D. Pre-trial motions and records
The First Circuit has held that the common law protects public access to legal memoranda. In re Providence Journal Co., Inc., 293 F.3d 1, 13 n.5 (1st Cir. 2002). Motions filed in civil cases are generally public; “[l]itigation necessarily takes place in a public forum.” Sinclair v. Brill, 815 F. Supp. 44, 52 (D.N.H. 1993) (denying motion to seal motion for judgment on the pleadings).
The Second Circuit has held that the First Amendment right applies, among other things, to summary judgment motions and documents relied upon in adjudicating them. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006); see also Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 164 (2d Cir. 2013). The First Amendment also applies to pretrial motions and documents submitted in connection with them as well as docket sheets. Newsday LLC v. Cty. of Nassau, 730 F.3d at 156; In re N.Y. Times Co., 828 F.2d 110, 114 (2d Cir. 1987); Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 93 (2d Cir. 2004).
The Second Circuit has distinguished between access to motions and records in relation to summary judgment and discovery. Documents filed in connection with a motion, such as a motion for summary judgment, are presumed open under the First Amendment and common law. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006). The Court has held that “a report submitted to a court in connection with a summary judgment motion is entitled to a strong presumption of access since such document is the basis for the adjudication, only the most compelling reasons can justify sealing.” Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 142 (2d Cir. 2016) (quotations omitted) quoting Joy v. North, 692 F.2d 880, 894 (2d Cir. 1982). On the other hand, 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, 814 F.3d at 142 (quoting United States v. Amodeo, 71 F.3d 1044, 1047 (2d Cir. 1995)).
Complaints in civil actions qualify as judicial records to which a presumption of access attaches. Cross Creek Seed, Inc. v. Gold Leaf Seed Co., No. 1:16-cv-1432, 2018 WL 1116565, *3 (M.D.N.C. Feb. 26, 2018) (citing Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 140 (2d Cir. 2016)).
The United States has a compelling interest in protecting an ongoing fraud investigation in qui tam actions pursuant to the False Claims Act sufficient to overcome the public’s right of access. However, after the United States has decided to intervene, a litigant’s bare privacy interest is insufficient to justify continued sealing of a qui tam proceeding and its records. See Am. Civil Liberties Union v. Holder, 673 F.3d 245 (4th Cir. 2011); Under Seal v. Under Seal, 326 F.3d 479 (4th Cir. 2003); United States v. King Pharm., Inc., 806 F. Supp. 2d 833 (D. Md. 2011); Paradyme Mgmt., Inc. v. Curto, No. 8:17-cv-03687, 2018 WL 5013831, *3-4 (D. Md. Oct. 16, 2018).
Documents submitted in connection with a Rule 12(b)(6) motion to dismiss were held to not constitute judicial records for purposes of public access because the documents were excluded by the district court and thus did not play any role in the adjudicative process. See In re Policy Mgmt. Sys., 67 F.3d 296 (4th Cir. 1995) (per curiam); see also Washington v. Bruraker, No. 3:02-CV-00106, 2015 WL 6673177, *6-7 (W.D. Va. Mar. 29, 2015) (distinguishing In re Policy Mgmt. Sys.; “The situation changes dramatically, however, when such documents are offered in direct support of a request for action, even if the court ultimately disregards them . . . This Court holds that when documents are filed in support of any filing which the court actually considers, they constitute ‘judicial documents’ that would be subject to the common law right of access. It further holds that such documents are judicial no matter how trivial the requested action is.”).
Assuming without deciding that the First Amendment right of access applies to documents submitted in connection with a Rule 12(b)(1) motion to dismiss for lack of standing, the movant had a compelling interest in protecting the identities of its individual members and confidential donor information, and the proposed redactions were narrowly tailored to that information. See Students for Fair Admissions, Inc. v. Univ. of N.C., No. 1:14-cv-954, 2018 WL 4688388, *7 (M.D.N.C. Sept. 29, 2018).
In denying a motion to seal, a district court in the Fourth Circuit assumed without deciding that the public has a common law right of access in documents submitted in connection with a motion to amend the answer to the complaint. See Benjamin v. Sparks, No. 4:14-cv-186-D, 2018 WL 4113338, *5 (E.D.N.C. Aug. 28, 2018).
The public has a First Amendment right of access to summary judgment motions and accompanying exhibits, see Rushford v. New Yorker Magazine, Inc., 846 F.2d 249 (4th Cir. 1988); Va. Dep't of State Police v. Wash. Post, 386 F.3d 567 (4th Cir. 2004), as well as memorandum opinions deciding summary judgment motions, see Company Doe v. Pub. Citizen, 749 F.3d 246 (4th Cir. 2014); see also Hyatt v. U.S. Patent & Trademark Office, No. 1:14-cv-1300, 2015 WL 13036875 (E.D. Va. Nov. 30, 2015) (denying motion to seal memorandum opinion deciding summary judgment motion). The public’s interest in accessing summary judgment exhibits is particularly significant where the exhibits are important to the court’s decision and are the subject of dispute by the parties. Qayumi v. Duke Univ., No. 1:16-cv-1038, 2018 WL 2025664, *3 (M.D.N.C. May 1, 2018). One district court in the Fourth Circuit has held that “[a]rguably, however, to the extent the Court does not rely on the [exhibit] in reaching its decision [on summary judgment], no right of access applies.” Hunter v. Town of Mocksville, 961 F. Supp. 2d 803, 806 (M.D.N.C. 2013) (citations omitted).
“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 filed in support of a motion for protective order prohibiting deposition). But see Covington v. Semones, No. 7:06-cv-00614, 2007 WL 1170644, *2 (W.D. Va. Apr. 17, 2007) (“[A]s the exhibits at issue were filed in connection with a non-dispositive motion, it is clear there is no First Amendment right of access.”).
In an unpublished decision, a district court in the Fourth Circuit held that exhibits to a motion to seal were not judicial records to which a right of access applied. See United States ex rel. Thomas v. Duke Univ., No. 1:17-cv-276, 2018 WL 4211375, *4 (M.D.N.C. Sept. 4, 2018).
In an unpublished decision, a district court in the Fourth Circuit held that the public has a First Amendment right of access to documents submitted in connection with a motion to disqualify counsel. See 360 Mortg. Grp., LLC v. Stonegate Mortg. Corp., No. 5:14-cv-00310-F, 2016 WL 3030166 (E.D. N.C. May 25, 2016).
In an unpublished decision, a district court in the Fourth Circuit refused to seal documents submitted in connection with a motion to withdraw as counsel on the grounds that the moving party had failed to articulate reasons why alternatives to sealing would not adequately protect against the risks of disclosure. See In re Am. Med. Sys., Inc. Pelvic Repair Sys. Prod. Liab. Litig., No. 2:13-cv-07551, 2018 WL 1146292, *2 (S.D.W. Va. Mar. 1, 2018).
District courts in the Fourth Circuit have held that the public has a right of access to motions for sanctions, although they have reached different conclusions as to whether the right of access arises from the common law or the First Amendment. Compare Silicon Knights, Inc. v. Epic Games, Inc., No. 5:07-CV-275-D, 2010 WL 11566361, *1 (E.D.N.C. June 15, 2010) (common law right of access) with United States ex rel. Thomas v. Duke Univ., No. 1:17-cv-276, 2018 WL 4211375, *5 (M.D.N.C. Sept. 4, 2018) (First Amendment right of access).
