Free Speech

"Once the Cat Is Out of the Bag, the Ball Game Is Over"

It's often very hard to get court filings retroactively sealed.

|The Volokh Conspiracy |

In January, I blogged about an interesting Colorado case, in which the defendants moved to retroactively seal some previously filed court documents. I opposed the motion, and the movant narrowed it, but added this request:

Finally, to ensure that the Restriction is implemented, and in the face of Professor Volokh's expressed desire to publish documents from this case, which publication would seriously harm Bonsai's business interests, Bonsai requests that this Court's order specify that no publication of these documents (or redacted portions of documents) be published, regardless of whether these documents were previously available on the court's website or otherwise.

That, I argued to the court, would violate my free speech and free press rights, and not just my right of access to court records. Once someone has downloaded publicly accessible documents, that person has a right to quote them and write about them, and that right cannot be taken away by retroactively sealing the documents. The sealing order could bar future access to the documents in the court file, and might also constrain the parties to the case. But it can't bar continued speech about those documents by outsiders who had lawfully accessed them. (Cf. Florida Star v. B.J.F.)

The motion was resolved a few days later (following an excellent telephonic oral argument by my student Jennifer Wilson), but I got distracted and neglected to blog an update; so here it is.

[1.] Magistrate Judge Michael E. Hegarty didn't reach the gag order question, because he denied the motion to seal, thus rendering the gag order request moot.

[2.] And he denied the motion to seal chiefly relying on his opinion four years before in Gunn v. WCA Logistics, LLC, No. 13-cv-02197-WJM-MEH, 2016 WL 7868827, at *1 (D. Colo. Jan. 12, 2016). He didn't issue a detailed written order, but this passage from Gunn summarizes the matter well:

The documents at issue in Defendants' motion were not filed under [seal]…. Only [some weeks later] did Defendants seek to [seal] the documents. Because Defendants failed to avail themselves of the protections provided by the District's local rules in filing [the documents], any claim to confidentiality has been waived. The cat has already been let out of the bag. Cf. Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 n.11 (2d Cir. 2004) ("Once the cat is out of the bag, the ball game is over.") …. After-the-fact sealing should not generally be permitted. See id. at 144 ("… We simply do not have the power, even were we of the mind to use it if we had, to make what has thus become public private again.").

To be sure, mistakes happen, and in my experience attempts to seal filed just a day or two after an erroneous open-court filing are sometimes granted. But once you wait weeks, and especially once others see the cat and decide to post a cat video of it on the Internet, the feathers don't go back into the pillow. Courts actually give lawyers considerable latitude to fix procedural errors, especially if the lawyers ask nicely and contritely enough. But some errors are hard or impossible to fix; missed jurisdictional deadlines are a classic example, and so are erroneous filings in open court (again, especially if the request comes after weeks or months rather than days).

[3.] Attempts to unseal can work even years after the sealing, see, e.g., EEOC v. Nat'l Children's Ctr., 146 F.3d 1042, 1047 (2d Cir. 1998); Blum v. Merrill Lynch Pierce Fenner & Smith Inc., 712 F.3d 1349, 1354 (9th Cir. 2013); United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990). But some court rules strongly prefer prompt objections to motions to seal—the District of Colorado seeks objections basically within four business days of the motion, which is posted on the District's web site. As a result, I had to move to oppose sealing right away, if I wanted to easily write about the case in the future; otherwise, moving to unseal later would be dicier and at least more time-consuming. I hope to write more about the case, which involves interesting issues of tort law, waivers of liability for recreational activities, and zip-line accidents, as more develops.

But in the meantime, here's one of the documents that the court ruled couldn't be sealed; it was filed as an attachment to the Complaint. (Of course, though it is potentially relevant to the case, it is by no means dispositive of whether the company is liable, and for all I know they may be entirely not at fault.)

NEXT: Mandatory Voting Will Build Resentment, Not Democracy

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. But if the genie gets out of the bottle (which can happen if you unring the bell), it may be able to put the toothpaste back in the tube.

  2. What ball game uses a “cat in a bag”?

    Seems like animal cruelty.

    1. Yes, it was indeed old-fashioned animal cruelty. If you tie a cat in a burlap bag, and string the bag up from a tree limb, then the cat will be jumping around in the bag, and it’s an archery target. But if the cat gets out of the bag, the game is over (even if it wasn’t a ‘ball game’). Alternatively, if we’ve had enough fun for today, we can just ‘let the old cat die.’

      1. Ugh. But term used by the court was “ball game”.

      2. “we can just ‘let the old cat die.’”

        Not if it’s Schrodinger’s cat

    2. If you think athletes are bad on this, check out the physicists.

      1. Welll …… mebbe, mebbe not.

        1. We’ll just have to wait and see.

    3. Seems like it would be a cat-astrophe.

    4. You take the cat out of the bag, then you play ball games with it (those little balls with bells in them that cats love to chase).

      Or in our household, the ball is filled with treats and has a little hole in it, so treats fall out when the cat swats it around.

    5. Calvin ball.

  3. Future headline: Noted UCLA Law Professor Disappears While Zip-lining in Colorado.

  4. That’s the whole ball of wax, it’s all she wrote, stick a fork in it, it’s done.

  5. Not until the fat lady sings!

  6. Someone hasn’t heard of the ‘The right to be forgotten’

  7. Bonsai’s reply to Volokh’s motion was certainly an enjoyable read. It opens with:

    “Bonsai’s Amended and Superseding Motion to Restrict seeks Level 1 restrictions of very little material – only three documents and direct references to those documents. The parties to this case have not objected to the limited restrictions, but a law professor with a blog “is interested in this case” and has filed objection. Prof. Volokh has not provided any substantive reason for his interest, and it appears he has none. Rather, he is using this case as an example, trying to access confidential business records merely for the sake of it and to provide his students with a fun learning experience. Bonsai, however, provides a livelihood to approximately 20 employees, and harm to its competitive interests directly threatens its ability to maintain its business.” [internal citations omitted].

    I am somewhat sympathetic to the argument that Bonsai presents in light of the posts that Volokh ends-up writing here on cases like this. It appears that he is less interested in writing about the case per se, and more about writing about his involvement in the case in trying to prevent the sealing of documents. The contents of the documents themselves are not of interest to him, rather the interest is in the dispute over their sealing. A more forthright motion objecting to sealing documents might admit that the interest is not in the documents per se, but in the dispute over their being sealed, a dispute that arises because of the filing of the objection (which the filer intends to then write about). In other words, injecting himself into the case (and providing that teaching experience to law students) and then writing about his participation, the teaching experience, and a constitutional issue. Meanwhile, there are actual parties that have been litigating the case for close a year, and will continue to litigate it after Volokh has moved on his next case (i.e., blog post material and teaching experience).

    I can see why, from the litigant’s perspective, that would be kind of obnoxious.

    1. “It appears that he is less interested in writing about the case per se, and more about writing about his involvement in the case in trying to prevent the sealing of documents.”

      There wouldn’t be a “case” if Bonsai didn’t request to seal the documents; THEY were trying to gain more protection than the law allows.

      If they had simply let the case run to a normal conclusion it would not have been on Prof. Volokh’s radar.

  8. RE: “Once the Cat Is Out of the Bag, the Ball Game Is Over”

    PG Wodehouse: “Spilt milk blows no one any good, and it is useless to dwell on it.”

Please to post comments

Comments are closed.