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B. Pre-trial proceedings

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  • 2nd Circuit

    There is no clear rule in the Second Circuit that there is a presumption of access to all pre-trial proceedings.  Of note, the Supreme Court has noted that deposition proceedings "were not open to the public at common law" [and] "[m]uch of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action."  Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984).  In the same vein, the Second Circuit has noted that "the mere filing of a paper or document with the court is insufficient to render that paper a judicial document” subject to the presumption of access, and instead that “the item filed must be relevant to the performance of the judicial function and useful in the judicial process in order for it to be designated a judicial document."  United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) (“Amodeo I”).

    Still, numerous courts at the district level have held that a variety of discovery-related documents qualify as "judicial documents" and benefit from the presumption of openness.  See Alexander Interactive, Inc. v. Adorama, Inc., No. 12 CIV. 6608 PKC JCF, 2014 WL 4346174, at *2 (S.D.N.Y. Sept. 2, 2014) ("documents to be submitted are in support of a motion to compel discovery [] presumably will be necessary to or helpful in resolving that motion. They are, therefore, judicial documents.); In re Omnicom Grp., 2006 WL 3016311 at *2. (a "series of letter briefs with accompanying exhibits…certainly qualify as judicial documents"); Schiller v. City of N.Y., No. 04 CIV. 7921(KMK) 2006 WL 2788256, at *1 (S.D.N.Y. Sept. 27, 2006) (briefs and supporting papers submitted in connection with a dispute over the confidentiality of discovery materials were "created by or at the behest of counsel and presented to a court in order to sway a judicial decision" and were therefore "judicial documents that trigger the presumption of public access").

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  • 4th Circuit

    “Although the Fourth Circuit thus has not explicitly held that a First Amendment right of access exists with regard to non-dispositive civil motions and hearings, the precedent strongly favors that view, with the higher burden for sealing.” Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 121 (D. Md. 2009) (denying motion to seal pleadings and exhibits relating to a motion for a protective order to prohibit a deposition).

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  • 5th Circuit

    Nothing found specific to the Fifth Circuit, but many of the holdings relating to criminal trials may be applicable.

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  • 7th Circuit

    Proceedings on pretrial motion that “was designed to (and did) result in the dismissal of claims against several defendants” were presumptively open.  In re Continental Illinois Sec. Litig., 732 F.2d 1302 (7th Cir. 1984); Fort Wayne Journal-Gazette v. Baker, 788 F. Supp. 379, 385 (N.D. Ind. 1992) (“The public and press have a ‘presumption of access’ to both criminal and civil court proceedings”; newspaper reporter had right to be present at state court guardianship hearing).

    In David K. v. Lane, 839 F. 2d 1265 (7th Cir. 1988), plaintiff inmates claimed the district court “hampered their ability to present evidence” at a preliminary injunction hearing in their civil rights suit because the court refused to close the courtroom and order that no testimony be released without prior court approval, “in order to encourage two white inmates to testify about incidents of homosexual rape by gang members.”  Id. at 1276.  The Seventh Circuit held the district court did not abuse its discretion in “balanc[ing] open access to courtrooms and First Amendment rights with the danger of retaliation against inmate witnesses” and finding “insufficient reason to compel either media restrictions or closure of the courtroom to the public.”  Id.  The Court observed that “problems of constitutional dimension relating to prior restraint or restrictions on access to the courtroom could have been avoided without sacrificing the desired anonymity of the witnesses,” i.e., plaintiffs “could have, but did not, request that the court order counsel to refrain from asking inmate witnesses to identify themselves in open court.”  Id.  The Court further observed that “[t]he single media representative in the courtroom was asked (but not required) to refrain from publishing the names of inmate witnesses. The media representative apparently complied with this request.”  Id. n. 7.

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  • 8th Circuit

    The Eighth Circuit has recognized a First Amendment right of access to contempt proceedings, “a hybrid containing both civil and criminal characteristics.” In re Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir. 1983).

