CASE LAW ON ENTERING PROTECTIVE ORDERS,

ENTERING SEALING ORDERS, AND MODIFYING

PROTECTIVE ORDERS

Committee on Rules of Practice and Procedure

(Prepared by Andrea Kuperman)

Updated July 2010
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TABLE OF CONTENTS

FIRST CIRCUIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Standard for Entering a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Standard for Entering a Sealing Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Standard for Modifying a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

SECOND CIRCUIT ............................................................7

Standard for Entering a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Standard for Entering a Sealing Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Standard for Modifying a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

THIRD CIRCUIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Standard for Entering a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Standard for Entering a Sealing Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Standard for Modifying a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

FOURTH CIRCUIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Standard for Entering a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Standard for Entering a Sealing Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Standard for Modifying a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

FIFTH CIRCUIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Standard for Entering a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Standard for Entering a Sealing Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Standard for Modifying a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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SIXTH CIRCUIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Standard for Entering a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Standard for Entering a Sealing Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Standard for Modifying a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

SEVENTH CIRCUIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Standard for Entering a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Standard for Entering a Sealing Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Standard for Modifying a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

EIGHTH CIRCUIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Standard for Entering a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Standard for Entering a Sealing Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

Standard for Modifying a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

NINTH CIRCUIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Standard for Entering a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Standard for Entering a Sealing Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

Standard for Modifying a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

TENTH CIRCUIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Standard for Entering a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Standard for Entering a Sealing Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

Standard for Modifying a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

ELEVENTH CIRCUIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Standard for Entering a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
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Standard for Entering a Sealing Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

Standard for Modifying a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

D.C. CIRCUIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

Standard for Entering a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

Standard for Entering a Sealing Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Standard for Modifying a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

FEDERAL CIRCUIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Standard for Entering a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Standard for Modifying a Protective Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
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Federal courts have extensive experience in evaluating requests for protective orders.

Through the development of the case law, federal courts have grappled with competing interests

involved in determining whether a protective order is warranted in various circumstances, and if so,

the proper limits of the order. In evaluating requests for protective orders governing discovery,

courts have considered various factors, including, for example, the confidentiality interests at issue,

the need to protect public health and safety interests, the fairness and efficiency of entering a

protective order, and the importance of the litigation to the public. The cases do not set out

exhaustive factors and often emphasize that courts must maintain flexibility in analyzing requests

for protective orders, explaining that the proper factors to consider will vary depending on the

circumstances of each individual case.

Courts differentiate the standard for sealing documents filed with the court, which usually

is much more exacting than the showing required for entering a protective order limiting the

dissemination of discovery materials. In analyzing requests to seal court documents, courts

emphasize the presumption of public access to judicial records and often require compelling reasons

in order to seal court documents.

The case law also emphasizes that courts maintain discretion to modify protective orders,

which can often act as a mechanism for protecting the interests of the public, the press, and collateral

litigants. As with requests to grant protective orders, courts have developed standards for analyzing

requests to modify protective orders. Although the circuits take various approaches to dealing with

requests for modification, they have developed factors and standards that take into consideration the

competing interests involved. Courts examining requests to modify protective orders often balance

a variety of factors, including, for example, the continuing need for protection, the reliance interests
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of those who produced discovery pursuant to a protective order, efficiency and fairness concerns,

and the needs of the public, collateral litigants, and news organizations for the protected information.

The original version of this memo was completed in July 2009. It has now been updated to

include cases through June 2010. The more recent cases do not indicate a substantive change in

most of the general standards used for entering a protective order, for entering a sealing order, or

for modifying a protective order. Some of the more recent case law emphasizes that there is no

public right of access to unfiled discovery materials, and one recent case indicates that to the extent

earlier cases relied on a presumption of public access to unfiled discovery, they have been

superseded by the subsequent amendment to Federal Rule of Civil Procedure 5(d) that removed the

obligation of filing all discovery materials.

In sum, the case law has developed flexible standards that have worked well for years in

balancing the competing public and private interests implicated at various stages of litigation.

Courts within each of the circuits have described the standards for evaluating requests to grant

protective orders, requests to seal court documents, and requests to modify protective orders, as

follows:

FIRST CIRCUIT

Standard for Entering a Protective Order

• The First Circuit has explained that protective orders can be used to promote the public

interest by facilitating discovery:

Nor does public access to the discovery process play a

significant role in the administration of justice. Indeed, if such access

were to be mandated, the civil discovery process might actually be

made more complicated and burdensome than it already is. In

discovery, the parties are given broad range to explore “any matter,

not privileged, which is relevant to the subject matter involved in the

pending action” so that they may narrow and clarify the issues and
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obtain evidence or information leading to the discovery of evidence

for future use in the trial. See FED. R. CIV. P. 26(b)(1); Hickman v.

Taylor, 329 U.S. [495,] 501, 67 S. Ct. [385,] 388 [(1947)]. The

public’s interest is in seeing that the process works and the parties are

able to explore the issues fully without excessive waste or delay. But

rather than facilitate an efficient and complete exploration of the facts

and issues, a public right of access would unduly complicate the

process. It would require the court to make extensive evidentiary

findings whenever a request for access was made, and this could in

turn lead to lengthy and expensive interlocutory appeals, just as it did

in this case. The Supreme Court declined to apply heightened first

amendment scrutiny to requests for protective orders at least in part

because of these concerns. See Seattle Times Co. [v. Rhinehart], 467

U.S. [20,] 36 n. 23, 104 S. Ct. [2199,] 2209 n. 23 [(1984)].

Anderson v. Cryovac, Inc., 805 F.2d 1, 12 (1st Cir. 1986).

• In another case, the First Circuit recognized that courts need discretion in order to

appropriately handle requests for protective orders in various contexts:

District judges need wide latitude in designing protective

orders, and the Federal Rules of Civil Procedure reflect that

approach. Rule 26(c) generously permits “for good cause shown” the

making of “any order which justice requires” to protect against

annoyance, embarrassment or undue burden occasioned by discovery.

The district court has “broad discretion” to decide “when a protective

order is appropriate and what degree of protection is required,”

Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 104 S. Ct. 2199,

2209, 81 L. Ed. 2d 17 (1984), and great deference is shown to the

district judge in framing and administering such orders. Public

Citizen v. Liggett Group, Inc., 858 F.2d 775, 790 (1st Cir. 1988), cert.

denied, 488 U.S. 1030, 109 S. Ct. 838, 102 L. Ed. 2d 970 (1989); 8

CHARLES A.WRIGHT &ARTHUR R.MILLER,FEDERAL PRACTICE AND

PROCEDURE § 2036 (1970).

