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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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  • Colorado

    In Bowlen v. District Court Adams County, 733 P.2d 1179 (Colo. 1987), the Colorado Supreme Court considered the proper standard for entering a protective order to prohibit public disclosure of discovery materials exchanged by the parties in cases of public interest.  Although the district court initially entered a protective order, after media representatives “were contacted,” the court concluded that the protective order should be rescinded, because the case involved a National Football League franchise, which was a “matter of public interest,” and “the burden of overcoming the ‘presumption of openness’ for civil trials had not been met” by the parties seeking to prevent public access. Id. at 1181.  The Colorado Supreme Court concluded that the district court abused its discretion by imposing “a standard that grants heightened first amendment rights to the public and the media when discovery proceedings involve a matter of public interest.”  Id. at 1181, 1183.  After discussing Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), the Colorado Supreme Court concluded that “[w]e need not decide the exact degree to which pretrial discovery proceedings are insulated or protected from public disclosure by the first amendment, because the [U.S. Supreme] Court concluded that the ‘good cause’ showing required” under Fed. R. Civ. P. 26(c), or its state analogs, “is sufficient to safeguard whatever rights the public or media possess.”  Id. at 1182.

    The e-filing system used by Colorado state courts permits parties to electronically serve documents on other parties without filing them with the courts, including discovery materials (“e-service”).  The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) expressly applies to “all electronically filed (e-filed) or served (e-service) documents in accordance with the rules of the Supreme Court . . . .” (Section 4.00.)  In general, all “[i]nformation in the court record is accessible to the public,” and “court record” is broadly defined.  (Section 3.03(a); Section 4.10.)

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  • District of Columbia

    In Mokhiber v. Davis, 537 A.2d 1100 (D.C. 1988), the D.C. Court of Appeals held that the right of access, under either the First Amendment or the common law, attaches to discovery materials—such as depositions, interrogatories, and documents obtained in discovery—only when a party submits those materials as evidence at trial or files them in connection with a motion to the court. See also Aguirre v. Shapiro, 263 F.R.D. 26 (D.D.C. 2009) (“[P]laintiff has no First Amendment right to discuss or share protected information he receives as a function of pretrial discovery . . . .”); cf. Hajjar-Nejad v. George Washington Univ., No. CIV.A. 10-626 CKK, 2013 WL 178729, at *6 (D.D.C. Jan. 16, 2013) (unsealing plaintiff’s deposition transcript so that future motions could be filed without need for seal).

    By contrast, Mokhiber explains, “the presumptive public right of access does apply to motions filed with the court concerning discovery, to evidence submitted with such motions—including materials produced during discovery—and to the court’s dispositions, if any.” 537 A.2d at 1111. Similarly, the court held that the presumptive public right of access applies to other pre-trial motions, as well, even if they do not go to the merits of the underlying lawsuit. Id. at 1113. But see In re the Reporters Comm. for Freedom of the Press, 773 F.2d 1325 (D.C. Cir. 1985) (finding no First Amendment right of access, prior to entry of judgment in a civil lawsuit, to court records consisting of documents and depositions used in connection with summary judgment and trial proceedings, and finding that trial court did not exceed its discretion in delaying fifty days after judgment to determine whether the documents should be unsealed); Willingham v. Ashcroft, 355 F. Supp. 2d 390 (D.D.C. 2005) (sealing pendente lite pleadings and exhibits that disclosed allegations of misconduct against non-parties and ordering parties to re-file redacted versions of the same documents).

    In Johnson v. Greater Southeast Community Hospital Corp., 951 F.2d 1268 (D.C. Cir. 1991), the D.C. Circuit Court of Appeals ordered a district court to reconsider its decision to seal the entire record in a civil case (except plaintiff’s complaint), finding that a hospital’s interest in keeping the peer-review processes out of the public eye to be insufficient and instructing the district court to weigh the Hubbard principles on remand. Id. at 1277-78; see also U.S. v. USS Marine Services, 905 F. Supp. 2d 121 (D.D.C. 2012) (applying Hubbard factors, unsealing case concerning compliance with administrative agency’s subpoena for contractor’s internal audit).

