“The public’s right of access to judicial proceedings is fundamental. The principle traces back to Roman law, where trials were res publica – public affairs. Public access was similarly fundamental to English common law. Seventeenth-century English jurist Sir Edward Coke explained that ‘all Causes ought to be heard, ordered, and determined before the Judges of the King’s Courts openly in the King’s Courts, wither all persons may resort.’ A century or so later, English philosopher and judge Jeremy Bentham observed, ‘Publicity is the very soul of justice.’

“In this tradition, American judicial proceedings are public. And judges must protect public accessibility for three mutually reinforcing reasons: (1) the public has a right to monitor the exercise of judicial authority; (2) judges are the primary representatives of the public interest in the judicial process; and (3) the judiciary’s institutional legitimacy depends on public trust. Public trust cannot coexist with a system wherein important judicial decisions are made behind closed doors and, worse, private litigants do the closing.

“In our view, courts should be ungenerous with their discretion to seal judicial records, which plays out in two legal standards relevant here. The first standard, requiring only ‘good cause,’ applies to protective orders sealing documents produced in discovery. The second standard, a stricter balancing test, applies once a document is filed on the public record – when a document becomes a ‘judicial record.’ Under both standards, the working presumption is that judicial records should not be sealed. That must be the default because the opposite would be unworkable: ‘With automatic sealing, the public may never know a document has been filed that might be of interest.’

“True, even under the stricter balancing standard, litigants sometimes have good reasons to file documents (or portions of them) under seal, such as protecting trade secrets or the identities of confidential informants. But most litigants have no incentive to protect the public’s right of access. That’s why judges, not litigants must undertake a case-by-case, document-by-document, line-by-line balancing of the public’s common law right of access against the interests favoring nondisclosure. Sealings must be explained at a level of detail that will allow for this Court’s review. And a court abuses its discretion if it makes no mention of the presumption in favor of the public’s access to judicial records and fails to articulate any reasons that would support sealing.

“Here, there is no separate sealing order at all. There is only the protective order entered for purposes of ‘discovery in this matter.’ That order granted the parties wide latitude to designate ‘Confidential’ any information they believed in good faith was ‘not generally known’ and would ordinarily be revealed in confidence or not at all.  In addition, if confidential information appeared ‘in any affidavits, briefs, memoranda of law or other papers filed in court in this action, the entire document was filed under seal. Not only that, the order ‘survives the final termination of this action.’ In other words, the parties decided unilaterally what judicial records to keep secret, and their decision was permanent; once sealed, the records would stay that way.

“And because there is no sealing order, there is no sealing analysis – no reasons given, no authorities cited, no document-by-document inquiry. Instead, the parties wielded nigh-boundless discretion to label things confidential. And again, the secrecy they granted is ‘perpetual’ and ‘wholesale.’ Perhaps most disquieting, documents marked confidential provided the basis for summary judgment – a dispositive order adjudicating the litigants’ substantive rights (essentially a substitute for trial) – yet there was ‘no mention of the presumption in favor of the public’s access to judicial records.’ There was no grappling with public and private interests, no consideration of less drastic alternatives. There was no assurance that the extent of sealing was congruent to the need.

“At the discovery stage, when parties are exchanging information, a stipulated protective order under Rule 26(c) may well be proper. Party-agreed secrecy has its place – for  example, honoring legitimate privacy interests and facilitating the efficient exchange of information. But at the adjudicative stage, when materials enter the court record, the standard for shielding records from public view is far more arduous. This conflation error – equating the standard for keeping unfiled discovery confidential with the standard for placing filed materials under seal – is a common one and one that over-privileges secrecy and devalues transparency.

“Given the judiciary’s solemn duty to promote judicial transparency, we must be alert to conflation errors (extending protective-order standards to material filed with the court). The secrecy of judicial records, including stipulated secrecy, must be justified and weighed against the presumption of openness that can be rebutted only by compelling countervailing interests favoring nondisclosure. All too often, judicial records are sealed without any showing that secrecy is warranted or why the public’s presumptive right of access is subordinated. This mistake harms the public interest, however interested the public is likely to be. Sealings are no less rampant in low-profile cases (like this one) than in high-profile cases featured on the front page (like Bill Cosby’s deposition testimony) or the Oscars stage (like records detailing the cover-up of child sexual abuse, as depicted in 2016 Best Picture Winner Spotlight). And a steady flow of unjustified low-profile sealings is capable of far greater damage –a gradual, sub silentio erosion of public access to the judiciary, erosion that occurs with such drop-by-drop gentleness as to be imperceptible.

“The Judicial Branch belongs to the American people. And our processes should facilitate public scrutiny rather than frustrate it. Excessive secrecy – particularly displacing the high bar for sealing orders with the low bar for protective orders – undercuts the public’s right of access and thus undermines the public’s faith in our justice system.

“Legal arguments, and the documents underlying them, belong in the public domain. American courts are not private tribunals summoned to resolve disputes confidentially at taxpayer expense. When it comes to protecting the right of access, the judge is the public interest’s principal champion. And when the parties are mutually interested in secrecy, the judge is its only champion.

“To be sure, entrenched litigation practices harden over time, including overbroad sealing practices that shield judicial records from public view for unconvincing (or unarticulated) reasons. Such stipulated sealings are not uncommon. But they are often unjustified. With great respect, we urge litigants and our judicial colleagues to zealously guard the public’s right of access to judicial records – their judicial records – so that ‘justice may not be done in a corner.’”

 

Binh Hoa Le v. Exeter Finance Corp., No.20-10377, 2021 WL 838266 (5th Cir. March 5, 2021).