                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-1686

A HMAD M ILAM , et al.,
                                              Plaintiffs-Appellants,
                                 v.

D OMINICK’S F INER F OODS, INC., et al.,
                                             Defendants-Appellees.



         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
          No. 03 C 9343—Joan Humphrey Lefkow, Judge.



                      D ECIDED M AY 27, 2009




  Before E ASTERBROOK, Chief Judge, in chambers.
  E ASTERBROOK, Chief Judge. A chambers opinion issued
earlier this month invited appellees to tell me whether they
plan to defend their judgment on the ground that the
district judge should not have revived the case by granting
plaintiffs’ motion under Fed. R. Civ. P. 60(b)(1). I observed
that, if they advance such a contention, then I must decide
whether the basis of the district court’s decision can remain
secret. The opinion added: “If appellees inform me that
they plan to challenge the district judge’s Rule 60 decision,
2                                                No. 09-1686

appellants may file a response within seven days.” United
States v. Foster, No. 09-1248 (7th Cir. May 1, 2009), slip op.
6 (Easterbrook, C.J., in chambers).
  One group of appellees—Dominick’s Finer Foods, Inc.,
and several affiliated parties (collectively
Dominick’s)—filed on May 11 a statement that they might
well urge, as one ground of affirmance, that the district
court should not have used Rule 60(b) to reopen the case.
Plaintiffs thus had until May 18 to file a response. Nothing
appeared until May 21. Plaintiffs neither asked for extra
time nor explained their delay. That insouciance toward
deadlines continues a pattern established in the district
court—a pattern that was the apparent reason for that
court’s initial decision in defendants’ favor. It is hard to
understand why lawyers who have lost this case once by
disregarding deadlines would tempt fate again.
  The question at hand is whether information sealed in
the district court should remain under seal in this court.
Here is the relevant portion of my earlier opinion:
    This suit began in 2003 and was dismissed by the
    district court. In 2006 plaintiffs asked the court to
    set aside the dismissal. That motion, which in-
    voked Fed. R. Civ. P. 60(b)(1), was supported by an
    affidavit submitted under seal. The district judge
    granted the motion and reinstated the case but
    eventually again resolved it in defendants’ favor.
    Plaintiffs appealed, and the district court transmit-
    ted to the court of appeals a copy of the sealed
    affidavit.
No. 09-1686                                                   3

   Plaintiffs ask us to maintain the affidavit under
   seal, because (they say) it “would potentially cause
   embarrassment and affect [counsel’s] personal and
   professional reputation by disclosing personal
   matters”. Although the motion cites Baxter Interna-
   tional, it does not contend that confidentiality is
   justified by any statute or privilege. Yet the district
   court did not explain why it has forbidden public
   access to this document.
   Rule 60(b)(1) permits a judgment to be reopened
   because of “excusable neglect”. Just what the
   “neglect” entailed, and why it was “excusable,” are
   questions in which the public has a legitimate
   interest when they underlie a judicial decision. See,
   e.g., Pioneer Investment Services Co. v. Brunswick
   Associates Ltd. Partnership, 507 U.S. 380 (1993). If the
   nature of the neglect reflects poorly on counsel,
   that supports disclosure rather than confidential-
   ity: a lawyer’s clients (current and future) are
   entitled to know what sort of error or other short-
   coming led a district court to enter judgment
   against people he represents. A truck driver’s
   accident record is a legitimate subject of inquiry by
   a prospective employer; just so with a lawyer’s
   litigation record, including litigation lost (or almost
   lost) because of counsel’s misconduct. A tenor who
   can no longer hit high C can’t conceal that fact
   from the public, and a lawyer who has lost focus
   on his clients’ welfare likewise must face exposure.
   The legal system’s goal is to protect the rights of
   litigants, not to safeguard the interests of lawyers.
4                                                  No. 09-1686

    Plaintiffs . . . say that the grant of relief under Rule
    60(b) is not an issue on appeal. If that is so, then the
    affidavit need not be in the appellate record, and it
    is unnecessary for me to explore whether some
    privilege, or another reason omitted from the
    motion, might justify continued confidentiality.
    Appellants ask me to order the sealed affidavit
    returned to the district court without ruling on the
    propriety of its sealing. Before doing this, however,
    I want to hear from appellees. They might choose
    to defend their judgment on the ground that the
    district judge should not have revived the case by
    granting the Rule 60 motion—and, if they advance
    such a contention, it will be essential to decide
    whether the basis of the district court’s decision
    can remain secret.
Slip op. 4–6. Because Dominick’s proposes to defend by
contesting the decision under Rule 60, I must decide
whether to unseal the affidavit.
  Plaintiffs’ response, however, does not argue that the
affidavit was justifiably sealed. Apparently they treat my
earlier decision as resolving that question. What plaintiffs
now contend is that the affidavit should be removed from
the appellate record. Plaintiffs say that, because the district
judge did not give a reason either for dismissing the case
or for reinstating it under Rule 60(b)(1), Dominick’s cannot
demonstrate that the judge abused her discretion and
therefore has nothing to gain from contesting the judge’s
order. That means, plaintiffs insist, that the affidavit is not
important to the appeal.
No. 09-1686                                                5

  Yet an unreasoned decision is easier to upset on appeal
than a carefully explained one. The judge did not explain
the initial order dismissing the suit (an apparent violation
of Circuit Rule 50), did not explain the decision to seal the
affidavit, and did not explain the grant of relief under Rule
60(b)(1). What is more, Dominick’s contends (and plaintiffs
do not deny) that the district judge refused to allow
defense counsel to see the affidavit that plaintiffs tendered
in support of their Rule 60(b)(1) motion. Dominick’s
therefore had no means to oppose the motion. A judicial
decision based on information that has been withheld from
counsel (in addition to the parties and the public) is
extraordinary and requires a compelling justification,
which no one in this case has articulated.
   This appeal cannot proceed in an orderly fashion under
a veil of unexplained secrecy. My earlier opinion explained
why secrecy appears to be unwarranted, and I take plain-
tiffs’ silence in their response as acknowledgment. The
affidavit therefore is unsealed and placed in the public
record.




                            6-3-09
