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Fifth Circuit Opinion Criticizing Excessive Sealing in Challenge to Louisiana Abortion Restrictions

|The Volokh Conspiracy |


From June Medical Services, LLC v. Phillips, decided Friday by the Fifth Circuit, in an opinion by Judge Jennifer Walker Elrod, joined by Judges Jerry Smith and Andrew Oldham:

Among the sealed or redacted documents [in this case] are a transcript of proceedings held in open court, a famous Pennsylvania grand jury report that is available as a book on www.amazon.com and that was adapted as a motion picture, an arrest report from a police department's public website, articles from The New York Times and Rolling Stone, and an obituary from a public website. We hold that the district court erred in sealing and ordering redaction of voluminous documents without a proper legal basis.

Here's the court's extended summary of the facts:

The plaintiffs are an abortion clinic and three doctors who provide abortions in Louisiana. In 2016, the plaintiffs filed this lawsuit challenging seven Louisiana laws that regulate abortion, including a law that requires doctors who provide abortions to be board-certified in obstetrics and gynecology or family medicine. The three doctor-plaintiffs simultaneously moved for an order allowing them to use pseudonyms. The district court granted that motion and entered a pseudonym order.

The district court also entered a stipulated blanket protective order intended to "protect[] the confidentiality of information and facilitat[e] the exchange of documents and information between the parties." The protective order covers information "about the Plaintiffs … that could jeopardize the privacy of the staff, physicians, patients, and others associated with Plaintiffs," and "information related to investigations conducted by or legal, disciplinary or other actions taken by the Louisiana Department of Health."

In 2018, Louisiana moved in the district court to review a magistrate judge's order quashing a subpoena to the Louisiana State Board of Medical Examiners. In a memorandum supporting its motion, Louisiana described and referred to publicly available documents that allegedly indicate that Louisiana doctors who provide abortions have high rates of professional disciplinary action. The plaintiffs responded by filing an emergency motion to strike, arguing that Louisiana had unlawfully "disclos[ed] the names and identities of two current Louisiana abortion providers" who were not subjects of the district court's pseudonym order.

The district court denied the plaintiffs' motion to strike, but summarily sealed Louisiana's filing (the first sealing order) and admonished Louisiana for its "carelessness." The documents sealed by the district court were a memorandum of law; a transcript of proceedings in open court; a Pennsylvania grand jury report that was unsealed and filed as a public record in Pennsylvania, that is available as a book on www.amazon.com, and that was adapted as a motion picture; public disciplinary orders available on the Board of Medical Examiners' website; an arrest report from the website of the Morgan City Police Department; and a license verification from the Board of Medical Examiners' website….

During a deposition in March 2019, Doe 2 admitted to failing to report the forcible rape of a fourteen-year-old girl, performing an abortion on a minor without parental consent or judicial bypass, and failing to maintain medical records. Louisiana alleged that Doe 2 admitted to multiple violations of Louisiana law, see La. Stat. Ann. § 14:403 (requiring mandatory reporters to report sexual abuse of a minor); La. Stat. Ann. § 40:1061.14 (requiring parental consent for abortions performed on minors); La. Stat. Ann. § 40:1061.19 (explaining records requirements for abortion facilities), and also that Doe 2 stated that Doe 5 had violated the standard of care for second-trimester abortions.

Louisiana moved to de-designate portions of Doe 2's testimony as "confidential" pursuant to the district court's protective order. Louisiana argued that unsealing the deposition was in the public's interest and that Louisiana was required to refer evidence of criminal and professional misconduct to the appropriate authorities. The plaintiffs opposed Louisiana's motion to de-designate and moved to seal their opposition brief.

Louisiana wanted to add public documents to the record for evidence and argument but did not want to contravene the district court's interpretation of its sealing, protective, and pseudonym orders and also did not want to be sanctioned for seeking to seal public documents. So, Louisiana subsequently filed pro forma motions to seal the documents that it wanted to add to the judicial record, … and argued that its pro forma motions should be denied and that the documents should not be sealed.

A magistrate judge entered a sealing order (the second sealing order). The sealed documents include public records, many of which are freely accessible online, judicial records that are accessible via PACER, articles from the Journal of Medical Regulation, Christian Science Monitor, Rolling Stone, New York Times, and The Advocate, excerpts from a book, a public order entered by the Eastern District of Louisiana in a related subpoena enforcement action, blank consent forms from a closed clinic, and correspondence regarding deposition scheduling. The magistrate judge also sealed a redacted brief that Louisiana proffered for public filing and publicly filed federal district court complaints submitted by Louisiana to show that doctors who provide abortions in surrounding states routinely litigate in their own names….

In January 2020, the magistrate judge entered another bulk sealing order (the third sealing order), which sealed briefing on Doe 5's motion to quash. Louisiana opposed the motion, and because it supported its opposition with publicly available documents about doctors who provide abortions, Louisiana again—to comply with the protective order—moved pro forma to seal its own filings. Louisiana argued that Doe 5 publicly identified himself as an abortion provider in speeches, on his own website, to the press, and as a testifying expert in an abortion case.

