Trial Magazine

From prescription opioids to firearms to tires with deadly defects, overbroad court orders and confidential settlements in products liability cases often conceal from public view critical safety information. Such secrecy has contributed to tragic, needless injuries and preventable deaths.¹ And secret settlements make similar or related cases lengthier to litigate and harder to settle.

When public health and safety are at stake, fight back against secrecy. Here’s what to do when a defendant pushes for an overbroad protective order in discovery or over-sealing of documents on the public docket that do not merit protection.²

Common Issues in Protective Orders

Blanket protective orders allow corporate defendants to designate as confidential all, or nearly all, documents exchanged in discovery, leaving plaintiff counsel with little practical ability to challenge the designations. These orders can burden your document management system and place you and your client at risk of violating a court order for inadvertent disclosure of documents designated as confidential. They also prohibit you from sharing information with other attorneys suing the same defendant, making it harder to tell whether incriminating evidence is being withheld.

Good cause. Under Federal Rule of Civil Procedure 26(c), the proponent of secrecy must establish good cause for “confidential” or similar designations on a document-by-document basis,³ and protective orders may not be entered without a particularized finding of good cause.⁴ If a protective order places the burden on the receiving party to challenge confidentiality designations document by document, the realities of discovery may mean that blanket confidentiality designations will go unchallenged—especially when many documents are at issue, the production is rolling, and a discovery deadline is near.

But Rule 26(c) does not permit this burden shifting.⁵ The party seeking secrecy always has the burden of demonstrating the need for secrecy, and in the event the parties disagree over a confidentiality designation, the party seeking secrecy must apply to the court for a ruling or concede that the information is not entitled to protection.⁶ Any dispute mechanism in a protective order should require only that the receiving party object to specific designations. Then the burden of persuasion should shift entirely to the producing party, both in initiating a meet and confer and in moving for a court ruling on the dispute. And if the producing party fails to follow through on defending its designations under the good cause standard, the protective order should state that the designations are forfeited.

Parties and courts may regard blanket protective orders as necessary in cases with many documents.⁷ Courts cannot review entire document productions; they need the parties to manage the discovery process in good faith. All the same, confidentiality should be the exception, not the rule. If a blanket order is indeed necessary, insist on key provisions to prevent abuse (discussed more later).

Embarrassment and past good cause. A conclusory assertion that the court’s failure to grant a protective order will result in embarrassment fails the good cause standard under Rule 26(c). For embarrassment to form the basis for a protective order, it must be particularly serious: “to succeed, a business will have to show with some specificity that the embarrassment resulting from dissemination of the information would cause a significant harm to its competitive and financial position.”⁸ Further, the proponent of secrecy has the burden of proving the need for continued protection of specified documents.⁹ A past confidential designation is not sufficient.

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When the allegedly secret materials concern matters of general knowledge within a particular industry, they are already in the public domain and thus are not protectable ‘secrets.’

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Trade secrets and confidential commercial information. These are not magic words that automatically confer protection. As a general rule, courts “have not given trade secrets automatic and complete immunity against disclosure” but rather engage in a case-by-case balancing of the “claim to privacy against the need for disclosure.”¹⁰ When a business seeks protection of confidential commercial information, including trade secrets, “it must make ‘specific demonstrations of fact, supported where possible by affidavits and concrete examples’” that disclosure will “result in clearly defined and very serious injury to its competitive and financial position.”¹¹ And when the allegedly secret materials concern matters of general knowledge within a particular industry, they are already in the public domain and thus are not protectable “secrets.”¹²

Stipulated confidentiality. Even when a court concludes that a party will be harmed by a document’s disclosure, it must still “balance[ ] the public and private interests to decide whether maintaining a protective order is necessary.”¹³ When the public interest in disclosure outweighs the private interest in secrecy—such as when defective products threaten the public health—the protective order should not be approved.¹⁴

Moreover, Rule 26(c) does not permit a court to enter a protective order unless it finds good cause, even if the parties stipulate to the protective order.¹⁵ The court cannot simply rubber stamp a jointly stipulated protective order—it must state the factors it relied on in the good cause determination to enable appellate review of its discretion.¹⁶

Countering Protective Orders

While overbroad protective orders may have become the norm in civil litigation, you do not have to succumb to secrecy in your client’s case. Discovery documents are presumptively public,¹⁷ and the burden of overcoming that presumption for any particular information is entirely on the party seeking confidentiality. A party must show good cause for a protective order,¹⁸ and this requirement cannot be waived even by stipulation of the parties.¹⁹ Here are a few ways you can use the presumption of openness to your advantage.