    In In re Guantanamo Bay Detainee Litig., 630 F. Supp. 2d 1 (D.D.C. 2009), a D.C. federal district court held that the public has a limited First Amendment and common law right to access the unclassified factual returns filed in habeas corpus litigation brought by Guantanamo Bay detainees, and thus denied the government’s motion to seal completely all such returns. And in Mokhiber v. Davis, 537 A.2d 1100 (D.C. 1988) (per curiam), the D.C. Court of Appeals held that the public has a presumptive right of access to pre-trial motions and evidence submitted with those motions. Id. at 1113.  See also In re Rail Freight Fuel Surcharge Antitrust Litig., 2014 WL 5803136, at *1 (D.D.C. Nov. 7, 2014) (unsealing transcripts of pretrial hearings (citing Hubbard factors)); Guttenberg v. Emery, 26 F. Supp. 3d 88, 92-97 (D.D.C. 2014) (declining to seal docket and other case materials, citing Hubbard factors); United States ex rel. Grover v. Related Companies, LP, 4 F. Supp. 3d 21, 30 (D.D.C. 2013) (unsealing dismissed False Claims Act complaint (citing Hubbard factors)); cf. Hamiduva v. Obama, No. CV 08-1221(CKK), 2015 WL 5176085, at *4 (D.D.C. Sept. 3, 2015) (weighing Hubbard factors, keeping Guantanamo Bay prisoner’s factual returns under seal).

    D.C. courts have addressed the sealing of motions. In United States v. General Motors Corp., 99 F.R.D. 610 (D.D.C. 1983), a D.C. federal district court granted the government’s motion to unseal its motion for summary judgment and supporting exhibits in an action against the automaker under the National Traffic and Motor Vehicle Safety Act, rejecting GM’s argument that sealing was warranted until the filing of GM’s opposition. See also Educ. Assistance Found. for Descendants of Hungarian Immigrants in Performing Arts, Inc. v. United States, No. CV 11-1573 (RBW), 2015 WL 4055415, at *1 (D.D.C. July 1, 2015) (declining to seal summary judgment motion); Zapp v. Zhenli Ye Gon, 746 F. Supp. 2d 145, 151 (D.D.C. 2010) (citing Hubbard factors; denying motion to seal motions and other materials filed with Court); TIG Ins. Co. v. Firemen’s Ins. Co. of Washington, D.C., 2010 WL 2505878, at *3 (D.D.C. 2010) (denying without prejudice plaintiff’s motion for leave to file summary judgment motion under seal because the motion “simply assert[ed] that the documents at issue contain confidential information,” which “is not sufficient to properly evaluate the instant motion under the six-part balancing test articulated by this Circuit”).

    D.C. courts have also addressed the sealing of judicial decisions. See, e.g., Berliner Corcoran & Rowe LLP v. Orian, 662 F. Supp. 2d 130 (D.D.C. 2009) (ordering that the court’s Memorandum Opinion in the case be released on the public docket in unsealed, unredacted form (citing Hubbard factors)); Fudali v. Pivotal Corp., 623 F. Supp. 2d 25 (D.D.C. 2009) (unsealing ruling on sufficiency of evidence, except for pricing information contained in contract at issue (citing Hubbard factors)); Doe I v. Exxon Mobil Corp., 570 F. Supp. 2d 49 (D.D.C. 2008) (unsealing Memorandum and Opinion denying motion to dismiss and rejecting proposed redactions of portions containing information designated as confidential (citing Hubbard factors)); McConnell v. FEC, 251 F. Supp. 2d 919, 922 (D.D.C. 2003) (unsealing opinions related to campaign finance litigation and “the vast amount of information contained therein supporting the Court’s conclusions,” but not unsealing “any part of the record originally filed under seal that is not contained in the opinions” (citing Hubbard factors)); see also Friedman v. Sebelius, 672 F. Supp. 2d 54 (D.D.C. 2009) (unsealing case docket after granting defendants’ motion to dismiss (citing Hubbard factors)).

