Category, Not Function, Determines a Public Judicial Record
The U.S. Court of Appeals for the Eleventh Circuit affirmed the district court’s ruling and concluded that the filings qualified as judicial records to which the common law right of access to judicial proceedings attached. It explained though discovery filed in connection with discovery motions does not automatically qualify as a judicial record, “discovery material filed in connection with pretrial motions that require judicial resolution of the merits is subject to the common-law right.” Because the preliminary injunction motion was on the merits and the emails were filed in support, the appellate court concluded that all were judicial records subject to the right of public access.
In so holding, the Eleventh Circuit rejected UNOS’s call for a “functional approach” in determining what qualifies as a judicial record. UNOS contended that whether a document is a judicial record “depends on the document’s relationship to the court’s decision on a disputed issue.” The appellate court explained that “[w]hat matters is how the document was used by the parties—to support an argument before the court—and not whether the court itself used the document to resolve that argument.”
Sealing Is Not a Sanction for Misconduct
Nor did the Eleventh Circuit buy UNOS’s argument that good cause remained to keep the documents sealed. Since the public’s right to access judicial records is not absolute, courts determine whether good cause exists by balancing the right of access against a party’s interest in keeping information confidential. The appellate court explained that the factors weighed include “whether allowing access would impair court functions or harm legitimate privacy interests, the degree of and likelihood of injury if made public, the reliability of the information, whether there will be an opportunity to respond to the information, whether the information concerns public officials or public concerns, and the availability of a less onerous alternative to sealing the documents.” Because the documents related to a matter of public concern rather than trade secrets or proprietary information, the Eleventh Circuit concluded that the real interest in sealing lay in preventing public embarrassment, which did not amount to good cause.
The appellate court likewise rejected UNOS’s contention that unsealing might incentivize bad-faith litigants to use substantive fillings as “Trojan horses” to publicize irrelevant, but embarrassing, material. It was reluctant to use sealing as a “punishment for bad behavior” and suggested that other remedies, like a motion to strike, might be used to protect litigants from weaponized filings.
An Ounce of Prevention Is Worth More than a Pound of Cure
Should unflattering documents be put into the court record in bad faith, Litigation Section leaders suggest that ethical sanctions might be warranted. The ABA Model Rules of Professional Conduct could be used to protect against the improper disclosure of discovery material, notes Laura Lin, San Francisco, CA, cochair of the Section’s Ethics & Professionalism Committee. Rules 4.4 and 8.4 make clear that lawyers cannot add a document to the record for an improper purpose without the risk of sanctions, Lin explains.
Counseling clients about the risks of sending “unguarded” communications is another option to prevent the unwanted disclosure of sensitive information, adds John M. Barkett, Miami, FL, cochair of the Section’s Ethics & Professionalism Committee. “Don’t write it if you would not want it to appear on the front page of every newspaper (in paper or digitally) in America,” counsels Barkett. This cautionary advice is particularly important given the often knee-jerk, reactionary speed of modern communication, agrees Joseph V. Schaeffer, Pittsburgh, PA, cochair of the Litigation Section’s Pretrial Practice & Discovery Committee. The “immediacy of [these] communications is a significant factor in how ill-advised emails come into existence,” he notes.
Additionally, the litigation hold can be crafted to remind clients that their communications are “presumptively discoverable and to be mindful as to what you say,” Schaeffer suggests. Training can also help clients become more conscious of how their communications can be used in litigation, according to Lin. But the best tool, Schaeffer states, is “reinforcement,” by reminding clients that any communication might wind up haunting them in the public record.