing I entered an Order that directed the parties to file memoranda of law on the subject. See Order Following October 21, 2020 Discovery Hearing ¶¶ A.1., B. (ECF No. 143). They did so. (ECF Nos. 154, 157). For the reasons that follow, I deny as premature Plaintiff's motion to de-designate these documents.
 
The documents at issue are (1) an email from Micky Arison, Chairman of Carnival's Board of Directions, dated April 17, 2019 (“the email”), and (2) the complete organizational chart for Carnival Corporation and Carnival plc (“the organizational chart”). In its memorandum, Havana Docks argues that the documents do not meet the criteria set forth in the Protective Order, for designating a document confidential. It asks the Court to direct that the documents be de-designated “so that Havana Docks may publicly file pleadings relying on those records ....” (ECF No. 157 at 2). And, in the case of the email, Plaintiff also wants to use it in the discovery process in the related lawsuits it has filed with this Court against other cruise lines.[1]
 
The Protective Order sets out a procedure for challenging confidentiality designations. (ECF No. 60-1 at 7-8). Specifically, the parties must meet and confer in an effort to resolve their dispute, and if unsuccessful, they may ask the Court to do so. (Id.). The parties have been unable to resolve this dispute on their own.
 
Courts have firmly recognized the common law right of public access to judicial records. Comm'r, Ala. Dep't of Corr. v. Advance Local Media, LLC, 918 F.3d 1161, 1166 (11th Cir. 2019) (collecting cases). Not every document filed with a court, however, is a “judicial record” within the meaning of this doctrine. The Eleventh Circuit Court of Appeals recently defined judicial records as “materials submitted by litigants – whether or not they are formally filed with the district court – that are integral to the judicial resolution of the merits ....” Id. at 1167 (citation and quotation marks omitted). Thus, in analyzing whether court documents should be sealed requires a two-step process. First, is the document a “judicial record”? If it is, the court must then decide if the “common law right of access may be overcome by a showing of good cause, which requires balanc[ing] the asserted right of access against the other party's interest in keeping the information confidential.” Id. at 1169 (quoting Romero v. Drummond Co., Inc., 480 F.3d 1234, 1246 (11th Cir. 2007)).
 
*2 In its memorandum, Havana Docks argues that the organizational chart is a judicial record, with two citations to the record. (ECF No. 157 at 6).
 
First, it points to Plaintiff's Reply in Support of Motion for Leave to File Second Amended Complaint (ECF No. 144), to which it attached the organizational chart as a sealed exhibit. (See ECF No. 148-1). This is not a “judicial record” because the Court, in deciding whether to authorize Plaintiff to amend its complaint in no way addressed the merits of this action. Rather, the Court faced the entirely procedural issue whether it should exercise the discretion provided by Rule 15, Federal Rules of Civil Procedure, to permit amendment. The Court found that “permitting the amendment here is not precluded by either undue delay or prejudice” and with that, it allowed the amendment. (ECF No. 146 at 6). It did not address the merits of this action. The Eleventh Circuit is clear that “[c]ourts generally should not permit public access to discovery materials that are not filed with substantive motions because discovery is essentially a private process meant to assist trial preparation.” Comm'r, Ala. Dep't of Corr., 918 F.3d at 1167 (citation and quotation marks omitted). Plaintiff's filing of the organizational chart in support of its bid to amend its complaint, did not make that document a judicial record that is subject to the public right of access.
 
Second, Havana Docks cited the transcript of the September 16, 2020 discovery conference as proof that the organizational chart is a “judicial record.” (See ECF No. 157 at 6) (citing ECF No. 128 at 88:2-16). At that hearing Havana Docks first argued to this Court that Carnival had improperly designated its organizational chart as confidential. (ECF No. 128 at 85-93). This circular reasoning, that Havana Dock's request that the document not be deemed confidential makes the document a “judicial record”, has no merit.
 
Havana Docks employs the same circular reasoning to contend that the email is also a “judicial record”: it attached the email as an exhibit to its sealed memorandum of law that argues the email should no longer be designated confidential, then claims that this makes the email a “judicial record.” (ECF No. 157 at 4) (“HavanaDocks_0388212 is now a judicial record that appears on the docket. (See Ex. A.)”). Again, this has no merit.
 
It is thus clear that, at this juncture in the litigation, neither the email nor the organizational charts are “judicial records” to which there is public right of access.
 
Havana Docks states that the email “remains central to this case and will be referenced in, and included as an exhibit to, future Havana Docks briefs in this case.” (ECF No. 157 at 3). If and when that day comes, Havana Docks may seek leave of court to file the email under seal, and if the pleading to which it is attached requires judicial resolution of the merits of this litigation, then Havana Docks may ask the Court to find that the public right of access to that document outweighs Carnival's interest in keeping that document confidential. Comm'r, Ala. Dep't of Corr., 918 F.3d at 1167-69. It is entirely premature to ask the Court to undertake that analysis now. See In re Photochromic Lens Antitrust Litig., Case No. 8:10-md-2173-T-27EAJ, 2014 WL 12618104, at *2 (M.D. Fla. May 29, 2014) (declining to decide propriety of confidential designation as premature).
 
*3 Havana Docks correctly notes that the Protective Order anticipates that the parties can ask the Court to resolve a dispute whether a document should be designated confidential. (ECF No. 157 at 4). Havana Docks’ complaint about the designation is not that it makes the discovery process unworkable, rather Havana Docks anticipates wanting to file the documents with the Court and would like a ruling in advance that authorizes it to do so. The Protective Order does not supplant the binding precedent cited above, that governs whether a document should be filed publicly, or under seal.
 
Havana Docks does state that it “wishes to use [the email] to examine Norwegian Cruise Line Holdings, Royal Caribbean Cruises Ltd., and MSC” in the related lawsuits Havana Docks has filed. (ECF No. 157 at 4). The email may well be useful to Havana Docks in any Rule 30(b)(6) deposition of those entities. Havana Docks has said nothing about any effort it has made to reach agreement with Carnival for the use of that document at those expected depositions. The Court expects the parties can reach such an agreement. If they do not, and if Havana Docks schedules those depositions and can make the necessary showing that its use of the document should be broader than that permitted by the Protective Order, it may bring the issue to the Court at that time. At this time, it is premature to ask the Court to address this.
 
For these reasons, the Court declines to consider whether the email and organizational chart should no longer be designated confidential, or whether Havana Docks is authorized to file those documents on the public docket of this Court.
 
DONE and ORDERED in Miami, Florida, this 12th day of November 2020.
 
Footnotes
See Havana Docks Corp. v. MSC Cruises SA Co., No. 19-cv-23588; Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., No. 19-cv-23590; Havana Docks Corp. v. Norwegian Cruise Line Holdings, Ltd., No. 19-cv-23591.