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Case 2:16-cv-02105-JAR-JPO Document 376 Filed 07/28/17 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF KANSAS

STEVEN WAYNE FISH, et al., )


)
Plaintiffs, )
)
v. ) Case No. 16-2105-JAR-JPO
)
KRIS KOBACH, in his official capacity as )
Secretary of State for the State of Kansas, )
)
Defendant. )
___________________________________ )

DEFENDANTS RESPONSE TO PLAINTIFFS MOTION TO UNSEAL


Plaintiffs have moved this Court to unseal two documents produced by defendant while

simultaneously filing them as exhibits attached to their motion for summary judgment.

Plaintiffs motion must be denied for two reasons.

First, despite the presumption of public access to judicial records, simply attaching

documents to a dispositive motion does not make them judicial records requiring their public

disclosure; rather, the Tenth Circuit has held that the presumption of public access only applies to

judicial records, defined as those used to determine litigants substantive legal rights. Colony

Ins. Co. v. Burke, 698 F.3d 1222, 1242 (10th Cir. 2012); U.S. v. Pickard, 733 F.3d 1297 (10th Cir.

2013). If that were not the case, parties could circumvent Court rulings by simply attaching

confidential documents as exhibits, declare them to be judicial records on that basis and then

demand that they be disclosed to the public. Because the documents do not resolve the two issues

raised in Plaintiffs summary judgment motion, the presumption of public access does not attach.

Second, when balancing the specific interests of the public and the government relative

to the factual circumstances of the case, as this Court must do under United States v. Apperson,

642 F. App'x 892, 900 (10th Cir. 2016), the governments specific interests in preventing the
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documents from being publicly disseminated outweigh the ACLUs political agenda and financial

interest in publishing them. Plaintiffs have made no showing as to how their interests in publishing

the documents are heavier than Defendants in nondisclosure.

For all these reasons, fully briefed below, Defendant respectfully requests the Court deny

Plaintiffs motion.

LEGAL STANDARD
This Courts decision to seal or unseal the documents is reviewed for an abuse of discretion.

U.S. v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997). Courts have a responsibility not to become

a partner in the use of confidential case materials to gratify private spite or promote public

scandal with no corresponding assurance of public benefit. Nixon v. Warner Commcns Inc., 435

U.S. 589, 603 (1978) (citation omitted).

While federal courts have long recognized a common-law right of access to judicial

records, the publics right of access is not absolute. Mann v. Boatright, 477 F.3d 1140, 1149 (10th

Cir. 2007). The Court therefore has discretion to seal documents if competing interests outweigh

the public's right of access. Id. The district court must analyze the governments interests in the

context of the specific case- with respect to the particular documents or categories of documents-

and explicitly undergird their conclusions with fact-specific analysis. United States v. Apperson,

642 F. App'x 892, 900 (10th Cir. 2016). Absent a particularized analysis of this type, a district

court has no sound legal basis for ruling on the sealing question. Id.

ARGUMENT
I. The Common-Law Right of Access to Judicial Records Does Not Apply to All Documents a
Party Chooses to Attach to Dispositive Motions
It should first be noted that Defendant has no intention of filing the two sealed documents

as exhibits to any dispositive motion because they are irrelevant to the issues in this case.
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Plaintiffs statement that they documents are being submitted in connection with the parties

motions for summary judgment is inaccurate. See Plaintiffs Motion to Unseal, ECF 369, p. 6.

But regardless, a mere filing fee or simply attaching a document to a motion does not guarantee a

document should be unsealed.

Instead, there are two doctrines that provide for access to judicial court records. The first

is the First Amendment right of access to criminal cases. McVeigh, 119 F. 3d at 811. The First

Amendment protects the right of the public and the press to attend criminal trials. Globe

Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). Plaintiffs have not raised this issue in

their motion. The second is the common-law right of access to judicial records. Mann v. Boatright,

477 F.3d 1140, 1149 (10th Cir. 2007). Because this is not a criminal matter, Plaintiffs motion to

unseal must be analyzed under the common-law right of access. This is the basis for Plaintiffs

motion to unseal the two documents, ECF 369 at 4, and what will be addressed in this Response.

A. Purpose of the Common Law Access Doctrine is to Protect the Publics Interest in
the Neutrality of Judges and Equal Treatment of Parties
In their Motion to Unseal, Plaintiffs miss the mark on the purpose of the public access

doctrine. While the right derives from the public's interest in understanding disputes that are

presented to a public forum for resolution, the underlying rationale is intended to ensure that courts

are fair and judges are honest. Crystal Grower's Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir.

