Free Speech

A Judge Condemns Excessive Requests to Seal

"Judges often do not respond well to unreasonable efforts to keep as much out of the public record as possible. At least not this judge."

|The Volokh Conspiracy |

From Judge William C. Bryson's opinion Friday in Lipocine Inc. v. Clarus Therapeutics, Inc. (D. Del.), rejecting various proposed redactions of supposedly confidential information:

The issue that Lipocine's motion [to seal] presents is illustrative of a much broader problem: the practice of counsel in complex civil cases using the sealing privilege excessively, without careful consideration of whether it is appropriate in particular instances. The problem for judges is that such requests are seldom opposed—the would-be opposing party has access to the materials and doesn't particularly care whether the public has access as well. Worse, the would-be opposing party frequently hopes to be able to use the sealing mechanism itself and therefore understands that consenting to a motion to seal is the best way to maximize the chance that it will be able to use the sealing mechanism without resistance when its turn comes up.

That leaves the judge in the position of having to decide a sometimes complex issue of sealing or redaction with no adversarial briefing and often, as in this case, with only a perfunctory submission from the party seeking relief. Frequently, judges find it is simpler not to resist the seemingly unquenchable desire on the part of litigants and their counsel to maintain the highest possible degree of secrecy as to the circumstances underlying the litigation, and ultimately as to the litigation proceedings themselves.

Although I have often inveighed against the over-use of sealing, redaction and courtroom closings, I confess that I have sometimes found that it is simply too difficult to police parties' submissions in detail and have not been as vigilant about sealing and redaction requests as I should have been. Because the policing process is so time-consuming, and because judges have limited access to information that is often important in evaluating claims of confidentiality, the responsibility ultimately falls on counsel to police themselves and to instruct their clients that judges often do not respond well to unreasonable efforts to keep as much out of the public record as possible. At least not this judge.

Judge Andrews has made these points better than I could. His words on the subject are so distinctly on point that they deserve quoting at length:

"In my experience, corporate parties in complex litigation generally prefer to litigate in secret. To that end, discovery is over-designated as being confidential, pleadings and briefs are filed under seal, redacted versions of sealed documents are over-redacted, requests are made to seal portions of transcripts of judicial proceedings, and parties want to close the courtroom during testimony.

"I have tried over the years to rein these tendencies in, but it is difficult because there is usually no one opposing whatever requests are made, and I do not have time to be independently monitoring any of these tendencies unless they are directly requested of me (i.e., requests to close the courtroom and to seal judicial transcripts). I have made some efforts on the requests that are specifically directed to me. I think some of those efforts have resulted in greater exercise of discretion by the parties in asking to have judicial transcripts sealed and in seeking to close the courtroom, but I do not see any impact on any of the other areas of potential abuse."

… Like Judge Andrews, Judge Connolly found that "parties in my civil cases routinely ask to seal pleadings that cannot reasonably be characterized as disclosing confidential or proprietary information." He added that he could not recall "a party in a civil case opposing a request to seal or objecting to the scope of redactions in the public version of a pleading that was filed pursuant to an order that granted a motion to seal."

Judge Connolly explained that he encounters three problems when presented with unopposed motions to seal:

"First, it falls solely on me to scrutinize the proffered justification for the motion without the benefit of the industry knowledge that is often necessary to determine if a clearly defined and serious injury would result if I denied the motion. Second, if I grant the motion—and I almost always do—it falls solely on me to scrutinize the redactions in the movant's subsequently filed public version of the pleading. Here again, I lack industry knowledge to guide me in assessing whether the proposed redactions are necessary to avoid a clearly defined and serious injury. Third, because of my caseload, I lack time."

… In Takeda, Judge Andrews framed an order that was addressed to the problem in that case by directing that "no further filings may be made under seal in this case unless contemporaneously accompanied by the proposed redacted version and a detailed affidavit of the filing party that meets the Avandia standard for sealing court filings." At this time, I am not prepared to adopt such an order. However, if the parties are not more cautious about seeking to seal materials in this case in the future, I will consider doing so….

