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It is a whole lot harder to file documents under seal than it used to be.  We recall an MDL in the early 2000s where the parties filed everything under seal over the course of multiple years—litigating for the viewing pleasure of our “friends and family,” as the district judge often chided us.  Times have changed.  In our home state of California, filing under seal is now such a hassle that it adds substantial time and expense to any filing of truly confidential documents.  But we jump through the hoops anyway for the benefit of our clients, if not for the sake our hard-working paralegals and assistants. 

You might think, what about protective orders?  If we enter into a stipulated protective order, we can file “Confidential” documents under seal, correct?  Well, the answer is not always, and it depends primarily on how confidential the information is, but also on other factors, including what the court does with the information, whether it is relevant to the case, and who requested the sealing.     

Take for example In re Birmingham Hip Resurfacing Hip Implant Products Liability Litigation, No. 1:17-md-2775, 2024 WL 1050925 (D. Md. Mar. 11, 2024).  In that case the plaintiffs took advantage of a protective order to receive enormous volumes of confidential information from the defendant—information that they might otherwise not have received and all of it marked “Confidential” under the protective order.  The plaintiffs did not object to any of the confidentiality designations when they were made, and the plaintiffs themselves filed multiple “Confidential” documents under seal.  Significantly, the plaintiffs often filed entire documents under seal, even when they were relying solely on certain portions.  Id. at *1.

Now, “as the MDL nears its conclusion” (the court’s description, not ours), the plaintiffs want to unseal certain documents over the defendant’s objection.  You can see what is going on here.  The plaintiffs took advantage of a stipulated protective order to obtain “countless documents” (again, the court’s description, not ours) from the defendant, and they relied on that same protective order to load up the public record with entire documents designated “Confidential,” even when they did not need to. 

Then, when all was said and nearly done, the plaintiffs turned around and requested that many of these documents unsealed and placed in the public record.  The consequences are significant.  Having relied on the protective order in producing proprietary and other sensitive information, the defendant was at risk of having its Confidential documents released into the public record, where anyone and everyone can view them at their pleasure. 

Note here that the plaintiffs were not acting in their own interest.  They and their lawyers already had access to the documents.  We are talking here about public access.  We favor and embrace litigation within the public’s view, but we can’t help but question the plaintiffs’ strategy when they freely and affirmatively participated in loading up the court file with “Confidential” documents, often gratuitously, then pulled a veritable switcheroo before getting out of dodge.  We can only suppose they wanted to make those documents available to their own friends and family (and their press agents) for purposes unknown, but presumably not to tout the defendant’s good deeds. 

The district court largely shot them down, noting that the plaintiffs could not so blithely reverse course on agreed confidentiality:

The documents at issue have already been sealed either at the Plaintiffs’ request or without their opposition. . . .  Although the presumption is in favor of public access to documents, courts in this circuit have repeatedly recognized that it is inappropriate for a party to weaponize the public right of access to undermine a protective order to which it agreed.

Id. at *3 (emphasis added).  Those are pretty strong words, and “weaponize” is (again) the court’s description, not ours.  The court further emphasized that protective orders are “essential to the efficient functioning of the discovery process” in complex cases and that defendants are entitled to rely on them.  Id.  Thus, while the First Amendment right of access to judicial records is vital and important, it is not unlimited; and it must be balanced against the confidentiality granted by protective orders upon which parties in litigation rely. 

What follows is an exacting, document-by-document analysis of the materials at issue—governmental documents, analysis of foreign registries, internal audits and analyses, employee information, strategy documents, and training materials.  All but a few of the documents were exhibits to dispositive motion papers or were exhibits at trial.  The court made clear that, having already sealed the documents, in would consider “limited unsealing . . . focusing on instances where the balance of interests in sealing has significantly changed since the seal was imposed.”  Id. at *5.  In this regard, the key “change” was that the court cited portions of certain exhibits in its rulings, and “the public interest in access is naturally heightened for sections of a sealed documents that the court cited.”  Id. 

Why is this important?  Recall that many documents were unnecessarily filed under seal in their complete form, containing “extensive information not relevant to the proposition for which they were submitted.”  Id.  The result is that the court was judicious in ordering information unsealed.  The parties agreed that certain documents could be unsealed, and the court made it so.  Where the plaintiffs themselves filed documents under seal, the court took the plaintiffs’ request to unseal those same documents with a large grain of salt.  Sensitive business information and trade secrets stayed under seal; and even when unsealing documents, the court ordered sensitive information to be redacted.  The court, however, rejected redaction as a solution where it would create unnecessary work for the parties with little benefit to the public.  Under those circumstances, documents remained sealed.  E.g., id. *7. 

Some documents contained proprietary information acquired from third parties under separate confidentiality agreements.  The court noted multiple times that it was not bound by these third-party agreements.  “Nevertheless, the fact that documents contain a third party’s proprietary information weighs in favor of sealing.”  Id.  In the end, the court clearly valued most highly whether the information the plaintiffs wanted in the public record was “relevant.”  If the court did not rely on the information in making its rulings, the information remained under seal.  The court was clearly irritated with the overabundance of irrelevant “Confidential” information in the record, and its order keeping those documents under seal reflects the court’s conclusion that the public has little interest in access to judicial records that never should have been filed in the first place.  By the way, we check the docket from our early 2000s MDL where we filed everything under seal.  Those documents are still sealed.