1980). It is not grounded on some alleged publics interest in accessing and understanding all the

evidence at issue in this case as Plaintiffs argue. See Plaintiffs Motion to Unseal, ECF 369, p. 2.

Instead, [t]he presumption of access is based on the need for federal courtsto have a measure

of accountability and for the public to have confidence in the administration of justice. U.S. v.

Amodeo, 71 F.3d 1044, 1048 (2nd Cir. 1995).


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Furthermore, the presumption is not based on the publics right to hold a litigant

accountable to the public; rather, it is based on the right of the public to assess the Courts actions.

It is critical that the public be able to review the factual basis of this Court's decisions and evaluate

the Court's rationale so that it may be confident that the Court is functioning as a neutral arbiter.

Johnstown Feed & Seed, Inc. v. Contl. W. Ins. Co., 07-CV-00290, 2009 WL 866828 at *1 (D.

Colo. Mar. 26, 2009). The rationale underlying the public's right to access is to allow the public

an opportunity to assess the correctness of the judge's decision where the court relied on the

documents in doing so. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 123 (2d Cir. 2006).

Consequently, the Tenth Circuit has stated in the context of a case in which a privilege

issue was raised regarding certain documents, that the public had three possible interests in access

to judicial records: 1) a general interest in understanding disputes presented to a public forum for

resolution, 2) interest in assuring that the courts are fairly run and judges are honest, and 3) interest

in protecting the attorney-client and work product immunity doctrine so that citizens may

communicate freely with their lawyers. Crystal Growers Corp. v. Dobbins, 616 F.2d 458, 461-

62 (10th Cir. 1980). Notably absent was the publics general curiosity in the contents of documents.

The underlying rationale to the public interests expressed by the Court were based on the

publics interest in keeping courts accountable, understanding the dispute in the case, and keeping

their communications with attorneys privileged. The focus on the common-law right of access is

on the actions of the court, not on some general interest in the actions of the litigants as may be

reflected in a sealed document. Barnwell v. Corr. Corp. of Am., No. 08-2151-JWL, 2009 WL

10645266, at *2 (D. Kan. Aug. 27, 2009) (citing Bartelloni v. DeCastro, 2007 WL 2155646, at *1

n.2 (S.D. Fla. July 26, 2007) (principal justification for allowing public access to court records is

accountability; presumption of openness does not depend upon media interest)).


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Moreover, when weighing the publics three interests, the Tenth Circuit held that where a

party asserted a privilege in the documents, as Defendant has done in this case,1 protecting asserted

privileges, at least for the limited time to resolve the issues, outweighed the publics general

interest in disputes in public courts. Crystal Growers Corp. v. Dobbins, 616 F.2d at 461-62. As

a result, where, as here, the party raised a privilege claim as to the sealed documents, the privilege

interest favored nondisclosure and outweighed the publics other interests. Id. Thus, despite the

fact that Plaintiffs have accessed these documents in discovery and have succeeded in this Court,

Defendant still, under Mohawk, can appeal that decision after this case concludes. This Court

should not keep these documents sealed to restrict further disclosure and revisit the issue later so

as to preserve the recognized interest in Crystal Growers Corp.

B. Exhibits to Dispositive Motions Must Be Relied On by the Court Before


Presumption of Access Attaches to Them
Plaintiffs argue that by simply attaching the controverted documents to their dispositive

motion, the Court must unseal them. Plaintiffs Motion, ECF 369, p. 6. That is simply not true.

The mere filing of a paper or document with the court is insufficient to render that paper a judicial

document subject to the right of public access. U.S. v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995).

In order to be designated a judicial document, the item filed must be relevant to the performance

of the judicial function and useful in the judicial process. Id. Before any such common law right

can attach, however, a court must first conclude that the documents at issue are indeed judicial

documents. Lugosch, 435 F.3d at 121.

1
Defendant has already asserted an attorney-client privilege as well as a deliberative process
privilege, both of which the Court has rejected. Defendant is not waiving this argument, briefed
fully in the record, but is relying on his right under Mohawk Indus. Inc. v. Carpenter, 558 U.S.
100 (2009), adopted by the Tenth Circuit in U.S. v. Copar Pumice Co., Inc., 714 F.3d 1197 (10th
Cir. 2013), to potentially appeal the denial of privileges following the entry of a final judgment.
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Documents will fall somewhere on a continuum from matters that directly affect an

adjudication to matters that come within a courts purview solely to ensure their irrelevance.

