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B. Pre-trial proceedings


  • 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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  • 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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  • 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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  • 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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  • 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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  • 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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  • 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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