                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA



JOHN N. XEREAS,

               Plaintiff/Counter-Defendant,
                                                                  Civil Action No. 12-456
       v.                                                                RCL/DAR

MARJORIE A. HEISS, et al.,

               Defendants/Counter-Plaintiffs.



                           MEMORANDUM OPINION AND ORDER

       The matter before the court was filed on March 23, 2012, and stems from events regarding

the formation and dissolution of a joint business venture. See Complaint (ECF No. 1). Plaintiff

seeks damages and injunctive relief for twenty-six statutory and common law claims, including

trademark infringement, unfair competition, conversion, breach of contract, fraud, unauthorized

interception     and disclosure    of electronic   communications,   unlawful   access to stored

communications, misappropriation of trade secrets, intentional interference with business

relations, unjust enrichment, cybersquatting, breach of fiduciary duty, breach of duty of good faith

and fair dealing, violation of right to information, violation of RICO, and conspiracy. Id. at 68-

104. Defendants filed a counterclaim, seeking both injunctive relief and damages for thirteen

claims, including breach of contract, breach of duty of good faith and fair dealing, tortious

interference with existing business and contractual relationships, tortious interference with

prospective business relationships, breach of fiduciary duty, violation of the computer fraud and

abuse act, conversion, and conspiracy. Counterclaim (ECF No. 67) at 16-27.
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Xereas v. Heiss, et al.

         The case was referred to the undersigned United States Magistrate Judge for resolution of

discovery matters, and the assignment was later expanded to include consideration of the parties’

cross motions to dismiss (ECF Nos. 57, 76). See 06/01/2017 Minute Order; 06/15/2017 Minute

Order. 1 The court now considers Plaintiff’s Motion to Withdraw Motion for Leave to File

Plaintiff’s Second Amended Complaint under Seal (ECF No. 77), filed following the original

Motion for Leave to File under Seal (ECF No. 54), included with Plaintiff’s filing of the Second

Amended Complaint. 2

         In deciding whether to grant a motion to seal, this court must weigh the request against the

“strong presumption in favor of public access to judicial proceedings.”                         E.E.O.C. v. Nat’l

Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996) (internal quotations omitted). “Access

to records serves the important function[] of ensuring the integrity of judicial proceedings,”

however, the public’s access may be restricted to protect private and public interests, such as trade

secrets, the privacy and reputation of victims of crimes, risks to national security interests, and the

danger of an unfair trial by adverse publicity. United States v. Hubbard, 650 F.2d 293, 314-16

(D.C. Cir. 1980).

         The strong presumption in favor of public access may be overcome upon consideration of

six factors: (1) the need for public access to the documents at issue; (2) the extent of previous




1
  At a status hearing conducted on June 12, 2017, Plaintiff’s Motion for Sanctions (ECF No. 63) was heard and
withdrawn. 06/12/2017 Minute Order. Defendants’ Motion for Extension of Time to Respond (ECF No. 80),
Defendants’ Motion for Scheduling Order (ECF No. 87), and the Consent Motion to Amend Scheduling Order (ECF
No. 86) were denied as moot, and a motions hearing was scheduled for June 19, 2017, to hear arguments with respect
to pending discovery motions (ECF Nos. 54, 56, 77, 91, 93). Id. Subsequently, the Court granted the Consent Motion
to Reset the Status Hearing (ECF No. 100) and rescheduled arguments for August 22, 2017. 06/19/2017 Minute
Order.
2
 Plaintiff and Defendants also filed Motions for Leave to File under Seal with their subsequent motions, replies, and
opposition briefs. See ECF Nos. 54, 56, 58, 59, 91, 93, 97-99. Since the parties use nearly identical language in their
respective Motions for Leave to File under Seal, this Order addresses the resolution of all pending motions for leave
to file under seal.
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Xereas v. Heiss, et al.

public access to the documents; (3) the fact that someone has objected to disclosure, and the

identity of that person; (4) the strength of any property and privacy interests asserted; (5) the

possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents

were introduced during the judicial proceedings. Nat’l Children’s Ctr., Inc., 98 F.3d at 1409

(citing Hubbard, 650 F.2d at 317-22).