Amodeo II, 71 F.3d at 1049. Records that inform the Courts decision-making process and those

used to determine litigants' substantive legal rights carry a stronger presumption of access than

those that do not. See Booth v. Davis, CV10-4010, 2016 WL 1170949 at *1 (D. Kan. Mar. 23,

2016); Amodeo II, 71 F.3d at 1049. However, moving down the continuum, away from matters

that directly affect an adjudication and towards matters that come within a court's purview

solely to insure their irrelevance, the weight of the presumption declines. Id. At the low end of

the continuum, [w]here testimony or documents play only a negligible role in the performance of

Article III duties, the weight of the presumption is low and amounts to little more than a prediction

of public access absent a countervailing reason. Id. at 1050.

Recently, this Court relied on this same Second Circuit law in determining whether to

unseal confidential documents and make them publicly available. See Lonker v. Chambers, 16-

2097-JWL, 2017 WL 1197640, at *2 (D. Kan. Mar. 31, 2017). There, the Court considered whether

a confidential report attached to a motion for summary judgment should be unsealed. Noting that

the rationale underlying the publics right of access is to allow the public an opportunity to assess

the correctness of the judges decision, this Court held that if an attached document to a summary

judgment did not play a role in the decision on the motion, the need for public access to the

document would be largely nonexistent. Id. at *2.

This is consistent with the Tenth Circuits holding that records that inform our decision-

making process should not be sealed absent a substantial interest that would justify doing so.

Helm v. Kansas, 656 F.3d 1277, 129293 (10th Cir. 2011); Colony Ins. Co., 698 F.3d at 1241 (if

documents are used to determine substantive rights, presumption of access attaches). It is also
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consistent with First Circuit law which holds that where documents in question are material and

important to a judicial decision public access is favored. FTC v. Standard Fin. Management

Corp., 830 F.2d 404, 408 (1st Cir. 1987).

In contrast, where documents play only a negligible role in determining the substantive

rights of a party, the weight of a presumption is low. Amodeo II, 71 F.3d at 1050. The District

of Columbia Circuit is also in accord. See SEC v. Am. Intl Grp., 712 F.3d 1, 3 (D.C. Cir. 2013)

(court must first decide whether the document sought is a judicial record dependent on the role

it plays in the adjudicatory process).

The question presented, then, is whether the two documents at issue are central to a

determination of substantive rights, making them judicial records to which the public right of

access would attach. If they are not, then there is no presumption of public access and the court

would simply weigh the litigants interests against each other, rather than weighing the publics

general interest against the objecting party.

C. The Documents Are Not Judicial Records Because They Are Not Dispositive or
Material in Deciding Plaintiffs Motion for Summary Judgment
Plaintiffs identify just two issues to be resolved in their motion: 1) whether substantial

numbers of noncitizens have registered to vote in Kansas, and 2) whether nothing other than a

DPOC requirement is sufficient to enforce Kansass citizenship qualification for voting. Motion

for Summary Judgment, ECF. 367 p. 1. In support of their motion, Plaintiffs attach thirty exhibits,

some with various attachments, totaling a 2,471 pages of evidence. Significantly, the two

documents in question are just one page each, comprising 2 out of 2,471 pages attached to the

motion. And with the Courts redaction of completely irrelevant issues, the two documents

combined contain just 6 sentences.


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Not surprisingly, Plaintiffs do not structure their arguments around these two documents,

nor even cite them in support of an argument in the body of their brief. Instead, they include them

in a brief reference to footnote 3. ECF 367, p. 22. Despite this reality, Plaintiffs argue in their

motion to unseal that the documents are at the center of the controversy. Motion to Unseal, ECF

369, p. 5. Incredibly, Plaintiffs inform the Court that their desire to unseal is motivated not by the

issues in this case, but because of supposed public statements outside of this case and whether such

statements are credible. ECF 369, p. 5.

But Plaintiffs conflate the center of their social media controversy with the actual legal

arguments they are making in the pending motion for summary judgment. Nowhere in the motion

for summary judgment do Plaintiffs argue that the documents shed light on whether Secretary

Kobachs public statements are credible about the extent of the problem of noncitizen voting.

