by Senior Attorney Leslie Brueckner and Board Member Beth Terrell
Originally printed in the Trial News by the Washington State Association for Justice, June 2017, Volume 52, Number 10.
You’ve heard of the First Amendment? It’s that part of the U.S. Constitution that makes it ok to burn the flag ( 1) or wear black armbands ( 2) as acts of political protest. And it’s the part of the Constitution that makes it not ok for government officials to ban books ( 3) because they think they’re “un-American” or to make kids pray in public school. ( 4)
But there’s something else the First Amendment does that lawyers tend to forget about. Here in the Ninth Circuit, the First Amendment also grants every member of the public a presumptive right of access to court records—a right that forbids the sealing of court records except in the rarest of circumstances.
This is actually a fairly new development in the Ninth Circuit. For years, the Court has recognized a common law right of access to court records. ( 5) Under the common law, court records can be sealed on a showing of a “compelling need” for secrecy sufficient to overcome the public’s interest in access.
Importantly, the common law right of access applies to materials filed with a court regardless of whether they have been designated as “confidential” during the discovery process. Even if a document was subject to a protective order during discovery, it cannot be filed under seal unless the court makes the specific findings that the presumption of access requires. ( 9)
But more recently, the Court kicked it up a notch by recognizing that the public’s right of access is grounded in the First Amendment as well. (6) Under this new, even more potent First Amendment standard, the right of access may only be overcome by an “overriding [governmental interest] based on findings that closure is essential to preserve higher values.” ( 7)
To make this showing, a part seeking secrecy must demonstrate both a “high probability” that this interest would be harmed if the documents were disclosed and that “there are no alternatives to closure that would adequately protect the compelling interest.” ( 8)
Thus, although the common-law right of access is certainly nothing to sneeze at, the First Amendment right of access is even more powerful—and it provides more ammunition to fight against the sealing of court. (More on why this matters, below.)
Making matters even better, last year the Ninth Circuit struck yet another blow for openness in a case that clarified the scope of the public’s right of access. In Ctr. for Auto Safety v. Chrysler Group, LLC, ( 10) the Center for Auto Safety intervened to seek access to sealed court records Chrysler resisted disclosure on the ground that the court records at issue—discovery documents attached to preliminary injunction pleadings—could be sealed on a mere showing of “good cause” because the pleadings were not “dispositive” on the ultimate issue in the case.
The Court of Appeals rejected this argument, holding that the public’s right of access to court records is not limited to “dispositive” motions, such as motions for summary judgment or motions to dismiss, but rather applies more broadly to motions that are “more than tangentially related to the merits of a case.” (11)
The Sad Reality
That’s the good news. The bad news is that, despite all this wonderful Ninth Circuit law, court records in this jurisdiction—as elsewhere—are sealed all too often without any showing of any need for secrecy at all, much less the type of compelling need for secrecy required by the First Amendment.
Why is this happening? It all starts during the discovery process. In order to handle the demands of complicated litigation, parties often agree to broad “umbrella” protective orders during discovery that permit defendants wide latitude to designate documents “confidential” without any showing good cause for secrecy, let alone the type of compelling need for secrecy that would be required to justify the sealing of court records.
Then, when time comes to file those documents with a court—for example, as attachments to a motion to dismiss for summary judgment—the parties often simply file the documents under seal, or file pro forma motions with the court asking for permission to do so. Busy district court judges will often then rubber stamp the parties’ motion without further inquiry, thereby inadvertantly disregarding the public’s presumptive right of access to court records.
That’s exactly what happened in Perez v. Lantern Light LLP, Case No. C12-1406RSM (W.D.Wash.), a federal case in Seattle where President Obama’s Department of Labor obtained a ruling that DirecTV was liable under federal wage-and-hour laws for failing to pay overtime wages to workers who were (on paper) employees of a subcontractor. The court ruled that this subcontracting arrangement was a sham, and that DirecTV was actually a “joint employer” of the workers—and thus owed them overtime under federal law.
Although the court’s ruling was terrific, most of the actual evidence that showed the details of DirecTV’s subcontracting arrangement was under seal because it had been designated “confidential” by DirecTV during discovery, pursuant to a protective order that was entered over the government’s objection, and then filed under seal, as attachments to summary judgment motions—exactly the type of court records that are supposed to be afforded the highest level of protection under the First Amendment—without any showing that secrecy was warranted. So much for the presumption of public access.