Neither the Consumer Product Safety Improvement Act of 2008, 15 U.S.C. § 2051, et seq. nor the Administrative Procedure Act, 5 U.S.C. § 551, et seq. confers upon district courts carte blanche to conduct secret proceedings, and, more importantly, the Constitution forbids it. Doe v. Pub. Citizen, 749 F.3d 246, 270 (4th Cir. 2014).
The public’s right of access extends to exhibits submitted in connection with a motion to compel arbitration. See Erichsen v. RBC Capital Markets, LLC, 883 F. Supp. 2d 562, 574 (E.D. N.C. 2012).
In Shane Group, Inc. v. Blue Cross Blue Shield, the court reversed the district court’s sealing order, which included a class action plaintiff’s motion for class certification and related filings along with an expert’s report that “was the keystone of the settlement agreement.” 825 F.3d 299, 306 (6th Cir. 2016). The district court had used the “good cause” criteria for discovery protective orders to justify sealing. Id. The Sixth Circuit explained that “[s]ecrecy is fine at the discovery stage before the material enters the judicial record.” Id. at 305 (quoting Baxter Int’l, Inc., v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002). “At the adjudication stage, however, very different considerations apply.” Id. (quoting Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982)).
First, a proponent of sealing must overcome “a strong presumption in favor of openness,” which is a heavy burden. Id. (quoting Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1179 (6th Cir. 1983)). To overcome this presumption, a party seeking to seal court records must assert that a compelling interest justifies sealing and that the seal sought is narrowly tailored. Id. (citations omitted). This will generally involve balancing the asserted compelling interest against the First Amendment right of access. Id. at 307. The parties in Shane Group did not make the requisite showing and the district court abused its discretion in sealing the records. Id. at 308.
The Sixth Circuit, sua sponte, reversed a district court’s sealing of motions for summary judgment along with the multitude of supporting exhibits, where the only reason given in support of the sealing was the stipulated protective order that governed discovery and purported to require that all documents designated as confidential by the parties must be filed under seal. Beauchamp v. Fed. Home Loan Mortg. Corp., 658 F. App’x 202, 207–08 (6th Cir. 2016) (unpublished).
The Sixth Circuit also reversed a district court’s order sealing the FTC’s filings, including the administrative record developed by the agency before the suit, where a tobacco company sued the FTC to challenge its proposes actions regarding tar and nicotine testing. Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1167 (6th Cir. 1983). Addressing the issue on its own motion after being highlighted by an amicus brief, the circuit court rejected the expansive seal on the court’s records. Id. at 1176. The court found that the principles are the foundation of the First Amendment right of access to criminal trials applies to civil proceedings and to the records of both types of proceedings, explaining that “court records often provide important, sometimes the only, bases or explanations for a court’s decision.” Id. at 1177–78. After recounting the public policy justifications for open courts, like its “important role as outlets for ‘community, concern, hostility, and emotions,’” as well as being “a check on courts,” among other things, the court rejected the tobacco company’s arguments that reputational harm and assurances of confidentiality during the underlying administrative proceeding, including by statute, were sufficient to justify the broad sealing order. Id. at 1178–80.
In a case with an even broader sealing order, which shielded all the documents in a case, including the cases existence on the docket, the Sixth Circuit similarly found that the court records in question should have not been sealed. Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 591 (6th Cir. 2016). In Rudd, the defendant eventually moved to unseal the previously sealed court records, which even included the briefs on the motion to unseal. Id. The circuit court explained that “[i]n civil cases, as much as in criminal matters, ‘[t]he resolution of private disputes frequently involves issues and remedies affecting third parties or the general public,’ and secrecy serves only to ‘insulate the participants, mask impropriety, obscure[e] incompetence, and conceal corruption.’” Id. at 593 (quoting Brown & Williamson, 710 F.2d at 1179). The court rejected privacy, waiver, and reliance arguments as being insufficient to justify closure. Id. 594–95.
The Sixth Circuit did find that sealing was proper in In re Knoxville News-Sentinel Co., 723 F.2d 470, 476–78 (6th Cir. 1983), where the court records that were sealed implicated the privacy rights of innocent third-parties. The seal was limited to two exhibits to the complaint by a bank against the FDIC that included “the FDIC’s list of questionable loans … and the bank’s loan-by-loan response.” Id. at 472. The information contained in these documents included the borrower’s name, the amount of each loan, and “extensive discussion of the borrower’s financial condition, prospects and personal life.” Id. at 471. The court relied upon federal banking statutes and regulations providing for the privacy of bank records, including in the federal Freedom of Information Act, in addition to the fact that the people’s whose information was at issue “were not responsible for the initiation of the underlying litigation.” Id. at 477.
And, in the context of a declaratory judgment suit by a journalist against a state court judge who refused to provide access to motions in limine until after the jury began its deliberations, the Sixth Circuit, in an unpublished opinion, took a more lenient view regarding the ability of judges to refuse access to court records. Resnick v. Patton, 258 F. App’x 789 (6th Cir. 2007) (unpublished). Unlike Brown & Williamson, 710 F.2d at 1177, which recognized a First Amendment right of access to court records derived from the First Amendment access to court rooms, the Resnick court instead relied solely upon the common law right of access to court records from Nixon v. Warner Communications. 258 F. App’x at 792. The Resnick court emphasized that this was a discretionary decision and that the journalist’s access was only “temporarily prohibited.” 258 F. App’x at 792 (emphasis in original).
Access is presumed for filed documents that comprised the basis of a judicial decision. See, e.g., City of Greenville, Ill. v. Syngenta Crop Protection, LLC, 764 F.3d 695, 697 (7th Cir. 2014); In re Specht, 622 F.3d 697, 701 (7th Cir. 2010); Union Oil Co. of California v. Leavell, 220 F.3d 562 (7th Cir. 2000); Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir. 1994); In re Continental Illinois Sec. Litig., 732 F.2d 1302 (7th Cir. 1984) (presumption of access applied to proceedings and evidence offered in support of motion that “was designed to (and did) result in the dismissal of claims against several defendants”).
However, “until admitted into the record, material uncovered during pretrial discovery is ordinarily not within the scope of press access.” In re Associated Press, 162 F.3d 503, 510 (7th Cir. 1998) (quoting Grove Fresh, 24 F.3d at 897). In short, “[s]ecrecy is fine at the discovery stage, before the material enters the judicial record. [Seattle Times Co. v. Rhinehart]. But those documents, usually a small subset of all discovery, that influence or underpin the judicial decision are open to public inspection unless they meet the definition of trade secrets or other categories of bona fide long-term confidentiality.” Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544, 545 (7th Cir. 2002).
The Court in Bond v. Utreras, 585 F.3d 1041 (7th Cir. 2009) found no statutory, common law, or constitutional right to unfiled discovery. “Unfiled discovery is private, not public” and there is no “‘presumption’ of public access emanating from Rule 26(c)'s ‘good cause’ requirement. There is no such presumption for discovery that is not part of the court file. . . .” Id. at 1066 (journalist lacked standing to intervene for purposes of unsealing discovery in a settled lawsuit since he had no colorable claim to the unfiled documents covered by the protective order). “A party files documents only by submitting them for the court's consideration and use in resolving the dispute before it. . . . A document is filed with the court for public access purposes when, for example, a litigant attaches it as an exhibit to a pleading under Rule 9, a summary judgment motion under Rule 56, or a reply opposing a motion to compel under Rule 37. In these circumstances, litigants furnish the court with documents and ask the court to consider them in resolving a conflict.” United States ex rel. Pool v. NMC, Inc., No. 2:09-cv-66-WTL-WGH, 2014 WL 131211, at *3 (S.D. Ind. Jan. 14, 2014) (following Bond, court holds journalist lacked standing to access documents in settled qui tam case). Compare United States ex rel. Jayakar v. Munster Med. Research Found., Inc., No. 2:08-CV-350-TLS-PRC, 2016 WL 4607869, at *2-3 (N.D. Ind. Sept. 6, 2016), objections overruled, 2017 WL 2570283 (N.D. Ind. June 14, 2017)(distinguishing Bond because intervenors in closed qui tam case did not seek unfiled discovery but documents that “were filed on the docket” and “are judicial records”).
