I recently posted on a local case where the Electronic Frontier Foundation (EFF) had been granted leave to intervene in a pending case to challenge the filing of certain document under seal.
Yesterday Judge Caroline Craven granted EFF's motion to unseal court records, and in doing so provided an overview of the law governing the sealing of court records. "[C]ourts have recognized '[t]here is a strong presumption in favor of a common law right of public access to court proceedings.' The presumption must not be dismissed lightly given the dangers that come from
restrictions on public access.'" (Internal citations omitted).
The Court went on to note that in the Fifth Circuit, it is an abuse of discretion for a district court to seal documents without first determining whether the rationale for sealing justifies depriving the public access, and that the presumption of public access applies to judicial records, including court decisions and filings on which those decisions rest. "Even if a party may legitimately claim confidentiality in some information contained in a court filing," Judge Craven wrote, "that does not justify completely sealing that entry from public scrutiny. Even with documents implicating the most sensitive national security concerns, '[i]t is difficult to conceive any circumstance under which permanent sealing of the entire file, including the order itself, could ever be justified. . . . Legitimate confidentiality interests will almost always be fully accommodated by redacting the troublesome words or passages.'” (Again, internal citations omitted).
Heading over to the Federal Circuit to have a look-see at its standards on this issue, Judge Craven noted that it, too, has cautioned against excessive sealing practices—for example, of a party’s legal arguments—that “bespeak an improper casual approach to confidentiality markings that ignores the requirements of public access, deprives the public of necessary information, and hampers [a] court’s consideration and opinion writing.” (Again, well, you get the picture about internal citations. But love the use of "bespeak" w/2 of "improper casual").
After reviewing the applicable law, the Court gave the parties 14 days to file redacted copies of certain filings, specifically the summary judgment briefing, briefing on a motion to strike, and three reports and recommendations, with particularized showings required regarding any portions that it seeks to seal. It chose this procedure over EFF's proposed procedure that would have required the parties to file motions for protective order, noting that the burden was still on the party seeking to protect the information to both file a redacted version, and to make a showing as to anything sought to be redacted, and that the proposed procedure would prolong the issue. It specifically noted that "[t]he Court favors unsealing all of the Court’s Reports and Recommendations and the objections/responses thereto," but that before doing so, it would allow the parties to address whether there were any limited portions that contain confidential information.
Finally, the Court considered the plaintiff's argument the Court should deny access because the documents may be used for improper purposes, such as embarrassment and harassment or to reveal sensitive business information. Plaintiff noted that EFF has said bad things about it, and claimed that EFF is promoting the agenda of one of its contributors, Google. The Court disagreed that this required sealing. "EFF is a public interest organization," the Court wrote, "actively involved in the patent reform debate. EFF relies on publicly available documents, including court filings, to inform the public about the debate and to report on abusive patent litigation tactics. EFF acknowledges it has written about Blue Spike’s allegations of infringement in the past and argues it has a continuing interest in understanding Blue Spike’s claims." Noting that the power to seal must be used sparingly, the Court concluded that the asserted confidentiality right had not been shown to overcome the "strong competing right in public access."