That purported issue is not raised. Put another way, it is irrelevant what controversy is posted

on social media by the ACLU about this case; the documents must be determinative of the

substantive rights at issue in the pending motion to be judicial records. They are not.

This is clearly evidenced by Plaintiffs lack of reliance on the undisclosed documents in

their brief. The documents are not material to Plaintiffs motion, nor are they determinative of

either of the two issues raised in the motion.2 They are irrelevant to the claims in this case and not

central to the case. See Colony Ins. Co., 698 F.3d at 1241 (holding that, due to the centrality of

the documents to the adjudication of the issues, they should be disclosed). They are not discussed

or relied on by Plaintiffs in their arguments within the brief regarding either issue pending before

the court (the number of noncitizens registered to vote in Kansas and whether nothing other than

a DPOC requirement can sufficiently enforce Kansas law), but instead limited to one footnote.

2
Although the Court found the two documents to be relevant under the discovery standard, that
standard no longer applies as the Court stated in its Order. ECF 355, p. 18.
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In order for the documents to be judicial records and the presumption to attach, their content

must be central and dispositive to the determination of Plaintiffs pending motion and they simply

are not. Tenth Circuit precedent holds that documents that are pertinent to a judicial determination

should be available to the public, not documents that are simply found to be relevant in a discovery

dispute.3 Colony Ins. Co. v. Burke, 68 F.2d 1222, 1242 (10th Cir. 2012). Because they are not

determinative, they are not judicial records and the Court should deny the motion to unseal.

Lugosch, 435 F.3d at 121; SEC, 712 F.3d at 3; FTC, 830 F.2d at 408.

II. Defendants Specific Articulated Interests of Sealing Documents Outweigh Plaintiffs and
the ACLUs General Interests Relative to the Factual Circumstances of the Case
Even if the Court were to find that the six sentences of the two documents were central and

dispositive to Plaintiffs motion for summary judgment and resolved the substantive rights of the

parties, Plaintiffs motion to unseal would fail because Defendants specific and articulated

interests in nondisclosure outweigh the interests asserted by Plaintiffs.

In determining whether documents should be sealed, the Tenth Circuit requires that the

competing interests of each side be weighed. Crystal Growers Corp., 616 F.2d at 461-62. The

specific interests of the public and the government relative to the factual circumstances of the

case, must be weighed. Apperson, 642 F. App'x at 900. Here, Defendant can articulate several

interests that would each be adversely impacted with public disclosure of the confidential

documents:

First, it would harm the ability to deliberate and advise as identified by Magistrate OHara.

ECF 355, p. 16. Plaintiffs ignore the fact that the Court has already recognized that these

3
Plaintiffs once again blatantly misstate Magistrate Judge OHaras rulings in this regard. On
page 4 of Plaintiffs Motion to Unseal, they quote the Court as saying that the two documents are
unquestionably relevant to the legal issues in this case. That is not what the Court stated; rather,
the Court stated that the documents were unquestionably relevant in the context of a discovery
request, which of course is a much broader standard. See ECF 320, p.2.
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documents should not be disseminated to the public because disclosure is both protected by statute

and would make it less likely that defendant would, in the future, seek or give candid advice on

matters of public importance. ECF 355, p. 16. If otherwise protected documents involving advise

are otherwise simply unsealed when attached to a motion, it would severely temper the ability to

have such discussions in the future. That interest is not diminished simply because Plaintiffs have

decided to gratuitously attach the documents to a brief and cite to them in a footnote. Plaintiffs

have presented nothing new here and the interest in deliberations recognized in the denial of the

motion to remove the confidentiality order is still present.

Second, it would undermine the States ability to maintain the confidentiality of certain

otherwise public documents. The Kansas Legislatures decision should not be overridden by the

interests of a political activist organization wanting to use documents for fundraising by simply

attaching irrelevant litigation documents to a motion.

Third, it would harm Defendants ability to maintain confidentiality of these documents

under other KORA requests as well as encourage costly future litigation. The Secretary maintains

that these documents are exempt from KORA and permitting them to be disclosed simply because

Plaintiffs have attached them to a summary judgment motion, particularly without satisfying the

judicial records requirement, would undermine his position in KORA generally. Furthermore, it

would generally undermine any protections of documents in the future. Plaintiffs seek to set a

precedent where they can make KORA a dead letter in Kansas by filing a lawsuit, utilizing broad

discovery requests, and then attaching confidential documents produced in litigation to some

unrelated motion. If this Court permits the end-run around the KORA protections that the State

Legislature deemed important enough to exempt from public disclosure, the State will face and
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have to defend many more costly lawsuits in the future under this same strategy employed by

Plaintiffs. This would usurp the states power and increase costs to taxpayers.