Poliquin v. Garden Way, Inc., 989 F.2d 527, 532 (1st Cir. 1993).

The court further recognized that while allowing the issuance of broad protective orders in

discovery may have some costs, those costs are outweighed by the benefits of allowing

litigation to proceed more efficiently:

The argument [that disclosure of discovery is warranted to avoid

wasteful duplication of discovery in other cases] has a surface appeal

in a time of swollen litigation cost and crowded dockets, but it looks
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at only one element in the equation. Absent an immediate threat to

public health or safety, the first concern of the court is with the

resolution of the case at hand. Judges have found in many cases that

effective discovery, with a minimum of disputes, is achieved by

affording relatively generous protection to discovery material.

Impairing this process has immediate costs, including the delay of

discovery and the cost to the parties and the court of resolving

objections that would not be made if a protective order were allowed.

Id. at 535. The First Circuit explained that public interests could still be protected, even with

the issuance of broad protective orders:

Nevertheless, a protective order, like any ongoing injunction, is

always subject to the inherent power of the district court to relax or

terminate the order, even after judgment.

This retained power in the court to alter its own ongoing

directives provides a safety valve for public interest concerns,

changed circumstances or any other basis that may reasonably be

offered for later adjustment.

Id. (internal citation omitted).

• In another case, the First Circuit recognized that although parties may usually disclose

materials obtained in discovery in the absence of a protective order, the public ordinarily has

no right to compel private litigants to disclose materials gained in discovery:

Certainly the public has no right to demand access to discovery

materials which are solely in the hands of private party litigants.

[Local] Rule 16(g) does not in any way limit the use or dissemination

of discovery materials by parties. Indeed, the Supreme Court has

noted that parties have general first amendment freedoms with regard

to information gained through discovery and that, absent a valid court

order to the contrary, they are entitled to disseminate the information

as they see fit. See Seattle Times Co. v. Rhinehart, 467 U.S. 20,

31–36, 104 S. Ct. 2199, 2206–09, 81 L. Ed. 2d 17 (1984); see also

Oklahoma Hospital Ass’n v. Oklahoma Publishing Co., 748 F.2d

1421, 1424 (10th Cir. 1984), cert. denied, 473 U.S. 905, 105 S. Ct.

3528, 87 L. Ed. 2d 652 (1985).

Pub. Citizen v. Liggett Group, Inc., 858 F.2d 775, 780 (1st Cir. 1988).
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Standard for Entering a Sealing Order

• The Poliquin court emphasized that once discovery material becomes part of the trial record,

it can no longer be kept private without the party seeking confidentiality making a very high

showing:

One generalization, however, is safe: the ordinary showing of

good cause which is adequate to protect discovery material from

disclosure cannot alone justify protecting such material after it has

been introduced at trial. This dividing line may in some measure be

an arbitrary one, but it accords with long-settled practice in this

country separating the presumptively private phase of litigation from

the presumptively public. See Cowley v. Pulsifer, 137 Mass. 392

(1884) (Holmes, J.). Open trials protect not only the rights of

individuals, but also the confidence of the public that justice is being

done by its courts in all matters, civil as well as criminal. See Seattle

Times Co., 467 U.S. at 33, 104 S. Ct. at 2207–08 (distinguishing

discovery material, traditionally not available to the public, from trial

evidence which normally is available).

There is thus an abiding presumption of access to trial records

and ample reason to “distinguish materials submitted into evidence

from the raw fruits of discovery.” Littlejohn v. BIC Corp., 851 F.2d

673, 678, 684 & n.28 (3d Cir. 1988). As we have said elsewhere,

“‘[o]nly the most compelling reasons can justify the non-disclosure

of judicial records.’” FTC v. Standard Financial Management Corp.,

830 F.2d 404, 410 (1st Cir. 1987) (quoting In re Knoxville

News-Sentinal Co., 723 F.2d 470, 476 (6th Cir. 1983)). Accord, Joy

v. North, 692 F.2d 880, 893–94 (2d Cir. 1982).

Poliquin, 989 F.2d at 533.

• In another case, the First Circuit emphasized the presumption of public access to court

documents. See Siedle v. Putnam Investments, Inc., 147 F.3d 7, 9–10 (1st Cir. 1998) (noting

that “[t]he common law presumes a right of public access to judicial records” and that “[t]he

presumption extends to records of civil proceedings” (citations omitted)). The court

explained: “Though the public’s right of access to such materials is vibrant, it is not

unfettered. Important countervailing interests can, in given instances, overwhelm the usual

presumption and defeat access. It follows that when a party requests a seal order, or, as in

this case, objects to an unsealing order, a court must carefully balance the competing

interests that are at stake in the particular case.” Id. at 10 (internal citation omitted). The

court explained that “[t]he mere fact that judicial records may reveal potentially

embarrassing information is not in itself sufficient reason to block public access,” id., but

concluded that the interest in preserving attorney-client privilege “is precisely the kind of
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 The Second Circuit has more recently emphasized that its opinion in Martindell was not limited to requests by the

government to modify a protective order. See SEC v. TheStreet.com, 273 F.3d 222, 229 n.7 (2001) (“Some district courts

in our Circuit have incorrectly concluded that the Martindell rule only applies when the Government seeks modification

of a protective order. Though Martindell did involve a Government request to modify a protective order, its logic is not

restricted to Government requests, nor did our opinion in Martindell suggest otherwise.” (internal citation omitted)).

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countervailing concern that is capable of overriding the general preference for public access

to judicial records,” id. at 11 (citations omitted). The court cautioned that even though

sealing was appropriate to maintain attorney-client privilege under the facts of the case, the

materials did not necessarily need to remain permanently sealed, and the seal could be lifted

at a later time, if it turned out that claims of privilege were unsupported or that an exception

applied. See id. at 12.

• In another case, the First Circuit noted that “[p]lacing court records out of public sight is a

serious step, which should be undertaken only rarely and for good cause.” R & G Mortgage

Corp. v. Fed. Home Loan Mortgage Corp., 584 F.3d 1, 12 (1st Cir. 2009). The court

explained that “[s]ealing orders are not like party favors, available upon request or as a mere

accommodation.” Id. (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597–99

(1978); In re Gitto Global Corp., 422 F.3d 1, 6 (1st Cir. 2005)). The appellate court did not

decide whether sealing was proper in that case because “decisions about whether or not to

seal are committed to the sound discretion of the district court,” and the lack of a timely

challenge to the sealing order precluded full review on appeal. Id. The court noted that

permissive intervention is an appropriate means for a third party to challenge a sealing order.

