                                      In the

       United States Court of Appeals
                      For the Seventh Circuit
                           ____________________
No. 09-1248
UNITED STATES OF AMERICA,
                                                             Plaintiff-Appellee,
                                        v.
MAURICE FOSTER,
                                                         Defendant-Appellant.
                           ____________________
             Appeal from the United States District Court for the
               Northern District of Illinois, Eastern Division.
             No. 95 CR 242-12 — Robert W. Gettleman, Judge.
                           ____________________
No. 09-1686
AHMAD MILAM, et al.,
                                                         Plaintiffs-Appellants,
                                        v.
DOMINICK’S FINER FOODS, 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.
                           ____________________

                          DECIDED MAY 1, 2009*
                          ____________________

   *   This opinion is being released initially in typescript.
Nos. 09-1248 & 09-1686                                         Page 2


    Before EASTERBROOK, Chief Judge, in chambers.
    EASTERBROOK, Chief Judge. Information that affects the
disposition of litigation belongs in the public record unless a
statute or privilege justifies nondisclosure. This court explained
in Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544,
545–46 (7th Cir. 2002), that “[s]ecrecy is fine at the discovery
stage, before the material enters the judicial record. See Seattle
Times Co. v. Rhinehart, 467 U.S. 20 (1984). But those documents,
usually a small subset of all discovery, that influence or under-
pin the judicial decision are open to public inspection unless
they meet the definition of trade secrets or other categories of
bona fide long-term confidentiality. See, e.g., Grove Fresh Dis-
tributors, Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir. 1994); In
re Continental Illinois Securities Litigation, 732 F.2d 1302 (7th Cir.
1984). Information transmitted to the court of appeals is pre-
sumptively public because the appellate record normally is vital
to the case’s outcome. Agreements that were appropriate at the
discovery stage are no longer appropriate for the few docu-
ments that determine the resolution of an appeal, so any claim
of secrecy must be reviewed independently in this court. See
this circuit’s Operating Procedure 10.” See also, e.g., Nixon v.
Warner Communications, Inc., 435 U.S. 589 (1978); Union Oil Co. v.
Leavell, 220 F.3d 562 (7th Cir. 2000).
    Motions under Operating Procedure 10 that propose sealing
documents in the appellate record are presented to the motions
judge. I have consolidated for decision two such motions, re-
solving them in a published decision to reiterate the criteria of
Baxter International—and to remind counsel that it is often bet-
ter to exclude the documents from the appellate record than to
analyze at length the reasons why they should or should not be
sealed.
    The first appeal is United States v. Foster, No. 09-1248, a
criminal prosecution commenced almost 15 years ago. After the
Sentencing Commission lowered the guideline ranges for crack-
cocaine offenses, and made that change retroactive, Foster
asked the district judge to reduce his sentence. The district
court granted the motion, cutting Foster’s sentence from 360
months to 324 months. Foster then filed a notice of appeal to
argue that the reduction should have been greater. The district
court transmitted to the court of appeals a considerable volume
of materials that had been filed in the 1990s, before the jury’s
verdict and the 360-month sentence.
Nos. 09-1248 & 09-1686                                       Page 3


    Thirty-four of these items have been maintained under seal
in the district court. The clerk’s office notified counsel that
they would be opened to the public under Operating Procedure
10 unless an appropriate motion were made and granted. The
United States Attorney filed a motion to maintain the secrecy,
but the motion did not give any reasons; indeed, it suggested
that counsel for the United States had no idea what was in the
sealed envelopes and did not plan to inquire. That motion,
egregiously deficient under this circuit’s precedent, was denied,
though without prejudice. The order informed counsel that any
future motion must meet the standards of Baxter International.
    Extra time to file a proper motion was sought and granted.
The extended deadline passed without a motion. Four days
later a motion arrived, together with a motion to file instanter.
The justification for lateness—that the Assistant United States
Attorney is busy—is inadequate; counsel did not try to explain
why a request for more time could not have been filed before
the deadline passed. And the motion to maintain the docu-
ments under seal does not make a serious attempt to apply the
criteria of Baxter International. It does not cite that decision, or
any other. Nor does it cite any statute, rule, or privilege. The
motion says, over and over, that one or another document
should “remain sealed in order to protect the privacy interests
of the … witness involved.” The motion does not mention that
both Baxter International and Union Oil disapproved any general
“privacy” rationale for keeping documents confidential. Stat-
utes, yes; privileges, yes; trade secrets, yes; risk that disclosure
would lead to retaliation against an informant, yes; a witness’s
or litigant’s preference for secrecy, no. The law could not be
clearer. Yet the motion essentially asks the court to operate in
a law-free zone. To call the performance of the United States
Attorney’s Office in this case a disappointment would be a
gross understatement.
    The second appeal is Milam v. Dominick’s Finer Foods, Inc.,
No. 09-1686, a civil suit under the Fair Labor Standards Act.
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 invoked Fed. R. Civ. P. 60(b)(1), was sup-
ported 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 dis-
Nos. 09-1248 & 09-1686                                       Page 4


trict court transmitted to the court of appeals a copy of the
sealed affidavit.
    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 legiti-
mate interest when they underlie a judicial decision. See, e.g.,
Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partner-
ship, 507 U.S. 380 (1993). If the nature of the neglect reflects
poorly on counsel, that supports disclosure rather than confi-
dentiality: a lawyer’s clients (current and future) are entitled to
know what sort of error or other shortcoming 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 in-
terests of lawyers.
    Plaintiffs in Milam 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. Ap-
pellants ask me to order the sealed affidavit returned to the dis-
trict 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 es-
sential to decide whether the basis of the district court’s deci-
sion can remain secret. Appellees will have ten days to address
this issue. If appellees inform me that they plan to challenge
Nos. 09-1248 & 09-1686                                   Page 5


the district judge’s Rule 60 decision, appellants may file a re-
sponse within seven days.
    I do not understand why the United States failed to propose
a similar disposition in Foster. None of the 34 sealed documents
has any apparent bearing on the appellate issues. The docu-
ments concern Foster’s trial and original sentence, not the ex-
tent to which the sentence is affected by the retroactive crack-
cocaine amendments. Foster received the full reduction con-
templated by the amended Sentencing Guidelines. Any argu-
ment that Foster is entitled to more than a 36-month reduction
in his sentence appears to be inconsistent with 18 U.S.C.
§3582(c)(2). See United States v. Cunningham, 554 F.3d 703 (7th
Cir. 2009). This court has directed the parties to file memo-
randa on the effect of Cunningham.
    Perhaps counsel for Foster or the United States see some
way in which the sealed documents may be relevant. Neither
the memos discussing Cunningham nor any brief has been filed,
so my understanding of the appellate issues could be mistaken.
I give the parties ten days to file memoranda addressing the
question whether the 34 sealed documents should be returned
to the district court, avoiding any need for me to decide
whether, if they remain in the appellate record, they must be
opened to public view.
