C. Procedure for requesting access in civil matters
The Tenth Circuit has noted that “courts have widely recognized that the correct procedure for a non-party to challenge a protective order is through intervention for that purpose.” United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (citing Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 783 (1st Cir. 1988)). If intervention is required, practitioners should consult the forum’s local rules on motion practice.
As with access to criminal matters, a motion to intervene and unseal is the general method by which a party may request access to civil matters. In Lugosch 435 F.3d at 110, for example, several media organizations moved to intervene to secure access to documents filed under seal. Similarly, in In re Pineapple Antitrust Litig., No. 04 MD. 1628 RMB MHD, 2015 WL 5439090, at *1 (S.D.N.Y. Aug. 10, 2015), the movant, a writer for the New York Times, filed a motion to intervene concurrently with a motion to unseal documents to "assist in a journalistic project." Cf. Giuffre v. Maxwell, 325 F. Supp. 3d 428 (S.D.N.Y. 2018); Giuffre v. Maxwell, No. 15 CIV. 7433, 2017 WL 1787934, at *1 (S.D.N.Y. May 3, 2017) (on appeal) (granting motions to intervene but denying motions to modify protective order entered in defamation matter).
The Fifth Circuit has not specified how access should be requested, but media have, at times, sought access to closed proceedings by filing a motion to intervene in district court. Davis v. Capital City Press, 78 F.3d 920, 923 (5th Cir. 1996). But unlike in some jurisdictions, the Fifth Circuit does not require that the media formally intervene. United States v. Chagra, 701 F.2d 354, 360 (5th Cir. 1983).
“It is apparent . . . that intervention is the procedurally appropriate course for third-party challenges to protective orders.” Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 896 (7th Cir. 1994); Jessup v. Luther, 227 F.3d 993, 997 (7th Cir. 2000) (“we have recognized intervention as the logical and appropriate vehicle by which the public and the press may challenge a closure order”); Griffith v. University Hosp., LLC, 249 F.3d 658 (7th Cir. 2001).
“[W]e have recognized the right to intervene to challenge a closure order in the civil context,” and while the press’ interest “does not fit neatly within the literal language of” Federal Rule of Civil Procedure 24, “permitting intervention for the purpose of deciding the confidentiality issue [does not] impermissibly stretch the wording of the Rule.” Jessup v. Luther, 227 F.3d at 997-98 (newspaper “asserts a right directly and substantially related to the litigation, a right of access to court proceedings and documents born of the common law and the First Amendment”).
“Once the judge not only flags an issue as important but also sets a schedule for its resolution, the time has come to intervene”; if people potentially affected “receive notice that the court will hold a hearing to address a particular question, they must participate rather than wait and see what the court does.” United States v. Blagojevich, 612 F.3d 558, 561 (7th Cir. 2010); United States v. Troup, 2012 WL 3818242, at *2 (N.D. Ind. Aug. 31, 2012) (“Generally, a motion for closure should be docketed publically [sic] and reasonably in advance of any hearing or other disposition—far enough in advance, at least, to give the public a meaningful opportunity to intervene”).
The “procedural propriety” of intervention “does not answer the separate question” of whether the intervenor has standing. Bond v. Utreras, 585 F.3d 1061, 1068 n. 5, 1071 (7th Cir. 2009) (journalist intervenor lacked standing to challenge terms of protective order limiting dissemination of unfiled discovery, in a case that had been settled and dismissed; however, Court specifically declined to address whether an intervenor “must establish standing to challenge a protective order in an ongoing case”). Bond noted that Federal Rule 24(b)(3) “suggests that intervention postjudgment—which necessarily disturbs the final adjudication of the parties’ rights—should generally be disfavored.” Id. at 1071. Compare United States ex rel. Jayakar v. Munster Med. Research Found., Inc., No. 2:08-CV-350-TLS-PRC, 2016 WL 4607869, at *2 (N.D. Ind. Sept. 6, 2016) (distinguishing Bond because intervenor there “sought materials disclosed in discovery that were subject to a protective order” while “[t]he documents sought here have been filed with the Court, not merely exchanged in discovery. Further, the purpose of the intervention here is not to disturb the case’s resolution or reopen the case on the merits”).
