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C. Discovery materials

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  • 10th Circuit

    The Tenth Circuit has followed the United States Supreme Court holding that found that “pre-trial depositions and interrogatories are not public components of a civil trial.” Oklahoma Hosp. Ass’n v. Oklahoma Publ’g Co., 748 F.2d 1421, 1425 (10th Cir. 1984) (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 31 (1984)) (internal quotation marks omitted). Further, the Tenth Circuit has agreed with the U.S. Supreme Court’s reasoning for this holding, and has found that such pre-trial proceedings are not available to the public “because ‘[m]uch of the information that surfaces during pre-trial discovery may be unrelated or only tangentially related, to the underlying cause of action.’” Id. (quoting Seattle Times, 467 U.S. at 31).

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  • 2nd Circuit

    Like pre-trial documents (discussed below), discovery documents enjoy the same protection as general court records in so far as they are also deemed to be "judicial documents."  Where discovery documents fall outside this definition, however, closure still requires that a litigant establish good cause for sealing.  Fournier v. Erickson, 242 F. Supp. 2d 318, 342 (S.D.N.Y. 2003), is instructive.  In Fournier, the Southern District of New York vacated a stipulated protective order, in which the parties provided for the designation of material produced during discovery as protected material to be filed under seal.  Id. at 340.  This Court first noted that, once a protective order is issued, a party seeking to modify the protective order must show its improvidence or some extraordinary circumstance or compelling need."  Id. at 341 (citing Geller v. Branic Int'l Realty Corp., 212 F.3d 734, 738 (2d Cir. 2000)).  However, the protective order at issue improperly allowed the parties to designate material as confidential without judicial review:

    The Stipulated Protective Order not only asked the Court to defer to the parties' judgment on confidentiality but it also allowed for unilateral designation of an exhibit as protected material, and it did not list specific documents, or delineate the kinds of documents contemplated for protection.

    Id. at 341. The Court pointed out the problem with such an order:

    [E]ach party could circumvent the "good cause" standard for protection and simultaneously shift the burden to his adversary to unseal a document while benefitting from the more rigorous "extraordinary circumstances" standard that would apply merely by unilaterally designating any given document as protected.  Id.  As a result, the protective order was vacated, and the parties were instructed to "correct this state of affairs [in future motion practice] by specifically identifying each document at issue and making arguments specifically pertaining to each one."  Id. at n. 6; see also Savitt v. Vacco, No. 95-CV-1842(RSP/DRH), 1996 WL 663888, at *5 (N.D.N.Y. Nov. 8, 1996) (declining to issue a broad protective order and instead ordering defendants to submit "specific suggestions as to each document or notation which they believe should be placed under seal.").

    The Second Circuit has recognized that documents “such as those passed between the parties in discovery often play no role in the performance of Article III functions and so the presumption of access to these records is low.” Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 142 (2d Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 1044, 1047 (2d Cir. 1995)).

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  • 4th Circuit

    A right of access does not attach to discovery materials exchanged between parties. However, a First Amendment right of access attaches to discovery materials that are submitted in connection with a dispositive motion. See Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252 (4th Cir. 1988).  In Virginia Department of State Police v. Washington Post, 386 F.3d 567 (4th Cir. 2004), the district court assumed that the public had a First Amendment right of access to discovery records that were filed in connection with pretrial discovery motions, including a motion to quash, a motion to compel and a motion to lift protective orders.  On appeal, the Fourth Circuit noted that it was “not at all convinced that this is a correct assumption” and remanded for further consideration of the source of the right of access, as well as the sufficiency of the claimed reason for sealing.  On remand, the district court held that the discovery materials were subject to a common law, but not a First Amendment, right of access that was partially overcome to protect the integrity of an ongoing investigation. See Washington v. Bruraker, No. 3:02-cv-00106, 2015 WL 6673177 (W.D. Va. Mar. 29, 2015).

    In the absence of a definitive decision from the Fourth Circuit, district courts have reached different conclusions about the source of the right of access to discovery materials. Compare id. (common law) and Burnett v. Ford Motor Co., No. 3:13-cv-14207, 2015 WL 4137847, *1 n.1 (S.D.W. Va. July 8, 2015) (applying good cause standard) with Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 121 (D. Md. 2009) (“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.”).  Some district courts in the Fourth Circuit have even suggested that no right of access attaches to discovery materials filed in connection with discovery motions, on the theory that discovery motions are merely procedural and do not affect substantive rights. See Sky Angel U.S., LLC v. Discovery Commc'ns, LLC, 28 F. Supp. 3d 465, 489 n.8 (D. Md. 2014); United States v. Johnson, No. 12-cv-1349, 2014 WL 12787211, *3 (M.D.N.C. Feb. 10, 2014). But see Washington, 2015 WL 6673177 at *4-8.  Such a conclusion is at odds with In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283 (4th Cir. 2013), in which the Fourth Circuit held that a document is a judicial record if it adjudicates substantive rights or “plays a role in the adjudicative process.”

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  • 5th Circuit

    There is little specific to the Fifth Circuit with respect to discovery materials in civil cases.

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  • Alabama

    There do not appear to be any Alabama cases that specifically address the right to access discovery material in a civil case. Discovery is generally not publicly available, however, unless and until it is filed with a court in connection with a motion, brief or other pleading. Like its federal counterpart, Alabama Rule of Civil Procedure 26(c) allows for protective orders keeping discovery material confidential if a party can show “good cause.” Ala. R. Civ. P. 26(c).