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  • Alabama

    Although Alabama courts have not specifically addressed whether pre-trial proceedings are open, the Supreme Court of Alabama’s decision in Balogun (indicating that judicial “proceedings” are open) should extend to pre-trial proceedings. Generally, interrogatories, requests for production, and requests for admission, as well as deposition transcripts, are not filed with the court and therefore do not become part of the public record. Such discovery documents can become public record to the extent they are filed in support of other pleadings or motions. In that instance, the Alabama Rules of Civil Procedure provide that “only the relevant material shall be filed with the motion or response.” Ala. R. Civ. P. 5(d) and 5(e).

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  • Arizona

    No published decisions.

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  • Arkansas

    The Supreme Court of Arkansas said the general rule is that “that pretrial proceedings and their record must be open to the public, including representatives of the news media, and before an exception to that general rule is made, the test set out in Arkansas Television must be met.” Arkansas Newspaper Inc. v. Patterson, 281 Ark. 213, 215, 662 S.W.2d 826, 827 (1984) (citing Arkansas Television Co. v. Tedder, 281 Ark.152, 157, 662 S.W.2d 174, 176 (1983) (creating a two-part test for closure: “the proponent of closure must demonstrate a substantial probability that (1) irreparable damage to the defendant’s fair trial right will result from an open hearing and (2) alternatives to closure will not adequately protect the right to fair trial.”)). The State’s Supreme Court ruled that civil litigants who seek to keep their cases sealed should file motions to dismiss and settle out of court because the presumption is that settlements that take place in court become “the public’s business.” Arkansas Best Corp. v. General Elec. Capital Corp., 317 Ark. 238, 247, 878 S.W.2d 708, 712 (1994).

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  • California

    The California Supreme Court has held “that substantive courtroom proceedings in ordinary civil cases are presumptively open.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999). Although the Court in NBC Subsidiary addressed access to trial proceedings, nothing in NBC Subsidiary or its progeny suggests that the presumption of openness is limited to trial proceedings. Instead, the Court’s language is sufficiently broad to encompass all phases of civil litigation, from pre-trial through appeal. Courts have applied the presumption of openness to records of pre-trial proceedings, such as materials submitted in connection with a special motion to strike. E.g., McNair v. Nat’l Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 29, 183 Cal. Rptr. 3d 490 (2015). It follows that the same presumption of openness should apply to the proceedings themselves.

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  • Colorado

    Colorado appellate courts have not addressed the constitutional or common law right of access to pre-trial proceedings in civil cases.

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  • District of Columbia

    D.C. courts have stated that “although the First Amendment normally guarantees to the public and the press the right to attend criminal trials, the right of access to pretrial proceedings is only a qualified one.”  United States v. Poindexter, 732 F. Supp. 165, 167 (D.D.C. 1990).  In determining whether access should be granted, courts look to two factors: historical tradition and the public purpose to be served by public access.  Id.

    As a general matter, D.C. courts have looked unfavorably upon attempts to restrict press access to pre-trial proceedings. See Avirgan v. Hull, 188 F.R.D. 257 (D.D.C. 1987).  In Avirgan, a D.C. federal district court held that a third-party deponent’s “bald assertion” that he would suffer “annoyance, embarrassment, [and] oppression” if the press was permitted to attend his deposition did not satisfy the showing of good cause required to grant a protective order preventing the media’s attendance, but the court ordered further briefing on the question of good cause. Id. at 262.

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  • Florida

    Civil court proceedings are presumptively open. Under Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988), to overcome the strong presumption of openness in civil proceedings a proponent of closure must satisfy a three-prong test. The first prong requires a proponent to show that closure is necessary: “(a) to comply with established public policy set forth in the constitution, statutes, or case law; (b) to protect trade secrets; (c) to protect a compelling government interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matter protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” Id. at 118. For privacy concerns, “it is generally the content of the subject matter rather than the status of the party that determines whether a privacy interest exists” that permits closure. Id. However, the privacy interest can be negated where “the content of the subject matter directly concerns a position of public trust held by the individual seeking closure.” Id. Second, the court must find that no reasonable alternatives exist to reach the desired result. Id. Finally, if no reasonable alternative exists, then the court must ensure that the means and the least restrictive necessary to accomplish the goal. Id.