See id. at 11 (“When a third party essays a challenge to a sealing order, permissive

intervention is the procedurally correct vehicle.” (citing Pub. Citizen, 858 F.2d at 783)).

Standard for Modifying a Protective Order

• The First Circuit has questioned whether “extraordinary circumstances” are necessary to

modify a protective order, distinguishing a Second Circuit case that applied that standard.

See Pub. Citizen, 858 F.2d at 791 (stating that it was “not convinced that the extraordinary

circumstances standard” proffered by the appellants was applicable because the decision

relied upon, Martindell v. International Telephone & Telegraph Corp., 594 F.2d 291 (2d Cir.

1979), had focused on “the fact that the party seeking access . . . was the federal government,

which . . . had at its disposal investigatory powers not available to private litigants . . . .”

(internal quotation marks and citation omitted)).1 Instead, the court held that a more lenient

standard for modification would apply:

Outside the area of government intervention, courts have

applied much more lenient standards for modification. See e.g., Wilk

[v. Am. Med. Ass’n], 635 F.2d [1295,] 1300 [(7th Cir. 1980)] (holding

that the court’s prior invocation of the extraordinary circumstances

test “was an unfortunate choice of words”); Tavoulareas v.

Washington Post Co., 737 F.2d 1170, 1172 (D.C. Cir. 1984)
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(suggesting that the good cause standard of Rule 26(c) governs

modifications of protective orders). While we need not decide the

matter definitively, we reject the “extraordinary circumstances”

standard. In a case such as this, where the party seeking modification

has pointed to some relevant change in the circumstances under

which the protective order was entered, we think that a standard less

restrictive than “extraordinary circumstances” is appropriate.

Id. at 791. The court concluded that it did not need to define the contours of the standard

because the relevant facts of the case showed that the district court had power to modify its

prior protective order. The court relied on the fact that the reasons underlying the initial

order no longer existed and the fact that public interest considerations favored allowing

counsel to make certain documents public. Id. at 791–92.

• A district court in the First Circuit recently explained that the exact standard for modifying

a protective order is not clearly defined in the First Circuit: “While the First Circuit has not

definitively resolved the matter of the standard applicable to modification of a protective

order, it has expressed the view that ‘a standard less restrictive than ‘extraordinary

circumstances’ is appropriate[,]’ noting that other courts have applied ‘much more lenient

standards for modification[,]’ including the standard of ‘good cause.’” Fairchild

Semiconductor Corp. v. Third Dimension Semiconductor, Inc., No. 08-158-P-H, 2009 WL

1210638, at *1 (D. Me. Apr. 30, 2009) (alterations in original) (quoting Pub. Citizen, 858

F.2d at 791). The court held that the party seeking modification bears the burden of showing

good cause for the modification. Id. The court also noted that “‘[w]hen a party to a

stipulated protective order seeks to modify that order, that party must demonstrate particular

good cause to obtain relief.’” Id. at *1 n.5 (quoting Guzhagin v. State Farm Mut. Auto Ins.

Co., Civil No. 07-4650 (JRT/FLN), 2009 WL 294305, at *2 (D. Minn. Feb. 5, 2009) (citation

and internal quotation marks omitted) (emphasis in original)).

SECOND CIRCUIT

Standard for Entering a Protective Order

• In discussing public access to discovery documents, the Second Circuit has stated:

[I]t must be recognized that an abundance of statements and

documents generated in federal litigation actually have little or no

bearing on the exercise of Article III judicial power. The relevance

or reliability of a statement or document generally cannot be

determined until heard or read by counsel, and, if necessary, by the

court or other judicial officer. As a result, the temptation to leave no

stone unturned in the search for evidence material to a judicial

proceeding turns up a vast amount of not only irrelevant but also

unreliable material.
8

United States v. Amodeo (Amodeo II), 71 F.3d 1044, 1048 (2d Cir. 1995). As a result of the

fact that many documents unearthed in discovery are not relevant to judicial actions, the

Second Circuit explained: “Unlimited access to every item turned up in the course of

litigation would be unthinkable. Reputations would be impaired, personal relationships

ruined, and businesses destroyed on the basis of misleading or downright false information.”

Id. at 1048–49. The Amodeo II court set out the following standard: “We believe that the

weight to be given the presumption of access must be governed by the role of the material

at issue in the exercise of Article III judicial power and the resultant value of such

information to those monitoring the federal courts. Generally, the information will fall

somewhere on a continuum from matters that directly affect an adjudication to matters that

come within a court’s purview solely to insure their irrelevance.” Id. at 1049. The court

recognized a presumption of public access to documents involved in litigation, but explained

that “[d]ocuments that play no role in the performance of Article III functions, such as those

passed between the parties in discovery, lie entirely beyond the presumption’s reach, and

‘stand[ ] on a different footing than . . . a motion filed by a party seeking action by the court,’

or, indeed, than any other document which is presented to the court to invoke its powers or

affect its decisions.” Id. at 1050 (emphasis added) (second alteration in original) (internal

citations omitted).

• In another case, the Second Circuit explained the standard for entering a protective order:

The district court has broad discretion to determine whether an order

should be entered protecting a party from disclosure of information

claimed to be privileged or confidential. Galella v. Onassis, 487 F.2d

986, 997 (2d Cir. 1973). Where, as here, the documents are relevant,

the burden is upon the party seeking non-disclosure or a protective

order to show good cause.

Penthouse Int’l, Ltd. v. Playboy Enters., Inc., 663 F.2d 371, 391 (2d Cir. 1981) (citations

omitted).

• A court within the Second Circuit has explained that public interest also must factor into the

determination of whether to grant a protective order:

The test for entering a protective order under FED. R. CIV. P.

26(c) is “good cause.” See, e.g., Dove v. Atlantic Capital Corp., 963

F.2d 15, 18–19 (2d Cir. 1992); Bank of New York v. Meridien Biao

Bank Tanzania, 171 F.R.D. 135, 143 (S.D.N.Y. 1997). In assessing

a party’s application for such relief, the court must balance the

demonstrated interest of the applicant in the secrecy of the

information in question against not only the prejudice, if any, to the

opposing party, but also the recognized federal common-law interest

of the public in access to court proceedings. See, e.g., Nixon v.