First, before proposing or agreeing to a protective order, ask what documents, if any, should be protected. Resist the position that one size fits all and that a boilerplate definition of confidentiality applies to every case. The definition of “confidential information” in the order should be limited to business information and trade secrets that are so competitively sensitive that disclosure could result in real competitive harm if revealed—harm that outweighs the public’s interest in disclosure.

Counsel should meet and confer to discuss what information the parties plan to exchange. Because both sides are stipulating to the order, they should both be able to articulate good cause for entering it. If a meet and confer reveals that the information to be protected is limited or is easily categorized, a blanket order simply is not necessary. Instead, a party can move for a protective order regarding specific documents.

In addition, test all claims of trade secret protection or confidential commercial information. Do not accept that everything designated as such should be protected automatically. Defendants often make these claims for any document containing an internal communication or process and even for information that is years old and would result in no real competitive injury if revealed. Don’t be fooled—the real reason for shielding this information is to mitigate liability in future cases.

Thankfully, courts are required to apply exacting standards to determine whether good cause exists to protect trade secrets and other confidential commercial information.²⁰ Don’t defer to defendants’ unsupported trade secret designations when, in fact, the information produced concerns public health or involves matters of general knowledge within a particular industry.²¹ Courts may rule on a subset of documents, and this ruling can be an exemplar for similarly wrongly designated documents.²²

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The public’s interest in access to court records is strongest when the records concern public health or safety.

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Finally, argue that the public interest should be considered when issuing a protective order, regardless of any showing of good cause. Even if the party seeking a protective order establishes that the material it seeks to protect rises to the level of a trade secret or other confidential information and that public access poses a serious threat of significant commercial harm, some courts have held that Rule 26(c) requires consideration of whether the public’s interest in access outweighs the need for secrecy.²³

Limit the Scope of Secrecy

If your case involves information that is truly entitled to confidentiality, seize control of the situation and propose a protective order that limits the scope of secrecy and minimizes the burdens placed on you and your client. Here are some tips for limiting the scope of an order.

Narrowly define confidential materials. Define the category of confidential materials as narrowly as possible and require good cause to protect information from disclosure. Resist any provision that gives carte blanche to the producing party to designate any materials as confidential. Instead, “confidential” should be defined as objectively as possible and based on established legal authority whenever possible. An objective definition allows courts to evaluate whether the parties are acting in good faith in making confidentiality designations.²⁴ And the definition may refer to state or federal trade secret definitions and may include “personal private information” or “personal identifying information” that is protected under state and federal privacy laws or local court rules.²⁵

Corporate defendants typically perceive no downside to blanket designations of their documents because the worst that can happen is that the court removes the designations after motions practice. Insist on protective order provisions that require designations to be made in good faith; specify that designations constitute representations to the court; prohibit mass, indiscriminate, or routinized designations; and subject a producing party to Rule 37 sanctions for unjustified designations.

Challenging designations. Insist that the order contain a fair procedure for challenging confidentiality designations. A blanket protective order is permissible only when there is a built-in procedure for challenging any confidentiality designations made by a producing party. Any other approach “would turn Rule 26(c) on its head.”²⁶ 

The protective order should make clear that the burden of demonstrating the need for secrecy always remains on the party seeking secrecy²⁷ and that, in the event the parties disagree over a confidentiality designation, the party seeking secrecy must apply to the court for a ruling or concede that the information is not entitled to protection.²⁸ Under such approach, you only need to object to the designation of one or more documents—then, the burden is entirely on the defendant to resolve the dispute and move for a protective order, or the designation is forfeited.

Here is sample language:

If a party disagrees with the “Protected” designation of any document or documents, the party will so notify the producing party in writing. The parties shall try to resolve the challenge in good faith on an informal basis. If, after 20 days of notice, the challenging party does not withdraw its objection, the producing party may move for a protective order regarding any documents that it wishes to protect from disclosure. If it does not so move within that time, the documents are not subject to protection under this Order.

Without a mechanism for challenging confidentiality that keeps the burden squarely on the producing party, defendants have every incentive to over-designate items as confidential, because they know that the plaintiff attorneys will have to do all of the work in fighting the designation.

