Presumption that court records are open to the public: The default rule

January 28, 2015

Insurance LawThe default presumption is that court records are open to the public.  At least when documents affect the outcome of federal litigation, federal courts indulge in a presumption that the documents that were at the heart of the parties’ dispute and of the courts’ resolution, then the documents should be available to the public.  Even when the parties all agree that certain documents should be sealed and kept away from public view, the default presumption in the federal courts is to keep their records open.  A 2012 Pocket Guide published for federal courts by the Federal Judicial Center, for example, instructs federal judges that “[i]t is only proper for the court to issue the [protective] order upon the court’s finding that the order is supported by good cause.”  Robert Timothy Reagan, “Confidential Discovery:  A Pocket Guide on Protective Orders,” p. 6 (Federal Judicial Center 2012).

Some federal courts split open this default presumption to apply differing standards of proof for sealing “dispositive motions” and their exhibits, which require “compelling” reasons in order to be sealed, on the one hand, and “nondispositive motions” and their exhibits, which require a showing of good cause to seal each and every particular document for which sealing is requested, on the other hand.  A dispositive motion is one which will decide or dispose of the case, such as a motion for summary judgment.  All other motions are nondispositive, by definition.  Both sets of motions, dispositive and nondispositive, require more than broad allegations of harm; saying that a record must be sealed is not enough by itself to seal a federal court’s record.

As Judge Richard Posner has put it in a case in which he served as motions judge for the Seventh Circuit and in which the parties offered only one reason for their motion to keep their settlement agreement secret, and that reason was that they made a confidentiality agreement:  “Obviously, that’s insufficient, and I could stop there ….”  Goebel v. Boley Int’l (H.K.) Ltd., 738 F.3d 831, 835 (7th Cir. 2013).

Next:  The Default Presumption of Public Access is Rebuttable.