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A Protective Order Doesn't Guarantee Sealing

Karen L Stevenson


  • Parties often want to protect disclosures made during discovery and, as a result, frequently file for protective orders under FRCP 26(c). 
  • Two common mistakes seen are 1) not including a statement of "good cause" 2) including language that any document subject to the protective order will automatically be filed "under seal."
A Protective Order Doesn't Guarantee Sealing
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As a federal magistrate judge, I routinely grant requests for protective orders. I also frequently deny motions to seal. Parties often want to protect disclosures made amongst themselves during discovery, and, as a result, they frequently file for protective orders under Federal Rule of Civil Procedure 26(c). The two most common mistakes I see in proposed stipulated protective orders are: (1) failing to include a statement of "good cause"; and (2) including language in the proposed protective order requiring that, if any document subject to the protective order is attached to a court filing, it will automatically be filed "under seal."

Not knowing the difference between the standard that applies to the type of relief sought can have dire consequences for lawyers and clients. The common mistakes with these motions arise from a litigant's failure to fully appreciate that public access to court records is fundamental to our judicial system. These mistakes also reflect a failure to appreciate that, at least in federal court, two different legal standards govern what it takes to protect information exchanged in discovery versus sealing from public access documents filed in the court record. Understanding the legal concerns that form the basis for the different standards will help litigators increase the likelihood of success when filing for a protective order and a motion to seal.

Fortunately, the lessons to improve your chances of success are straightforward even if the rules aren't. First, know the difference between the standards governing protective orders and those for sealing. Second, have a clear understanding of how you need to use the specific information—is protection needed only for exchange in discovery or are you attaching the document to a court filing? Third, carefully prepare your motion to seal so that you articulate for the court the strongest possible reasons for denying public access to a court record. Don't argue in generalities. Marshall your evidence to demonstrate specific, concrete harm if the information is subject to the presumption of public access.

Protective Order

Courts have inherent power to grant confidentiality orders. Rule 26(c) provides, in part, that "The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . including . . . requiring a trade secret or other confidential research development, or commercial information not be revealed or be revealed only a specified way[.]" Fed. R. Civ. Proc. 26(c)(1)(G). Before approving a proposed protective order, therefore, the court needs a showing of "good cause."

"Good cause" is not a difficult standard to meet. A simple statement in the opening paragraph advising the court that the parties anticipate the exchange of sensitive, proprietary, or personally identifying information that is subject to applicable state and/or federal privacy statutes is sufficient. In fact, on my court procedures webpage, I have a template for a stipulated protective order in Word format and encourage litigants to use the recommended form, which directs them to include the necessary "good cause" statement. Still, more often than not, I receive proposed protective orders that contain no statement of "good cause" whatsoever.

Under these circumstances, I return the document to the parties and ask them to correct it before I will sign off. Why? Because the federal rules require the proper showing by the party seeking protection before I enter a protective order. Blanket protective orders are not permitted. The party asserting "good cause" for the protective order bears the burden of showing as to each particular document, specific prejudice or harm will result if I don't enter a protective order.

Once we get past the "good cause" showing, the second common mistake is that parties often include language that provides for mandatory filing "under seal" of any document designated as protected under the protective order. Not so fast. Parties cannot presume that what is confidential in discovery will be sealed when the document is attached to a motion or other court filing.

While "good cause" suffices to put a protective order in place governing discovery disclosures, getting an order to seal a court record from public disclosure is an entirely different matter. Sealing a court record generally requires a much higher showing of "compelling reasons."

This stringent standard causes me to regularly revise proposed protective orders to indicate that if a party wants to file confidential information with the court, they may bring an application to seal under the procedures provided in the local rules. There are no guarantees an application to seal will be granted, because the sealing analysis is distinct from what's needed to put a protective order in place.

Sealing Court Records

The public's right of access to judicial proceedings and judicial records is beyond dispute. It is a hallmark of our judicial system. As a result, in federal court, a party seeking to seal a judicial record must overcome the strong presumption in favor of access to court records by demonstrating "compelling reasons" supported by specific factual findings. When considering a request to seal, the court must carefully balance the competing interests of the public's right of access and the party seeking to keep the judicial records secret.

It is important to recognize, too, that the presumption of access attaches to court records. Just because a document is designated as confidential information covered by a protective order does not automatically convert the document into a "judicial record." In Pansy v. Borough of Stroudsburg, the Third Circuit emphasized that "when a court enters an order of protection over documents exchanged during discovery, and these documents have not been filed with the court, such documents are not, by reason of the protective order alone, deemed judicial records to which the right of access attaches." Likewise a party can request to have a document sealed that may not necessarily be subject to a protective order.

"Compelling reasons" is a standard that requires close scrutiny of the facts. It isn't enough that the litigants do not want the information to be disclosed. And don't assume that if the parties are willing to stipulate to seal a document in the court record, that it is sufficient get the court to enter a sealing order. It is not. To get a court record sealed, the requesting party should be prepared to show that the record at issue might be used, for example, to do serious harm to a litigant's competitive standing, or that the information could be used in spiteful, salacious ways against an individual, or even that the information is personal identifying information that is protected by statute, such as the Health Insurance Portability and Accountability Act of 1992 (HIPAA) or the Family Educational Rights and Privacy Act (FERPA). But even so, the analysis may not end here.

If the document that you want to seal is already covered by a protective order and is attached to a nondispositive motion, then, the lower "good cause" standard may apply. Confused yet? The Ninth Circuit has carved out an exception to the "compelling reasons" standard for confidential materials that are already subject to a protective order under Federal Rule of Civil Procedure 26(c)(1) and are attached to a nondispositive motion. For such documents, the Ninth Circuit only requires a showing of "good cause." How do you know if the motion is dispositive or not? Well, that's where it can get tricky.

Discovery motions are generally viewed as unrelated to the merits of a case. Summary judgment motions, on the other hand, are typically considered dispositive because they adjudicate the parties' substantive rights and can serve as a substitute for trial. So, for example, potentially confidential documents attached to a discovery motion could be sealed on a showing of "good cause"—using the same showing required for a protective order—while documents attached to a summary judgment motion can be sealed only on a showing of "compelling reasons." But there are lots of different kinds of motions between discovery and summary judgment. How does a party know where the court will draw the line?

Unwilling to take a mechanical approach to determining dispositive versus nondispositive motions, in The Center for Auto Safety v. Chrysler Group, LLC, the Ninth Circuit grappled with the issue and concluded that public access will turn on whether the motion is "more than tangentially related to the merits of a case." The result in Chrysler Group, was that while the court found a motion for preliminary injunction to be "technically nondispositive," because the motion was more than tangentially related to the merits, the circuit panel remanded the case to the district court to consider whether certain attached documents could be sealed under the "compelling reasons" standard.