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  • Florida

    Pretrial motions and records are a type of judicial record encompassed by Barron and Florida’s constitutional right of access to court records. Florida Rule of Judicial Administration 2.420 controls motions to seal to this type of civil court record and specifies procedures. 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. See also Fla. R. Jud. Admin. 2.420(c)(9). Dispositive motions and records are treated the same as other pretrial motions. The right of access to civil records does not extend to unfiled transcripts of depositions in civil cases. Miami Herald Publ’g Co. v. Gridley, 510 So. 2d 884 (Fla. 1987). Any discovery documents or deposition transcripts, however, that are filed become public. See, e.g., Lewis v. State, 958 So. 2d 1027 (Fla. Dist. Ct. App. 2007) (materials related to defendant’s prosecution, including depositions, are subject to disclosure after the case becomes final under Florida’s public records law).

    Motions to seal court records will be denied (often without prejudice) if the proponent fails to address the sealing standards announced in BarronSee e.g., Gulliver Sch., Inc. v. Snay, 137 So. 3d 1031 (Fla. Dist. Ct. App. 2013); BDO Seidman, LLP v. Banco Espirito Santo Int’l, Ltd., 201 So. 3d 1 (Fla. Dist. Ct. App. 2009).

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  • Iowa

    According to the Iowa Rules of Civil Procedure, discovery materials are not filed in the court unless the court orders otherwise. Iowa R. Civ. P. 1.502. Discovery materials include depositions, notice of depositions, interrogatories, requests for production of documents, requests for admission, or response, documents or things produced, or objections to discovery materials. Id. Since discovery materials are generally not filed in the court, they are not public records and the presumptive First Amendment right of access is not applicable. However, any discovery materials filed with the court are likely to be subject to access.

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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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  • Louisiana

    The Louisiana Supreme Court explicitly recognized the right of access to discovery materials in the court record in Plaquemines Par. Comm’n Council v. Delta Dev. Co., 472 So.2d 560, 566 (La. 1985). A newspaper intervened seeking access to discovery materials in the record of a civil suit brought by the Parish government against its former elected officials over millions of dollars of allegedly misappropriated mineral royalties. The Court stated: “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

    Pretrial motions and records filed with the Court are open to the public.

    In Maine, discovery materials need not be filed with the Court.  Any discovery materials filed with the court (for example as support for motions for summary judgment) become a matter of public record, unless otherwise ordered by the Court.

    The parties may move for a protective order regarding discovery to maintain as confidential discovery materials, including trade secrets, confidential research, and development and commercial information. M. R. Civ. P. 26(c). The available remedies include sealing a deposition, prohibiting or managing disclosure, and filing documents under seal. Id.  The standard for treating discovery as confidential is substantially more lenient than the standard for treating evidence filed with the court for merits decisions as confidential.  See Bailey v. Sears, Roebuck & Co., 651 A.2d 840, 843–44 (Me. 1994).

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  • Maryland

    Under the Maryland Rules, all pleadings filed in connection with pretrial proceedings are presumptively open to public inspection. State v. Cottman Transmission Sys., Inc., 542 A.2d 859, 863 (Md. Ct. Spec. App. 1988) (right of access applies “to pre-trial proceedings and court records” (citation omitted); Md. Rule 16-902(c) (defining “Case Records”); Md. Rule 16-903(b) & (d) (once exhibits are filed or marked by the court, they are presumptively subject to inspection “notwithstanding that the record otherwise would not have been subject to inspection under the Rules”).

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  • Massachusetts

    Following the U.S. Supreme Court’s decision in Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984), Massachusetts courts have not recognized 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 Unif. R. Impound. P., Rule 1 (Committee Notes: Discovery and Other Materials From a Non-Party); 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’”; also holding that documents submitted to the court in connection with a discovery motion are not subject to the constitutional presumption of access). 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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  • Nebraska

    Discovery materials filed with the clerk of the court or disclosed in open court ought to be publicly available. There is no Nebraska law on public access to discovery materials not so filed or disclosed. Section 6-326(C) of the Nebraska Rules of Discovery permits the court to enter protective orders, including orders that allow parties not to disclose trade secrets, and that allow parties to file discovery materials under seal.

