Plaintiffs Can’t Sue the Chinese Government with Largely Sealed Complaint

From Chief Judge James Boasberg (D.D.C.) Friday in Shofner v. Shenyang Dadong District People’s Court:

Plaintiffs … bring this action arising from an early-education investment project in Shenyang, China, asserting claims under the Foreign Sovereign Immunities Act, the Alien Tort Statute, and the Torture Victim Protection Act. Plaintiffs filed an eight-page Complaint on the public docket. They concurrently moved to file a separate, unredacted Complaint—together with a voluminous set of exhibits—under seal….

Plaintiffs’ Motion arises from concerns that the Complaint contains “sensitive information relating to personal safety, foreign-related legal procedures, and ongoing matters involving foreign government entities.” Two flaws, however, pervade their request: the scope of information Plaintiffs have redacted far exceeds the narrow request they claim to advance, and the harms they invoke—threats from Defendants themselves—are harms that sealing cannot prevent….

The customary approach to protecting sensitive information in a complaint is for the plaintiff to file a single operative complaint on the public docket with targeted redactions, while submitting an unredacted version of that same complaint under seal for the Court’s review…. [But plaintiffs] have filed on the public docket a skeletal eight-page pleading that is bereft of substantive allegations and instead points the reader to a separate document that exceeds 300 pages and was submitted under seal. Although Plaintiffs disclaim any intention “to seal the entire case,” the practical effect of what they propose is indistinguishable from wholesale sealing of the operative Complaint.

A second difficulty also attends the Motion. The harms Plaintiffs invoke to justify sealing are, by their own account, harms threatened by Defendants and affiliated actors in Shenyang. {The Court does not discount the seriousness of those [concerns], particularly given the fact that Kelly Shofner’s father was allegedly detained after this suit was filed.} But Defendants are the parties Plaintiffs have chosen to sue, and they will necessarily learn of the allegations against them as this litigation proceeds. A theory of sealing premised on shielding the contents of a pleading from the very parties entitled to answer it asks for a form of protection that sealing cannot provide….

{Some of the Shofners’ asserted interests have independent footing [as a privacy matter]. Residential addresses pertaining to Plaintiffs and their minor child implicates ordinary privacy protections, and specific bank-transaction details implicate financial-privacy norms that this Court routinely credits. Those interests could support targeted redaction of the relevant items within a publicly filed complaint. But, once more, targeted redactions are not what Plaintiffs have proposed in their sealed Complaint.} …

The documents Plaintiffs seek to keep from public view are not discrete exhibits, a narrow set of paragraphs containing sensitive information, or peripheral filings. They instead constitute the operative pleading—the very document that invokes this Court’s jurisdiction and defines the contours of the anticipated litigation. Plaintiffs’ proposed substitute does not cure the problem. The eight-page shell on the public docket deprives the public of precisely what the presumption of access is meant to secure: the ability to understand the cause of action, the theory of liability, and the basis on which a court will eventually adjudicate the dispute….

Plaintiffs “voluntarily commenced a public proceeding … and invoked the jurisdiction of this Court to do so.” As they explain, the information they seek to seal was “introduced for the purpose of establishing the factual basis for Plaintiffs’ legal claims.” The redacted information, therefore, is not merely relevant to the central claims in this litigation; it comprises the substance of those claims…. “The more relevant a pleading is to the central claims of the litigation, the stronger the presumption of unsealing the pleading becomes.” …