Warner Communications, Inc., 435 U.S. 589, 597–99 (1978);
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DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818, 826 (2d Cir.

1997), cert. denied, 522 U.S. 1049 (1998); United States v. Amodeo,

71 F.3d 1044, 1053 (2d Cir. 1995).

Byrnes v. Empire Blue Cross Blue Shield, No. 98 Civ. 8520 BSJ MHD, 2000 WL 60221, at

*1 (S.D.N.Y. Jan. 25, 2000) (footnote omitted). The court recognized that the public’s

interest in litigation materials depends on the stage of the litigation:

Since the articulated public interest is in court proceedings,

the weight of the interest varies depending upon the role the

information in question plays in the adjudicative process. At one end

of the spectrum is information produced to a litigant in discovery.

Most discovery, including document production, typically takes place

privately. Moreover, given the liberal standards that govern

discovery, it is often the case that much of the information actually

turned over has little or no significance for the resolution of the

claims and defenses or other issues presented to the court in the

course of the litigation. For these reasons, the public interest in

access to discovery materials is recognized as generally of a limited

order, although most courts have held that the producing party still

has the burden of demonstrating good cause for preventing public

access to discovery materials. In contrast, the public interest in

access to the proceedings of the court is a central and compelling

policy consideration, and that policy dictates that the party seeking

a protective order must satisfy a more demanding standard to justify

sealing portions of trials, other court hearings or papers filed with the

court, including motion papers.

Id. (internal citations omitted).

• The Second Circuit recently noted that “[t]he disclosure of confidential information on an

‘attorneys’ eyes only’ basis is a routine feature of civil litigation involving trade secrets.”

Dinler v. City of New York (In re The City of New York), --- F.3d ----, 2010 WL 2294134,

at *7 (2d Cir. Jun. 9, 2010) (citing FED. R. CIV. P. 26(c)(1)(G) (“‘The court may, for good

cause, issue an order to protect a party . . . including . . . requiring that a trade secret or other

confidential research, development, or commercial information not be revealed or be

revealed only in a specified way . . . .’”) (omissions in original)). 

Standard for Entering a Sealing Order

• The Second Circuit has emphasized that sealing documents associated with dispositive

motions requires a very high showing. In Lugosch v. Pyramid Co. of Onondaga, 435 F.3d

110, 113 (2d Cir. 2006), the Second Circuit concluded that the district court had erred by

holding in abeyance a motion by the press to intervene to access sealed documents filed in
10

connection with a summary judgment motion because “the contested documents are judicial

documents to which a presumption of immediate access applies under both the common law

and the First Amendment.” The court explained that “[t]he common law right of access to

judicial documents is firmly rooted in our nation’s history,” and stated:

The presumption of access is based on the need for federal courts,

although independent—indeed, particularly because they are

independent—to have a measure of accountability and for the public

to have confidence in the administration of justice. Federal courts

exercise powers under Article III that impact upon virtually all

citizens, but judges, once nominated and confirmed, serve for life

unless impeached through a process that is politically and practically

inconvenient to invoke. Although courts have a number of internal

checks, such as appellate review by multi-judge tribunals,

professional and public monitoring is an essential feature of

democratic control. Monitoring both provides judges with critical

views of their work and deters arbitrary judicial behavior. Without

monitoring, moreover, the public could have no confidence in the

conscientiousness, reasonableness, or honesty of judicial

proceedings. Such monitoring is not possible without access to

testimony and documents that are used in the performance of Article

III functions.

Id. at 119 (quotation marks omitted) (quoting Amodeo II, 71 F.3d at 1048). The Lugosch

court explained that “in order to be designated a judicial document, ‘the item filed must be

relevant to the performance of the judicial function and useful in the judicial process.’” Id.

(quoting United States v. Amodeo (Amodeo I), 44 F.3d 141, 145 (2d Cir. 1995)). The court

noted that once a “court has determined that the documents are judicial documents and that

therefore a common law presumption of access attaches, it must determine the weight of that

presumption,” which is “‘governed by the role of the material at issue in the exercise of

Article III judicial power and the resultant value of such information to those monitoring the

federal courts,’” id. (quoting Amodeo II, 71 F.3d at 1049). Then, “after determining the

weight of the presumption of access, the court must ‘balance competing considerations

against it,’” which “include but are not limited to ‘the danger of impairing law enforcement

or judicial efficiency’ and ‘the privacy interests of those resisting disclosure.’” Id. at 120

(quoting Amodeo II, 71 F.3d at 1050).

The Lugosch court also explained that “[i]n addition to the common law right of access, it

is well established that the public and the press have a ‘qualified First Amendment right to

attend judicial proceedings and to access certain judicial documents.’” Id. (quoting Hartford

Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir. 2004)). The court elaborated:

We have articulated two different approaches for determining

whether “the public and the press should receive First Amendment
11

protection in their attempts to access certain judicial documents.”

[Hartford Courant, 435 F.3d] at 92. The so-called “experience and

logic” approach requires the court to consider both whether the

documents “have historically been open to the press and general

public” and whether “public access plays a significant positive role

in the functioning of the particular process in question.” Id. (quoting

Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S. Ct.

2735, 92 L. Ed. 2d 1 (1986)). “The courts that have undertaken this

type of inquiry have generally invoked the common law right of

access to judicial documents in support of finding a history of

openness.” Id. The second approach considers the extent to which

the judicial documents are “derived from or [are] a necessary

corollary of the capacity to attend the relevant proceedings.” Id. at

93.

Lugosch, 435 F.3d at 120 (second alteration in original) (footnote omitted). However, even

if a court determines that documents are entitled to a qualified First Amendment right of

access, “‘[d]ocuments may be sealed if specific, on the record findings are made

demonstrating that closure is essential to preserve higher values and is narrowly tailored to

serve that interest.’” Id. (quoting In re New York Times Co., 828 F.2d 110, 116 (2d Cir.

1987) (internal quotation marks omitted)). “‘Broad and general findings by the trial court,

however, are not sufficient to justify closure.’” Id. (quoting In re New York Times, 828 F.2d

at 116).

The court noted that Second Circuit “precedents indicate that documents submitted to a court

for its consideration in a summary judgment motion are—as a matter of law—judicial

documents to which a strong presumption of access attaches, under both the common law

and the First Amendment.” Id. at 121. As a result, the court concluded that “‘documents

used by parties moving for, or opposing, summary judgment should not remain under seal

absent the most compelling reasons.’” Id. (quoting Joy v. North, 692 F.2d 880, 893 (2d Cir.