In City of Greenville, plaintiffs filed a motion that appended—but did not rely on or even cite—certain documents that had been produced in discovery under a protective order. The district court expressly announced that it would “not consult them” in ruling on the motion. The Seventh Circuit held the documents were not presumptively subject to disclosure, and that Bond did not intend to suggest that the mere “fact of filing might allow us to presume the judicial reliance necessary to the presumption of public access.” 764 F.3d at 697. “[W]here plaintiffs could not (or would not) explain why they had filed the documents, and the judge did not even look at them,” the public had “no right to access these documents, which cannot conceivably aid the understanding of judicial decisionmaking.” Id. at 698.
The Seventh Circuit’s Bond opinion criticized some of the Court’s prior precedents. “To the extent” the Court’s prior statements “about a ‘presumption of public access to discovery materials’” suggested “the existence of a general public right to access the materials that litigating parties exchange in response to discovery requests,” that “sweep[ed] too broadly.” 585 F.3d at 1073 (quoting Citizens First Nat’l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 946 (7th Cir. 1999)). And “[t]o the extent” prior cases were “premised upon a principle that ‘pre-trial discovery must take place in . . . public unless compelling reasons exist for denying the public access to the proceedings,’ . . . they have been superseded by the 2000 amendment to Rule 5 of the Federal Rules of Civil Procedure,” which reversed the longstanding rule generally requiring discovery to be filed with the court. Id. at 1068 n. 4 (quoting Wilk v. Am. Med. Ass'n, 635 F.2d 1295 (7th Cir. 1980)); see also N.D. Ill. Local R. 26.3 (“discovery materials, including disclosure of expert testimony, shall not be filed with the court. The party serving the discovery materials or taking the deposition shall retain the original and be custodian of it. . . .”).
That said, the Seventh Circuit has disapproved of overbroad protective orders. A protective order “so loose that it amounts . . . to giving each party carte blanche to decide what portions of the record shall be kept secret . . . is invalid.” Citizens First Nat’l Bank, 178 F.3d at 945. “The judge is the primary representative of the public interest in the judicial process and is duty-bound therefore to review any request to seal the record (or part of it).” Id. While determinations of good cause need not necessarily be made on a “document-by-document basis,” in order for parties “to keep their trade secrets (or some other properly demarcated category of legitimately confidential information) out of the public record,” the court must “(1) satisf[y] [itself] that the parties know what a trade secret is and are acting in good faith in deciding which parts of the record are trade secrets and (2) make explicit that either party and any interested member of the public can challenge the secreting of particular documents. Such an order would be a far cry from the standardless, stipulated, permanent, frozen, overbroad blanket order that we have here.” Id. at 946; see also Jepson Inc. v. Makita Elec. Works, 30 F.3d 854, 858 (7th Cir. 1994) (“if good cause is not shown, the discovery materials in question should not receive judicial protection”). Compare Wrice v. Burge, No. 14 C 5934, 2016 WL 6962838, at *10-11 (N.D. Ill. Nov. 29, 2016) (“Seattle Times makes clear that non-public information produced in discovery that may be ‘damaging to reputation and privacy’ is subject to a court’s restrictive powers”; granting protective order in wrongful prosecution case barring defendant police officers from disseminating discovery materials obtained from by non-party journalism professor and students, court noted that defendants’ intent was to “attack their personal and professional reputations, . . . invade their privacy, and cause them embarrassment”).
In Saunders v. City of Chicago, No. 12-cv-9158, 2017 WL 3082036 (N.D. Ill. July 19, 2017), the plaintiffs in a wrongful conviction case moved to unseal an FBI “302 report” of an interview with a key witness. The district judge affirmed a magistrate’s ruling denying plaintiffs’ motion, holding the magistrate had “legitimate concerns” about the parties’ fair trial rights in another case that was going to trial imminently, which concerns were “compounded by the readily available inaccurate media coverage” about the 302 report. Id. at *4. However, the court granted plaintiffs’ renewed motion to unseal, finding “important circumstances have changed,” triggering a presumption of access—namely, it was clear that the 302 report would “affect or underpin several of Court’s upcoming merits and evidentiary rulings,” and that the other case had settled. Id. Finding insufficient good cause for the 302 report to remain under seal, the court concluded that “[t]here is undoubtedly a significant public interest in exposing police misconduct” and the “only reason” defendants presented for overriding those concerns was the “risk of unfair and inaccurate media attention”—a “risk” that “is undoubtedly present whenever documents are unsealed. If the possibility that a newspaper might get something wrong was sufficient to satisfy ‘good cause,’ the presumption of public access would be rebutted in every case. The relevant issue is not whether there is some nebulous risk of inaccurate media attention, but how great the risk is that such attention will taint the jury pool. Now that . . . trial is no longer imminent [in the other case] and no trial date has been set in these federal cases, the Court believes the balance has tipped in favor of disclosure.” Id. at *5.
The Eighth Circuit has recognized that complaints are presumptively open but permitted the sealing of certain sensitive business information. See IDT Corp. v. eBay, 709 F.3d 1220 (8th Cir. 2013). The Eighth Circuit has also stated that “[t]he district court may in appropriate cases seal documents or deposition testimony to ensure that they will be used only for judicial purposes and will not be disseminated.” Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000).
The right of press and public access to judicial proceedings and records has been recognized as a matter of right under the First Amendment in Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980) and its progeny, including Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise I”), 464 U.S. 501 (1984); and Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). This right has been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings. Kamakana v. Honolulu, 447 F.3d 1172, 1182 (9th Cir. 2006) (affirming trial court ruling ordering the release of documents sealed under a protective order that were attached to dispositive motions, in a suit brought by a police detective against the city alleging retaliation for his whistleblower activities); Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1102 (9th Cir. 2016) (presumptive First Amendment right of access to sealed documents, rejecting binary dispositive/non-dispositive distinction in favor of a broader rule that requires release of sealed documents that are simply “more than tangentially related” to the merits of the case, unless compelling reasons require secrecy). Federal constitutional law is, of course, binding upon state courts under the Supremacy Clause. There are no cases expressly involving a right of access to judicial records under the Alaska Constitution, which could be interpreted to provide greater constitutional protection, but not to limit the protections afforded by the First Amendment of the US Constitution. Various court rules and statutes may specify restrictions on or exceptions to the presumptive constitutional right of access to Alaska court records—most notably, Alaska Administrative Rules of Court 37.5 through 37.8—but would only be enforceable to the extent that they are not unconstitutional. In general, parties cannot be compelled to make discovery materials, as such, public, but discovery materials attached to substantive motions are presumed to be public in accordance with cases applying constitutional and common law principles of access to judicial records.
