Conservation Law Foundation, Inc. v. Shell Oil Products US et al

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
CONSERVATION LAW FOUNDATION, INC., 	:
Plaintiff, 	:
:
v. 	: 	C.A. No. 17-396-JJM
:
EQUILON ENTERPRISES LLC (d/b/a SHELL 	:
OIL PRODUCTS US), et al., 	:
Defendants. 	:
MEMORANDUM AND ORDER REGARDING
UNSEALING OF JUDICIAL RECORDS
PATRICIA A. SULLIVAN, United States Magistrate Judge.
This suit is an enforcement action brought under the Clean Water Act and the Resource
Conservation and Recovery Act pertaining to the Shell Defendants’ operations at the Providence
Terminal, a bulk storage and fuel terminal located in the Port of Providence. Conservation L.
Found., Inc. v. Shell Oil Prods. US, C.A. No. 17-00396-WES, 2025 WL 1530508, at *1 (D.R.I.
May 29, 2025). Now pending before the Court is the motion (ECF No. 312) of Plaintiff,
Conservation Law Foundation, Inc. (“CLF”) to unseal certain “judicial records” (also referred to
as “judicial documents”) that were filed in connection with the Shell Defendants’ motion for
partial summary judgment and considered by the Court in making its summary judgment
determination. See Conservation L. Found., Inc. v. Shell Oil Prods. US, C.A. No. 17-396 WES,
2025 WL 3712265, at *4 (D.R.I. Dec. 23, 2025) (denying Shell Defendants’ motion for partial
summary judgment), reconsideration denied, C.A. No. 17-396 JJM, 2026 WL 593927 (D.R.I.
Mar. 3, 2026). Pertinent to the motion to unseal are the proceedings in a similar case pending in
the United States District Court for the District of Connecticut pertaining to a terminal in
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Connecticut. Conservation L. Found., Inc. v. Shell Oil Prods. US, et al., No. 3:21-CV-00933-
VDO (D. Conn. filed July 7, 2021).
In opposition to the motion to unseal, the Shell Defendants relied heavily on proceedings
in the parallel Connecticut proceeding, where (as of then) analogous materials remained sealed.
ECF No. 316 at 2. However, while the motion to unseal was pending, the Connecticut court
issued a decision denying motions to seal and ordering that materials previously sealed
(analogous to the materials now in issue in this case) be unsealed because they had become
judicial documents in connection with Daubert motions. Conservation L. Found., Inc. v. Shell
Oil Co., No. 3:21-cv-00933 (VDO), 2026 WL 764396, at *9 (D. Conn. Mar. 18, 2026). Although
the Connecticut court held that in filings submitted in connection with Daubert motions the
presumption of public access is lower than the strong presumption applied to material introduced
in connection with dispositive motions or trial, it nevertheless found that the Shell Defendants’
declarations did not satisfy the burden of overcoming the applicable presumption with adequate
evidence of competitive harm. Id. at *6-9. Importantly, in this Court, the Shell Defendants must
sustain a higher burden because the operative motion is dispositive, yet they continue to rely on
the same declarations that the Connecticut court deemed insufficient. See id.; ECF Nos. 316-5
(Declaration of Matthew Penny), 316-6 (Declaration of Sergio Jaramillo).
In light of the issuance of the Connecticut unsealing decision just days before the hearing
on this motion, the Court afforded the parties additional time to meet and confer and to submit
briefs regarding its significance and impact on the pending motion. To allow time to do that, the
Court set a post-hearing briefing schedule. As a result, the parties reached agreement on many of
the documents in issue, with CLF agreeing to redactions to one and the Shell Defendants
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agreeing to unseal others. 1 The remaining dispute is focused on three internal Shell documents
dealing with Design and Engineering Practices (“DEPs”), which set internal standards for use in
the design and construction of Shell projects. See Penny Decl. ¶¶ 2, 5-6; Jaramillo Decl. ¶¶ 4,
11-12. The Shell Defendants seek to redact virtually all of the content of the DEPs themselves
and all of the quotations and descriptions of them that appear in one partial summary judgment
brief and three statements of fact, as well as references to them in the quoted deposition
testimony of Dr. Paul Verlaan.2 As to each document, the Shell Defendants seek to sustain the
seal prohibiting public access to the unredacted portions. CLF’s motion to unseal these seven
1 That is, to the extent that material was unsealed/unredacted in Connecticut, those specific items and references are
now unsealed/unredacted in this Court by agreement of the parties. ECF No. 340 at 2.
2 There are seven documents remaining in issue; they fall into two groups. First, the Shell Defendants seek to
sustain extensive redactions (covering up virtually all of the content) of three internal Shell documents addressing
DEPs. Penny Decl. ¶ 2 (ECF No. 316-5). They are:
• 	DEP Informative Metocean Design and Operating Considerations (Endorsement of ISO 19901-
1:2005) (Feb. 2011). ECF No. 247-4 (Exhibit H to ECF No. 252).