In Perez, it so happens, the story has a happy ending, because a public-interest group intervened in the case and successfully challenged the sealing of the court records; once the secrecy issue was brought to the court’s attention, it was immediately addressed and rectified. But in the vast majority of cases, once records are placed under seal, there is no one available to speak for the public interest in access, and the records remain sealed in perpetuity.
This probably happens hundreds of times every day, in courts across the country. And with rare exceptions—when, for example, a media group or public interest organization moves to intervene to fight the secrecy, see, e.g., Foltz, supra, 331 F.3d 1122 (9th Cir. 2002), the secrecy goes unchallenged.
So much for the public’s right of access.
Why Should You Care?
Aside from the tiny little matter of the U.S. Constitution, why should you care?
First, unwarranted secrecy in the courts undermines the public’s faith in the civil justice system and allows private litigants to highjack the court system for their own ends. The courts are created by the people, for the people. Secrecy perverts the system, and allows a public forum to become a tool for keeping wrongdoing secret. ( 12)
Second, in some instances, where public health and safety is at stake, the sealing of court records can put lives in danger. To give just one example, through the use of sealed court records and secret settlements, Remington Arms Company was able to conceal evidence that its most popular rifle can fire without anyone pulling the trigger. It wasn’t until Public Justice intervened in a case on behalf of one of Remington’s victims—the father of a young boy who was killed by one of the misfiring rifles—that court records involving the dangerous rifles were finally unsealed. ( 13)
This, of course, is just the tip of the secrecy iceberg. Protective orders and sealed court records have concealed dangerous products and unscrupulous corporate behavior in untold numbers of cases. It is not hyperbole to say that thousands of lives have been lost as a result of this practice, and untold more will be lost if routine court secrecy continues on into the future.
Just Say No
So secrecy matters. And there are only a few public interest groups and media organizations with the resources to challenge the sealing of court records after the fact. So, in the vast majority of cases, once records are sealed, they remain that way.
But there’s something that you can do to help stop the madness—or at least mitigate its adverse effects. One of the best ways to stem the tide of secrecy is to cut it off at its source, by limiting the purported reach of pretrial protective orders.
If you are forced to submit to an umbrella protective order, there are two important things you should always insist on.
First, it’s essential that any protective order contain a mechanism for challenging confidentiality designations that, when invoked, places the burden of proving “good cause” for confidentiality back on the party seeking secrecy. And you should include language that makes clear that a parties’ confidentiality designation can be challenged by you or any nonparty at any time, even after the litigation is concluded. This will help defeat any “reliance” arguments that the producing party may make in the event of a secrecy challenge down the road.
Second, in no event should you agree to any provision that purports to permit the automatic sealing—without further court review—of court records that contain, or are annexed to, any discovery material that a defendant unilaterally designates as “confidential.” Such provisions, which are commonly insisted on by defendants, are contrary to well-established law. As Judge Posner of the Seventh Circuit once noted: “The judge is the primary representative of the public interest… He may not rubber stamp a stipulation to seal the record.” (14)
It is therefore vitally important to fight any attempt to use a discovery protective order to shield from public view documents that are ultimately filed with a court. In fact, you might even want to propose language along these lines:
This Order does not seal court records in this case or apply to the disclosure of Protected Material at trial. It is only intended to facilitate the prompt production of Discovery Materials. A Party that seeks to file under seal any Protected Material, seal the court record, or close trial proceedings must comply with applicable law. The fact that Discovery Material has been designated as “Confidential” shall not be admissible as evidence that the Material in fact contains confidential information entitled to protection from disclosure under the law.
This type of provision will stop your opponent from being able to “bootstrap” the protective order into a mechanism for filing documents under seal. That’s not the whole ball game, but at least it’s a start.
And putting aside what your protective order says, there’s never a reason—ever!—to stipulate to the filing of court records under seal. If your opponent insists on secrecy, fight!
The public has a presumptive right of access, and it is your opponent’s burden of proving a compelling need for secrecy powerful enough to overcome that right. Always remember that you are the only person standing up for the public’s right to know—and it is your job to defend that interest by fighting unwarranted secrecy whenever you can.
There’s Always Help
If you have any questions about how to fight secrecy in your cases, do not hesitate to ask for help. Public Justice has a project dedicated to fighting unnecessary court secrecy. We’ve intervened in dozens of cases over the past 35 years to unseal court records that conceal hazardous products and corporate misconduct. By working together, we can help minimize court secrecy and keep our court system open to the public, as the First Amendment requires.