The presumption of access to civil court records applies to pretrial motions and records submitted to courts “as a basis for adjudication in ordinary civil cases.” McNair v. Nat’l Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 39, 183 Cal. Rptr. 3d 490 (2015) (denying request to seal materials submitted in connection with a special motion to strike); see also In re Providian Credit Card Cases, 96 Cal. App. 4th 292, 308-310, 116 Cal. Rptr. 2d 833 (2002) (affirming order unsealing records submitted with class certification motion).
The presumption does not “apply to discovery motions and records filed or lodged in connection with discovery motions or proceedings.” Mercury Interactive Corp. v. Klein, 158 Cal. App. 4th 60, 68, 70 Cal. Rptr. 3d 88 (2007). “Public access to a discovery document that is not considered or relied on by the court in adjudicating any substantive controversy does nothing” to promote the rationales for access to civil court records. Id. at 96; see also id. at 105 (finding no right of access to the exhibits attached to a civil complaint, “where they consisted of discovery material that was not admitted at trial or used as a basis of the court’s adjudication of a substantive matter”); Overstock.com, Inc. v. Goldman Sachs Group, Inc., 231 Cal. App. 4th 471, 500, 180 Cal. Rptr. 3d 234 (2014) (“The public’s right of access to court records exists only” as to materials that are “relevant to the contentions advocated by the proffering party” and “does not extend to irrelevant materials submitted to the court out of laziness in reviewing and editing evidentiary submissions, or worse, out of a desire to overwhelm and harass an opponent”) (emphasis in original).
However, California does not treat all discovery material as presumptively private. Code of Civil Procedure § 2025.570 provides that “unless the court issues an order to the contrary, a copy of the transcript of the deposition testimony … shall be made available by the deposition officer to any person requesting a copy, on payment of a reasonable charge set by the deposition officer.” It establishes the procedures for requesting access, including notice to the parties to afford them an opportunity to obtain a protective order. See also Board of Trustees of Calif. State Univ. v. Superior Court, 132 Cal. App. 4th 889, 901, 34 Cal. Rptr. 3d 82 (2005) (in light of the statute, “depositions are ordinarily not documents that the parties would reasonably envision would not be made available to persons or entities outside the litigation”); City of Los Angeles v. Superior Court (1996) 41 Cal. App. 4th 1083, 1085-1086, 49 Cal. Rptr. 2d 35 (depositions in possession of City Attorney’s office were public records subject to disclosure under the California Public Records Act).
Any party seeking to prevent access to a transcript, or to preclude another party from releasing records disclosed in discovery, must show “good cause,” i.e., that the order is necessary to protect against “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” Cal. Code Civ. Proc. § 2025.420(b). The “burden is on the party seeking the protective order to show good cause for whatever order is sought.” Fairmont Ins. Co. v. Superior Court, 22 Cal. 4th 245, 255, 991 P.2d 156, 92 Cal. Rptr. 2d 70 (2000). “Courts frequently consider the public interest when determining whether good cause exists for a protective order.” Westinghouse Electric Corp. v. Newman & Holtzinger, P.C., 39 Cal. App. 4th 1194, 1208, 46 Cal. Rptr. 2d 151 (1995); see also Stadish v. Superior Court, 71 Cal. App. 4th 1130, 1145-1146, 84 Cal. Rptr. 2d 350 (1999) (setting aside protective order and directing trial court to consider public interest in evaluating whether party showed good cause). Disclosure will be ordered, even as to private records, if the public interest is sufficient. In re The Clergy Cases I, 188 Cal. App. 4th 1224, 116 Cal. Rptr. 3d 360 (2010) (ordering disclosure of psychiatric and other confidential records of priests accused of sexual abuse). “Good cause” must be shown with specificity as to each particular document. People v. Superior Court, 248 Cal. App. 2d 276, 281, 56 Cal. Rptr. 393 (1967).
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.) The Public Access Policy restricts access to records in certain types of cases or to certain documents, absent a contrary court order. (Section 4.60.)
See also Times-Call Publ’g Co. v. Wingfield, 410 P.2d 511, 512–14 (Colo. 1966) (construing a statute to give clerks discretion to let non-parties to review pleadings or other papers filed in court, so as to avoid “serious questions of constitutional law involving freedom of the press and the separation of governmental power,” and stating that denial of access to the media to review pleadings and other papers in a case of public interest “would be an abuse of discretion”).
Pretrial motions and records are like any other filing: in both state and federal court, the First Amendment provides a strong presumption of public access to documents filed in civil cases “that directly affect an adjudication;” these are referred to as “judicial documents.” United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995). Records of that type may be sealed only if “specific, on the record findings are made demonstrating that [sealing] is essential to preserve higher values and is narrowly tailored to serve that interest,” provided that the “right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of the right to a fair trial.” In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) (internal quotations and alterations omitted).The Connecticut Appellate Court has explained that Conn. R. Super. Ct. §§ 11-20A(a),(b) “codifies the common-law presumption of public access to judicial documents,” which it defined as “any document filed that a court reasonably may rely on in support of its adjudicatory function, including discovery related motions and their associated exhibits.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 47–48, 970 A.2d 656, 683 (2009). As the Court explained,
Because of their impact on the judicial process, the public interest in judicial monitoring extends to such motions. The actions of the court during the pretrial period ultimately shape issues between the parties at trial or settlement, and the public surely has a vested interest in ensuring that those actions are carried out equitably, free from corruption or error.
Id. On this basis, the Appellate Court held that the only non-judicial documents in the Rosado case file—and thus, the only ones exempt from disclosure—were documents “not marked in support of any motion or other determination,” including “two deposition transcripts that were not filed in connection with any motion.” Id. at 51-52, 685.
Courts have at times allowed access to previously sealed pretrial records in civil cases. Johnson v. Greater Se. Cmty. Hosp. Corp., 789 F. Supp. 427 (D.D.C. 1992) (reversing previous orders and unsealing entire record applying Hubbard factors). A defendant successfully moved under the public's right of access to unseal all records filed by the plaintiff-relator in a False Claims Act qui tam action in which the U.S. government declined to intervene. United States ex rel. Schweizer v. OCE N.V., 577 F. Supp. 2d 169 (D.D.C. 2008) (applying the Hubbard six-part test and unsealing in favor of the "strong presumptive right of public access to judicial proceedings"). In In re Pepco Employment Litigation, No. 86–0603(RCL), 1992 WL 115611 (D.D.C. May 8, 1992), the court ordered that pretrial motions and exhibits must be unsealed and redacted motions be filed consistent with previous confidentiality orders. News media interveners successfully gained access to a sealed Treasury Department file concerning documents reflecting its internal disciplinary processes. Cobell v. Norton, 157 F. Supp. 2d 82 (D.D.C. 2001).
A D.C. district court unsealed portions of an independent consultant's report attached to an S.E.C. civil complaint seeking to enforce an S.E.C. order. See S.E.C. v. Stratton Oakmont, Inc., 1996 WL 312194 (D.D.C. 1996) (“[O]nce a public request for the information has been made, the Court cannot justify keeping information under seal that is substantially in the public domain.”); cf. In re Pepco Emp’t Litig., No. 86–0603(RCL), 1992 WL 115611 at *8 (D.D.C. May 8, 1992) (granting motion to seal where “[t]he public has had virtually no access to the documents in question”).
A common-law right of public access generally applies to summary judgment briefs and their exhibits. See Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 675 (D.C. Cir. 2017). However, the D.C. Circuit previously denied access to records sealed in the summary judgment record. See In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325 (D.C. Cir. 1985) (denying access to pretrial materials considered by the court in deciding summary judgment motions). And a D.C. district court has denied a request to unseal briefs and exhibits in a motion for summary judgment where the court denied the motion as moot; thus, the “Court did not rely on the parties’ briefs to reach a determination, [and] these filings did not constitute ‘judicial records’ to which the common law right of access attaches.” Herron v. Fannie Mae, No. CV 10-943 (RMC), 2016 WL 10677599, at *1 (D.D.C. June 30, 2016).
