Journal of Free Speech Law: "Sealed Justice: Federal Courts' Inconsistent Record-Sealing Rules and Their Impact on Judicial Transparency," by David Ardia

The article is here; the Introduction:

Open courts are a cornerstone of democratic government, ensuring not only that justice is done but that it is seen to be done. As the Supreme Court recognized in Press-Enterprise Co. v. Superior Court ("Press-Enterprise I"), "[p]eople in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing." While public access to court proceedings is indispensable to preserving this openness, access to court records is equally critical. In practice, much of the business of the courts—particularly in the federal system—takes place through written filings: motions, briefs, evidentiary submissions, and judicial opinions. Without access to these records, the public cannot understand and scrutinize the judiciary's work.

Despite the longstanding presumption that court records are open for public inspection, parties frequently attempt to "seal" documents in order to hide them from public view. Empirical research reveals that the sealing of court records is extensive and increasing, particularly in federal courts and states with broad sealing statutes. Indeed, the sealing of court records is often routine, with minimal opposition or judicial scrutiny. A recent examination of sealing in federal district courts found that motions to seal were among the most common court filings, with over thirty thousand cases containing such motions in the past five years. One federal judge even compared the increasing secrecy in the courts to "kudzu," a nearly uncontrollable creeping vine that "blocks access to sunlight, slowly strangling fields and forests in its wake."

The harms that come from this secrecy are far from abstract. In a series of investigative reports titled "Hidden Injustice," Reuters revealed how secrecy in U.S. courts—particularly the sealing of court records—shields corporate misconduct and conceals information vital to public safety. Their investigation discovered that federal judges had sealed evidence related to harmful products in about half of the 115 biggest product liability cases over the past twenty years and that in 85% of those instances judges provided no explanation for keeping the information from the public. Looking specifically at opioid litigation, Reuters determined that judges allowed litigants to file under seal evidence that could have alerted regulators, doctors, and the public to the dangers of prescription opioids; this concealment, they concluded, played a significant role in prolonging and deepening the opioid crisis.

Under current case law, as discussed in more detail below, the sealing of court records should be rare and permissible only under limited circumstances. In practice, however, the opposite is true: Sealing has become disturbingly routine in the federal courts, often carried out with little meaningful judicial oversight.

Critics of court secrecy point to the absence of clear, uniform rules on sealing as a key factor behind its widespread use in the federal courts. The Federal Rules of Civil Procedure and Criminal Procedure mandate the protection of certain sensitive information, namely Social Security numbers, tax identification numbers, dates of birth, financial account numbers, names of minors, and home addresses. Beyond this specific information, however, the federal rules offer little guidance on sealing to litigants and judges. As a result, when parties seek to seal records containing personal or other confidential information, the requirements and procedures are largely governed by the district court's local rules.

This project is the first to comprehensively examine whether federal district courts provide clear and consistent local rules for sealing court records in civil and criminal cases. It also evaluates whether these local rules align with established Supreme Court and circuit court precedent concerning the public's right of access to judicial records.

The analysis of more than seven hundred local rules across all ninety-four federal districts reveals alarming inconsistencies in sealing practices nationwide. Nearly half of all districts lack general sealing rules, many fail to reference the controlling legal standard, and basic procedural safeguards—such as public notice, consideration of alternatives to sealing, and case-specific identification of harms—are frequently absent. Overall, only eleven districts (12%) provide a specific standard for sealing that incorporates their circuit's requirements for civil cases and a mere six districts (6%) do so for criminal cases. These deficiencies have created a patchwork of inconsistent, often-toothless rules that enable secrecy to spread largely unchecked.

Some might contend that local rules on sealing are unnecessary because the federal courts of appeals already provide sufficient guidance and district courts can be expected to follow those precedents. Empirical studies, however, do not support that assumption: In practice, most judges do not rigorously apply circuit law when evaluating motions to seal, often granting such requests with minimal scrutiny. Furthermore, even if district courts were meticulous in applying governing case law, clear and comprehensive rules would still offer significant benefits. Clear rules on sealing further consistency, transparency, and efficiency by establishing uniform procedures, reducing litigation costs, protecting the public's interest in open records, and reinforcing confidence in the judiciary through predictable and principled decision-making.

This Article seeks to accomplish three principal objectives. First, it demonstrates that the lack of clear guidance on sealing is not confined to a few outlier districts but is a systemic issue across the federal judiciary. While some districts have adopted rules that provide meaningful direction on sealing, such examples are rare. In fact, forty-one of the ninety-four federal districts—approximately 44%—do not have a general sealing provision in either their civil or criminal rules laying out the procedures for sealing court records. The absence of such rules leaves litigants and judges without a framework for evaluating when and how court records may be sealed, increasing the risk of inconsistent and unprincipled sealing.

Second, this Article offers recommendations for improving the clarity and consistency of sealing rules in the federal courts. The goal is not to impose a uniform substantive standard—such as the First Amendment right of access—on all districts, though I have argued elsewhere that all court records should be subject to the more stringent First Amendment right. Rather, this project assesses each district's rules in light of the access standard adopted by its respective circuit. Even in circuits that apply only the more-deferential common law standard, the public's right of access would be better protected through clear, well-defined rules that ensure transparency and accountability in court decisions regarding sealing.

Third, it underscores the judiciary's responsibility to safeguard the public's right of access. By allowing the sealing of court records to become a routine, often-unexamined practice, many federal judges have abdicated this responsibility. This court-approved secrecy has, among other consequences, weakened the public trust that the judicial system relies upon. This is a critical time for the federal courts to address this problem. Public confidence in the courts—and in government more broadly—is declining. Strengthening the rules and practices that govern the sealing of court records is essential not only to restoring the legitimacy of the courts but also to reaffirming the judiciary's role as a guardian of open government.

This Article proceeds in three parts. Part I describes the benefits of public access to court records. It then surveys the principal standards courts have adopted for evaluating requests to seal court records, including the First Amendment, common law, and "good cause" standards. Part II analyzes how district courts implement these sealing standards through their local rules. As Part II shows, local rules on sealing vary widely—not only from one district to another, but even among districts within the same state—creating a patchwork of standards and practices for sealing.

Part III concludes by offering suggestions for how to create clearer and more consistent rules on sealing. It also suggests practical measures to reduce the administrative burdens on courts. Many of the current rules governing sealing are not only confusing but also unwieldy, creating unnecessary work for judges and litigants alike.