1982)). The court continued: “The justification offered in Joy v. North for this conclusion

is that summary judgment is an adjudication, and ‘[a]n adjudication is a formal act of

government, the basis of which should, absent exceptional circumstances, be subject to

public scrutiny.’” Id. (alteration in original) (quoting Joy, 692 F.2d at 893).

In addition, the Lugosch court emphasized that in evaluating whether court documents may

be sealed from the press, the court should not consider the press’s motive in seeking access:

Although the presumption of access is based on the need for the

public monitoring of federal courts, those who seek access to

particular information may want it for entirely different reasons.

However, we believe motive generally to be irrelevant to defining the

weight accorded the presumption of access. It is true that journalists

may seek access to judicial documents for reasons unrelated to the
12

monitoring of Article III functions. Nevertheless, assessing the

motives of journalists risks self-serving judicial decisions tipping in

favor of secrecy. Where access is for the purpose of reporting news,

moreover, those interested in monitoring the courts may well learn of,

and use, the information whatever the motive of the reporting

journalist.

435 F.3d at 123 (quoting Amodeo II, 71 F.3d at 1050) (quotation marks omitted).

The Lugosch court noted that even where both a common law and First Amendment right

of access attaches, documents can be sealed in some circumstances:

Notwithstanding the presumption of access under both the

common law and the First Amendment, the documents may be kept

under seal if “countervailing factors” in the common law framework

or “higher values” in the First Amendment framework so demand.

Since we have concluded that the more stringent First Amendment

framework applies, continued sealing of the documents may be

justified only with specific, on-the-record findings that sealing is

necessary to preserve higher values and only if the sealing order is

narrowly tailored to achieve that aim.

Id. at 124 (citing In re New York Times, 828 F.2d at 116).

Finally, the court emphasized that documents may not remain sealed simply because parties

relied on a discovery protective order in producing documents:

[T]he argument that the defendants’ reliance on [the confidentiality

order] during years of discovery shields them now from the burden

of justifying protection of the documents ignores the fact that civil

litigants have a legal obligation to produce all information “which is

relevant to the subject matter involved in the pending action,” FED.

R. CIV. P. 26(b)(1), subject to exceptions not involved here. Thus,

defendants cannot be heard to complain that their reliance on the

protective order was the primary cause of their cooperation during

years of discovery: even without [the confidentiality order], I would

eventually have ordered that each discoverable item be turned over

to the plaintiffs. Umbrella protective orders do serve to facilitate

discovery in complex cases. However, umbrella protection should

not substantively expand the protection provided by Rule 26(c)(7) or

countenanced by the common law of access. To reverse the burden

in this situation would be to impose a significant and perhaps

overpowering impairment on the public access right.
13

Id. at 125–26 (alterations in original) (quotation marks omitted) (quoting In re Coordinated

Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 101 F.R.D. 34, 43–44 (C.D. Cal.

1984)).

• The Second Circuit recently reemphasized the standard set out in Lugosch. In Standard

Investment Chartered, Inc. v. Financial Industry Regulatory Authority, Ind., 347 F. App’x

615 (2d Cir. 2009) (unpublished summary order), the court stated:

The District Court properly recognized that the normal burden

upon the proponent of a protective order to establish good cause for

protection, see [Gambale v. Deutsche Bank AG, 377 F.3d 133, 142

(2d Cir. 2004)], is significantly enhanced with respect to “judicial

documents,” see Lugosch v. Pyramid Co. of Onondaga, 435 F.3d

110, 119 (2d Cir. 2006), as to which “a common law presumption of

access attaches,” id. We have described “judicial documents” as

those that are “‘relevant to the performance of the judicial function,’”

id. . . . at 119 (quoting United States v. Amodeo, 44 F.3d 141, 145 (2d

Cir.1995)), but we have also said that the monitoring of the judicial

function is not possible without access to “documents that are used

in the performance of Article III functions,” United States v. Amodeo,

71 F.3d 1044, 1048 (2d Cir. 1995) ( “Amodeo II”) (emphasis added).

. . . The District Court also recognized the extra force in favor of

disclosure supplied by the qualified First Amendment right of access

that we discussed in Lugosch, 435 F.3d at 120. However, Lugosch

pointed out that even this qualified First Amendment right of access

“does not end the inquiry.” Id. Analogizing to the courtroom closure

context, we observed that “‘[d]ocuments may be sealed if specific, on

the record findings are made demonstrating that closure is essential

to preserve higher values and is narrowly tailored to serve that

interest.’” Id. (quoting In re New York Times, 828 F.2d 110, 116 (2d

Cir. 1987)).

Id. at 616–17 (second alteration in original). The court emphasized that “‘[w]here testimony

or documents play only a negligible role in the performance of Article III duties, the weight

of the presumption is low and amounts to little more than a prediction of public access

absent a countervailing reason.’” Id. at 617 (quoting Amodeo II, 71 F.3d at 1050).

• The Second Circuit has also noted that “several ‘competing interests [have been weighed]

in a variety of contexts in determining whether to grant access to judicial documents . . . .’”

SEC v. TheStreet.com, 273 F.3d 222, 231 n.10 (2d Cir. 2001) (quoting Amodeo I, 44 F.3d

at 147 (citations omitted)). The court also noted:

[T]he public has in the past been excluded, temporarily or

permanently from . . . the records of court proceedings to protect
2

 In the related context of whether a grand jury subpoena can trump a protective order entered in civil litigation, the

circuits have split as to the proper approach. See, e.g., In re Grand Jury, 286 F.3d 153, 156, 158 (3d Cir. 2002) (noting

that the Second Circuit has adopted a rule that “absent a showing of improvidence in the grant of the protective order,

or extraordinary circumstance or compelling need for the information, a protective order takes priority over a grand jury

subpoena,” but that “[t]his presumption in favor of enforcing protective orders against grand jury subpoenas has been

rejected by several courts” in favor of “a per se rule that a grand jury subpoena always trumps a protective order,” and

joining the First Circuit’s intermediate approach by holding that “a grand jury subpoena supercedes a civil protective

order unless the party seeking to avoid the subpoena demonstrates the existence of exceptional circumstances that clearly

favor enforcement of the protective order” (citations omitted)); In re Grand Jury Subpoena, 138 F.3d 442, 444–45 (1st

14

private as well as public interests: to protect trade secrets, or the

privacy and reputation of victims of crimes, as well as to guard

against risks to national security interests, and to minimize the danger

of an unfair trial by adverse publicity.