    Florida Supreme Court held in Palm Beach Newspapers v. Burk, 504 So. 2d 378 (Fla. 1987), that the press does not have a qualified right to attend depositions or obtain copies of unfiled deposition transcripts in either civil or criminal proceedings. See also SCI Funeral Services of Florida, Inc. v. Light, 811 So. 2d 796 (Fla. Dist. Ct. App. 2002) (upholding protective order closing depositions to the media based on privacy concerns).

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  • Georgia

    The press and public’s right of access to pre-trial proceedings in Georgia criminal cases is long established, see, e.g., R.W. Page Corp. v. Lumpkin, 249 Ga. 576 (1982), and the Georgia Supreme Court has reiterated likewise that open judicial proceedings in civil cases are an integral part of our democratic form of government. “Public access protects litigants both present and future . . . . Our system abhors star chamber proceedings with good reason. Like a candle, court records hidden under a bushel make scant contribution to their purpose.” Atlanta Journal v. Long, 258 Ga. 410, 411 (1988). See generally Munoz v. American Lawyer Media LP, 236 Ga. App. 462, 464 (1999) (“The function of a free press is just as important in civil cases as in criminal cases”).

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  • Idaho

    There are no cases or rules on point.  Again, civil court proceedings should presumptively be open.

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  • Indiana

    Indiana Trial Rule 72(B) provides that, besides trials on the merits, judges may conduct “all other acts or proceedings” in chambers.

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  • Iowa

    Although the Iowa Supreme Court has not specifically addressed rights of access in civil matters, it is likely that an analysis of rights of access in civil matters would follow what has been employed by the court to analyze criminal proceedings.

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  • Kansas

    Kansas rules on civil procedure do not specify that proceedings other than trials must be open.  To the extent that the rules address the issue of accessibility apart from trials, they only say that “[a]ll other acts or proceedings, including the entry of a ruling or judgment, may be done or conducted by a judge or judge pro tem in chambers, without the attendance of the clerk or others.”  K.S.A. 60-104.
    As for depositions, the rules, in K.S.A. 60-230(h), limit attendance to the “officer before whom the deposition is being taken,” along with the deponent, the parties and their attorneys, and the attorneys’ paralegals or legal assistants, and the person recording the deposition.

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  • Kentucky

    In Kentucky, there is no recognized right of public access to deposition proceedings themselves.  However, many jurisdictions within Kentucky require, by local rule, deposition transcripts in civil cases to be filed with the clerk’s office in the official court record, which is publicly available.  Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433 (Ky. Ct. App. 2014); see also Ky. R. Civ. P. 30.06.

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  • Louisiana

    The Louisiana Constitution also provides a right of access to civil judicial proceedings. Article 1, § 22 states: “All courts shall be open.” The Louisiana Supreme Court has commented on the “strong societal interest in public trials.” Copeland v. Copeland, 930 So.2d 940 (La. 2006).

    The Louisiana Supreme Court explicitly recognized this right of access in Plaquemines Parish Commission Council v. Delta Development Co., 472 So.2d 560, 566 (La. 1985). A newspaper intervened seeking access in a civil suit by the Parish against its former elected officials over millions of dollars of allegedly misappropriated mineral royalties. “The freedom of the press to report matters of public interest, and especially trial proceedings, is so great that it outweighs almost any governmental restraints.”

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  • Maine

    In Maine pre-trial proceedings, such as oral argument on motions, are typically open to the public. However, motions may be decided on the papers or after conferences in chambers, which are not open to the public.

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  • Maryland

    The right of access to civil proceedings guaranteed by the First Amendment and Article 40 of the Maryland Declaration of Rights applies to pretrial proceedings. Doe v. Shady Grove Adventist Hosp., 598 A.2d 507, 511 (Md. Ct. Spec. App. 1991). The Maryland Court of Appeals found in Baltimore Sun Co. v. Mayor & City Council of Baltimore, 755 A.2d 1130 (Md. 2000), that the “common law principle of openness is not limited to the trial itself but applies generally to court proceedings and documents.” Id. at 1134. Likewise, the Court of Special Appeals has held that the “right of access” applies to pretrial proceedings. State v. Cottman Transmission Sys., Inc., 542 A.2d 859, 863 (Md. Ct. Spec. App. 1988); see also Doe, 598 A.2d at 511.

