                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


 JENNIFER HAMEN, et al.,

                Plaintiffs,
                                                     Civil No. 16-1394 (RDM)
        v.

 ISLAMIC REPUBLIC OF IRAN, et al.,

                Defendants.


                          MEMORANDUM OPINION AND ORDER

       Plaintiffs, the estate of John Hamen, Mark McAlister, and eleven of their family

members, bring this action against Defendants, the Islamic Republic of Iran and the Syrian Arab

Republic, under the Foreign Sovereign Immunities Act and Virginia law. Plaintiffs allege that

Hamen and McAlister were taken hostage from the Sana’a airport in Yemen by the Houthis, a

rebel group, and that members of the group subsequently detained and tortured both men, killing

Hamen after eighteen days and releasing McAlister after six months. Dkt. 1 at 13–16 (Compl.

¶¶ 65, 70–75, 78–84). Plaintiffs allege that Iran and Syria are responsible because they provided

material support to the Houthis and because the violence against McAlister and Hamen was a

foreseeable result of that support. Id. at 16–17 (Compl. ¶¶ 91–98).

       Plaintiffs have effected service on the Islamic Republic of Iran, Dkt. 25, but Iran has not

answered, filed a motion under Federal Rule of Civil Procedure 12, or otherwise appeared. The

Syrian Arab Republic has not yet been served. Plaintiffs have moved for a default judgment

against the Islamic Republic of Iran, Dkt. 31, and an evidentiary hearing is scheduled before the

Court on July 25–26, 2018.
       Before the Court is Plaintiffs’ motion for leave for a witness to testify under seal. Dkt.

34. Plaintiffs explain that the witness “will provide valuable testimony . . . supporting Plaintiffs’

claims that Mr. McAlister and Mr. Hamen were taken hostage” by explaining “the Houthis’

mode of operation for handling detained Americans.” Id. at 1. However, because the witness

“works on government contracts based in Yemen and Syria that require him to visit those

countries,” the witness “believes his safety would be put at risk if his testimony were made part

of the public record, particularly since he has already been detained once in Yemen.” Id.

       For the reasons set forth below, the Court will GRANT the motion.

                                          I. ANALYSIS

       “[T]he starting point in considering a motion to seal court records is a ‘strong

presumption in favor of public access to judicial proceedings.’” EEOC v. Nat’l Children’s Ctr.,

Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996) (quoting Johnson v. Greater Se. Cmty. Hosp. Corp.,

951 F.2d 1268, 1277 (D.C. Cir. 1991)). That presumption recognizes that “[t]he right of public

access is a fundamental element of the rule of law, important to maintaining the integrity and

legitimacy of an independent Judicial Branch.” Metlife, Inc. v. Fin. Stability Oversight Council,

865 F.3d 661, 663 (D.C. Cir. 2017). It “promote[s] trustworthiness of the judicial process, . . .

curb[s] judicial abuses, and . . . provide[s] the public with a more complete understanding of the

judicial system, including a better perception of fairness.” In re Application of Jason Leopold to

Unseal Certain Elec. Surveillance Applications & Orders, 300 F. Supp. 3d 61, 80 (D.D.C. 2018)

(quoting Doe v. Pub. Citizen, 749 F.3d 246, 266 (4th Cir. 2014)). Although the presumption is a

“strong” one, it is “not absolute,” id., and it “may be outweighed in certain cases by competing

interests,” Metlife, 865 F.3d at 665.




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       To assist courts in assessing whether the presumption gives way, the D.C. Circuit

established a six-factor test in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980). That

test—the “Hubbard test”—requires that courts weigh:

       (1) the need for public access to the documents at issue; (2) the extent of previous
       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., 98 F.3d at 1409 (citing Hubbard, 650 F.2d at 317–22). Applying this test,

the Court concludes that safety and privacy interests outweigh any public interest in access to the

witness’s testimony.

       1.      Need for Public Access

       As the D.C. Circuit recognized in Hubbard, not all judicial records and proceedings are

created equal. 650 F.2d at 317. In some circumstances, such as “the courtroom conduct of a

criminal trial,” the First Amendment requires public access. Id. In others, the common law may

place a premium on public access. Id. And, in still others, the public interest in access may be

minimal. Id. Although no precise formula controls in all cases, the public interest is heightened

when disclosure would “allow the public to understand the rulings as well as the contours of the

disputes between the parties.” Hyatt v. Lee, 251 F. Supp. 3d 181, 184 (D.D.C. 2017).

