Free Speech

OK to Oppose Sealing of Court Documents Without Local Counsel

... if you're asserting your own rights of access (which all of us have) to court records.

|The Volokh Conspiracy |

As I mentioned yesterday, the U.S. District Court in New Jersey in Bonner v. Justia, Inc. denied plaintiff's request for a sealed opinion in that case. I had moved to intervened to oppose the motion, and the court granted my motion.

But not at first: In March, when I first filed a letter brief opposing the motion to seal, the court rejected it, writing "In order for Mr. Volokh's letter to be considered he must be represented by counsel or … be retained as an expert by a party to the action." And it's true that (1) I'm not a member of the bar of the District of New Jersey, and (2) I wasn't represented by a member of that bar.

Yet I thought I didn't need a lawyer, because I was representing myself, asserting my own personal right of access to court records. I therefore asked the court to reconsider its denial, arguing,

Proposed intervenors may appear pro se to assert their own rights, just as plaintiff may appear pro se to assert his own claimed rights. Indeed, District Courts have allowed such pro se intervention in cases seeking unsealing of documents. [Citations omitted.] …

The Hawaii Supreme Court has recently analyzed the matter in more detail, and likewise concluded that a writer could move pro se to unseal a case, without representing his publication, even though he was planning to write an article in that publication. "Any member of the public may assert a personal right to access judicial proceedings and records," the court concluded, and "the right of self-representation exists in both criminal and civil proceedings"; because of this, "Grube was permitted to prosecute his own cause before the [state trial] court, and the court erred by requiring him to retain counsel to enforce his personal right." Grube v. Trader, 420 P.3d 343, 359-60 (Haw. 2018). The same analysis should apply in federal court, to pro se intervention in order to oppose sealing of documents.

And while I likely could have gotten someone to represent me pro bono and avoid this whole problem, that's because I have the luxury of a pretty substantial network of lawyer friends and associates (stemming in large part from this very blog). Many others lack that, and they ought to be able to intervene representing themselves:

Journalists and other commentators usually seek to intervene to unseal cases without having a financial stake in the dispute. They (and their employers) profit only indirectly and speculatively, if at all, from getting access to the documents. If journalists always had to pay a lawyer to assert their own rights of access, they would often be practically unable to seek unsealing, even though they had the First Amendment right to do so; and while pro bono local counsel are sometimes available, but journalists cannot count on such largesse. Journalists and other writers should thus be at least as able to intervene pro se as plaintiffs are able to file their complaints pro se.

I'm pleased to say that the court in Bonner ultimately agreed with me on this:

Professor Volokh has identified several cases in which courts have permitted an interested party like himself to file similar motions to intervene pro se. See, e.g., In re Application-cr-1101 (ILG), 891 F. Supp. 2d 296 , 297-98 (E.D.N.Y. 2012); FTC v. OSF Healthcare Sys., [2012 BL 82337], 2012 WL 1144620 , at 1 (N.D. Ill. April 5, 2012); In re Sealed Search Warrants Issued June 4 and 5, 2008, [2008 BL 160272], 2008 WL 5667021 (N.D.N.Y. 2008). Professor Volokh has also cited cases in which he has intervened pro se to oppose a motion to seal or to file a motion to unseal. See Furtado v. Henderson, [2018 BL 463193], 2018 WL 6521914 (D. Mass. Nov. 26, 2018); Barrow v. Living Word Church, No. 3:15-CV-341 (S.D. Ohio Aug. 16, 2016); Doe v. Does, No. 1:16-CV-7359 (N.D. Ill. Mar. 11, 2019); Parson v. Farley, 352 F. Supp. 3d 1141, 1147 Okla. 2018 )….

"Any interested person may move to intervene pursuant to Fed. R. Civ. P. 24(b) before the return date of any motion to seal or otherwise restrict public access or to obtain public access to materials or judicial proceedings filed under seal." L. Civ. R. 5.3(c)(5) . The Third Circuit has "routinely found, as have other courts, that third parties have standing to challenge protective orders and confidentiality orders in an effort to obtain access to information or judicial proceedings." Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777 (3d Cir. 1994). "[T]he procedural device of permissive intervention is appropriately used to enable a litigant who was not an original party to an action to challenge protective or confidentiality orders entered in that action." Id. at 778….

The court did add, "Professor Volokh's motion to intervene pro se is more like an application to appear as amicus curiae, as he has special knowledge of this area of law. As such, Professor Volokh is allowed to file a brief and argue the merits of the motion to seal." I'd quibble with that: Though I like to think my arguments were helpful to the court, I was trying to intervene to assert my own rights, and I think my rights in this respect were no greater than the rights of anyone else who seeks a right of access to court records, regardless of whether that person "has special knowledge of this area of the law." (Again, see Grube v. Trader, where the Hawaii Supreme Court allowed pro se intervention by a journalist who appeared to have no specialized legal knowledge.)

But in any event, I think the Bonner decision, and the cases it cites, might be helpful to people who want to intervene pro se to oppose the sealing of court records.

NEXT: Brickbat: I Hear You Knocking

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  1. I had also thought the judge’s comment that as an expert you could be regarded as a kind of amicus curiae very odd, for the reasons you gave. You were a party. You were appearing because you had a personal interest in the matter sufficient to give you standing. A party can’t act as an amicus curiae. As an expert, your expertise would give your arguments force of persuasion. But when you are a party they shouldn’t give you force of authority.

    Perhaps the judge was giving you amici’s curiae status as a way to let you appear without overturning the original decision, which agree was erroneous.

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