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  1. Prof. Volokh, so what’s your take on this?

    From a practical POV, there isn’t much that can change.

    As Judge Andrews noted, a judge simply doesn’t have the knowledge and time to review large, complex cases.

    Should we just leave it up to third parties (who are interested in the case), to make challenges?

    1. I was wondering pretty much the same thing. You can hear the judges’ frustration in this opinion, and in the other quoted opinions, but none of them seem to have much of an idea about how to fix the problem.

      Maybe what could be done is to allow the sealing and redactions in cases where they are not opposed, and where the judge doesn’t have the time or expertise to make all of the relevant decisions, but then also put in place a system that allows some sort of expedited unsealing or unredacting when third parties make challenges and can reasonably argue that the material was not sufficiently confidential to warrant a seal or reaction in the first place.

      Of course, I’m not sure if such a system is even feasible.

      1. One of the reasons it is really hard is because the judge doesn’t know what the parties know about whether a given sealing decision is BS or not.

        For instance, with financial information. How is a judge supposed to know what is really confidential and what can be disclosed? A judge that orders the wrong thing disclosed might blow up a major commercial transaction. On the other hand, it’s perfectly clear that in some cases, way too much stuff is sealed or stamped confidential.

        It’s an almost impossible problem.

        1. It’s an almost impossible problem.

          Yup.

          Umpire : Oh that’s so hard ! I got an impossible job.
          Pitcher : It was a strike
          Batter : It was a strike
          Umpire : The sun is in my eyes, the catcher is so fat it’s hard to judge the strike zone. What can I do ?
          Pitcher and Batter together : Call the strike !
          Umpire : No, I gotta be sure !
          Pitcher and Batter : Enough already !
          Umpire : Look, surely you appreciate the League depends on my impartiality !
          Pitcher and Batter : It’s not about you.

          An impossible problem indeed, if the umpire is pompous, self-important, and imagines it’s all about him. .

          1. Lee Moore: In your scenario, the umpire can be pretty confident that, if the batter says it was a strike, it’s a strike. The batter has little incentive to claim that a ball was actually a strike.

            But with a motion to seal, both parties may be fine with sealing even if sealing wouldn’t comply with the legal rules — and would affect the rights of third parties, namely the members of the public who have a right of access to court records. It’s not all about the judge, but it should be in large measure about the public and its right of access.

            1. You’re right, it is the “public and its right of access” that I dispute.

              I dispute it morally, I have no standing to dispute it legally. Though glancing at your post a little above, it seems to this amateur that this right is one of those judicial inventions that judges enjoy so much.

              1. Lee Moore: The First Amendment right of access might be faulted on those grounds, as I noted in my post.

                But the common-law right of access is “one of those judicial inventions” only in the sense that all common law is a judicial invention. Most of the Anglo-American law of contract, tort, property, evidence, civil procedure, and more is a judicial invention; that’s the way our legal system works. And while much of this has been superseded by statute, much of it hasn’t — including, in many jurisdictions (including in federal courts), the rules of public access. So until Congress steps in to limit the right of access, or the judges decide to invent a different approach, the public right of access is indeed the law.

                1. I appreciate that the common law is judicial invention, although formally, the polite fiction is that judges do not pluck it, startled and new born, from their fundaments – they merely identify the custom already existing, and state it explicitly.

                  However I note with interest the following passage from the case you reference a couple of posts above :

                  It may be objected that our reasoning tacitly assumes that papers properly filed in the clerk’s office are not open to the inspection of the public. We do not admit that this is true, or that the reasons for the privilege accorded to the publication of proceedings in open court would apply to the publication of such papers, even if all the world had access to them. But we do not pause to discuss the question, because we are of opinion that such papers are not open to public inspection. A different conclusion might be drawn from a hasty reading of the Pub. Sts. c. 37, § 13, but the county records or files, which are there ordered to be open for public inspection and examination, and of which any person may take copies, are the records and files of the county, not of the courts of the Commonwealth within and for that county. We see no reason to suppose that the Public or General Statutes were intended entirely to change the scope of the original enactments which they embodied. These were the Sts. of 1851, c. 161, and 1857, c. 84, both of which will be seen on inspection to have no reference to the records of the courts.