         Plaintiff contends none of the information in Plaintiff’s Second Amended Complaint

warrants filing under seal; however, he filed the Second Amended Complaint with his motion for

leave to file under seal “out of abundance of caution” that the complaint may contain information

that Defendants may consider subject to the joint stipulation protecting confidential business

information. Plaintiff’s Mot. For Leave to File Under Seal (ECF No. 54). Plaintiff has now moved

to withdraw his original motion requesting leave to file the Second Amended Complaint under

seal. However, in their respective motion for leave to file under seal, Defendants argue that the

pleadings should remain under seal because there is “a strong privacy interest in having the

scandalous materials reviewed by the Court prior to any public discourse.” Defendants’ Mot. For

Leave to File under Seal (ECF No. 56). 3

         Upon review of Defendants’ motion, the undersigned observes no specific evidence

proffered in support of Defendant’s arguments against public filing of the Second Amended

Complaint, nor do Defendants cite any legal authority recognizing “a strong privacy interest in

[protecting] scandalous materials . . . prior to public discourse.” Id; see Friedman v. Sebelius, 672

F. Supp. 2d 54, 58 (D.D.C. 2009) (“[A] party seeking to seal court documents must come forward

with specific reasons why the record, or any part thereof, should remain under seal.”) (emphasis



3
  Defendants file their initial motion for leave to file under seal with a motion to strike certain “impertinent and
scandalous statements” from the Second Amended Complaint. See Def. Mot. to Strike (ECF No. 56). Defendants’
motion to strike is not decided by this Memorandum Opinion and Order.
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Xereas v. Heiss, et al.

added). Instead, Defendants mistakenly rest on the notion that “[n]one of the other [Hubbard]

factors weigh heavily in favor of rejecting the request for filing under seal.” Id.

          The undersigned notes that the District of Columbia Circuit established that the factors laid

out in Hubbard are to be weighed against the “strong presumption in favor of public access to

judicial proceedings,” Nat’l Children’s Ctr., Inc., 98 F.3d at 1410, designating the burden to rebut

the presumption of disclosure to the objecting party. Here, Defendants have failed to carry that

burden.

          The majority of the Hubbard factors weigh heavily in favor of disclosure. As to the first

factor, the undersigned perceives a high probability that the complaint will inevitably be referred

to in the court’s decision on Defendants’ Motion to Dismiss (ECF No. 57), enhancing the need for

public disclosure. See Grynberg v. BP P.L.C., 205 F. Supp. 3d 1, 3 (D.D.C. 2016) (“[T]here is a

need for public access in those instances where the documents at issue are specifically referred to

in the [] judge’s public decision.”).

          Upon consideration of the fourth factor, the undersigned considered Defendants’ primary

assertion that the pleadings and related motions should remain under seal because “[t]he proposed

Second Amended Complaint            contains numerous impertinent        and scandalous statements

unnecessarily impugning the moral character of the defendants and others, including allegations

of adulterous relationships, that have no relevance to any of the plead counts.” However, this court

has found such “generalized” claims of privacy interest involving “harm to reputation[,]” such as

those alleged above, insufficient to compel disclosure under Hubbard. See United States ex rel.

Grover v. Related Companies, LP, 4 F. Supp. 3d 21, 27 (D.D.C. 2013).

          Additionally, unlike a tangentially related exhibit, the documents sought to be sealed here

are Plaintiff’s Second Amended Complaint and subsequent motions regarding it and information
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Xereas v. Heiss, et al.

contained therein. Thus, upon consideration of the sixth factor, the undersigned finds the purpose

for which the relevant documents have been introduced is significant, and as this court has opined,

“the more relevant a pleading is to the central claims of the litigation, the stronger the presumption

of unsealing the pleading becomes.” See United States ex rel. Grover, LP, 4 F. Supp. 3d at 28.

Thus, as Plaintiff asserts, the complaint is a central feature of the underlying litigation, rendering

the sealing of it and any subsequent motions which refer to it inappropriate in this instance.

         It is, therefore,

         ORDERED that Plaintiff’s Motion to Withdraw the Motion for Leave to File under Seal

(ECF No. 77) is GRANTED; and it is,

         FURTHER ORDERED that Plaintiff’s remaining Motions for Leave to File under Seal

(ECF Nos. 58, 91, 97, 98)) are DENIED as moot; and it is

         FURTHER ORDERED that Defendants’ Motions for Leave to File under Seal (ECF Nos.

56, 59, 93, 99) is DENIED.



                                                                _____               /s/
                                                                 DEBORAH A. ROBINSON
August 18, 2017                                                  United States Magistrate Judge