The Supreme Court of Alabama has held that “a motion to intervene is the procedurally correct means to seek the opening of a sealed court file.” Holland v. Eads, 614 So. 2d 1012, 1014 (Ala. 1993). More informal approaches, such as sending a letter to the judge, may also be acceptable in Alabama.
Access to civil proceedings generally is unrestricted, and requests for records may be submitted to clerks of court. The Kansas Office of Judicial Administration can aid in gaining access. See You and the Courts of Kansas, at: http://www.kscourts.org/kansas-courts/general-information/you-and-the-courts/default.asp
In response to a denial of access to proceedings or records, however, the media may file a motion to intervene. In addition to the procedure described in Fossey and Owens, the Kansas Rules of Civil Procedure, in K.S.A. 60-224, include a provision that, on “timely motion, the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter substantially impair or impede the movant’s ability to protect its interest.”
To obtain camera access, a media request can be submitted. See, e.g., http://www.clarkcountycourts.us/res/media/DISTRICT%20COURT%20MEDIA1.pdf.
Court Records: Court records are subject to public access unless sealed by order of the court or otherwise protected from disclosure by statute. Rule 1-079 NMRA. Just as any party or member of the public may file a motion for an order sealing the court record, any party or member of the public may file a response to the motion to seal. Id. Following a court order to seal the record or discrete parts thereof, a party or member of the public may move to unseal a sealed court record. Id. “When applicable, the motion should identify any statute, regulation, rule, or other source of law that addresses access to court records in the particular type of proceeding. A copy of the motion to unseal shall be served on all persons and entities who were identified in the sealing order.” Rule 1-079(I) NMRA. In determining whether to unseal, the court will consider the same factors that dictate sealing:
“(a) the existence of an overriding interest that overcomes the right of public access to the court record;
(b) the overriding interest supports sealing the court record;
(c) a substantial probability exists that the overriding interest will be prejudiced if the court record is not sealed;
(d) the proposed sealing is narrowly tailored; and
(e) no less restrictive means exist to achieve the overriding interest.”
Rule 1-079(G) NMRA. “If the court grants the motion to unseal a court record, the order shall state whether the court record is unsealed entirely or in part.” Id.
· Is formal intervention or mandamus necessary?
Formal intervention is required. Capital Cities Media, Inc. v. Toole, 483 A.2d 1339, 1344 (Pa. 1984). Mandamus is not required.
· In which court and how?
In civil matters, a person seeking access to records or proceedings should file a motion to intervene in the court in which the matter is being heard. Toole, 483 A.2d at 1344.
· Is there a press liaison that can help with access issues?
No. The court itself makes decisions on access issues. Each county employs different people and operates its own court system. Different courts have different practices. The county prothonotary or others in court administration might be able to provide assistance or guidance. The Office of Communications and Intergovernmental Relations of the Administrative Office of Pennsylvania Courts (“AOPC”) fields inquiries from reporters across the state as part of its duties as media liaison. See Office of Communications and Intergovernmental Relations, The Unified Judicial System of Pennsylvania, http://www.pacourts.us/judicial-administration/office-of-communications-and-intergovernmental-relations (last visited July 18, 2018). In high-profile criminal trials, the AOPC has worked with local courts on issues relating to media coverage.
· Is orally objecting or sending a letter to the judge acceptable?
Orally objecting at a proceeding is generally acceptable if the proceeding is in progress and the closure is happening at that time. In other circumstances, a written request for access should be made, normally through a motion. Some judges will accept a letter, depending on the nature of the relief sought. This is highly judge and court specific, however, so the best practice is to inquire with the court and chambers of the judge who is presiding over the matter.
See Wis. Stat. § 803.09 (Intervention):
(1) Upon timely motion anyone shall be permitted to intervene in an action when the movant claims an interest related to the property or transaction which is the subject of the action and the movant is so situated that the disposition of the action may as a practical matter impair or impede the movant’s ability to protect that interest, unless the movant’s interest is adequately represented by existing parties.
(3) A person desiring to intervene shall serve a motion to intervene upon the parties as provided in s. 801.14. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute gives a right to intervene.
See, e.g., State ex rel. Bilder v. Delavan Township, 112 Wis. 2d 539, 334 N.W.2d 252 (Wis. 1983) (Members of news media generally have a right to intervene to challenge closure of courtroom and records).