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  • Massachusetts

    Following the U.S. Supreme Court’s decision in Seattle Times Company v. Rhinehart, Massachusetts courts do not recognize a right of access to pre-trial discovery, “including deposition transcripts, exhibits, interrogatory responses and answers to document requests.” Harris-Lewis v. Mudge, 9 Mass. L. Rptr. 698 (Mass. Super. 1999); see also Anderson v. Cryovac, Inc., 805 F.2d 1, 13 (1st Cir. 1986) (there is no tradition of public access to discovery, and consequently there is no common law presumption of public access to discovery-related records); Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 362 (Mass. 1990) (remarking in dicta that there is no right of access to depositions); Cronin v. Strayer, 467 N.E.2d 143, 149 (Mass. 1984) (“The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders.”) (quoting Seattle Times Co., 467 U.S. at 36).

    Massachusetts courts may, upon finding good cause, issue protective orders mandating that certain depositions be sealed or that “discovery be conducted with no one present except persons designated by the court” in order to protect a party from “annoyance, embarrassment, oppression, or undue burden or expense.” Mass. R. Civ. P. 26(c).

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  • Minnesota

    In the civil context, the Minnesota Supreme Court has declined to endorse any “presumption of privacy” for pretrial discovery materials, leaving any protection to the discretion of the district judge under the “good cause shown” standards of Minn. R. Civ. P. 26.03. In re GlaxoSmithKline, 732 N.W.2d 257, 272 n.11 (Minn. 2007). The Minnesota Supreme Court, in an earlier decision in the GlaxoSmithKline litigation, stated “that documents produced as discovery are not presumed to be public and that district courts have broad discretion to issue protective orders,” but that “district courts presiding over civil actions are directed to weigh ‘policies in favor of openness against the interests of the litigant in sealing the record.’” In re GlaxoSmithKline, 699 N.W.2d 749, 755 (Minn. 2005). These decisions supersede the narrower view of public rights of access to pretrial discovery materials not yet filed with the court, as expressed by the Minnesota Court of Appeals in Star Tribune v. Minnesota Twins Partnership, 659 N.W.2d 287, 295–97 (Minn. Ct. App. 2003) (holding that the public has a common law right to inspect and copy civil court records, but that “private documents generated during discovery that are not filed with the court are not considered ‘judicial records’”). Of course, absent a protective order issued for good cause shown, “nothing precludes a party from voluntarily disclosing discovery documents.” State ex rel. Humphrey v. Philip Morris Inc., 606 N.W.2d 676, 686 (Minn. Ct. App. 2000).

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  • Mississippi

    Under Mississippi law, a protective order entered by the court under Rule 26(d) of the Mississippi Rules of Civil Procedure upon a finding of good cause, may provide that trade secrets and other confidential commercial and financial documents that are produced in discovery under such a protective order may be exempt from disclosure to unauthorized third persons. American Tobacco Co. v. Evans, 508 So. 2d 1057, 1062 (Miss. 1987) (citing, for example, Seattle Times Co. v. Rinehart, 467 U.S. 20 (1984)).

    Rule 26(d) and a protective order entered under Rule 26(d) make confidential documents produced under the order exempt from disclosure under the State Public Records Act.  See Miss. Code Ann. § 25-61-11 (2018) (“The provisions of this chapter shall not be construed to conflict with, amend, repeal or supersede any constitutional law, state or federal statutory law, or decision of a court of this state or the United States which at the time of this chapter is effective or thereafter specifically declares a public record to be confidential or privileged, or provides that a public record shall be exempt from the provisions of this chapter.”); see also Estate of Cole v. Ferrell, 163 So. 3d 921 (Miss. 2012) (trial court, relying on Public Records Act, abused its discretion in denying motion to preserve confidentiality of settlement agreement reached in wrongful death action against motor vehicle manufacturer).