                  I may of course be wrong, but this appears to be saying that there was, in Massachussetts in the 1880s, no right of public access to the records and filings of the courts of the Commonwealth, including papers filed by litigants. Such matters are distinguished from public access to the proceedings in open court. And the reason given is that the relevant statute did not mention any public right to such access.

                  From which we may deduce that, at the time, there was no common law right either – else the lack of a mention in the statute would be irrelevant.

                  Consequently we may deduce that such a right is not traceabe to the American inheritance of accumulated English common law, but is an American judicial invention of (relatively) recent vintage.

      2. That’s an issue. Frustration aside, how does the judge know that in this instance, the request for sealing, overbroad in his admittedly uneducated in the field mind, isn’t appropriate? He may be correct, or he may be indulging a personal grievance. I suspect that the answer is ‘tough, put in a request that is less broad,’ but that isn’t really an answer.

  2. A Citizen Wonders Why It’s Anybody’s Business Except the Parties’

    I appreciate that in a criminal trial, the citizen has a sort of indirect interest, seeing as the government is suposed to represent the citizenry. But in a civil case, it’s just an argument between Party A and Party B, which the government has appointed some rather pompous and self important functionary to settle.

    Why – if both parties want to keep conceal something from the general public – should it have anything to do with anyone else ? No one else has any kind of interest, least of all the judge.

    1. I should perhaps limit this to civil cases between two private parties. If one of the parties is the goverment then the citizen has the same sort of indirect interest as in a criminal case.

      1. Lee, the government may not be a litigant in every case but it is a participant. It is the government’s power that may be brought to bear on one side or the other, and members of the public have an interest in seeing that the power is being used responsibly and how it might be used against themselves in future.

        1. This incenses me all the time. People want me, the taxpayer to pay for something, and me, the public, to ultimately enforce something by voting for their candidates and policies, yet want me to do this in the dark, without questioning any of it, without raising my hand, like a good little peasant.

          Shut up and pay yer taxes and do not question your superiors.

    2. “Why – if both parties want to keep conceal something from the general public – should it have anything to do with anyone else ? No one else has any kind of interest, least of all the judge.”

      If they want to do that, they can resolve their argument without using the court system. Hire a private arbitrator, or just get the two CEOs and their lawyers and experts to sit in a room and hash it out. There’s nothing stopping them from doing that.

    3. The controversy between party A and party B may well be a private concern, and if they were to settle it in arbitration, the public would have no right to information about it. But the actions of the courts of law are a matter of public concern. We all have an interest that courts be fair and impartial, and in discouraging fraud and perjury.

      Moreover, many civil cases are not purely matters of private concern. It is routine for third-party and public interests to be implicated. Indeed, the case in point is about patent infringement, a classic example of a public interest.

      1. Based on precedent, or how you think it should be?

        1. Both. The opinion that Prof. Volokh quotes discusses much of the applicable case-law and rationale behind it (see section A). For example, it quotes Littlejohn v. BIC Corp., 851 F.2d 673, 678 (3d Cir. 1988) to answer Lee Moore’s question directly:

          “The public’s exercise of its common law access right in civil cases promotes public confidence in the judicial system by enhancing testimonial trustworthiness and the quality of justice dispensed by the court. As with other branches of government, the bright light cast upon the judicial process by public observation diminishes possibilities for injustice, incompetence, perjury, and fraud. Furthermore, the very openness of the process should provide the public with a more complete understanding of the judicial system and a better perception of its fairness.”

      2. But the actions of the courts of law are a matter of public concern. We all have an interest that courts be fair and impartial, and in discouraging fraud and perjury.

        Not really. Each of us has an interest in the court being fair and impartial if and when we have a case before the court. When we don’t, it’s other people – the actual parties – who have that interest.
        And if both of those parties do not perceive any damage to their interests from evidence being kept under seal, then the rest of us have no interest in the question. Interest in the sense of stake, rather than mere or prurient curiosity.