• 	DEP Informative Metocean Design and Operating Considerations for Offshore and Onshore
Structures – Adaption to Climate Change (Feb. 2015). ECF No. 247-5 (Exhibit J to ECF No.
252).
• 	DEP Meteorological and Oceanographic Design and Operating Considerations Offshore, Costal
and Onshore (Amendments/Supplements to ISO 19901-1:2015) (Feb. 2017). ECF No. 247-6
(Exhibit K to ECF No. 252).
Second, the Shell Defendants seek to redact references to the DEPs that appear in one brief and three statements of
facts:
• 	Plaintiff’s Corrected Response in Opposition to Defendants’ Motion for Partial Summary
Judgment. ECF No. 251.
• 	Plaintiff’s Statement of Additional Facts Not in Dispute. ECF No. 252.
• 	Defendants’ Response to Plaintiff’s Statement of Additional Facts Not in Dispute. ECF No. 255-1.
• 	Defendants’ Response to Plaintiff’s Statement of Additional Facts Not in Dispute. ECF No. 260.
For the convenience of the Court, the Shell Defendants submitted (but did not file) a courtesy set of the documents
in issue highlighted so that the Court could clearly determine what portions the Shell Defendants ask to maintain as
sealed. The Court hereby directs the Clerk’s office to docket this submission under seal with Court access only to
preserve a record of what was submitted.
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documents is now ripe for determination. For the reasons that follow, the motion to unseal what
remains in issue is granted.
I. 	Standard of Review and Applicable Law
The Court’s polestar for this motion is the common law presumption of the public’s right
of access – “vibrant . . . not unfettered” – to “judicial documents” or “judicial records,” which
include “‘materials on which a court relies in determining the litigants’ substantive rights.’”
Glass Dimensions, Inc. v. State St. Corp., Civil Action No. 10-10588-FDS, 2013 WL 6280085, at
*1 (D. Mass. Dec. 3, 2013) (emphasis in original) (quoting United States v. Kravetz, 706 F.3d 47,
54, 59 (1st Cir. 2013)); see Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (common
law right of access applies to judicial records). The presumption rests on the long-recognized
and important principle “that public monitoring of the judicial system fosters the important
values of quality, honesty and respect for our legal system.” Siedle v. Putnam Invs., Inc., 147
F.3d 7, 9-10 (1st Cir. 1998) (internal quotation marks omitted).
Consistent with this principle, as this Court has previously found, protective orders
appropriately issue to provide for sealing of confidential discovery to facilitate production during
the phase of the case when the interest of the producing party in protecting sensitive “‘raw’”
material is at its highest and the public interest in accessing such “‘raw’” material is at its lowest.
Conservation L. Found., Inc. v. Equilon Enters. LLC, C.A. No. 17-396-JJM, 2026 WL 221425, at
*1 (D.R.I. Jan. 27, 2026) (“there is no tradition of public access to ‘raw’ discovery materials;
‘restraints placed on discovered, but not yet admitted, information are not a restriction on a
traditionally public source of information’”) (quoting Seattle Times Co. v. Rhinehart, 467 U.S.
20, 32-34 (1984)), objection pending, ECF No. 332 (filed Mar. 25, 2026); see Poliquin v. Garden
Way, Inc., 989 F.2d 527, 535 (1st Cir. 1993) (“effective discovery . . . is achieved by affording
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relatively generous protection”). However, the public interest in access shifts as the case
proceeds and the public interest heightens until the dispositive phase when it is at its peak and
only the most sensitive documents, public disclosure of which would impose significant harm,
should be redacted or (rarely) sealed. Conservation L. Found., Inc., 2026 WL 221425, at *1.
Thus, once a confidential discovery document becomes a judicial record because it is presented
to the court in connection with a merits-related motion and considered in connection with a
merits-focused decision, the presumptive right of public access to it becomes “strong.” Lugosch
v. Pyramid Co. of Onondaga, 435 F.3d 110, 121 (2d Cir. 2006); Roy v. FedEx Ground Package
Sys., Inc., Case No. 3:17-cv-30116-KAR, 2024 WL 2025763, at *2 (D. Mass. May 7, 2024).
In the face of this strong presumption of public access to documents filed in connection
with a summary judgment motion, the continued sealing of such judicial documents “must be
based on a particular factual demonstration of potential harm, not on conclusory statements.”