We have [elsewhere] recognized the law enforcement privilege as an

interest worthy of protection.

Id. (alterations in original) (quotation marks omitted) (quoting Amodeo I, 44 F.3d at 147

(citations omitted)). TheStreet.com court explained that in Amodeo II, the court had found

that once the document at issue had been deemed a judicial document, the next step was to

“determine the weight of the presumption of public access by evaluating ‘the role of the

material at issue in the exercise of Article III judicial power and the resultant value of such

information to those monitoring the federal courts.’” Id. at 232 (quoting Amodeo II, 71 F.3d

at 1049). The court explained that once the weight of the presumption of public access is

determined, a court should “‘balance [the] competing considerations against [that

presumption],’” id. (alterations in original) (quoting Amodeo II, 71 F.3d at 1050), including

at least two countervailing factors: “(1) the danger of impairing law enforcement or judicial

efficiency; and (2) the privacy interests of those who resist disclosure,” id. With respect to

the latter countervailing factor, the court stated that “‘the privacy interests of innocent third

parties . . . should weigh heavily in a court’s balancing equation,’” and that “the weight of

the privacy interest should depend on ‘the degree to which the subject matter is traditionally

considered private rather than public.’” Id. (quoting Amodeo II, 71 F.3d at 1050, 1051). The

court also stated that “a court should consider ‘the nature and degree of injury’ as well as

whether ‘there is a fair opportunity for the subject to respond to any accusations contained

therein.’” TheStreet.Com, 273 F.3d at 232 (quoting Amodeo II, 71 F.3d at 1051).

Standard for Modifying a Protective Order

• The Second Circuit has set forth a restrictive standard for modifying a protective order:

“Where there has been reasonable reliance by a party or deponent, a District Court should

not modify a protective order granted under Rule 26(c) ‘absent a showing of improvidence

in the grant of [the] order or some extraordinary circumstance or compelling need.’”

TheStreet.com, 273 F.3d at 229 (alteration in original) (quoting Martindell v. Int’l Tel. & Tel.

Corp., 594 F.2d 291, 296 (2d Cir. 1979)).2 The Second Circuit emphasized the importance
Cir. 1998) (noting that “[t]he Second Circuit’s rule—positing a presumption in favor of a protective order when such

an order clashes with a grand jury subpoena—has received a cool reception elsewhere,” and that several other circuits

have adopted “a per se rule that invariably prefers grand jury subpoenas over civil protective orders,” but finding neither

approach appropriate and adopting instead a modified per se rule that “[a] grand jury’s subpoena trumps a Rule 26(c)

protective order unless the person seeking to avoid the subpoena can demonstrate the existence of exceptional

circumstances that clearly favor subordinating the subpoena to the protective order” (citations omitted)); United States

v. Janet Greeson’s A Place for Us, Inc. (In re Grand Jury Subpoena Served on Meserve, Mumper & Hughes), 62 F.3d

1222, 1226 (9th Cir. 1995) (rejecting the Second Circuit’s compelling need test and adopting the Fourth and Eleventh

Circuits’ per se approach that “a grand jury subpoena should, as a matter of course, prevail over a protective order”);

Williams v. United States (In re Grand Jury Proceedings), 995 F.2d 1013, 1015, 1017, 1018–20 (11th Cir. 1993)

(rejecting the strict Martindell test in the context of grand jury subpoenas, in part because while “protective orders help

district courts resolve civil matters, [the court could not] agree with the Second Circuit that they are the ‘cornerstone of

our administration of civil justice,’” and finding the Martindell test “administratively unworkable” in the context of grand

jury subpoenas); United States v. (Under Seal) (In re Grand Jury Subpoena), 836 F.2d 1468, 1477 (4th Cir. 1988)

(adopting a per se rule that “a reasonable balancing of the respective interests of the civil courts and grand jury

investigations favors enforcement of a grand jury subpoena despite the existence of an otherwise valid protective order”).

The Fourth Circuit noted that Martindell “concerned an informal government request to a federal district court for copies

of deposition transcripts which were the subject of a Rule 26 protective order” and “did not express an opinion on how

these interests should be balanced when a grand jury subpoena seeks to override a valid protective order.” In re Grand

Jury Subpoena, 836 F.2d at 1473. Martindell disapproved of the government’s informal request for protected discovery.

See Martindell, 594 F.2d at 294 (“The Government may not, however, simply by picking up the telephone or writing

a letter to the court (as was the case here), insinuate itself into a private civil lawsuit between others. The proper

procedure, as the Government should know, was either to subpoena the deposition transcripts for use in a pending

proceeding such as a grand jury investigation or trial, in which the issue could be raised by motion to quash or modify

the subpoena, see Rule 17(c), F. R. CRIM. P., or to seek permissive intervention in the private action pursuant to Rule

24(b), F. R. CIV. P., for the purpose of obtaining vacation or modification of the protective order.” (citations omitted)).

In adopting the intermediate approach, the Third Circuit noted that “[a] protective order is an important device,

but it is also a limited one, and is subject to modification.” In re Grand Jury, 286 F.3d at 161 (citation omitted). The

court stated:

Protective orders are limited instruments that are quite useful in facilitating the

efficient disposition of litigation in the many civil cases that involve potentially

embarrassing facts or sensitive commercial or other private information. Yet

deponents who have reason to fear not just embarrassment or economic

disadvantage, but possible criminal charges as well, should be aware that a

protective order alone cannot protect them from a grand jury investigation.

Id. The Third Circuit also pointed out that determining whether a party has shown exceptional circumstances to warrant

enforcing a protective order in the face of a grand jury subpoena involves a case-by-case analysis, and provided a nonexhaustive list of several factors courts might consider:

1) the government’s need for the information (including the availability of other

sources); 2) the severity of the contemplated criminal charges; 3) the harm to

society should the alleged criminal wrongdoing go unpunished; 4) the interests

served by continued maintenance of complete confidentiality in the civil litigation;

5) the value of the protective order to the timely resolution of that litigation; 6) the

harm to the party who sought the protective order if the information is revealed to

the grand jury; 7) the severity of the harm alleged by the civil-suit plaintiff; and 8)

the harm to society and the parties should the encroachment upon the protective

order hamper the prosecution or defense of the civil case.

