Following a decision of the District Court granting summary judgment to GlaxoSmithKline, the losing parties, two health benefit plans, appealed from that final order.  While briefing the appeal, the parties sought to include in their joint appendix certain documents filed in connection with the summary judgment proceedings. GSK had previously designated some of these documents as confidential and contended that they should remain so on appeal; the plans disagreed. The District Court largely sided with GSK, refusing to unseal most of the documents. The plans appealed the District Court’s two post-judgment sealing orders, and the U.S. Third Circuit Court of Appeals vacated and remanded.

“We apply three distinct standards when considering various challenges to the confidentiality of documents. We apply the factors articulated in Pansy when we review orders preserving the confidentiality of discovery materials pursuant to Federal Rule of Civil Procedure 26. But we apply the more rigorous common law right of access when discovery materials are filed as court documents. In addition to recognizing fewer reasons to justify the sealing of court records, the public right of access – unlike a Rule 26 inquiry – begins with a presumption in favor of public access.  Finally, the First Amendment right of public access attaches to, inter alia, civil trials.

“A protective order is intended to offer litigants a measure of privacy, while balancing against this privacy interest the public’s right to obtain information concerning judicial proceedings. A protective order may apply to all litigation materials – not just those filed in court – because courts have inherent power to grant orders of confidentiality over materials not in the court file. The proponent of the protective order shoulders the burden of justifying the confidentiality of each and every document sought to be sealed. The District Court must balance the requesting party’s need for information against the injury that might result if uncontrolled disclosure is compelled. The party seeking a protective order over discovery material must demonstrate that ‘good cause’ exists for the order. Good cause means that disclosure will work a clearly defined and serious injury to the party seeking closure. The injury must be shown with specificity. To that end, broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not support a good cause showing.”

“Analytically distinct from the District Court’s ability to protect discovery materials under Rule 26(c), the common law presumes that the public has a right of access to judicial materials. In both criminal and civil cases, a common law right of access attaches to judicial proceedings and records. The common law right of access antedates the Constitution. The right of access promotes public confidence in the judicial system by enhancing testimonial trustworthiness and the quality of justice dispensed by the court.  Public observation facilitated by the right of access diminishes possibilities for injustice, incompetence, perjury, and fraud.  Moreover, the very openness of the process should provide the public with a more complete understanding of the judicial system and a better perception of its fairness. The right of access includes the right to attend court proceedings and to inspect and copy public records and documents, including judicial records and documents….  Once a document becomes a judicial record, a presumption of access attaches….  Summary judgment proceedings are no exception – documents filed in connection with a motion for summary judgment are judicial records.”

“Finally, the public and the press have a First Amendment right of access to civil trials.  Although the constitutional right of access is not absolute, as a First Amendment right it is to be accorded the due process protection that other fundamental rights enjoy. It remains an open question in this Circuit whether the First Amendment right of access applies to records of summary judgment proceedings. We use a two-prong test to assess whether the right of access attaches: (1) the experience prong asks whether the place and process have historically been open to the press; and (2) the logic prong evaluates whether public access plays a significant positive role in the functioning of the particular process in question.  If both prongs are satisfied, a qualified First Amendment right of public access attaches. The First Amendment right of access requires a much higher showing than the common law right of access before a judicial proceeding can be sealed.  Any restriction on the right of public access is evaluated under strict scrutiny.  If the First Amendment right of access applies, there is a presumption that the proceedings will be open to the public.  The party seeking closure may rebut the presumption of openness only if able to demonstrate an overriding interest in excluding the public based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The party seeking closure or sealing in the face of the First Amendment right of access bears the burden of showing that the material is the kind of information that courts will protect and that there is good cause for the order to issue.  Good cause means that disclosure will work a clearly defined and serious injury to the party seeking closure; the injury must be shown with specificity.  For example, an interest in safeguarding a trade secret may overcome a presumption of openness. Bad business practices, in the absence of other circumstances, do not overcome the presumption.”


In re Avandia, 924 F.3d 662 (5th Cir. 2019).