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Panhandle Oil and Gas Inc. v. BHP Billiton Petroleum (Fayetteville) LLC

United States District Court, E.D. Arkansas, Western Division

November 1, 2017

PANHANDLE OIL AND GAS INC. PLAINTIFF
v.
BHP BILLITON PETROLEUM (FAYETTEVILLE) LLC, and BP AMERICA PRODUCTION COMPANY DEFENDANTS

          M. Edward Morgan, Attorney for Plaintiff

          Julie 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 Company

          ORDER

          HONORABLE D. P. MARSHALL JR. JUDGE

         1. 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.

         2. The 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.

         There's 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 not work.

         BHP's 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 documents.

         What 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.

         3. 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.

         Unopposed 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.

         So Ordered.

         AGREED PROTECTIVE ORDER

         To 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.

         IT IS AGREED BY THE PARTIES AND ...


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