Sharing documents. Request a provision permitting documents to be shared with counsel for plaintiffs in similar cases. Defendants push for protective orders in large part to quell collaboration and cooperative discovery efforts among plaintiff counsel litigating similar cases. But the law favors sharing. Many courts have authorized (and even encouraged) the sharing of discovery among litigants in different cases.²⁹

Courts generally have agreed that the primary (but not the only) purpose for encouraging sharing provisions is to streamline discovery and conserve judicial resources,³⁰ and many “have rejected requests to limit the use of discovery to the litigation in which it is initially obtained.”³¹ These goals place sharing provisions “squarely within the purposes of the Federal Rules of Civil Procedure.”³²

Defendants may argue that allowing the sharing of competitively sensitive information could harm the company³³ or cause financial hardship.³⁴ But here is an easy fix for that concern: forbid the sharing of information with the defendant’s competitors, while allowing sharing among plaintiff counsel.³⁵ Specify that those entitled to access confidential information include counsel representing clients with present or future cases against the same defendant that arise out of the same or a similar set of facts, transactions, or occurrences.

Sealing Orders

Although sometimes the legal standards governing protective orders and sealing documents filed on the docket in court are conflated, they are distinct. The public and news media have a presumptive right to access court records³⁶ based in federal common law and the First Amendment.³⁷ This recognized right is “based on the need for federal courts . . . to have a measure of accountability and for the public to have confidence in the administration of justice.”³⁸ The judiciary must perform openly to preserve the rule of law.³⁹ Public access to the courts increases confidence in the judicial function, keeps the judiciary accountable, and gives the public notice with respect to the legal consequences of certain actions.⁴⁰

Because of these crucial considerations, defendants seeking to seal court records face a greater burden than when seeking a protective order. Under no circumstances should a court’s grant of a protective order in discovery automatically make documents eligible to be filed under seal.⁴¹ Courts must conduct a separate analysis under the more stringent standard for sealing court records. Further, while parties can and often do file stipulated sealing orders, that does not relieve the court of its obligation to only seal information that meets the high standard for doing so.

Motions to seal court records are subject to more exacting standards than Rule 26(c)—good cause is not sufficient.⁴² And the “mere fact that judicial records may reveal potentially embarrassing information is not in itself sufficient reason to block public access.”⁴³

Although federal common law and First Amendment legal standards are similar, with courts frequently addressing only one of them, it is best practice to argue both independent bases to make the most compelling case for access to court records.

Federal common law. To overcome the presumptive common law right to access judicial records, the proponent of secrecy must demonstrate “compelling reasons” for secrecy that are supported by “specific factual findings that outweigh the general history of access and the public policies favoring disclosure.”⁴⁴

The bar for “compelling reasons” is a high one—sealing court records is appropriate only when disclosure would result in improper use of material for “scandalous or libelous purposes” or infringe trade secrets.⁴⁵ Even then, courts should file under seal only what is necessary to protect confidences.⁴⁶ Even disputes about claims of national security, including those about hydrogen bombs, are publicly litigated.⁴⁷ Only genuine trade secrets, such as a chemical compound or a pattern for a machine, or statutorily protected information (such as grand jury matters) should be redacted, with the remainder of the material released.⁴⁸

First Amendment. The First Amendment right of access to court records in civil proceedings is broadly recognized.⁴⁹ The public’s right to access court records can be overcome only by demonstrating that “the denial is necessitated by a compelling interest, and is narrowly tailored to serve that interest.”⁵⁰ A court ordering records to be sealed must identify specific reasons why such action is warranted and show that nothing short of sealing will protect the parties’ interests.⁵¹ The proponent of secrecy cannot seal court records with conclusory support.⁵²

Public health and safety. Push back against any attempts to seal records pertaining to potential threats to public health and safety. The public’s interest in access to court records is strongest when the records concern public health or safety. Court records are public by default—once there is no longer a valid basis for secrecy, “the default posture of public access prevails,” and the court should immediately release improperly sealed court records back into the public domain.⁵³

When companies attempt to seal records pertaining to public health or safety, the public has a particularly strong interest in accessing those records.⁵⁴ Judges serve as “the primary representatives of the public interest in the judicial process,”⁵⁵ and thus, the public has a right to know the basis for judicial decisions.⁵⁶

While a court’s grant of a protective order does not automatically make confidential documents eligible to be filed under seal,⁵⁷ defendants often try to use the existence of a protective order as a basis for maintaining confidentiality once a document is introduced at trial or attached to a dispositive motion. Oppose this “conflation error” as it contravenes federal precedent.⁵⁸

