United States District Court, E.D. Arkansas, Western Division
PANHANDLE OIL AND GAS INC. PLAINTIFF
BHP BILLITON PETROLEUM (FAYETTEVILLE) LLC, and BP AMERICA PRODUCTION COMPANY DEFENDANTS
Edward Morgan, Attorney for Plaintiff
De Woody Greathouse, Attorneys for Defendant BHP Billiton
Petroleum (Fayetteville) LLC
Christopher J. Heller, Rob F. Robertson, Gregory T. Metcalfe,
GableGotwals Attorneys for Defendant BP America Production
HONORABLE D. P. MARSHALL JR. JUDGE
The Court needs to clarify how the record should be handled
in this case - a dispute about the parties' contractual
obligations related to some wells in the Fayetteville Shale.
Related litigation has been going on for some time in various
state and federal courts. E.g., Panhandle Oil and Gas,
Inc. v. BHP Billiton Petroleum (Fayetteville), LLC, 2017
Ark.App. 201, 520 S.W.3d 277 (2017); Panhandle Oil and
Gas, Inc. v. BP America Production Company, No.
4:15-cv-30-DPM. The live branch of the dispute, this case,
started in state court and was removed here. Early on, the
state circuit court entered a protective order, which
authorized the parties to designate materials as confidential
during discovery and file any materials so designated under
seal. After removal, BP asked to file four documents under
seal - two complaints and two briefs, each of which contained
many attached documents. This Court tentatively agreed, but
hedged, pointing out that redaction was better than sealing,
requesting a complete copy to review in chambers, and
offering to receive briefs. Nq 18. The copies came
promptly; no briefs were filed. The Court didn't see
anything particularly sensitive in the materials, and ordered
them unsealed. Nq 29. BHP then moved to re-seal them
and the Court did so, pending further consideration on the
merits. Nq 30 & 31. The parties have also
jointly asked for a new protective order.
Court's first Order should have been clearer. Insofar as
practicable, this Court's business should be done in
public. IDT Corp. v. eBAY, 709 F.3d 1220, 1222-23
(8th Cir. 2013). There are exceptions, of course. Protecting
sensitive business information is one. Ibid. Parties
are free to conduct discovery in near-total privacy, shielded
by a protective order. There is a clear line, though, between
discovery and filings. When the parties' dispute comes
into the Court for adjudication, keeping things confidential
requires good reasons. And those good reasons must be given
document by document, not across the board, as may be done in
discovery. A protective order doesn't, or shouldn't,
answer the sealing question definitively. The Sixth
Circuit's decision in Shane Group, Inc. v. Blue Cross
Blue Shield of Michigan, 825 F.3d 299, 305-06 (2016)
covers this ground particularly well.
a further necessary step. When it can be done practically,
redaction beats sealing. It is more trouble. But redaction
better protects the two important interests at stake: the
litigants7 need to shield private things, and the
public's right to see what's going on in its courts.
IDT Corp., 709 F.3d at 1224-25. A party seeking to
file a document under seal must therefore give good reasons
about that particular document, plus show that redaction will
unopposed request to keep the two complaints and two briefs
under seal is mostly denied and partly granted. The parties7
legal disputes -as ventilated in those four papers -are
already matters of public record. They're covered in
detail in the briefs filed with the Arkansas Court of Appeals
in the related case. Those briefs are available online and
from that Court. Sealing the entirety of the four papers here
is thus excessive and unnecessary. The parties can, and
should, redact any confidential bits and pieces in those
about the many attachments? Some are public records.
E.g., No. 20-1 at 55-75. There's also an excerpt
from a book, some state court orders, and some other public
court filings. No. 20-3 at 44-54. All this is public
information that should not be sealed. If the parties'
various agreements are not already in the public record, then
they can stay under seal. But if, for example, copies of the
Chesapeake/BHP purchase and sale agreement, or the
Panhandle/Chesapeake letter agreements have been made public,
then they should be on the public docket in this dispute
about those contracts.
Last, the proposed protective order. The Court approved a
very similar version of it last spring right before the end
of the related federal case. That was a mistake because the
document needs some revisions. They're attached. The
proposal is fine as modified.
motion to seal, No. 30, mostly denied and partly
granted with instructions. Motion for protective order,
Nq 32, granted as modified. Please file the two
complaints, the two briefs, and all attachments on the public
docket-with any necessary redactions and noting any
attachments that should stay sealed -by 8 December 2017.
protect confidential information sought or used in discovery
in this Case No. 4:17CV379-BRW and any appeals here from (the
"Proceeding"), the Parties have jointly requested
entry of this Agreed Protective Order.
AGREED BY THE PARTIES AND ...