Movants who filed motions with the expectation that they would remain sealed were given the opportunity to withdraw their submissions within five days of a required deadline for disclosure. In re North, 21 F.3d 434 (D.C. Cir. 1994). Under the Publicity in Taking Evidence Act, 15 U.S.C. § 30, depositions taken in antitrust litigation were ordered to be made available to the public and press. United States v. Microsoft Corp., 165 F3d 952 (D.C. Cir. 1999) (statutory provision has not been superseded by Fed. R. Civ. P. 26(c), nor does it conflict with standard for granting protective order under that rule).
District of Columbia
D.C. courts have recognized a right to access trial records in the common law but have found that the right is not absolute. See Mokhiber v. Davis, 537 A.2d 1100, 1106-09 (D.C. 1988). In Mokhiber, 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. A court’s decision to allow access to trial records would likely be based on the factors laid out in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1981): (1) the need for public access to the documents at issue; (2) the extent to which the public had access to the documents prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity of that party; (4) the strength of the property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced. Id. at 317-22; 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); Cable News Network, Inc. v. Fed. Bureau of Investigation, No. 17-1167, 2019 WL 2408644, at *14-15 (D.D.C. June 7, 2019) (“A party seeking to invoke [the common law right of access] must clear two hurdles”: that the information to be access qualifies as a “judicial record” and that the Hubbard factors weigh in favor of access).
Trial records, including evidence, are encompassed by Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988) and Florida’s constitutional right of access to court records. Civil court records may be closed only consistent with Florida Rule of Judicial Administration 2.420, as well. That provision provides for closure in only a limited number of circumstances that are consistent with the test for closure of civil court proceedings, as outlined in Barron. Thus, 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 confidentiality is required to (a) prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice; (b) to protect trade secrets; (c) to protect a compelling government interest; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties; (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 proceeding sought to be closed; or (g) to comply with established public policy set forth in the Florida or United States Constitution or statutes or Florida rules or case law. Fla. R. Jud. Admin. 2.420(c)(9)(A). Second, “the degree, duration, and manner of confidentiality ordered by the court shall be no broader than necessary to protect the interests” which are sought to be protected. Fla. R. Jud. Admin. 2.420(c)(9)(B). Finally, there must be no less restrictive alternatives available to the court to protect the asserted interests. Fla. R. Jud. Admin. 2.420(c)(9)(C). See also Bainter v. League of Women Voters of Florida, 150 So. 3d 1115, 1118-19 (Fla. 2014) (requiring trial court to unseal 538 pages of documents admitted into evidence and sealed trial transcript); Sarasota Herald-Tribune v. State, 924 So. 2d 8 (Fla. Dist. Ct. App. 2005) (overturning order restricting access to photographs entered into evidence at criminal trial).
Uniform Superior Court Rule 21 provides that: “all court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth below.” In one of its first decisions involving Rule 21, the Supreme Court held that the public’s “presumptive right of access” to all court records “includes pre-judgment records in civil cases, and begins when a judicial document is filed.” Atlanta Journal v. Long, 258 Ga. 410 (1988) (reversing trial court’s order sealing certain records where the parties sought to shield public access to virtually all of the pre-judgment records, including the complaint, answers, pre-trial order, discovery and motion for adjudication on the merits and briefs); see also BankWest, Inc. v. Oxendine, 266 Ga. App. 771, 778 (2004) (sealing of a summary judgment transcript reversed).
Investigative reports stemming from discrimination complaints made to the Idaho Human Rights Commission generally are exempt from public disclosure under the Idaho Public Records Act. Idaho Code § 74-105(8). But, such confidentiality “will no longer apply to any record used in any judicial proceeding brought by a named party to the complaint or investigation, or by the Idaho human rights commission, relating to the complaint of discrimination.” Id.
In general, access is allowed to “[p]leadings, motions, affidavits, responses, memoranda, briefs and other documents filed or lodged in a case file.” I.C.A.R. 32(d)(7).
The Illinois Appellate Court, in ruling on a FOIA case, echoed a 7th Circuit decision holding that there is no public access right to presentence reports, and expanded on that rule holding that there is no public right of access to pre-trial service agency reports. Copley Press, Inc. v. Admin. Office of Courts, 271 Ill. App. 3d at 555, 648 N.E.2d at 329, 207 Ill. Dec. at 873 (citing U.S. v. Corbitt, 879 F.2d 224 (7th Cir. 1989)).
Generally, court records filed in the office of the clerk of court are public records open to inspection under Iowa Code Chapter 22. In Iowa, “[e]very person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record.” Iowa Code § 22.2.
In Steele v. City of Burlington, 334 F. Supp. 3d 972, 979 (S.D. Iowa 2018), the U.S. District Court for the Southern District of Iowa concluded that “documents filed in conjunction with Plaintiffs’ and Defendants’ cross-motions for summary judgment are judicial records to which the common-law presumption of access attaches.” See also Scott v. City of Sioux City, 96 F. Supp. 3d 898, 904 (N.D. Iowa 2015) (“Where the common-law right of access is implicated, the court must consider the degree to which sealing a judicial record would interfere with the interests served by the common-law right of access and balance that interference against the salutary interests served by maintaining confidentiality of the information sought to be sealed.”).
The Kansas Judicial Branch reports that court case files are among commonly requested records, and Judicial Branch policy presumes openness of the file contents, including transcripts, final judgments, court budgets and certified oaths of office. See Request Court Records, Kansas Judicial Branch, http://www.kscourts.org/rules-procedures-forms/open-records-procedures/default.asp.
In Kentucky, the right of access to court records has been extended to include civil cases. Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125, 128 (Ky. 1988). Generally, court records (whether civil or criminal) cannot be closed without specific written findings by the trial court demonstrating that closure is justified. Roman Catholic Diocese v. Noble, 92 S.W.3d 724, 731 (Ky. 2002). Kentucky’s common law right of access generally follows the rule announced in United States v. Amodeo, 71 F.3d 1044 (2nd Cir. 1995), that “the weight given to the presumption of access must be governed by the role of the material at issue in the exercise of . . . judicial power and the resultant value of such information to those monitoring the . . . courts.” Roman Catholic Diocese v. Noble, 92 S.W.3d 724, 732 (Ky. 2002) (citing Amodeo, 71 F.3d at 1079). Under this sliding-scale approach, documents and records that play an important role in determining the litigants’ substantive rights are accorded the greatest weight and only “the most compelling reasons” can justify denying access to such documents.
The Louisiana Constitution provides a right of access to judicial proceedings in civil cases. Article 1, § 22 states: “All courts shall be open.” The Louisiana Supreme Court has commented on the “strong societal interest in public trials.” State v. Birdsong, 422 So.2d 1135 (La. 1982).
There is also a constitutional right of access to public documents. Article 12, § 3 of the Louisiana Constitution states: “No person shall be denied the right to . . . examine public documents, except in cases established by law.” This right is implemented by the Louisiana Public Records Act, La. R.S. 44:1 et seq. Under the Public Records Act, “any person” may make a public records request. La. R.S. 44:32. “Any person who has been denied the right to inspect or copy a record” may “institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief.” La. R.S. 44:35.