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  • Arizona

    In the context of discovery, materials that are requested and obtained are not public until they are introduced as evidence or filed with the clerk of court.  See Lewis R. Pyle Mem. Hosp. v. Superior Court, 149 Ariz. 193, 197, 717 P.2d 872, 876 (1986).

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  • Kansas

    Kansas appellate courts have not had occasion to rule, on the basis of Seattle Times Co. 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.”  Purdum, 48 Kan.App.2d at 746.

    The accessibility of discovery documents has been addressed by federal courts in Kansas.  For example, in a dispute over free speech rights of police in Topeka, Kansas, a federal magistrate judge considered whether plaintiffs could release a defendant police chief’s deposition to the public.  The judge noted that, under a court rule, a deposition “‘shall not be filed with the clerk unless ordered by the court.’” Eaton v. Harsha, 2006 WL 3316792, at *2 (D. Kan. 2006).  The judge said “depositions (as well as other pre-trial discovery materials) are not public components of civil litigation until filed under court order or introduced into evidence,” but “such materials may be disseminated to third parties unless sealed by a valid protective order.”  Harsha, 2006 WL 3316792, at *2.  Once a protective order is issued, it “prohibits the party from disseminating information obtained through pre-trial discovery unless the information is ‘gained through means independent of the court’s processes.’” Harsha, 2006 WL 3316792, at *2.  (Related cases are Eaton v. Harsha, 2006 WL 963960 (D. Kan. 2006); Eaton v. Harsha, 2006 WL 3333791 (D. Kan. 2006), and Eaton v. Harsha, 505 F. Supp. 2d 948 (D. Kan. 2007).)

    In 2000, in a Kansas federal district court, a dispute arose over whether a litigant should be allowed to publicize videotaped depositions.  The judge did not limit the plaintiff’s use of his own videotaped deposition but did limit his use of a defendant’s taped deposition.

    The dispute began when a Kansas state court upheld an injunction that prevented a television broadcaster’s former employee and her husband from picketing or threatening to picket the broadcaster’s advertisers.  Drake v. Benedek Broad. Corp., 983 P.2d 274 (Kan. App. 1999).  The husband contested the outcome by claiming violation of his civil rights and filing suit in federal court against the broadcaster and others.  Drake v. Benedek Broad. Corp., 2000 WL 528059 (D. Kan. 2000).  When the plaintiff prepared to videotape a defendant’s deposition, the defendant submitted evidence indicating that the plaintiff planned to create and sell a documentary based on the litigation.

    The judge then imposed conditions on the plaintiff’s videotaping of the defendant’s deposition, so that it would “be used solely for purposes of the lawsuit.”  Drake v. Benedek Broad. Corp., 2000 WL 156825, at *2 (D. Kan. 2000) (citing Paisley Park Enters., Inc. v. Uptown Prods., 54 F. Supp. 2d 347, 349–50 (S.D.N.Y. 1999), in which parties were ordered to select a neutral custodian to take possession of the original videotape and were prohibited from making copies).

    When the plaintiff prepared to videotape his own deposition, the defendant asked the judge to limit use of the deposition to purposes related to the litigation.  The judge, however, denied the request, saying the plaintiff had “made it clear that he is not concerned with protecting any privacy interests he may have.”  Drake v. Benedek Broad. Corp., 2000 WL 274093, at *1 (D. Kan. 2000).

    The U.S. Court of Appeals for the Tenth Circuit has recognized a litigant’s freedom to release discovery documents but also a judge’s prerogative to prevent third-party access to them.  The court ruled against a newspaper that sought access to discovery documents in a case that involved a hospital association and a state agency.  Citing Seattle Times Co. v. Rhinehart, the court said it “may be conceded that parties to litigation have a constitutionally protected right to disseminate information obtained by them through the discovery process absent a valid protective order.  However, the court said, it “does not follow that they can be compelled to disseminate such information” to the media or others.  Okla. Hosp. Ass’n v. Okla. Publ’g Co., 748 F.2d 1421, 1424 (10th Cir. 1984), cert. denied, 473 U.S. 905 (1985).

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  • New Mexico

    In Spadaro v. Univ. of N.M. Bd. of Regents, 1988-NMSC-064, ¶ 8, 107 N.M. 402, 404, 759 P.2d 189, 191, the New Mexico Supreme Court held that only discovery materials deemed public records are subject to discovery under the Inspection of Public Records Act. In this case the court found that as student complaints were not public records, they were therefore not subject to discovery. In order for the public to access discovery material in New Mexico, it is likely that the material will have to be introduced or utilized in open court during a criminal or civil proceeding. See State ex rel. Bingaman v. Brennan, 1982-NMSC-059, ¶ 14, 98 N.M. 109, 111, 645 P.2d 982, 984 (finding that under the Abuse of Privacy Act, recordings of court ordered wiretaps are not public records unless such recordings are played or utilized in open court in criminal or civil actions).

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  • Pennsylvania

    Private documents collected during discovery are not judicial records, and, therefore, the common law right of access does not attach to them. R.W. v. Hampe, 626 A.2d 1218, 1224 n.8 (Pa. Super. 1993); see also Kurtzman v. Hankin, 714 A.2d 450, 452-53 (Pa. Super. 1998) (“[T]here is no presumptive right to discovery material.”); Stenger, 554 A.2d at 958 (“access rights to litigation are at their nadir” during the discovery phase). However, once those discovery materials are filed with the court or used at trial, they are subject to the presumptive right of access. Commonwealth v. Long, 922 A.2d 892, 898 (Pa. 2007).

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