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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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  • Oklahoma

    In dictum in Collier v. Reese, 2009 OK 86, 222 P.3d 966, the court observed that orders limiting or prohibiting dissemination of information obtained in discovery were not the same classic prior restraint orders that required exacting constitutional scrutiny (citing Seattle Times Company v. Rhinehart, 467 U.S. 20, 33 (1984)). Local federal and state court rules generally provide that discovery materials are not to be filed with the court unless some specific matter needs to be brought to the attention of the court, e.g., discovery materials are attached to a motion for summary judgment. Thus, as a general rule, discovery materials are not going to be a “record” subject to the Oklahoma Open Records Act.  In addition, although patterned after Fed. R. Civ. P. 26(c), the Oklahoma statute on protective orders in civil discovery, Okla. Stat. tit. 12, § 3226(C), expressly allows (in subsection 7) a party to seek a protective order removing materials from the public record.  A party wishing to do so may identify the parties with pseudonyms in the petition (complaint) and apply to the court for an order removing the case, in whole or in part, from the public record.  The limits on the circumstances in which a party may invoke subsection 7 have not been tested in appellate decisions.

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  • Oregon

    Oregon Rule of Civil Procedure 36C allows courts to limit the extent of disclosure required in discovery and to issue protective orders to protect parties from annoyance, embarrassment, oppression or undue burden or expense. ORCP 36C(1).

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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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  • Utah

    The Utah Supreme Court has held that, once filed, pretrial discovery, including deposition transcripts, is “presumptively public.”  Carter v. Utah Power & Light Co., 800 P.2d 1095, 1098-1100 (Utah 1990).  But see Utah R. Civ. P. 26(f) (“Except as required by these rules or ordered by the court, a party shall not file with the court a disclosure, a request for discovery or a response to a request for discovery, but shall file only the certificate of service stating that the disclosure, request for discovery or response has been served on the other parties and the date of service.”).  In addition, a Utah federal district court has ordered, under either the common law right of access or the constitutional right of access, public disclosure of a 24-second, pixelated video of a courtroom shooting submitted under seal as an exhibit to a summary judgment motion.  Angilau v. United States, No. 2:16-00992-JED, 2017 WL 5905536, at *5-12 & n.14 (D. Utah Nov. 29, 2017). Pretrial discovery materials filed under seal pursuant to a protective order, however, “are not traditional public records which are publicly accessible.”  Grundberg v. Upjohn Co., 140 F.R.D. 459, 466 (D. Utah 1991).

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  • Vermont

    The Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[r]ecords produced or created in connection with discovery in a case in court, including a deposition, unless used by a party (i) at trial or (ii) in connection with a request for action by the court.”  Vt. Pub. Acc. Ct. Rec. Rule 6(b)(9); see also Herald Ass’n v. Judicial Conduct Bd., 149 Vt. 233, 239, 544 A.2d 596, 600 (Vt. 1988) (denying access to discovery material in the possession of, but not filed with, the Judicial Conduct Board).

    Pursuant to V.R.C.P. 5(d), most discovery requests and responses are not filed unless they will be used in a proceeding and, in practice, most discovery records are not introduced into evidence in the case. “Because these records are not considered by the court in resolving contested issues in the case, and are now considered to be private rather than public, they are not subject to the general rule on disclosure of court records. However, any discovery that is used in the case will be open under this section.”  Reporter’s Notes, Vt. Pub. Acc. Ct. Rec. Rule 6.

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  • Washington

    The state constitution does not entitle the public to access discovery materials. Discovery materials may be sealed after a showing of “good cause,” which is less stringent than the Bone-Club/Ishikawa standard.  See Dreiling v. Jain, 151 Wn.2d 900, 909–10, 93 P.3d 861 (2004); Rufer v. Abbott Labs., 154 Wn.2d 530, 541 114 P.3d 1182 (2005).

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  • West Virginia

    While there is no West Virginia case law on point, the Fourth Circuit has recognized a presumptive right of access to civil discovery materials. Virginia Dept. of State Police v. Washington Post, 386 F. 3d 567, 580 (2004) quoting Gannett Co. v. DePasquale, 443 U.S. 368, 386 n. 15, 99 S. Ct. 2898, 61 L.Ed.2d 608 (1979); see also “Access to criminal records/discovery” above.

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