And the fact that a motion is non-dispositive does not mean that it can be sealed on a showing of good cause. The heightened “compelling reasons” standard should be applied to “most judicial records.”⁵⁹ Corporate defendants may attempt to label motions as non-dispositive in an effort to decrease their burden to seal those motions. But “mechanical classifications” of motions do not automatically lower the level of scrutiny to seal court records.⁶⁰

Rather, some circuits have held that when the information included in a pretrial motion relates to the parties’ substantive rights, the presumption of public access applies.⁶¹ The Third and Eleventh Circuits have gone even further and held that there is a presumptive right to access pretrial motions of a non-discovery nature.⁶²

Strategies to Keep Court Records Open

First, do not agree to any provision in a protective order that purports to permit the automatic sealing of court records that contain, or are annexed to, any discovery material that a defendant unilaterally designates as confidential. Such provisions, which are commonly insisted on by defendants, are contrary to well-established law.⁶³

Even if a document were subject to a protective order during discovery, it cannot be sealed unless the court specifically finds that compelling reasons for secrecy outweigh the strong presumption in favor of public access.⁶⁴ To fight attempts to use a discovery protective order to shield documents that are ultimately filed with a court, propose language along these lines in your protective orders:

This Order does not confer any authorization to seal court records in this case or apply to the disclosure of Protected Material at trial. It is only intended to facilitate the prompt production of Discovery Materials. The fact that Discovery Material has been designated as “Confidential” shall not be admissible as evidence that the Material in fact contains information entitled to protection from disclosure under the law.

A stipulated sealing order should not be the price of filing a document in court. A plaintiff who wishes to file a document designated as confidential should not have to argue that it should be sealed, especially if the plaintiff does not want to seal it. Local court rules may address this situation.⁶⁵ Address the proper procedure in a stipulated protective order with language such as the following:

A Non-Designating Party that is filing court records containing Discovery Material designated as “Confidential” shall file a motion to consider whether another party’s material should be sealed, with the material provisionally sealed. Within seven days of the motion’s filing, the designating party must file a statement establishing why the material should be sealed. If any party wishes to file a response, it must file it within seven days of the designating party’s filing. If the designating party fails to respond within the required time, the records will become public.

Also reach out to other lawyers who have handled similar cases in the past.⁶⁶ They often have briefs, orders, and other extremely useful information.

We must ensure that consumers are not systematically endangered and disadvantaged in seeking justice—and that secrecy does not prevent us from holding corporate wrongdoers accountable. The suggestions above can help you fight back against secrecy—for the sake of future litigants and the public.

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Karla Gilbride is the co-director of the Access to Justice Project at Public Justice in Washington, D.C., and can be reached at kgilbride@publicjustice.net. Jared Placitella is an attorney with Cohen, Placitella & Roth in Red Bank, N.J., and Philadelphia and can be reached at jmplacitella@cprlaw.com.