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  • Nebraska

    Pretrial conferences and motion hearings are often held in a judge’s chambers as a matter of comfort and/or convenience to the court and counsel. The author’s experience has been that such hearings are moved to the courtroom, thus open to the public, upon request by any member of the public. While there is no Nebraska case law, depositions are usually conducted in private law offices, where the public does not have a legal right to be.

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  • New Hampshire

    The right of access, discussed in “Overcoming a presumption of openness” above, applies to pre-trial proceedings.

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  • New Mexico

    Prior to trial, if the court determines, on its own initiative, that a proceeding should be closed, the court will file and serve on each party an order to show cause why the proceeding should not be. NMRA R. 1-104. If, by contrast, a party or any other person or entity with a sufficient interest moves to exclude the public from any portion of the courtroom proceeding, a written motion must be filed and served at least forty-five days prior to the commencement of the proceeding. Opposing parties will be allowed fifteen days after service of the motion to respond, and any member of the public may file a written response at any time before the hearing. Movants will be allowed fifteen days to reply to a written response by a party. Id. Further, “[m]edia organizations, persons, and entities that have requested to receive notice of proposed courtroom closures shall be given timely notice of the date, time, and place of any hearing under this paragraph. Any member of the public shall be permitted a reasonable opportunity to be heard at the hearing.” Id.

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  • North Dakota

    Adoption proceedings are closed under N.D.C.C. § 14-15-16(3) to the media and members of the public.  Juvenile proceedings are closed under N.D.C.C. § 27-20-51. However, general information not identifying any juvenile, witness, or victim can be requested and released under N.D.C.C. § 27-20-51(7).  N.D.C.C. § 25-03.1-43 provides that all records in connection with a mental health commitment proceeding are confidential.

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  • Oregon

    No Oregon court has specifically addressed access to pretrial civil proceedings. However, the Oregon Constitution provides a presumption of access unless the proceeding is not an adjudication, or where the proceeding was traditionally closed prior to the adoption of the Oregon Constitution. See Oregonian Publishing Co. v. O’Leary, 303 Or. 297, 303, 736 P.2d 173 (1987).

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  • Pennsylvania

    The public and press have a constitutional and common law right to access pretrial hearings and arguments. See PA Child Care LLC v. Flood, 887 A.2d 309, 312 (Pa. Super. 2005) (“Pennsylvania has a mandate for open and public judicial proceedings in both the criminal and civil settings.”).

    With respect to discovery, however, the Pennsylvania Superior Court has held that in civil proceedings “access rights to litigation are at their nadir.” Stenger v. Lehigh Valley Hosp. Ctr., 554 A.2d 954, 958 (Pa. Super. 1989) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984)).

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  • Utah

    The general presumption in favor of the right of public access presumably applies equally to pre-trial civil proceedings.  See Supernova Media, Inc. v. Shannon’s Rainbow, LLC, 2013 UT 7, 297 P.3d 599 (Utah 2013).  

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  • Vermont

    Unlike access to court records, there is no comprehensive rule or statute governing public access to court proceedings in Vermont. However, the Vermont Supreme Court has repeatedly recognized the “generally accepted practice as well as the public’s constitutional and common law right of access to court records and proceedings.”  State v. Tallman, 148 Vt. 465, 472, 537 A.2d 422, 427 (Vt. 1987); see also Herald Ass’n v. Ellison, 138 Vt. 529, 533-534, 419 A.2d 323, 326, (Vt. 1980) (noting that, in Vermont, public judicial proceedings are the rule and closed ones the exception).

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  • Washington

    The constitutional standards governing access to civil trials apply equally to pre-trial procedures.

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  • West Virginia

    As set forth above, “[t]he open courts provision of Article III, Section 17 of the West Virginia Constitution guarantees a qualified constitutional right on the part of the public to attend civil court proceedings.”  See “Access to civil proceedings/In general” above (quoting Syl. Pt. 4, Garden State Newspapers, 205 W. Va. at 613, 520 S.E.2d at 188.  This right applies to pre-trial proceedings.  State ex. Rel Garden State Newspapers, Inc. v. Hoke, 205 W.Va. 611, 520 S.E.2d 186, 191 (1999).

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