Sixth Circuit Order Sealing Records in Private Prison Shareholder Suit Vacated, Remanded
As of 2016, CoreCivic—formerly Corrections Corp. of America—contracted with the federal Bureau of Prisons (BOP) to operate five facilities. In August of that year, a report by the Inspector General for the Dept. of Justice found the company’s prisons “had more inmate violence (by 35%), inmate-on-inmate assaults (by 64%), sexual assaults by inmates on staff (by 750%), and suicide attempts and self-mutilations (by 37.5%) than did prisons run by the Bureau itself.” The Deputy Attorney General subsequently issued a memo stating such poor performance justified reducing the use of private, for-profit prisons. CoreCivic’s stock “plummeted,” and shareholders filed a class-action lawsuit against the company.
During that litigation the U.S. District Court for the Middle District of Tennessee entered a protective order that allowed the parties to designate discovery materials as “confidential” and file them under seal. Hundreds of documents and pleadings were sealed before the case settled in November 2021—for a massive $56 million, as PLN reported [See: PLN, October 2021, p.52]—with CoreCivic claiming confidentiality for records ranging from its “use of subcontractors” to its “staffing policies and the financial incentives for making certain staffing decisions.”
In November 2023, The Nashville Banner, a local newspaper, intervened and moved to unseal all records in the class-action case. Both CoreCivic and the BOP agreed that around 190 documents should be unsealed but argued another 80, including deposition transcripts, should remain confidential. The district court agreed, granting the Banner’s motion in part and denying it in part on August 16, 2024.
The newspaper appealed, seeking access to 24 depositions, and on April 17, 2025, the U.S. Court of Appeals for the Sixth Circuit vacated the lower court’s order. “The federal courts do their business in public—which means the public is presumptively entitled to review every document that a party files with the court for purposes of influencing a judicial decision,” wrote Circuit Judge Raymond Kethledge. When sealing records, the court must explain “why the interests in support of nondisclosure are compelling, why the interests supporting access are less so, and why the seal itself is no broader than necessary,” he added.
The Court of Appeals first rejected CoreCivic’s argument that the district court lacked jurisdiction to consider the Banner’s motion to unseal, as the case had concluded years before. However, a “federal court may consider collateral issues after an action is no longer pending.” See: Cooter & Gell v. Hartmax Corp., 496 U.S. 384 (1990).
The Sixth Circuit further found the Banner had standing due to the public’s general right to inspect public records, including judicial records, and because the partial denial of the newspaper’s motion adversely affected its ability to report on matters related to the case. Turning to the merits, the appellate court noted that a compelling reason for sealing records was not enough; “the seal itself must be narrowly tailored” to serve that reason. The district court had made no such findings with respect to compelling reasons or narrowly tailoring the documents that were sealed, which was “itself grounds to vacate” its order. Additionally, “a party’s mere assertion of its interest in confidentiality” is insufficient to seal court records; it must show the disclosure of the documents will result in a clearly defined, serious injury.
As the lower court had failed to follow these required rules when denying in part the Banner’s motion to unseal, its order was vacated so it could, within 60 days, “apply these rules—in the first instance—on remand.” The Nashville Banner was represented by the Public Citizen Litigation Group and by Nashville attorney Daniel A. Horwitz. See: Grae v. Corr. Corp. of Am., 134 F.4th 927 (6th Cir. 2025).
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Related legal case
Grae v. Corr. Corp. of Am.
| Year | 2025 |
|---|---|
| Cite | 134 F.4th 927 (6th Cir. 2025) |
| Level | Court of Appeals |
| Conclusion | Bench Verdict |
| Appeals Court Edition | F.4th |