The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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….