The magistrate judge sealed all of the documents at issue, including newspaper articles, online news reports, public records available from the Board of Medical Examiners' website about non-party abortion providers, a journal article, a public court order, the sealing order itself, and a pleading that no one asked be sealed….

In November 2020, the district court entered the order at issue in this appeal—a ruling on Louisiana's challenges to the first, second, and third sealing orders…. The district court [separated the contested documents] into two groups. The first group contained these categories: court filings in this case, a transcript of proceedings in this case, correspondence between counsel, publicly available articles, documents from the Louisiana Secretary of State's website, information regarding published books, orders from the district court for the Eastern District of Louisiana, court documents from other cases, online information regarding abortion clinics, a publication from the Knights of Columbus, a public records request, and a Declaration of a Records Custodian.

Even though, as the district court acknowledged, "[m]uch of this information is already publicly available," the district court ordered substantial redaction of the documents in this group. For example, Louisiana was required to redact "sensitive information that could jeopardize the privacy of the staff, physicians, patients, and others associated with Plaintiffs." Louisiana had sixty days to comply with the redaction requirements, and it did comply.

The district court's second group of documents was composed of these categories: a public obituary for a doctor who provided abortions, arrest reports available on public websites, deposition testimony, documents from the Louisiana Department of Health and Hospitals, documents from the Louisiana State Board of Medical Examiners, documents identifying abortion providers or staff, documents regarding medical information of patients, and an incident investigation report. For documents within this group, the district court ordered that they "remain sealed as information falling squarely within the Protective Order."

And the court's legal analysis:

"Judicial records belong to the American people; they are public, not private, documents." And "[t]he public's right of access to judicial records is a fundamental element of the rule of law." "The public has an interest in transparent court proceedings that is independent of the parties' interests." This right "serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of its fairness." Accordingly, we heavily disfavor sealing information placed in the judicial record. "[T]he rationale for public access is even greater" where, as here, the case "involve[s] matters of particularly public interest."

{The party doctors' request for anonymity is … an unusual practice. Abortion providers regularly litigate under their own names. [Examples omitted. -EV] They also—as licensed professionals—operate under their own names and are often already known or knowable by other means. For example, Doe 2 acknowledged in his deposition that "you can find out from the internet that [he provides] abortions" and he has submitted public declarations in past abortion litigation.

Furthermore, this court does not usually allow parties to proceed anonymously based on generalized concerns. For example, we affirmed this district court's denial of a police officer's request to proceed as an anonymous plaintiff. See Doe v. Mckesson (5th Cir. 2019), vacated on other grounds, 141 S. Ct. 48 (2020). That officer argued that "the public nature of his job put[] him and his family in danger of additional violence," and he listed examples of acts of violence perpetrated against police officers for political reasons. That was not enough. We approved of the district court's rejection of that argument because "the incidents Officer Doe listed did not involve Officer Doe and were not related to this lawsuit." Indeed, "Officer Doe conceded that he had received no particularized threats of violence since filing his lawsuit."}

In the context of publicly available documents, those already belong to the people, and a judge cannot seal public documents merely because a party seeks to add them to the judicial record….. Publicly available information cannot be sealed. In so holding, we align with the Supreme Court and our sister circuits….

The district court here also used the wrong legal standard for sealing documents. Different legal standards govern protective orders and sealing orders. Protective orders require a finding of "good cause" by the district court and apply to documents produced in discovery. "At the discovery stage, when parties are exchanging information, a stipulated protective order under Rule 26(c) may well be proper."  "But at the adjudicative stage, when materials enter the court record, the standard for shielding records from public view is far more arduous." Sealing judicial records and blocking public access require a "stricter balancing test."  To decide whether something should be sealed, the court must undertake a "'document-by-document,' 'line-by-line' balancing of 'the public's common law right of access against the interests favoring nondisclosure.'" "Under both standards, the working presumption is that judicial records should not be sealed." "[C]ourts should be ungenerous with their discretion to seal judicial records …." …

Here, the district court's only justification for sealing entire categories of documents was that those documents "fall[] squarely within the Protective Order." That a document qualifies for a protective order under Rule 26(c) for discovery says nothing about whether it should be sealed once it is placed in the judicial record. The district court thus provided no valid legal basis for sealing these documents. By failing to "articulate any reasons that would support sealing" those documents, the district court erred.

The district court also erred by failing to evaluate all of the documents individually. It is the solemn duty of the judge to scrupulously examine each document sought to be sealed…. "Providing public access to judicial records is the duty and responsibility of the Judicial Branch." … It is not easy, but it is fundamental….

For a similar criticism of excessive sealing in a Fifth Circuit non-abortion case, see this opinion from early last year.