Courts are covered by the Public Records Act. See La. R.S. 44:1(A)(1), defining “public body” as including “any branch . . . of state . . . government,” and article 2, § 1 of the Louisiana Constitution: “The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.”
In addition to the Public Records Act applying to civil court records, article 251 of the Code of Civil Procedure states: “The clerk of court is the legal custodian of all of its records. . . . Except as otherwise provided by law, he shall permit any person to examine, copy, photograph, or make a memorandum of any of these records at any time during which the clerk’s office is required by law to be open.”
In Keko v. Lobrano, 497 So.2d 353 (La. App. 1986), the Court of Appeal held that, in light of the Public Records Act and article 251, “there is no power in the trial court to order an entire civil case record sealed from public inspection.”
Where closure of preliminary hearing was improper, denial of access to transcript of hearing was also improper. State v. Fletcher, 537 So.2d 805 (La. App. 1989).
In Copeland v. Copeland, 930 So.2d 940 (La. 2006), the District Court, on joint motion of the parties, issued an order sealing the entire record of the divorce proceedings of a wealthy and famous local businessman. On a writ application by a newspaper, the Supreme Court found “the trial court’s blanket order sealing the entire record in this case to be overbroad,” and vacated and remanded. The Supreme Court required a “specific showing that [the parties’] privacy interest outweigh the public’s constitutional right of access to the record” and further required that orders sealing records be “narrowly tailored to cause the least interference with the right of public access.” On remand, the District Court ordered almost all of the documents in the record sealed. The Supreme Court again granted a writ and ordered “the entire record unsealed, with redaction of the following information: (1) the name of the children’s school; and (2) the location of the family home.” Copeland v. Copeland, 966 So.2d 1040 (La. 2007).
Typically, such records are obtained simply by going to the clerk’s office (or the judge’s chambers) and asking for the record.
Such records, if possessed by the Clerk of Court, should be accessible through a Public Records request.
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”).
Massachusetts courts recognize “a well-established common-law right of access to the judicial records of civil proceedings.” Boston Herald, Inc. v. Sharpe, 737 N.E.2d 859, 868 (Mass. 2000), rev’d on other grounds, Janes v. Commonwealth, 436 Mass. 1010 (2002) (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978); Ottaway Newspapers, Inc. v. Appeals Ct., 362 N.E.2d 1189, 1194 (Mass. 1977)). The right of access to judicial records extends to trial records such as transcripts of proceedings, court briefs, and evidence. See, e.g., Republican Co. v. Appeals Ct., 812 N.E.2d 887, 892 n.8 (Mass. 2004) (citing Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (1st Cir. 1989)).
The United States District Court of the District of Minnesota has recognized that the public has a common law right to access judicial records in civil cases, including the briefs filed by the parties in support of or in opposition to motions for summary judgment. See In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 2007 U.S. Dist. LEXIS 74166, at *13 (D. Minn. Oct. 3, 2007). The court also noted that when it comes to documents relating to dispositive motions, a party opposing disclosure has a heightened burden to overcome the presumptive right of public access. Id. at *14. (citing Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982)).
Pretrial motions and records are presumed open unless sealed by the court. The Nevada Rules for Sealing and Redacting Court Records promulgated by the Nevada Supreme Court provide that “[a]ll court records in civil actions are available to the public, except as otherwise provided in these rules.” SRCR 1(3). For purposes of this rule, the term “court record” includes, but is not limited to any document, information, exhibit, or other thing that is maintained by a court in connection with a judicial proceeding; and any index, calendar, docket, register of actions, official record of the proceedings, order, decree, judgment, minute, and any information in a case management system created or prepared by the court that is related to a judicial proceeding. SRCR 2(2).
The New Mexico courts have not directly addressed the presumption of access to pretrial motions and records in civil cases. However, as a general matter, “court records are subject to public access unless sealed by order of the court.” Rule 1-079 NMRA. The following court records shall be automatically sealed without motion or order of the court:
“(1) proceedings commenced under the Adoption Act, Chapter 32A, Article 5 NMSA 1978. The automatic sealing provisions of this subparagraph shall not apply to persons and entities listed in Subsection A of Section 32A-5-8 NMSA 1978;
(2) proceedings to detain a person commenced under Section 24-1-15 NMSA 1978;
(3) proceedings for testing commenced under Section 24-2B-5.1 NMSA 1978;
(4) proceedings commenced under the Adult Protective Services Act, Sections 27-7-14 to 27-7-31 NMSA 1978, subject to the firearm-related reporting requirements in Section 34-9-19 NMSA 1978;
(5) proceedings commenced under the Mental Health and Developmental Disabilities Code, Chapter 43, Article 1 NMSA 1978, subject to the disclosure requirements in Section 43-1-19 NMSA 1978 and the firearm-related reporting requirements in Section 34-9-19 NMSA 1978;
(6) wills deposited with the court pursuant to Section 45-2-515 NMSA 1978 that have not been submitted to informal or formal probate proceedings. The automatic sealing provisions of this subparagraph shall not apply to persons and entities listed in Section 45-2-515 NMSA 1978;
(7) proceedings commenced for the appointment of a person to serve as guardian for an alleged incapacitated person under Chapter 45, Article 5, Part 3 NMSA 1978, as provided in Rule 1-079.1 NMRA;
(8) proceedings commenced for the appointment of a conservator under Chapter 45, Article 5, Part 4 NMSA 1978, as provided in Rule 1-079.1 NMRA;
(9) proceedings commenced to remove a firearm-related disability under Section 34-9-19(D) NMSA 1978, subject to the firearm-related reporting requirements in Section 34-9-19 NMSA 1978; and
(10) proceedings commenced under the Assisted Outpatient Treatment Act, Chapter 43, Article 1B NMSA 1978, subject to the disclosure requirements in Section 43-1B-14 NMSA 1978 and the firearm-related reporting requirements in Section 34-9-19 NMSA 1978.”
It follows that pretrial motions and records in civil cases require the same court determination regarding the presence of an overriding interest in order to effect closure:
“(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 (D) NMRA. The order shall require the sealing of the record only to the extent necessary. Id. The order shall further specify who is authorized to have access to the sealed court record and a date or event upon which it expires or shall explicitly state that the order remains in effect until further order of the court. The order shall specify any person or entity entitled to notice of any future motion to unseal the court record or modify the sealing order. Id.
Under the Public Records Act, a custodian may deny access to a public record that is also trial preparation material, which is defined in N.C.G.S. 132-1.9(h)(2). Where access is denied on the basis that the records were prepared in anticipation of a legal proceeding that has not yet commenced, any person may petition the court for a determination as to whether the public record is in fact trial preparation material that was prepared in anticipation of a legal proceeding. N.C.G.S. 132-1.9(c). Further, during the course of a legal proceeding, "[a]ny person who is denied access to a public record that is also claimed to be trial preparation material and who is not a party to the pending legal proceeding to which such record pertains, and who is not acting in concert with or as an agent for any party to the pending legal proceeding, may petition the court pursuant to G.S. 132-9 for a determination as to whether the public record is trial preparation material." N.C.G.S. 132-1.9(d)(3).
Documents filed by a party with the clerk of court—even records that may be otherwise statutorily exempt—immediately become subject to the Public Records Act, giving the news media the right to inspect and obtain copies of those records. This is true even though the records may remain inadmissible as evidence. See Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 466-67 (1999) (exhibits attached to plaintiff’s complaint, even though exempted by statute, became public records upon filing).