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Notes

1. See, e.g., Elizabeth Chamblee Burch & Alexandra D. Lahav, Information for the Common Good in Mass Torts, 70 DePaul L. Rev. 345, 345–51 (2021). See also Alex Egilman et al., Confidentiality Orders and Public Interest in Drug and Medical Device Litig., 180(2) Jama Intern. Med. 292–99 (Feb. 2020); Scott Cohn, Huge Trove of Remington Rifle Documents is Made Public, CNBC, Nov. 15, 2016, https://tinyurl.com/2s46p8zh.
2. See Hannah Brennan, The Right of Access, Trial, July 2021, at 30; Lynne Bernabei & Devin Wrigley, A Course Correction, Trial, Sept. 2021, at 32. See also Dangers Secrets: Confronting Confidentiality in Our Public Courts, Pound Civil Justice Inst. (2020), https://tinyurl.com/ms5zk2kp.
3. Fed. R. Civ. P. 26(c). See also Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1130, 1130 (9th Cir. 2003). (“A party asserting good cause bears the burden, for each particular document it seeks to protect, of showing that specific prejudice or harm will result if no protective order is granted.”); Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786–87 (3d Cir. 1994).
4. Cipollone v. Liggett Grp., Inc., 785 F.2d 1108, 1121 (3d Cir. 1986) (“Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.”); see also In re Nat’l Prescription Opiate Litig., 927 F.3d 919, 935–38 (6th Cir. 2019) (vague assertions failed to support a blanket protective order); In re Roman Catholic Archbishop of Portland in Or., 661 F.3d 417, 424 (9th Cir. 2011); Citizens First Nat’l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 946 (7th Cir. 1999) (no blanket protective order without finding good cause); Anderson v. Cryovac, Inc., 805 F.2d 1, 7 (1st Cir. 1986).
5. See In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987).
6. See McCarthy v. Barnett Bank of Polk Cty., 876 F.2d 89, 90 (11th Cir. 1989).
7. See, e.g., Public Citizen v. Liggett Grp., Inc., 858 F.2d 775, 777 (1st Cir. 1988); In re Alexander Grant, 820 F.2d at 357.
8. Cipollone, 785 F.2d at 1121–22; see also United States ex rel. Davis v. Prince, 753 F. Supp. 2d 561, 567-68 (E.D. Va. 2010) (“[T]he annoyance or embarrassment must be particularly serious.”); Constand v. Cosby, 229 F.R.D. 472, 480 (E.D. Pa. 2005) (defendant’s embarrassment stemming from allegations of sexual assault and battery did not justify a blanket protective order).
9. See In re Roman Catholic Archbishop, 661 F.3d at 424; Miller v. City of Boston, 549 F. Supp. 2d 140, 141 (D. Mass. 2008).
10. Smith v. BIC Corp., 869 F.2d 194, 199 (3d Cir. 1989).
11. Minter v. Wells Fargo Bank, N.A., 2010 WL 5418910, at *4 (D. Md. Dec. 23, 2010) (citations omitted); see also Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1131–32 (9th Cir. 2003); Arvco Container Corp. v. Weyerhaeuser Co., 2009 WL 311125, at *5 (W.D. Mich. Feb. 9, 2009).
12. BIC Corp., 869 F.2d at 199–200.
13. Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002); see also In re Nat’l Prescription Opiate Litig., 927 F.3d at 937; Shingara v. Skiles, 420 F.3d 301, 308 (3d. Cir. 2005) (“[A] court always must consider the public interest when deciding whether to impose a protective order.”); DaCosta v. City of Danbury, 298 F.R.D. 37, 39 (D. Conn. 2014) (even where a party can demonstrate good cause for a protective order, “the court may balance any countervailing interests in determining whether to exercise its discretion to grant the order.”).
14. See Mine Safety Appliances Co. v. N. River Ins. Co., 73 F. Supp. 3d 544, 563 (W.D. Pa. 2014) (considering public health and safety in weighing whether to grant protective order) (citing Pansy, 23 F.3d at 787–88).
15. See Pansy, 23 F.3d at 790; Proctor & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996); Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994) (“Even if the parties agree that a protective order should be entered, they still have the burden of showing that good cause exists for issuance of that order.”).
16. See, e.g., Foltz, 331 F.3d at 1130; Citizens First Nat’l Bank of Princeton, 178 F.3d at 946. See also San Jose Mercury News, Inc. v. U.S. Dist. Ct. N. Dist., 187 F.3d 1096, 1103 (9th Cir. 1999) (“[B]lanket stipulated protective orders are inherently subject to challenge and modification, as the party resisting disclosure generally has not made a particularized showing of good cause with respect to any individual document.”).
17. Jepson, 30 F.3d at 858.