    4. Because I, the taxpayer, am paying for their case, and I, the public, and the ultimate enforcer of verdicts. If these clowns want privacy, then they should stick to private arbitration and leave my tax dollars my backing out of it.

      The alternative is to seal everything, and that is just begging for corruption, special privileges, secret verdicts, and the public losing all faith in the courts.

      My preferred solution is to simply not seal a goddam thing. If it’s part of the evidence used to inform the verdict, it’s public. If you don’t want it public, then leave it out of the courtroom. If you can’t do that, then go to private arbitration and leave my taxes and my respect for justice out of the equation.

      Or put some real teeth into this: let the lawyers seal anything they and opposing parties agree to. Then if I, Joe Public Taxpayer, come along later and contest it and find even the slightest bit of oversealing, they pay all my costs times ten and are forever more forbidden from sealing anything.

      1. There’s no reason why the courts shouldn’t charge for their services in civil cases. I doubt any costs incurred by the government are much more than chickenfeed compared to the fees of private attorneys and experts.

        1. A. They don’t.

          B. Stolen chicken feed is still stolen.

          C. By the time you add in all the government enforcement, it is no longer chickenfeed.

          1. A: That’s their problem – or your problem as a taxpayer.

            B: It ain’t stealing if it’s offered gratis. If you’re worried about stealing, you need to be focussing on the tax collection end of the business.

            C : Really ? Megacorp Inc gets a $150 million judgement against Velociraptor Corp – how much does the government spend enforcing that ? I should have thought roughly nothing. But feel free to correct me. But in any event, the same principle applies – no reason why the government shouldn’t charge for its services.

            1. A. ???

              B. Taxation is theft. If it’s voluntary, it ain’t taxation.

              C. If such small sums are too insignificant to matter, then how’s about you send me a few thousand dollars, whatever the costs are for some trial in your area? You won’t miss it, says you.

              1. A. If the government prefers not to charge civil litigants for the court’s costs, that is not the fault of the litigants. So characterising the litigants as leeches is unreasonable. The cost to your pocket as a taxpayer results frm the government’s choices, not from any stealing by the litigants.

                B. Not quite sure what point you’re trying to make here, so i’ll just repeat mine. Litigants use a free service provided by the government. If you disapprove, your beef is with the government, not the litigants. And if you don’t like the government picking your pocket to pay for such freebies, again take it up with the government. Don’t whine at the litigants.

                C. If such small sums are too insignificant to matter, then how’s about you send me a few thousand dollars, whatever the costs are for some trial in your area? You won’t miss it, says you.

                You alleged big costs, I doubted they were big. But in any event what part of “no reason why the government shouldn’t charge for its services” did you find particularly difficult to understand ?

  3. Is there a mechanism for the judge to appoint a third party (Special Master perhaps as is sometimes done for complex scientific issues) to carefully review the requests and charge the parties for that review?

    In large scale complex litigation millions are spent on all sorts of legal services why not have the court charge for the privilege of sealing documents.

  4. I hope this judge never asks why discovery or litigation is so time consuming or expensive.

    In today’s age, it’s easy for even simple cases to require production of thousands of emails. As a coworker says, in today’s world, there are few thoughts that don’t get put in email. Large cases may require tens or hundreds of thousands of pages of documents. Honestly, I’m sure 95% of them have nothing confidential in them. But if I’m required to look for that 5%, properly designate it, ensure everyone uses the designations consistently, and deal with splitting filings into confidential and non-confidential pieces, it’s going to cost a lot more than blanker designations. I’m also going to have to deal with these issues on briefing days under deadlines, whereas blanket designations are easy.

    This is going to take more time and cost and slow discovery. My client is going to be unhappy with things not being marked, and even unhappier with the bill for all this additional administrative work. Plus, I’ve got the risk that we accidentally let something slip through the cracks.

    I understand the importance of having open courts and access to records. But it would help if judges understood why parties are marking everything confidential. It’s not trying to keep too much secret. Frankly, I’m sure the attorneys would rather not deal with redactions and public/private filings. It’s that it’s just sooo much more efficient than the alternative.

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