However, where documents are exempted by statute, a party may avoid subjecting them to the public records laws by submitting them directly to the trial court for consideration during pretrial motions and hearings (as opposed to filing them). See id. at 467-69.
One federal district court sitting in North Carolina has distinguished dispositive motions, defined as those affecting litigants' substantive rights (e.g., motions for summary judgment or to dismiss) from non-dispositive motions (such as those related to pre-trial discovery, which involve procedural rights). See Kinetic Concepts, Inc. v. Convatec Inc., 2010 WL 1418312 at *9 (M.D.N.C. 2010). In that case, the court favorably cited precedent holding that a public right of access--both constitutional and common law--extends to dispositive motions and records. See, e.g., Rushford v. The New Yorker Magazine, Inc., 846 F.2d 249, 252 (4th Cir.1988); see also Jennings v. University of North Carolina at Chapel Hill, 340 F. Supp.2d 679, 681 (M.D.N.C. 2004) ("[a] party moving to seal documents filed in support of a motion for summary judgment in a civil case bears a heavy burden").
The North Carolina Supreme Court has said that there is no absolute common law right of access to discovery materials in civil cases; instead, civil discovery is governed by statute. See News and Observer Pub. Co. v. State ex rel. Starling, 312 N.C. 276, 280 (1984) (noting that the U.S. Supreme Court "has indicated that rules governing discovery in civil cases are a matter of legislative grace." (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984))). Although North Carolina recognizes a general constitutional right of access to information about the activities of public agencies, "the legislature still may properly limit the right of public access in appropriate cases." Starling, 312 N.C.at 285 (upholding restrictions on disclosure of S.B.I. investigative records).
The rules permitting discovery in civil cases are found in N.C.G.S. 1A-1, Rules 26-37. Under Rule 26(b)(1), information sought pursuant to this article must be "reasonably calculated to lead to the discovery of admissible evidence" to be used in the trial of the action in which discovery is sought. See N.C.G.S. 1A-1, Rule 26(b)(1); see also News and Observer Publ'g Co. v. State ex rel. Starling, 312 N.C. at 284. Thus, where the N.C. Supreme Court determined that a newspaper "sought access to S.B.I. records only due to its desire to know and publish the contents," the rules permitting discovery in civil cases were unavailable.
Further, N.C.G.S. Rule 26(c) provides in part that:
Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the judge of the court in which the action is pending may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: . . . (v) that discovery be conducted with no one present except persons designated by the court; (vi) that a deposition after being sealed be opened only by order of the court; (vii) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (viii) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.
The U.S. Court of Appeals for the Fourth Circuit (which has jurisdiction over North Carolina) has not resolved the question of whether the public right of access applies to documents relating to discovery motions. However, one federal district court sitting in North Carolina recently interpreted Fourth Circuit precedent as strongly suggesting that no right of access attaches in this context. See Kinetic Concepts, Inc. v. Convatec Inc., 2010 WL 1418312 at *9-10 (M.D.N.C. 2010) (citing, inter alia, Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 & n.19 (1984)).
In Haas v. Golding Transport, 2010 WL 1257990 (M.D.N.C. 2010), the parties sought to enter a mutual consent protective order to insulate themselves from embarrassment and from having to make personal records public. The proposed order suggested the parties could, at their own discretion, prevent disclosure of discovery materials and other evidence offered in open court simply by designating such materials as "confidential." The parties' proposed order defined "confidential information" to "include documents, information contained in documents, depositions, interrogatory answers, and all other discovery pursuant to the Federal Rules of Civil Procedure, court testimony, matters in evidence and other information furnished by or on behalf of any party in connection with this litigation which falls within the scope of this Order." Id. at *3. The court refused to enter the order as proposed because the language would preclude the court from following procedural requirements (e.g., considering less drastic alternatives to sealing, and stating its reasons for sealing and rejecting those alternatives) and substantive requirements (e.g., determining the source of the right of access with respect to each document, and weighing the competing interests accordingly). Id. at *8.
Court records related to the following are confidential: (1) Juvenile court proceedings; (2) Mental health commitment proceedings; (3) Social security numbers; credit, debit, or electronic fund transfer card numbers; and financial account numbers; (4) Adoption and paternity proceedings; (5) Domestic violence protection order files - except for the final order of the court; (6) Psychological evaluations and drug and alcohol treatment records; (7) The property and debt listing of the parties to a divorce as provided by N.D.C.C. § 14-05-24.3; (8) Documents filed with the court for in-camera examination pending disclosure; (9) Case information and documents in Child Relinquishment to Identified Adoptive Parent cases brought under N.D.C.C. ch. 14-15.1; (10) names of qualified or summoned jurors and contents of jury qualification forms if disclosure is prohibited or restricted by order of the court; (11) judge and court personnel work material, including personal calendars, communications from law clerks, bench memoranda, notes, work in progress, draft documents and non-finalized documents; (12) party, witness and crime victim contact information gathered and recorded by the court for administrative purposes, including telephone numbers and e-mail, street and postal addresses; and (13) the name of a patron of the North Dakota Legal Self Help Center or information sufficient to identify a patron or the subject about which a patron requested information.
The Rules of Superintendence for the Courts of Ohio define “case document” as “a document and information in a document submitted to a court or filed with a clerk of court in a judicial action or proceeding, including exhibits, pleadings, motions, orders, and judgments . . .,” subject to certain exclusions. Sup.R. 44(C)(1)–(C)(2). These pretrial documents are presumptively open to the public. Sup.R. 45(A). The court shall restrict public access if it finds by clear and convincing evidence that “the presumption of allowing public access is outweighed by a higher interest.” Sup.R. 45(E)(2). Pretrial discovery submitted as part of the court record becomes public record. State ex rel. Cincinnati Enquirer v. Dinkelacker, 761 N.E.2d 656, 660 (Ohio 2001). The court retains the ability not to release the records during the pendency of the trial if disclosure would affect the defendant’s right to a fair trial. Id. at 661.
When court records have been expunged, they are not available for public disclosure. R.C. § 2953.31 et seq.; R.C. § 2953.51 et seq. Similarly, a court, after balancing the public and private interests, may seal a trial record after a finding of not guilty or after dismissal of a complaint. State ex rel. Cincinnati Enquirer v. Winkler, 805 N.E.2d 1094, 1097–98 (Ohio 2004).
In Collier v. Reese, 2009 OK 86, 222 P.3d 966, the plaintiff in a civil assault and battery case filed a motion to seal all portions of the record which disclosed the results of a polygraph test taken by the defendant (which purportedly supported the defendant’s claim that he had not shouted racial slurs that started the fight between the parties) and to prevent the defendant or his counsel from making extrajudicial statements to the media about the polygraph results. The Oklahoma Supreme Court held that the trial court abused its discretion in sealing the record because the order was not narrowly tailored to prevent any impact on the fair trial rights of the defendant in a related criminal case, and in prohibiting any extrajudicial discussion of the polygraph results, a part of the order the appellate court determined was an unconstitutional prior restraint on speech.
Pleadings: Both the constitutional and common law rights of access extend to pleadings. SeeHutchison v. Luddy, 581 A.2d 578, 582 (Pa. Super. 1990) (“The presumption that the public may inspect and copy judicial records extends to pleadings.”), aff’d in relevant part, rev’d in part, 594 A.2d 307 (Pa. 1991); Stenger v. Lehigh Valley Hosp. Ctr., 554 A.2d 954, 960 (Pa. Super. 1989) (same); PA Child Care LLC v. Flood, 887 A.2d 309, 312 (Pa. Super. 2005) (rejecting effort to seal record in civil case and explaining that “Pennsylvania has a mandate for open and public judicial proceedings both in the criminal and civil settings.”).