       According to Plaintiffs, the witness will provide “valuable testimony to the Court . . . by

helping to establish the Houthis’ mode of operation for handling detained Americans.” Dkt. 34

at 1. Because this testimony may affect the Court’s decisionmaking process in this case, the first

Hubbard factor weighs in favor of disclosure.




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       2.      Extent of Previous Public Access

       The second factor—“the extent of previous public access”—weighs against disclosure.

Plaintiffs have represented that the witness “has not previously testified publicly (or otherwise)

with respect to the matters now before [the] Court.” Dkt. 38 at 1.

       3.      Objection to Disclosure

       The Court must also take into account “the fact that someone has objected to disclosure,

and the identity of that person.” Nat’l Children’s Ctr., 98 F.3d at 1409. Plaintiffs have moved to

seal the witness’s testimony, see Dkt. 34, and they explain that, although the witness is “willing

to testify in this case, he believes that his safety would be put at risk if his testimony were made

part of the public record,” id. at 1. Although Plaintiffs filed this motion on the public docket, no

party or third party has opposed the motion. This factor weighs against disclosure.

       4.      Strength of Privacy Interests

       The fourth Hubbard factor requires that the Court “assess the strength of any property or

privacy interests voiced by the moving party.” United States v. Harris, 204 F. Supp. 3d 10, 17

(D.D.C. 2016) (quoting U.S. ex rel. Durham v. Prospect Waterproofing, Inc., 818 F. Supp. 2d 64,

68 (D.D.C. 2011)). “[U]nder this factor, the party seeking to avoid disclosure must identify

specific privacy interests in the documents at issue.” Guttenberg v. Emery, 26 F. Supp. 3d 88, 94

(D.D.C. 2014). Plaintiffs have done so here, and the privacy interests at stake are compelling. If

the witness’s name and testimony are made public, and he travels to Yemen or Syria—as his

work requires him to do—his safety will be at risk. Given the gravity of harm that could result if

the witness’s identity and testimony are made public, this factor weighs strongly in favor of

sealing the witness’s testimony.




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        5.      Possibility of Prejudice

        The fifth Hubbard factor considers whether disclosure is likely to prejudice the party

opposing disclosure. Nat’l Children’s Ctr., 98 F.3d at 1409. It is unclear whether the witness

would be prepared to testify on the open record and, if so, whether his testimony would be

tempered by concerns about his personal safety. Thus, this factor weighs, if at all, against

disclosure.

        6.      Purpose of the Information

        The final factor requires the Court to consider “the purpose for which the documents [or

information] in question were introduced.” Harris, 204 F. Supp. 3d at 17. “The more relevant a

pleading is to the central claims of the litigation, the stronger the presumption of unsealing the

pleading becomes.” Id. at 17–18. This factor “focuses on the [movant’s] purpose of filing his

pleadings and nothing further.” Durham, 818 F. Supp. 2d at 69 (emphasis omitted). Because the

witness’s testimony may inform the Court’s decision, this factor weighs in favor of disclosure.

At the same time, however, it appears unlikely that the testimony is essential to Plaintiffs’ case,

and thus the public interest in disclosure is not at its zenith.

                                               *    *   *

        Weighing each of these factors, and given the risk to the witness’s safety if his identity

and testimony are made public, the Court concludes that his interest in privacy substantially

outweighs any interest in public disclosure of the witness’s testimony.




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                                        CONCLUSION

        For the reasons set forth above, it is hereby ORDERED that Plaintiffs’ motion for leave

for witness to testify under seal, Dkt. 34, is GRANTED. It is further

        ORDERED that Plaintiffs shall redact the witness’s name from their publically filed

witness list; and it is further

        ORDERED that Plaintiffs shall file an unredacted version of their witness list under seal.

        SO ORDERED.


                                                     /s/ Randolph D. Moss
                                                     RANDOLPH D. MOSS
                                                     United States District Judge


Date: July 18, 2018




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