The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Callahan v. United Network for Organ Sharing, decided yesterday by the Eleventh Circuit (Judge Britt Grant, joined by Judges Elizabeth Branch and Julie Carnes):
Judicial records are open to the public, and for good reason—access to judicial proceedings is crucial to our tradition and history, as well as to continued public confidence in our system of justice. This Circuit has been resolute in our enforcement of that presumption of public access…. The documents here are plainly judicial records and the appellants have not shown good cause to keep them sealed….
Organ donation saves lives—but whose? To ensure a uniform national policy answering this question, Congress enacted the National Organ Transplant Act, which authorizes a partnership between the federal government and private professionals involved in organ donation. For the past thirty-five years, the United Network for Organ Sharing has overseen that partnership through a contract with the United States Department of Health and Human Services….
About three years ago, UNOS developed and approved a new liver allocation policy that changed the geographic parameters guiding which patients received donated organs. UNOS says the policy is intended to provide more liver transplants to the patients in greatest need, even if they are farther away from donors. Its opponents say the policy will result in fewer transplants, especially in socioeconomically disadvantaged areas.
No matter which side has the better of the argument, every rule change has winners and losers. And the new organ transplant policy meant a shift in who would receive donated organs—ultimately, a change in which patients would live and which patients would die. Hospitals and patients who were on the losing end of that equation did not accept it quietly. A few months after the new liver policy was approved, they sued UNOS and HHS, alleging violations of the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment. The hospitals also sought preliminary injunctive relief, which the district court denied based on its review of one of the APA claims. On interlocutory appeal, this Court affirmed that denial. We then remanded the case for the district court to consider the remaining claims.
The district court ordered limited discovery on remand, but UNOS repeatedly failed to live up to its production obligations. Indeed, it took two specific and successive orders from the court before UNOS produced requested communications between its top-level personnel and outside policymakers. These documents included, among other things, several unguarded emails expressing personal opinions about the relative merits of living in different regions of the United States.
After the documents were finally produced, the district court allowed the hospitals to file a ten-page follow-up brief in support of their request for a preliminary injunction. The hospitals argued that the new documents exposed "bad faith and improper behavior" in UNOS's policymaking process and should be considered as proof that the policy change was arbitrary, capricious, and the result of a denial of due process. Pending its own review, the court put both the supplemental briefing and attached documents under provisional seal, restricting them to "parties and Court users only."
The district court ultimately excluded the documents from the administrative record for the APA claim against HHS because it concluded that even if the documents showed bad faith on the part of UNOS, they did not do so for HHS. The court went on to deny the preliminary injunction, but emphasized that the documents were "still part of [the] Court's record" and could potentially inform judicial inquiry into the remaining issues in the case. The court also noted that the documents included "colorable evidence of animosity and even some measure of regional bias"—what it characterized in a later order as "inadvisable 'hot takes,'" "inflammatory remarks," and "clear preferences for policy outcomes."
Following the district court's ruling, the hospitals moved to unseal the supplemental briefs with the appended documents. The district court granted the motion, concluding that the documents were judicial records and that UNOS had not shown good cause to seal them. UNOS now appeals….
The common-law right of access to judicial proceedings is "an essential component of our system of justice" and "instrumental in securing the integrity of the process." We are mindful that "the means used to achieve justice must have the support derived from public acceptance of both the process and its results." But while the right of access is indispensable, it is also limited. The right attaches only to "items which may properly be considered public or judicial records"—not to any and all materials produced during discovery—and it can be outweighed by competing interests.
Though the distinction between judicial records and discovery materials may seem ambiguous in concept, our precedent dispels any mysteries about where that line falls. This Circuit has held that "material filed with discovery motions is not subject to the common-law right of access, whereas discovery material filed in connection with pretrial motions that require judicial resolution of the merits is subject to the common-law right." In other words, though discovery materials do not automatically qualify as judicial records subject to the common-law right of access, they take on that status once they are filed in connection with a substantive motion….
[And w]e have consistently rejected any test that would make a document's status as a judicial record dependent upon "whether it played a discernible role in the resolution of the case" or that would require us to determine "the actual role the document played." … What matters is how the document was used by the parties—to support an argument before the court—and not whether the court itself used the document to resolve that argument….
UNOS argues that it has successfully [rebutted the presumptive right of access and] shown good cause to keep the documents sealed…. [But] UNOS offered no particularly compelling reasons to keep the documents sealed in the first place. They involve policymaking on a topic of genuine public concern, and do not contain proprietary information or trade secrets that require protection. Nor is there any suggestion that the emails are fraudulent; UNOS itself produced the communications. To be sure, UNOS's eagerness to keep the documents secret is understandable; we are certain that these are not the first litigants to wish they had been more circumspect in their emails. But UNOS's reasoning boils down to a desire to keep indiscreet communications out of the public eye, which is not enough to satisfy our standard for good cause….
[The district court also] rejected as insufficient the argument that unsealing the documents might have an adverse effect on policymaking, explaining that UNOS's "generalized notion" that unsealing the documents would chill deliberations "cannot overcome the presumptive public interest nature of these documents." Finally, the court considered the possibility that the hospitals had sought the documents from UNOS in a bad-faith attempt to publicize sensational communications. It found no evidence of bad faith, but noted that even if the hospitals had acted out of spite, "sealing materials subject to the common law right of access is generally not a proper sanction for misconduct." …
UNOS also warns that affirming the district court's order to unseal will allow "the court to be used as a vehicle for publicizing confidential materials," opening the floodgates to plaintiffs seeking to use filings as "Trojan horses for irrelevant material." Fortunately, our precedents already protect litigants against such schemes: "insofar as this potential for abuse does exist in other cases, there are already sufficient remedies to address it." If confidential or sensitive documents are improperly attached to filings, an aggrieved party may move to strike "any redundant, immaterial, impertinent, or scandalous matter" from the record. For cases involving clear abuse of the judicial system, "professional sanctions may be available, along with monetary sanctions" under Federal Rule of Civil Procedure 11, or parties may bring an "action for wrongful civil proceedings." …