In civil matters, “[c]ourt records are generally public documents and are subject to supervision by the court. . . . Basically, all court documents are public.” Providence Journal Co. v. Clerk of Family Court, 643 A.2d 210, 211 (R.I. 1994). Although the Rhode Island Supreme Court has not addressed what constitutes a “court record,” the Rhode Island Superior Court has adopted the approach that “documents that are filed with the court that reasonably may be relied upon in support of any part of the court‘s adjudicatory function are judicial documents.” Dauray v. Estate of Mee, No. PB-10-1195, 2013 WL 372647, at *13, 2013 R.I. Super. LEXIS 19, at *40-41 (R.I. Super. Ct. Jan. 23, 2013) (quoting Rosado v. Bridgeport Roman Catholic Diocesan Corp., 970 A.2d 656, 678 (Conn. 2009)). It also determined that once a document is identified as a “court record”, the scope of the public’s right of access is determined according to a balancing test. See id. at 2013 WL 372647, at *14-15, 2013 R.I. Super. LEXIS 19, at *48-49 (citing Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001) (“[T]he common law right of access requires a balancing of competing interests.”)). Courts are given broad discretion to balance the interests in disclosure and closure of court records. Id. at 2013 WL 372647 at *15, 2013 R.I. Super. LEXIS 19, at *52 (“Every court has supervisory powers over its own records and files . . .” (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978)).
The South Carolina Freedom of Information Act, S.C. Code Ann. § 30-4-10 et. seq., protects rights to access court records, including pretrial motions, and all filed motions are available through each county’s public index website. A link to each county public index webpage can be found at https://www.sccourts.org/caseSearch/.
Courts have not generally recognized a right of access to unfiled discovery outside of what is permitted by Rule 76a(2)(c). For example, the court in Houston Chronicle Publ’g Co. v. Hardy stated in its protective order that “third parties have no constitutional nor common law right of access to pretrial documents obtained through the discovery process in a civil case” where those documents had never been offered as evidence. 678 S.W.2d 495, 509 (Tex. App.—Corpus Christi 1984, no writ).
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).
Unless a document is filed under seal or relates to discovery, pretrial motions and records are available to the public in civil cases in Vermont. Vermont Courts Online does not allow currently allow for retrieval of the pleadings and orders listed on any dockets, however, so you need to contact the appropriate unit and division of the Vermont Superior Court to obtain copies of any pretrial motions or records. Contact information for the units and divisions of the Vermont Superior Court are available at: http://www.vermontjudiciary.org/court-locations.
Vermont Rule of Civil Procedure 79.3 provides that “[v]ideo recordings of public proceedings are public records, unless otherwise protected from disclosure by law or by order of the court. Duplicated copies may be ordered at the conclusion of a trial, or at any time by a party.” V.R.C.P. Rule 79.3(f).
A Virginia trial court improperly entered an order sealing all pleadings in new civil cases for twenty-one days after they are commenced. The court had no statutory authority to enter such an order, nor was there anything in the record justifying such action pursuant to the court’s inherent power. See Charlottesville Newspapers, Inc. v. Berry, 215 Va. 116, 118, 206 S.E.2d 267, 268 (1974).
The Fourth Circuit has specifically held that under the First Amendment, the public has a qualified right of access to dispositive motions and exhibits to those motions, as well as to judicial opinions resolving those motions. See Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252 (4th Cir. 1988); Doe v. Pub. Citizen, 749 F.3d 246, 267 (4th Cir. 2014). Although the Virginia Supreme Court has not been as direct, it has held that the public’s right of access to judicial records attaches to “the pleadings and any exhibits or motions filed by the parties and all orders entered by the trial court in the judicial proceedings leading to the judgment under review,” Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 257, 368 S.E.2d 253, 255 (1988), as well as “[e]xhibits entered into evidence in a judicial proceeding that lead to the judgment,” see Lotz v. Commonwealth, 277 Va. 345, 351, 672 S.E.2d 833, 836 (2009) (public had rebuttable right of access to exhibits to sexually violent predator report admitted into evidence during a civil commitment hearing).
Discovery materials exchanged between parties are not judicial records to which a right of access attaches unless and until they are filed with the court. See Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 262 n.3, 368 S.E.2d 253, 257 n.3 (1988) (no common law right of access to documents not filed with the court); In re Times-World Corp., 25 Va. App. 405, 419, 488 S.E.2d 677, 684 (Va. Ct. App. 1997) (“We have held that the media does not have a constitutional right of access to documents produced by parties through discovery in a criminal matter. The documents here, however, are not unfiled discovery documents but were admitted into evidence in a proceeding that should have been open to the public.”); Commonwealth v. Schwartz, 59 Va. Cir. 195, 2002 WL 31989074, *1 (Loudoun Cir. Ct. July 1, 2002) (“Materials returned in response to the subpoena, unless introduced into evidence, are not subject to public disclosure.”); Commonwealth v. Robinson, 3 Va. Cir. 196, 1984 WL 569929, *2 (Alexandria Cir. Ct. May 3, 1984) (“[T]here is no requirement that discovery materials be filed and if not filed are not subject to access by either the public or the media.”); Commonwealth v. Starkey, 26 Va. Cir. 199, 1992 WL 884421, *1 (Loudoun Cir. Ct. Jan. 8, 1992) (“There is simply no requirement for the filing of most pretrial discovery responses, and thus no right of access.”).
Discovery depositions filed pursuant to an order requiring that they be filed for safekeeping by the clerk were deemed to not be judicial records to which the right of access applied. See Abujaber v. Kawar, 20 Va. Cir. 58, 1990 WL 751032, *2 (Loudoun Cir. Ct. Jan. 2, 1990).
Discovery depositions reviewed by the court in connection with a pretrial, non-dispositive motion were deemed to not be judicial records to which the right of access applied. See Abujaber v. Kawar, 20 Va. Cir. 58, 1990 WL 751032, *3 (Loudoun Cir. Ct. Jan. 2, 1990).
The extent of the public’s right of access to materials filed with the court does not include the right to re-test such materials. See Globe Newspaper Co. v. Commonwealth, 264 Va. 622, 630, 570 S.E.2d 809, 813 (2002) (public’s constitutional right of access to discovery materials filed with the court did not include right to re-test DNA).
The heightened presumption of openness applicable to trials “applies equally” to motions filed in civil cases.” Rufer v. Abbott Labs., 154 Wn.2d 530, 542, 114 P.3d 1182 (2005); Dreiling v. Jain, 151 Wn.2d 900, 93 P.3d 861 (2004). Such motions may only be sealed as permitted under GR 15 and the Bone-Club/Ishikawa factors. Dreiling v. Jain, 151 Wn. 2d 900, 915, 93 P.3d 861, 870 (2004). An exception may exist for records that are filed but never considered by the court, such as sealed documents that are filed in support of a motion that is not decided because the case settles before the motion is heard. Bennett v. Smith Bundy Berman Britton, PS, 176 Wn.2d 303, 291 P.3d 886 (2013).
As set forth above, both the West Virginia Constitution (article III, section 17) and statutes (W. Va. Code § 51-4-2) provide presumptive rights of public access to court records. See “Access to civil records/In general” above. This right applies to pretrial motions and records. State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W.Va. 611, 520 S.E.2d 186, 191 (1999).