The presumption of openness as practiced by judges and parties

February 12, 2015

Insurance LawThe parties must show why the things they want to keep out of the public eye should be sealed.   This is the takeaway from previous articles in this series regarding Secrecy Stipulations.  See “The Default Presumption of Public Access to Court Records is Rebuttable”; previously posted articles in this series can be found on Legal Solutions Blog on January 28, February 3 and February 5, 2015.

The question often posed by experienced practitioners is whether the Judges themselves follow this legal rule.  This last article in the series will answer that question with visits to actual Court files in past and pending cases.

In practice, U.S. District Judges and U.S. Magistrate Judges do not always or often require the parties to show why the documents deserve to be sealed which the parties declare should be sealed.  Rather, for whatever reason, whether because of considerations of time or inconvenience or for other reasons in particular cases, the Courts often endorse the parties’ private arrangements for keeping documents and testimony out of the public eye.

Put yourself in the position of these Judges, however.  They are confronted with a request for confidentiality that has been stipulated by the parties.  That means no party opposes the request and there will be no argument about it.  Typical secrecy stipulations in litigation provide that the parties shall mark as “CONFIDENTIAL” the materials which they want kept secret.  If a party or even a nonparty including but not limited to an expert witness receives a document or transcript of testimony which has been marked “CONFIDENTIAL,” the parties stipulate that they will only use that material in the pending case.  They further agree that at the end of the case, they will destroy or return all such material – and so will nonparties.

Further, and irrespective of the default legal presumption that materials filed in a public file are open to public view, secrecy stipulations also typically provide that the parties may not file information marked “CONFIDENTIAL” in the public record.  Further, if the supposedly “CONFIDENTIAL” information is ever provided to the Court to review in that case – which is not a frequent occurrence in itself – then the parties also stipulate that the material must be filed under seal, effectively sealing the materials completely since the Judges frequently will not have a chance to rule on confidentiality of particular materials before the case is settled.

Representative examples of such secrecy stipulations have been filed in cases across the United States.  See, e.g., Weller v. HSBC Mortgage Serv’s, Inc., Dkt. No. 83-1 (parties’ stipulated proposed order) filed Sept. 11, 2013 and Nos. 85 and 86 (identical Order entered by the Court) filed Sept. 12, 2013 (D. Colo. Case No. 1:13-cv-00185-REB-MJW); and McKenzie v. Wells Fargo Bank, N.A., Dkt. No. 94  (parties’ proposed stipulated protective order) and No. 95 (stipulated protective order) filed March 14, 2013 (N.D. Cal. Case No. 3:11-cv-04965-JCS).