06E

E. Discovery materials and motions

E. Discovery materials and motions

Overview

Pennsylvania

The Pennsylvania Superior Court has stated that “access rights to litigation are at their nadir” during the discovery phase.  Sealed discovery materials that are filed with the court will remain under seal “until the commencement of trial.”  R.W. v. Hampe, 626 A.2d 1218, 1224 n.8 (Pa. Super. Ct. 1993).  The presumptive right of access extends only to those documents obtained during discovery that are actually introduced into evidence at trial.  See id. at 1223. 

E. Discovery materials and motions

Overview

7th Cir.

Access is presumed for filed documents which comprised the basis of a judicial decision. See Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir. 1994). 

The court found no statutory, common law, or constitutional right to unfiled discovery. The journalist lacked standing under Rule 24(b) to intervene for purposes of unsealing discovery in a settled lawsuit since he had no colorable claim to the unfiled documents covered by the protective order. Bond v. Utreras, 585 F.3d 1041 (7th Cir. 2009).

E. Discovery materials and motions

Overview

3rd Cir.

Unfiled discovery materials may be sealed for “good cause.” See Glenmede Trust Co. v. Thompson, 56 F.3d 476 (3d Cir. 1995); Cipollone v. Liggett Group Inc., 785 F.2d 1108 (3d Cir. 1986).

E. Discovery materials and motions

Overview

Washington

Civil deposition transcripts and other discovery documents are typically not part of the court record, and therefore are not accessible by the public and press. See King v. Olympic Pipe Line Co., 28 Media L. Rep. 2278 (Wash. Sup. Ct. 2000).

E. Discovery materials and motions

Overview

Michigan

While there may be a right to filed discovery materials after a trial has commenced, there is no right of access to unfiled discovery materials or filed materials before the start of trial. See Booth Newspapers, Inc. v. Midland Cir. Judge, 145 Mich. App. 396, 377 N.W.2d 868 (Mich. Ct. App. 1985), appeal denied, 425 Mich. 854 (Mich. 1986), cert. denied, 479 U.S. 1031 (1987).

E. Discovery materials and motions

Overview

New Jersey

Discovery materials are presumed open and may only be held as confidential upon a showing of “good cause.” See Cipollone v. Liggett Group, Inc., 106 F.R.D. 573 (D. N.J. 1985), cert. denied, 479 U.S. 1043 (1987). 

E. Discovery materials and motions

Overview

6th Cir.

The Sixth Circuit has permitted access to discovery materials when there was a public interest, e.g. the 1970 Kent State massacre, Krause v. Rhodes, 671 F.2d 212 (6th Cir. 1982), yet restricted access for “good cause” such as a need to protect the privacy rights of non-parties. See Courier-Journal v. Marshall, 828 F.2d 361 (6th Cir. 1987). 

E. Discovery materials and motions

Overview

California

Filed discovery materials used to adjudicate the claim are presumed open. See Mercury Interactive Corp. v. Klein, 70 Cal. Rptr. 3d 88 (Cal. Ct. App. 2007); In re Coordinated Pretrial Proceedings in Petroleum Prod. Antitrust Litig., 101 F.R.D. 34 (C.D. Cal. 1984). Such materials can override this presumption and be sealed for good cause. See Humboldt Baykeeper v. Union Pacific Railroad Co., 244 F.R.D. 560 (N.D. Cal. 2007); In re Providian Credit Card Cases, 116 Cal. Rptr. 2d 833 (Ca. Ct. App. 2002).

E. Discovery materials and motions

Overview

Maryland

See Section VI.C., supra.

E. Discovery materials and motions

Overview

Kansas

Kansas appellate courts have not had occasion to rule, on the basis of Seattle Times Company v. Rhinehart, 467 U.S. 20 (1984), that pretrial discovery documents are not open.  Even so, in Kansas courts, discovery documents are subject to a wide range of protections.  In a defamation case brought by a man against his former wife, a Court of Appeals judge observed that discovery documents include “confidential or otherwise sensitive material, such as medical records, tax and financial information, or proprietary trade or research data.” Purdum v. Purdum, 48 Kan.App.2d 938, 746 (2013), Hon. G. Gordon Atcheson, dissenting and citing K.S.A. 2012 Supp. 60–226(c).  The Kansas Code of Civil Procedure, the judge said, “recognizes multiple ways of protecting that sort of documentary evidence through protective orders or other judicial control.”  Id.