Kravetz, 706 F.3d at 60 (internal quotation marks omitted); In re Providence Journal Co., Inc.,
293 F.3d 1, 13 (1st Cir. 2002); Fed. Nat’l Mortg. Ass’n v. Greenleaf, No. 2:19-cv-00256-NT,
2020 WL 733847, at *2 (D. Me. Feb. 13, 2020). This strong presumption applies even if the
Court did not cite the documents in its ruling. Tourangeau v. Nappi Distribs., No. 2:20-cv-
00012-JAW, 2022 WL 768688, at *4 (D. Me. Mar. 14, 2022) (“Just as the public has a right to
know the evidence the Court relied on in adjudicating a motion before it, the public also has a
right to know what evidence the Court did not rely upon in resolving the issue.”) (emphasis in
original). That is, once a document has been considered by the Court in connection with a
dispositive-of-the merits determination, it becomes a judicial record as to which the party
seeking to sustain its non-public status bears a heavy burden of justifying continued sealing. See
Glass Dimensions, 2013 WL 6280085, at *1-2 (material should remain sealed based on
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declarations by knowledgeable individuals to establish its sensitive and confidential nature, but
only as long as “access to the material does not play a positive role that is significant in the
functioning of the process at issue in the case at bar”). Put differently, “[t]he weight of [the]
presumption is of the ‘highest’ for ‘documents used by parties moving for summary judgment,’
which ‘should not remain under seal absent the most compelling reasons.’” Conservation L.
Found., Inc., 2026 WL 764396, at *3-4 (alterations in original) (quoting Conn. Fair Hous. Ctr. v.
CoreLogic Rental Prop. Sols., LLC, No. 3:18-cv-705 (VLB), 2020 WL 13303727, at *2 (D.
Conn. Aug. 21, 2020)); see Fed. Trade Comm’n v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410
(1st Cir. 1987) (once “strong” presumption is triggered, only “most compelling reasons can
justify non-disclosure of judicial records”) (internal quotation marks omitted).
Consistent with First Circuit law, if this Court sustains the sealing of a judicial record, it
must make “particularized findings” justifying the sealing. Maine v. Zealandia Holding Co.,
Inc., No. 1:13-cv-00471-JAW, 2014 WL 12726291, at *1 (D. Me. Jan. 31, 2014) (internal
quotation marks omitted).
II. 	Background
Early in the history of this case, the Court entered a protective order (ECF No. 67) to
permit discovery to flow freely. With the protective order in place, factual discovery has
explored the Shell Defendants’ knowledge of flood and storm risks, their internal evaluations of
terminal vulnerabilities, their operational decision-making concerning containment and
stormwater controls, and whether they historically implemented measures consistent with
industry best practices. Conservation L. Found., Inc., 2025 WL 3712265, at *2. The litigation
has focused on the parties’ dispute regarding the extent to which the Shell Defendants’ corporate
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climate-risk materials, and its practices at other terminals, bear on its conduct at the Providence
Terminal. Id.
The Shell Defendants’ partial summary judgment motion that is the foundation for CLF’s
contention that the documents in issue are judicial records was extensively briefed by both
parties and was denied on December 23, 2025, Conservation L. Found., Inc., 2025 WL 3712265,
at *4, and again on reconsideration on March 3, 2026, Conservation L. Found., Inc., 2026 WL
593927, at *1-2. This dispositive determination was based on the Court’s analysis of the
evidence presented by the parties in support of and opposition to the motion. The Court found
that CLF had presented enough to establish a trial-worthy dispute regarding expert views on best
practices, the Shell Defendants’ internal understanding of climate-related risks, the industry
response (and the historical approach) to whether and when coastal facilities were expected to
consider climate-driven flooding risks and whether and when the Shell Defendants had internally
evaluated those risks and/or industry materials suggesting that best practices had begun to shift
during the relevant period. Conservation L. Found., Inc., 2025 WL 3712265, at *3-4. The
Court’s summary judgment decision specifically observes that the parallel Connecticut case
presents a similar issue – “that, the permit in question in that case unambiguously imposes a
minimization duty that in turn references and incorporates best industry practice.” Id. at *4 n.1
(internal quotation marks omitted). The Court endorsed the Connecticut court’s holding that,
“[w]hether best industry practice is to consider climate change factors is a factual question that
the Court cannot resolve at this time.” Id. (internal quotation marks omitted).
The DEPs on which the instant motion to unseal is focused bear directly on these issues,
presented over a time continuum from 2011 through 2017. Two of them (ECF No. 247-4 from
2011 and ECF No. 247-5 from 2015) are what the Penny Declaration describes as “informative,”
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in that they are summary in nature and provide background for a more detailed “specification”
DEP. Penny Decl. ¶ 7. Only one (ECF No. 247-6 from 2017) is a “specification,” which
contains the details generally used by a contractor performing work. Penny Decl. ¶ 7. However,
this DEP specification is relatively short, in that it is an amendment to other documents. ECF
No. 336 at 6.