18. Fed. R. Civ. P. 26(c); In re Roman Catholic Archbishop, 661 F.3d at 424; E.E.O.C. v. Kronos, Inc., 620 F.3d 287, 302 (3d Cir. 2010); Foltz, 331 F.3d at 1135; In re Terra Intern, Inc., 134 F.3d 302, 306 (5th Cir. 1998); Anderson, 805 F.2d at 7; Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984); White v. Wirtz, 402 F.2d 145, 148 (10th Cir. 1968); Charles Alan Wright et al., 8A Federal Practice and Procedure §2035 (3d ed. 2011).
19. Proctor & Gamble Co. v. Bankers Trust Co., 78 F.3d at 227; Jepson, 30 F.3d at 858; San Jose Mercury News, Inc., 187 F.3d at 1103; Pansy, 23 F.3d at 790.
20. Minter, 2010 WL 5418910, at *4 (finding that defendants improperly designated documents as “confidential” pursuant to blanket protective order where defendants failed to show they “conducted a document-by-document assessment prior to making confidential designations”).
21. See, e.g., Garcia v. Peeples, 734 S.W.2d 343, 348 n.4 (Tex. 1987) (information on matters affecting the public health are not “trade secrets”); BIC Corp., 869 F.2d at 199–200 (information involving matters of general knowledge within a particular industry not “trade secrets”).
22. In re Valsartan N-Nitrosodimethylamine (NDMA), Losartan, & Irbesartan Prod. Liab. Litig., 512 F. Supp. 3d 546, 555–56 (D.N.J. 2021).
23. In re Roman Catholic Archbishop, 661 F.3d at 424; Shingara, 420 F.3d at 308 (“[A] court always must consider the public interest when deciding whether to impose a protective order.”); Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995).
24. See, e.g., Lawrence E. Jaffe Pension Plan v. Household Int’l, Inc., 2004 WL 2663241, at *2 (N.D. Ill. Sept. 29, 2004) (rejecting “broad and undefined categories” of protectable information).
25. For example, “confidential information” might be defined to include Social Security or Taxpayer Identification Numbers; names of minor children; financial account numbers; and trade secrets or other similar confidential research, development, or commercial information that would cause severe competitive harm to the designating party if disclosed.
26. Cipollone, 785 F.2d at 1122.
27. Id.; see also In re Alexander Grant, 820 F.2d at 356.
28. See McCarthy v. Barnett Bank of Polk Cty., 876 F.2d 89, 90 (11th Cir. 1989) (approving protective order that “allows the producing party to designate a document confidential unless the other party objects,” whereas the party asserting confidentiality had 15 days to move the court for a ruling or concede the objection); In re Alexander Grant, 820 F.2d at 354 (same except that party seeking protection had to act within ten days of objection).
29. See, e.g., United Nuclear Corp. v. Cranford, 905 F.2d 1424, 1428 (10th Cir. 1990).
30. United States v. Hooker Chem. & Plastics Corp., 90 F.R.D. 421, 426 (W.D.N.Y. 1981) (citing  Williams v. Johnson & Johnson, 50 F.R.D. 31, 32 (S.D.N.Y. 1970)) (Cooperation among similarly situated litigants “promotes the speedy and inexpensive determination of every action as well as conservation of judicial resources.”).
31. Duling v. Gristede’s Operating Corp., 266 F.R.D. 66, 76 (S.D.N.Y. 2010); see also Ward v. Ford Motor Co., 93 F.R.D. 579, 580 (D. Colo. 1982); Hooker, 90 F.R.D. at 426; Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 814 (Ky. 2004).
32. Hooker, 90 F.R.D. at 426. See also Williams, 50 F.R.D. at 32 (sharing is consistent with judicial economy as contemplated by Fed. R. Civ. P. 1 and finding no merit to “all-encompassing contention that the fruits of discovery in one case are to be used in that case only.”).
33. Nestle Foods Corp. v. Aetna Cas. & Sur. Co., 129 F.R.D. 483, 486 (D.N.J. 1990) (“The courts have emphatically held that a protective order cannot be issued simply because [public disclosure] may be detrimental to the movant in other lawsuits.”) (collecting cases).
34. See, e.g., Mine Safety Appliances Co. v. N. River Ins. Co., 73 F. Supp. 3d 544 (W.D. Pa. 2014) (citing Foltz, 331 F.3d at 1137).
35. Garcia, 734 S.W.2d at 348 (“The trial court should have . . . rendered an order preventing dissemination of GMC’s true trade secrets only to GMC’s competitors.”).
36. Court records include pleadings filed with the court, court orders, minute entries, hearing transcripts, trial exhibits, and discovery materials filed with the court in support of dispositive motions.
37. The public has a presumptive common law right to “inspect and copy . . . judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). See also Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 665–66 (D.C. Cir. 2017); Foltz, 331 F.3d at 1135; Bank of Am. Nat. Tr. & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 343 (3d Cir. 1986).
38. Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)).