15
Id. at 162 (citing In re Grand Jury Subpoena, 138 F.3d at 445).

16

of parties being able to rely on protective orders:

[P]rotective orders issued under Rule 26(c) serve “the vital function

. . . of ‘secur[ing] the just, speedy, and inexpensive determination’ of

civil disputes . . . by encouraging full disclosure of all evidence that

might conceivably be relevant. This objective represents the

cornerstone of our administration of civil justice.” Without an ability

to restrict public dissemination of certain discovery materials that are

never introduced at trial, litigants would be subject to needless

“annoyance, embarrassment, oppression, or undue burden or

expense.” Rule 26(c). And if previously-entered protective orders

have no presumptive entitlement to remain in force, parties would

resort less often to the judicial system for fear that such orders would

be readily set aside in the future.

Id. at 229–30 (omissions and second alteration in original) (footnote and internal citation

omitted). The Second Circuit warned against the effects of granting requests to modify

protective orders without a compelling reason:

If protective orders were easily modified, moreover, parties

would be less forthcoming in giving testimony and less willing to

settle their disputes: “Unless a valid Rule 26(c) protective order is to

be fully and fairly enforceable, witnesses relying upon such orders

will be inhibited from giving essential testimony in civil litigation .

. . .” Martindell, 594 F.2d at 295. Indeed, we have observed that

protective orders can provide a powerful incentive to deponents who

would not otherwise testify. Id. at 296 (finding that “the deponents

testified in reliance upon the Rule 26(c) protective order, absent

which they may have refused to testify”).

Id. at 230. The court concluded that “another compelling reason to discourage modification

of protective orders in civil cases is to encourage testimony in pre-trial discovery

proceedings and to promote the settlement of disputes.” Id. In addition to focusing on the

parties’ reliance on protective orders, the Second Circuit noted the unfairness of modifying

protective orders. Id. (“It is . . . presumptively unfair for courts to modify protective orders

which assure confidentiality and upon which the parties have reasonably relied.”). However,

the Second Circuit emphasized that to avoid modification, the parties’ reliance must be

reasonable, explaining that “protective orders that are on their face temporary or limited may

not justify reliance by the parties.” Id. at 231. 

• Another court in the Second Circuit recently discussed the standard for modifying a

protective order: “In the Second Circuit, where there has been reasonable reliance by a party
17

or deponent on the confidentiality order in giving testimony or producing materials, a district

court should not modify an order granted under 26(c) ‘‘absent a showing of improvidence

in the grant of the order or some extraordinary circumstance or compelling need.’’” In re

Ethylene Propylene Diene Monomer (EPDM) Antitrust Litig., 255 F.R.D. 308, 317 (D. Conn.

2009) (citing TheStreet.com, 273 F.3d at 229). The EPDM court recognized that the Second

Circuit approach is stricter than other circuits:

This presumption [in the Second Circuit] against modification

differs from the standard in other circuits, which have a presumption

in favor of access in cases where an intervening party involved in

bona fide collateral litigation seeks access to protected discovery

materials. See, e.g., United Nuclear Corp. v. Cranford Ins. Co., 905

F.2d 1424, 1428 (10th Cir. 1990); Wilk v. Am. Med. Ass’n, 635 F.2d

1295, 1299 (7th Cir. 1980). See also Pansy v. Borough of

Stroudsburg, 23 F.3d 772, 789–90 (3rd Cir. 1994) (rejecting Second

Circuit approach); Beckman Industries, Inc. v. Int’l Ins. Co., 966 F.2d

470, 475–76 (9th Cir. 1992) (same); Public Citizen v. Liggett Group,

Inc., 858 F.2d 775, 791 (1st Cir. 1988) (same). In those circuits,

modification is favored when it will “place private litigants in a

position they would otherwise reach only after repetition of another’s

discovery.” Wilk, 635 F.2d at 1299. A trial court should deny

modification only where it would “tangibly prejudice substantial

rights of the party opposing modification.” Id. The desire to make

litigation more burdensome to pursue in the collateral jurisdiction “is

not legitimate prejudice.” United Nuclear Corp., 905 F.2d at 1428.

Any legitimate interest the defendants have in keeping the materials

filed under the protective order out of public hands can be

accommodated by placing the intervening party under the same use

and disclosure restrictions contained in the original order. Id. See

also [In re] Linerboard [Antitrust Litig.], 333 F. Supp. 2d [333,]

339–40 [(E.D. Pa. 2004)] (allowing modification on the condition

that the Canadian third-party intervenor be bound by the protective

order’s use and disclosure requirements and submit to the personal

jurisdiction of the court for purposes of enforcing the agreement); [In

re] Neurontin [Mktg., Sales Practices, & Prods. Liab. Litig.], MDL

Docket No. 1629 (D. Mass. Oct. 13, 2006) (order granting motion to

intervene) (same).

Id. at 317–18 (footnote omitted).

The court emphasized that the strict Second Circuit standard for modifying a protective order

applies only if the parties reasonably relied on the order:

[T]hough the Martindell standard is admittedly a stringent one, it
18

does not apply uniformly to all protective orders. Id. Rather, the

application of the strong presumption against modification is

dependent upon a protective order’s particular characteristics and

whether it invites reasonable reliance on the permanence of the order.

Id. “Even the Second Circuit recognizes that there must be a

plausible showing of reliance on the order to narrow the grounds for

modification.” 8 WRIGHT & MILLER § 2044.1. For example, where

the deponent or party could not have reasonably relied on the

protective order to continue indefinitely, “a court may properly

permit modification of the order.” TheStreet.com, 273 F.3d at 231.

In TheStreet.com, the Court concluded that the Martindell

presumption against access did not apply to the protective order at

issue because the deponents, unlike in Martindell, had not provided

their depositions in reasonable reliance on the protective order. Id.

at 233. Absent such reliance, the Martindell standard “never came

into play,” and therefore the lower court’s decision to modify the

order after balancing the parties’ interests was within the scope of its

discretion. Id. at 234.

Id. at 318. The EPDM court described the factors used to consider whether the parties have

reasonably relied on a protective order:

Application of the Martindell presumption against

modification depends on the nature of the protective order and

whether it invited reasonable reliance by a party or deponent. An

examination of Second Circuit case law reveals the following factors

are relevant when determining whether a party has reasonably relied

on the protective order: (1) the scope of the protective order; (2) the

language of the order itself; (3) the level of inquiry the court

undertook before granting the order; and (4) the nature of reliance on

the order. Additional considerations that may influence a court’s

decision to grant modification include: the type of discovery

materials the collateral litigant seeks and the party’s purpose in

seeking a modification. Given the wide variety of protective orders

in operation, the more flexible approach to modification emphasized

by TheStreet.com is sensible.

