“The plaintiffs’ bar has been inappropriately using the pre-trial discovery process to force the public release of confidential business documents. The appeals court’s decision abets those efforts by adopting an overly stringent standard for maintaining the confidentiality of documents obtained through pre-trial discovery.”
—Richard Samp, WLF Chief Counsel
WASHINGTON, DC—Washington Legal Foundation (WLF) today called on the U.S. Supreme Court to review and overturn a decision by the U.S. Court of Appeals for the Ninth Circuit that undermines the ability of companies engaged in litigation to prevent the disclosure of confidential information. In a brief filed in FCA US LLC v. The Center for Auto Safety, WLF argues that the appeals court adopted an improperly stringent standard for determining when a federal district court may grant a party’s request to seal court records.
Federal court rules grant parties to a lawsuit broad rights to inspect an opposing party’s records, in order to prepare their case for trial. If a party objects that documents it is being forced to turn over contain confidential information, judges routinely grant “protective orders” that prevent the recipient from publicly disclosing designated documents; such orders can be granted for “good cause.” When the lawsuit concludes, the recipient is required to return all such confidential documents. But if the confidential document is submitted to the court as an exhibit (either at trial or in connection with a substantive pre-trial motion), a question arises regarding whether the document is now a “judicial record” that the public has a right to see.
The Ninth Circuit ruled that, once a document is attached to a substantive motion, a “strong” presumption of public access arises, and only “compelling reasons” can justify non-disclosure. WLF’s brief argues that the Ninth Circuit decision conflicts with decisions both from the Supreme Court and from other federal appeals courts; those other courts apply a far-less-demanding “good cause” standard. WLF also argued that the Ninth Circuit’s decision will cause chaos in the pre-trial discovery process, which depends on cooperation among litigants to operate smoothly. WLF asserted that litigants are far more likely to challenge document requests if they come to believe that protective orders will not prevent the public disclosure of confidential information contained in discovery material.
Upon filing its brief, WLF issued the following statement by Chief Counsel Richard Samp: “The plaintiffs’ bar has been inappropriately using the pre-trial discovery process to force the public release of confidential business documents. The appeals court’s decision abets those efforts by adopting an overly stringent standard for maintaining the confidentiality of documents obtained through pre-trial discovery. The Supreme Court needs to correct the appeals court’s error to prevent the wholesale destruction of valuable intellectual property rights.”
WLF is a free-market, public-interest law firm and policy center that seeks to protect property rights, including intellectual property threatened by disclosure in court proceedings.