E. Discovery materials and motions

Overview

In Seattle Times Company v. Rhinehart, 467 U.S. 20, 33 (1984), the Supreme Court ruled that “pretrial depositions and interrogatories are not public components of a civil trial. Such proceedings were not open to the public at common law, and, in general, they are conducted in private as a matter of modern practice.” Though that case dealt with the ability of a party to release information obtained in discovery, other courts have cited it in approving protective orders keeping discovery material confidential under Rule 26(c) of the Federal Rules of Civil Procedure if a party can show “good cause” – for example, protecting a trade secret or other confidential information. See, e.g., In re Alexander Grant & Co. Litigation, 820 F.2d 352, 355 (11th Cir. 1987) (newspaper “possess[ed] no First Amendment rights to the protected information which override the provisions of Fed.R.Civ.P. 26(c)” because “[t]he discovery process, as a ‘matter of legislative grace,’ is a statutorily created forum not traditionally open to the public”) (quoting Rhinehart).

Once discovery documents are filed in court, the analysis changes. Thus, in Leucadia, v. Applied Extrusion Technologies, 998 F.2d 157, 165 (3rd Cir. 1993), the court found that “there is a presumptive right to public access to all material filed in connection with nondiscovery pretrial motions, whether these motions are case dispositive or not, but no such right as to discovery motions and their supporting documents.” And in Joy v. North, 692 F.2d 880, 893 (2nd Cir. 1982), the court agreed, noting that “[a]n adjudication is a formal act of government, the basis of which should, absent exceptional circumstances, be subject to public scrutiny …. Indeed, any other rule might well create serious constitutional issues.”

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).