The Penny Declaration explains that, in general, DEPs “reflect the professional, technical
know-how of Shell,” and that access to them “is controlled through a restricted portal system that
has security controls in place.” Penny Decl. ¶¶ 6, 9. The Penny Declaration describes the
internal controls used generally to protect the DEPs in the course of normal business, while
acknowledging that the DEPs are sometimes provided to third parties, but that is done only by
license “under contractual agreements through which Shell . . . is compensated[,]” and “[t]hus,
the DEPs have commercial value.” Id. ¶ 11. However, while the Penny Declaration establishes
that DEPs have commercial value as a general matter, it does not explain why these specific
DEPs implicate any privacy or competitive concerns. See Conservation L. Found., Inc., 2026
WL 764396, at *8. The same vagueness taints the other Declaration on which the Shell
Defendants now rely – the June 4, 2025, Declaration from Sergio Jaramillo. Id. That is, the
Jaramillo Declaration is only slightly more specific than the typical “‘conclusory statements that
documents contain confidential business information[.]’” Id. (alteration in original) (quoting
Sec. & Exch. Comm’n v. Ripple Labs, Inc., No. 20 Civ. 10832 (AT), 2022 WL 17751466, at *2
(S.D.N.Y. Dec. 19, 2022)). It supplies no information regarding the confidentiality or privacy
concerns posed by the specific DEPs relied on by CLF in connection with its opposition to the
Shell Defendants’ summary judgment motion.
III. 	Analysis
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Having carefully reviewed both the Penny Declaration and the Jaramillo Declaration and
having examined the documents in issue, I agree with the Connecticut court’s findings about the
limitations of these generic and somewhat conclusory declarations and endorse and adopt them
as my findings here. Thus, I find that nothing in either the Penny Declaration or the Jaramillo
Declaration even purports to explain why these specific DEPs, which are now between nine and
fifteen years old, continue to have such significant commercial value that their public disclosure
would damage the Shell Defendants’ competitive standing in the marketplace in a specific way.
Mindful of these findings, the first step in the Court’s analysis is to determine whether the
documents in issue have become judicial records. While it is clear that these documents were
presented to the Court in connection with the Court’s partial summary judgment determination,
the Shell Defendants suggest that the DEPs were attached and referenced by CLF in its
opposition to the summary judgment motion gratuitously, not for a legitimate litigation purpose,
but rather to be able to use them for non-judicial advocacy.3 ECF No. 340 at 4-5. Having
carefully revisited the Court’s partial summary judgment determination, the record on which the
determination rested and the Court’s consideration of that record, the Court soundly rejects the
Shell Defendants’ contention. That is, the Court finds that the materials in issue are clearly
judicial records whose content was at the very core of the dispositive-of-the-merits argument that
the Shell Defendants put in issue by filing their motion for partial summary judgment.
3 The Shell Defendants unsuccessfully made the same argument in Connecticut, alleging that “CLF has previously
broadcasted its motivation to publicize these materials based on a desire to solicit fundraising contributions from its
donors – not in pursuit of any public need for the documents to be in the public domain.” Conservation L. Found.,
Inc., 2026 WL 764396, at *9 (internal quotation marks omitted). In Connecticut, this argument of ulterior motive
was rejected as unpersuasive. Id. As to the First Amendment concerns that this argument implicates, the Court
notes that “parties have general first amendment freedoms with regard to information gained through discovery and .
. . absent a valid court order to the contrary, they are entitled to disseminate the information as they see fit.” Public
Citizen v. Liggett Group, Inc., 858 F.2d 775, 780 (1st Cir. 1988).
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The Court also need not linger on the second and third steps of the analysis – that is,
because these are judicial records considered in connection with a dispositive motion, the
presumption that they must be made publicly available is very strong and the burden on the Shell
Defendants to overcome the presumption and justify continued sealing is exceedingly heavy.
Nor is it a stretch to conclude that the non-specific Penny/Jaramillo Declarations, having been
found insufficient to overcome the weaker presumption applicable to Daubert judicial records, do
not come close to meeting this burden now in the context of a dispositive motion. See
Conservation L. Found., Inc., 2026 WL 764396, at *3-4, *8. Thus, the Court finds that the Shell
Defendants have not made the particularized showing required to justify the continued sealing
either of the three DEPs or of the litigation materials that reference and/or quote from them,
including the references to the Verlaan testimony.
IV. 	Conclusion
Based on the foregoing, the Court grants CLF’s motion to unseal the judicial records that
remain in issue. ECF No. 336. However, before these records become public documents, the
Court directs the parties to meet and confer regarding a handful of links that appear in them. The
Court is unable to ascertain whether any of these links point to confidential internal online
repositories or other confidential materials. To the extent that such links permit access to
confidential (that is, non-public) materials that have not become judicial records in this case or in
the Connecticut case, the redaction of just the links may be sustained.
/s/ Patricia A. Sullivan
PATRICIA A. SULLIVAN
United States Magistrate Judge
May 7, 2026
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