39. See In re Leopold to Unseal Certain Elec. Surveillance Applications & Orders, 964 F.3d 1121, 1123 (D.C. Cir. 2020) (“The public’s right of access to judicial records is a fundamental element of the rule of law.”).
40. See Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1179 (6th Cir. 1983) (“[S]ecrecy insulates the participants, masking impropriety, obscuring incompetence, and concealing corruption.); Binh Hoa Le v. Exeter Fin. Corp., 2021 WL 838266, at *5–8 (5th Cir. Mar. 5, 2021).
41. See In re Avandia Mktg., Sales Pracs. & Prods. Liab. Litig., 924 F.3d 662, 677–78 (3d Cir. 2019).
42. See Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 307 (6th Cir. 2016) (the district court abused its discretion when it “conflated the standards for entering a protective order under Rule 26 with the vastly more demanding standards for sealing off judicial records from public view.”).
43. Siedle v. Putnam Invs., Inc., 147 F.3d 7, 10 (1st Cir. 1998). See also Kamakana v. City and Cty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006); Cent. Nat’l Bank of Mattoon v. U.S. Dept. of Treasury, 912 F.2d 897, 900 (7th Cir. 1990).
44. Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010) (internal quotations omitted). See also In re Gitto Global Corp., 422 F.3d 1, 6 (1st Cir. 2005); Union Oil Co. of Cal. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000).
45. See Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995).
46. See Union Oil Co., 220 F.3d at 567.
47. Id.
48. See id.; BIC Corp., 869 F.2d at 199.
49. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006); Va. Dep’t of St. Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir. 2004); Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994); Publicker Indus., Inc., 733 F.2d at 1071; Brown & Williamson Tobacco Corp., 710 F.2d at 1177.
50. Globe Newspaper Co. v. Super. Ct. for Norfolk Cty., 457 U.S. 596, 606–07 (1982). See also In re Avandia, 924 F.3d at 673.
51. See Phoenix Newspapers, Inc. v. U.S. Dist. Ct., 156 F.3d 940, 949–51 (9th Cir. 1998).
52. See Joy v. North, 692 F.2d 880, 894 (2d Cir. 1982); see also Hammock v. Hoffmann-LaRoche, Inc., 662 A.2d 546, 561 (N.J. 1995) (sealing insufficient when only date and names of senders and recipients without any detail of substantive content is provided).
53. Kamakana, 447 F.3d at 1181–82. See also Doe v. Public Citizen, 749 F.3d 246, 272 (4th Cir. 2014); Grove Fresh, 24 F.3d at 897.
54. See Brown & Williamson Tobacco Corp., 710 F.2d at 1180–81.
55. Citizens First Nat’l Bank of Princeton, 178 F.3d at 945.
56. In re Vitamins Antitrust Litig., 357 F. Supp. 2d 50, 51 (D.D.C. 2004) (“[W]hen the documents at issue are not crafted by the parties[,] but are orders and opinions issued by the court or documents used by the court in shaping its analysis. At that point, the public does not only have an interest in what the court decides and why it makes its decision; it also has a right to know that information.”) (emphasis in original), cited in  Newman v. General Motors Corp., 2008 WL 5451019, *7 (D.N.J. Dec. 31, 2008).
57. See In re Avandia, 924 F.3d at 677–78.
58. Binh Hoa Le, 990 F.3d at 420–21. See, e.g., Foltz, 331 F.3d at 1127, 1139 (reversing district court’s sealing of court records pursuant to confidential settlement even though parties had stipulated to protective orders governing discovery); Rushford v. The New Yorker Magazine, 846 F.2d 249, 252 (4th Cir. 1988) (noting that once confidential discovery documents are made part of dispositive motions, they lose their protected status “without some overriding interests in favor of keeping the discovery documents under seal.”).
59. Pintos, 605 F.3d at 677–78.
60. Ctr. for Auto Safety, 809 F.3d at 1098.
61. See id. at 1101; United States v. Kravetz, 706 F.3d 47, 54 (1st Cir. 2013); Amodeo, 71 F.3d at 1049.
62. See Romero v. Drummond Co., 480 F.3d 1234, 1245–46 (11th Cir. 2007); Leucadia, Inc. v. Applied Extrusion Tech., Inc., 998 F.2d 157, 164 (3d Cir. 1993).
63. Citizens First Nat’l Bank of Princeton, 178 F.3d at 945 (“The judge is the primary representative of the public interest . . . He may not rubber stamp a stipulation to seal the record.”).
64. See Pintos, 605 F.3d at 678; Foltz, 331 F.3d at 1135–38.
65. See, e.g., N. D. Cal. Civ. Loc. R. 79-5(f), https://tinyurl.com/2p86m7dk.
66. Public Justice’s Court Secrecy Project is dedicated to monitoring, exposing, and fighting unnecessary court secrecy nationwide and has collected materials to help plaintiffs oppose unnecessary protective orders. For more, visit http://www.publicjustice.net/.