UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

EQUAL RIGHTS CENTER, )
)
Plaintiff, )
)
v. ) Civil Case N0. 06cvl991 (RJL)

)
POST PROPERTIES, INC. and POST GP )
HOLDINGS, INC. and POST )
APARTMENTS HOMES, L.P., )

) FILED

Defendants, ) JUL 2 8 20"
'l"'*" C|erk, U.S. Distn'ct & Bankruptcy
MEM()RANDUM ORDER Cuurfs for the District of CO|umbla
(July jjzoi 1)

On June 16, 2010, while on appeal, the Equal Rights Center ("ERC") moved the
United States Court of Appeals for the D.C. Circuit to unseal portions of the record
previously sealed by this Court. Appellant’s Motion to Unseal Portions of the Record,
Equal Rz'ghts Center v. Post Propertz`es, Inc., N0. 09-5359 (D.C. Cir., June 16, 2010),
ECF N0. 1250364. In response, the Post Properties defendants ("Post"), who did not
object to ERC’s motion, further moved the Court to unseal various additional documents
in the record. Appellees’ Response and Motion to Unseal Additional Portions of the
Record, Equal Rights Center, N0. 09-5359 (D.C. Cir., June 25, 2010), ECF N0. 1251923
("Post’s Mot. Unseal"). ERC opposed Post’s motion to unseal these additional
documents claiming that the documents contained confidential and proprietary

information Appellant’s Reply and Response to Post’s Mot. Unseal, Equal Rights

Center, N0. 09-5359 (July 8, 2010), ECF N0. l253895 ("ERC’s Opp’n"). On September
2, 2010, our Circuit Court issued an order in which it referred the question of whether the
documents should be unsealed to this Court. Order, Equal Rights Center, N0. 09-5359
(D.C. Cir., Sept. 2, 2010), ECF N0. l263954 ("Order"). In particular, the Circuit Court
specified that the documents in question include: (l) Post’s Memorandum in Support of
Motion to Strike (Mar. 20, 2009), ECF N0. 163 ("Memorandum"); (2) exhibits N through
R attached thereto ("Exhibits N through R"); and (3) pages 72-73 of exhibit 37 to Post’s
Motion for Summary Judgment (Dec. l7, 2008), ECF N0. l2l-37. See ia'.

As an initial matter, Post only moves to unseal pages 72-73 of exhibit 37 to
defendants’ motion for summary judgment if those pages were included in the record
submitted to this Court. Post’s Mot. Unseal at 5. Having reviewed the record, this Court
finds that those pages were not included in exhibit 37 to defendants’ motion for summary
judgment.l Post’s Mot. Summ. J., Ex. 37 (Dec. l7, 2008), ECF. N0. 121~37. Thus, as
those pages are not in the record, this Court need not, and indeed cannot, address whether
they are appropriately sealed.

The determination of whether to unseal the remaining documents must be assessed
in accordance with the factors set forth in Um'tea’ States v. Hubbara', 650 F.2d 293, 317-

22 (D.C. Cir. 1980). In Hubbard, our Circuit Court outlined six factors that this Court

1 Exhibit 37 consists of excerpts from the May 30, 2008 deposition of Donald L. Kahl.
These excerpts do not include pages 72-73. The Courts notes, however, that exhibit 36 to
defendants’ motion for summary judgment, which consists of excerpts from the April 23,
2008 deposition of Donald L. Kahl, does contain pages numbered 72-73.

2

must weigh against the "strong presumption in favor of public access to judicial
proceedings." Johnson v. Greater SE Comm. Hosp. Corp., 951 F.2d 1268, 1277 (D.C.
Cir. 1991) (citing Hubard, 650 F.2d at 317). Those factors are: (l) the need for public
access to the documents at issue; (2) public use of the documents; (3) the fact of objection
and identity of those objecting to disclosure; (4) the strength of the generalized property
and privacy interests asserted; (5) the possibility of prejudice; and (6) the purpose for
which the documents were introduced. Hubbard, 650 F.2d at 317-22.

Applying the Hubbara’ factors, 1 fail to see any reason to unseal both the
Memorandum and Exhibits N through R at this time. On March 8, 2011 our Circuit
affirmed this Court’s ruling granting final judgment in favor of defendants, Judgment,
Equal Rzghts Center, N0. 09-5359 (D.C. Cir., Mar. 8, 2011), ECF N0. 1296849. The
need for public access is, therefore, highly diminished. See Hubbard, 650 F.2d at 317-18.
Furthermore, ERC’s strong objection weighs in favor of keeping the memorandum and
exhibits under seal. See ia’. at 319-20. Nevertheless, Post argues, and this Court agrees,
that there are no apparent property or privacy interests in the memorandum or exhibits

themselves.z See ia'. at 320. That said, however, privacy interests are but one of many

2 For instance, ERC cites to a reference to "Exhibit C" on page 3 of the memorandum,
arguing that Exhibit C contains confidential identifying information relating to ERC’S
members. ERC’s Opp’n at 4. But the reference to Exhibit 3 is a "see a1so" cite that
contains no substantive information Post’s Mot. Strike at 3. The fact that Exhibit C
exists is not alone confidential or proprietary. Indeed, ERC’s discussion of Exhibit C in
its unsealed response to Post’s motion to unseal contains more information about Exhibit
C than the memorandum itself. See ERC’s Opp’n at 4. ERC also cites to the discussion
of Kahn’s deposition testimony. ERC’s Opp’n at 4. But the discussion and quoted
3

factors that may weigh in favor of keeping the documents sealed. See id. at 317-22.
Simply put, Post did not identify, and this Court does not find, any reason to unseal the
documents at this time. See z'a’. at 320-24.
Accordingly, it is hereby
ORDERED that Post’s motion to unseal its memorandum in support of its motion
to strike and exhibits N through R thereto is DENIED; and it is hereby
ORDERED that Post’s motion to unseal pages 72-73 to its motion for summary
judgment is DENIED as moot.
S0 ORDERED.
/\
@LAM
RICHARD J. LE N
United States District Judge

excerpts do not seem to contain any proprietary or confidential information. See Post’s
Mot. Strike at 3. Indeed, the information in the quoted excerpts pertains to the number of
ERC members, information that is available online in ERC’s public annual reports.
Finally, ERC argues that the memorandum contains a discussion of various exhibits to
the Declaration of Alyssa Lareau that were filed under seal. ERC’s Opp’n at 4-5. Again,
nothing in the discussion appears to this Court to be confidential or proprietary. See
Post’s Mot. Strike at 8-19.