Finally, it would undermine Secretary Kobachs interest in fulfilling his appointed duty

and responsibilities on the Presidential Election Commission which include being able to advise

the President privately on matters within the purview of the Commission. The public broadcast of

the Secretarys documents related to these meetings with the President would hinder his ability to

confidently advise the President.

In contrast, Plaintiffs offer three scant and generalized reasons why the two documents

should be disclosed to the public. None are persuasive.

First, Plaintiffs allege that the documents are relevant. They do not argue how they are

relevant to their pending motion. They also fail to explain how the documents are relevant to the

allegations raised in their Complaint. Instead, they merely cite to a general interest of the public in

understanding how disputes are resolved in court. ECF 369, p. 5. That is insufficient against

articulated interests. Apperson, 642 F. Appx at 904 (interests cannot be just generic interests).

Second, Plaintiffs argue that the documents should be disclosed because Plaintiffs attached

them to their motion for summary judgment. They are missing the point. Documents do not

become judicial records by simply being attached to a motion, infra. Moreover, to the extent that

the exhibits were meant to support any argument in their brief, that argument is in a footnote.

ECF, p. 22, n. 3. Plaintiffs have already been informed in this case that arguments in footnotes are

not arguments, but instead any such argument raised in a footnote is waived. See Order, ECF 247,

p. 7 (Magistrate Judge OHara citing U.S. v. Hardman, 297 F.3d 1116, 1131 (10th Cir. 2002) in

support of his holding that arguments raised in a perfunctory manner, such as in a footnote, are

waived). Thus, rather than being the center of this controversy, ECF 369 at 5, the documents
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themselves literally support nothing in their summary judgment brief given how the documents

were utilized. As a result, the documents at issue do not determine any substantive rights so there

is no strong presumption of access attached to them, as explained above. See, e.g., U.S. v. Amodeo,

71 F.3d 1044, 1049 (2d Cir. 1995).

Third, Plaintiffs argue that the rationale presented by Defendant in opposing the

disclosure of the documents does not support keeping them under seal. Plaintiffs appear to be

attempting to relitigate the validity of the documents exemption from production under KORA.

However, this Court has already agreed with Defendant that KORA applied and that it statutorily

exempted the documents from disclosure. ECF 355, p. 15-16 (Secretary Kobach has met his

burden of asserting that his interests could be potentially harmed by the chilling effect the public

disclosure would have . . . the disclosure is restricted by statute). Because Plaintiffs did not file

a Rule 72(a) motion objecting to the Magistrates findings on that matter, they cannot now re-

argue the issue. And regardless, as noted earlier, Defendant still maintains an interest in

confidential advice.

None of Plaintiffs arguments weigh more heavily than Defendants specific interests

enumerated above. As a result, under the Apperson standard applied in the Tenth Circuit, the

balance of interests is with Defendant. 642 F. App'x at 900.

CONCLUSION
Plaintiffs have failed to provide evidence that the two documents at issue are central to

the adjudication of any substantive rights requested in their summary judgment motion. Unless a

documents plays some role in the determination of the dispositive issues, it is not a judicial record

and the presumption of access does not attach to it. Colony Ins. Co., 698 F.3d at 1241. For the

reasons explained above, Plaintiffs Motion to Unseal should be denied.

Dated: July 28, 2017


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Respectfully submitted,

/s/ Garrett Roe


Kris W. Kobach, Kansas Bar No. 17280
Garrett Roe, Kansas Bar No. 26867
KANSAS SECRETARY OF STATES OFFICE
120 S.W. 10th Ave.
Topeka, KS 66612
Telephone: (785) 296-4575
Facsimile: (785) 368-8033
Email: kris.kobach@ks.gov
garrett.roe@ks.gov

Attorneys for Defendant Kobach


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CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that, on the 28th day of July, 2017, I electronically filed

the above and foregoing document using the CM/ECF system, which automatically sends notice

and a copy of the filing to all counsel of record.

/s/Garrett Roe
Garrett Roe
Attorney for Defendant Kobach