by David Cosgrove
In 1958, the Judicial Conference of the United States approved the creation of the Committee on Rules of Practice and Procedure. The Committee has five Advisory Committees: Appellate, Bankruptcy, Civil, Criminal, and Evidence. The Advisory Committee on the Rules of Civil Procedure issues reports in May and December of each year.
In July of 2010, the full Committee issued a report that surveyed the case law in the various districts pertaining to protective orders and sealing orders. The introduction to the survey notes, in part, that:
Federal courts have extensive experience in evaluating requests for protective orders. Through the development of the case law, federal courts have grappled with competing interests involved in determining whether a protective order is warranted in various circumstances, and if so, the proper limits of the order. In evaluating requests for protective orders governing discovery, courts have considered various factors, including, for example, the confidentiality interests at issue, the need to protect public health and safety interests, the fairness and efficiency of entering a protective order, and the importance of the litigation to the public.
Courts differentiate the standard for sealing documents filed with the court, which usually is much more exacting than the showing required for entering a protective order limiting the dissemination of discovery materials. In analyzing requests to seal court documents, courts emphasize the presumption of public access to judicial records and often require compelling reasons in order to seal court documents.
For this blog, we will share with you Ms. Kuperman’s review of some of the case law available in the Eighth Circuit, at least up until just a few years ago. If you have an interest in any of the other Circuits, please do not hesitate to give me a call. Back to the Eight Circuit:
In 2008, a court in the Eighth Circuit explained that: “Under Rule 26(c), a court may grant a protective order only upon a showing of good cause by the moving party. The movant must articulate ‘a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.’” Pochat v. State Farm Mutual Auto. Ins. Co., No. 08-5015-KES, 2008 WL 5192427, at *3 (D.S.D. Dec. 11, 2008) (internal citation omitted) (quoting Gen. Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973)). “Such determination must also include a consideration of the relative hardship to the non-moving party should the protective order be granted.” Gen. Dynamics Corp., 481 F.2d at 1212 (citation omitted). The Pochat court noted that protective orders over discovery require “‘balancing between public and private concerns.’” Pochat, 2008 WL 5192427, at *3 (quoting Pansy, 23 F.3d at 786). The court explained further that:
Once the court determines that the discovery policies require that the materials be disclosed, the issue becomes whether they should “be disclosed only in a designated way,” as authorized by the last clause of Rule 26(c)(7) . . . . Whether this disclosure will be limited depends on a judicial balancing of the harm to the party seeking protection (or third persons) and the importance of disclosure to the public.
Id. at *4 (alterations and omissions in original) (internal quotation marks omitted) (quoting Pansy, 23 F.3d at 787). The court described various factors listed in Pansy that might be considered in determining whether to enter a protective order. See id. The court emphasized that “[t]hese factors . . . ‘are unavoidably vague and are of course not exhaustive’ so as to provide courts with ‘the flexibility needed to justly and properly’ resolve discovery disputes.” Id. (citing Pansy, 23 F.3d at 787).
In the context of reviewing a sealing order entered by a bankruptcy judge, the Eighth Circuit has recognized the public’s right to inspect judicial records and stated that compelling reasons are necessary to infringe on that right. See In re Neal, 461 F.3d 1048, 1053 (8th Cir. 2006) (noting that courts recognize a general right to inspect judicial records and that courts have supervisory power over their records and may deny access if the records may be used for improper purposes, but that while “the court is given this supervisory power [to deny access], ‘only the most compelling reasons can justify non-disclosure of judicial records’” (quoting In re Gitto Global Corp., 422 F.3d 1, 6 (1st Cir. 2005) (internal brackets and quotations omitted))).
In another case, the Eighth Circuit stated that whether to seal a court record is a decision within the district court’s discretion. See Jochims v. Isuzu Motors, Ltd., 151 F.R.D. 338, 340 (S.D. Iowa 1993) (“[T]he decision of whether court records should be sealed is one committed to the sound discretion of the trial court.” (citing Webster Groves Sch. Dist. v. Pulitzer Publishing Co., 898 F.2d 1371, 1374 (8th Cir. 1990))). The court explained that “[w]hile recognizing a common law right of access to court records, the Eighth Circuit has expressly declined to adopt a ‘strong presumption’ of common law access.” Id. The Jochims court concluded that “the public good would be substantially disserved if the introduction of a document in a civil trial deprived it of its otherwise confidential status.” Id. at 342.
In another district court case, the court noted that the Eighth Circuit had recognized a general right to inspect judicial records, and that “[a] party seeking closure or sealing of court documents must show that a restriction of the right of public access is necessitated by a compelling government interest.” SEC v. Shanahan, No. 4:06-MC-546 CAS, 2006 WL 3330972, at *3 (E.D. Mo. Nov. 15, 2006) (citing Goff v. Graves, 362 F.3d 543, 550 (8th Cir. 2004)) (I worked on this stock options back-dating case for another defendant). The court emphasized that “[i]f a district court decides to close a proceeding or seal certain documents, it must explain why closure or sealing was necessary and why less restrictive alternatives were not appropriate.” Id. at *4 (citing In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 574 (8th Cir. 1988) (citation omitted)). The court noted that “Eighth Circuit precedent indicates that in order to seal records or documents, there must be a compelling governmental interest.” Id. (citation omitted) The court distinguished private interests, which it deemed insufficient to warrant sealing:
In the absence of evidence that court files might be used for improper purposes such as to “gratify private spite” or “promote public scandal,” the respondents’ interest in keeping their names out of the public record is not a governmental interest at all, but rather a private interest. “The mere fact that the production of records may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records.” Id. (internal citation omitted).
Another district court described the following standard for sealing court documents in this way:
There is a common-law right of access to judicial records. See Webster Groves Sch. Dist. v. Pulitzer Publ’g Co., 898 F.2d 1371,1376 (8th Cir. 1990). The Eighth Circuit has held that this right of access “is not absolute, but requires a weighing of competing interests.” Id.
Duron v. Guidant Corp. (In re Guidant Corp. Implantable Defibrilators Prods. Liab. Litig.), 245 F.R.D. 632, 636 (D. Minn. 2007) (alteration in original).
Finally, the Simon court concluded in 1987 that “there is no established right of public access to prejudgment records in civil cases.” Simon v. G.D. Searle & Co., 119 F.R.D. 683, 684 (D. Minn. 1987) (citation omitted). The court stated that it had “discretion to deny access to documents filed, but not admitted into evidence or relied upon by the Court.” Id. (citing Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir. 1986) and Tavoulareas v. Washington Post Co., 111 F.R.D. 653 (D.D.C. 1986)).
It has been my experience that Courts exercise their discretion more freely than this particular case law suggests. This may be explained by the narrow field of interested parties that take the time or effort to challenge an order to seal. As for the litigants, a party may be reluctant to prompt the ire of the Court by challenging an illegitimate order to seal when that party is not a criminal defendant or a member of the media.
Finally, in 2010 the Federal Judicial Center issued a document available on the internet entitled Sealing Court Records and Proceedings: A Pocket Guide. Warning: It won’t fit in your pocket.
 The impressive 106-page survey was authored by Ms. Andrea Kuperman.