Id. at 318–19. 

The court explained that the type of protective order under consideration affects the

determination of whether the parties reasonably relied upon it:

When considering a motion to modify, it is relevant whether

the order is a blanket protective order, covering all documents and
19

testimony produced in a lawsuit, or whether it is specifically focused

on protecting certain documents or certain deponents for a particular

reason. A blanket protective order is more likely to be subject to

modification than a more specific, targeted order because it is more

difficult to show a party reasonably relied on a blanket order in

producing documents or submitting to a deposition. “Although such

blanket protective orders may be useful in expediting the flow of

pretrial discovery materials, they are by nature overinclusive and are,

therefore, peculiarly subject to later modification.” Stipulated

blanket orders are even less resistant to a reasonable request for

modification.

Id. at 319 (internal citations omitted).

Parties also may not reasonably rely on a protective order that expressly limits its

applicability: “Where a protective order contains express language that limits the time period

for enforcement, anticipates the potential for modification, or contains specific procedures

for disclosing confidential materials to non-parties, it is not reasonable for a party to rely on

an assumption that it will never be modified.” Id. at 320 (citing TheStreet.com, 273 F.3d

at 231). Further, “[e]xpress provisions of an order permitting non-parties to seek access to

the protected materials will diminish the reasonableness of reliance a party claims to place

on the order’s permanent secrecy.” EPDM, 255 F.R.D. at 320. “Courts evaluating the

language of stipulated agreements between the parties must interpret the order ‘as its plain

language dictates.’” Id. (citation omitted).

In addition, the modification analysis described by the EPDM court includes consideration

of the extent to which the district court examined the protective order initially:

Whether a protective order is entitled to Martindell’s strong

presumption against modification is also dependent upon the

circumstances surrounding its grant, i.e., how much consideration the

court gave to the request for a protective order before granting it. A

protective order granted on the basis of a stipulation by the parties

carries less weight than a protective order granted after a hearing to

show good cause.

The heightened Martindell “extraordinary circumstances”

standard applies where a court has already “considered each

document in the first instance according to a ‘good cause’ standard”

and is not appropriate in cases with stipulated protective orders that

grant parties “open-ended and unilateral deference” to protect

whichever discovery materials they choose.

Id. at 321 (internal citations omitted).
20

Further, the modification analysis considers the degree of reliance, such as whether a party

produced documents it was not required to produce in reliance on the provisions of a

protective order:

Where a party or deponent, in reliance on the protective order,

gives up its right to refuse to testify, or to produce documents it

would not otherwise be compelled to produce, the heightened

Martindell presumption against modification naturally applies. “The

extent to which a party can rely on a protective order should depend

on the extent to which the order induced the party to allow discovery

or to settle the case.”

Id. at 322 (citation omitted). The court further explained:

Conversely, where the parties have not given up any rights

and indeed would have been compelled to produce the discovery

materials even in the absence of a protective order, the presumption

against modification is not as strong. In such cases, the protective

order has been granted to parties concerned about disclosing

non-public information and as a convenience to avoid

time-consuming discovery disputes and document-by-document good

cause showings.

Id. at 323.

Finally, the EPDM court discussed several other factors relevant to the modification analysis:

Although the type of materials sought by an intervenor does

not affect the nature of reliance on the protective order by the existing

parties, it is another important factor for a court to consider when

deciding a motion to modify. Whether the collateral litigant could

retrieve the same materials in question through its own discovery

requests or whether it is attempting to subvert a limitation on

discovery, such as the close of the factual record, should be taken into

account. Certainly if the litigant could access the same materials and

deposition testimony by conducting its own discovery, it is in the

interest of judicial efficiency to avoid such duplicative discovery.

See 8 WRIGHT & MILLER § 2044.1 (noting that modification in these

situations prevents litigants from having to “reinvent the wheel”).

However, if the intervenor is seeking to circumvent limitations on its

ability to conduct discovery in its own case or to gain access to

materials it would otherwise have no right to access, a court should

refuse to modify the protective order.
21

Id. at 324 (citation omitted). The court also concluded that the purpose for which

modification is sought is a factor to be considered:

A litigant’s purpose in seeking modification of an existing

protective order is also relevant for determining whether to grant a

modification. Requests to modify protective orders so that the public

may access discovery materials is arguably subject to a more

stringent presumption against modification because there is no public

right of access to discovery materials. TheStreet.com, 273 F.3d at

233. In the absence of a compelling need for the public to access

sealed documents, courts have generally been reluctant to disturb

discovery protective orders for public dissemination.

EPDM, 255 F.R.D. at 324.

THIRD CIRCUIT

Standard for Entering a Protective Order

• The Third Circuit has stated:

A party seeking a protective order over discovery materials

must demonstrate that “good cause” exists for the protection of that

material. FED. R. CIV. P. 26(c); Pansy [v. Borough of Stroudsburg,]

23 F.3d [772,] 786 [(3d Cir. 1994)]. “Good cause” is established

when it is specifically demonstrated that disclosure will cause a

clearly defined and serious injury. Id. Broad allegations of harm,

unsubstantiated by specific examples, however, will not suffice. Id.

Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995). The Glenmede court set

forth factors that it described as “neither mandatory nor exhaustive,” that could be

considered in determining whether “good cause” exists for granting a protective order. Id.

These factors include:

1) whether disclosure will violate any privacy interests;

2) whether the information is being sought for a legitimate purpose

or for an improper purpose;

3) whether disclosure of the information will cause a party

embarrassment;

4) whether confidentiality is being sought over information important

to public health and safety;
22

5) whether the sharing of information among litigants will promote

fairness and efficiency;

6) whether a party benefitting from the order of confidentiality is a

public entity or official; and

7) whether the case involves issues important to the public.

Id. (emphasis added) (quotation marks omitted) (quoting Pansy, 23 F.3d at 787–91).

The Glenmede court “recognized that the district court is best suited to determine what

factors are relevant to the dispute,” but “cautioned that the analysis should always reflect a

balancing of private versus public interests.” Id.; see also Shingara v. Skiles, 420 F.3d 301,

308 (3d Cir. 2005) (“Pansy emphasized that a court always must consider the public interest

when deciding whether to impose a protective order.” (citation omitted)).

The Glenmede court also recognized the importance of open court proceedings, particularly

to allow those who may have related claims to observe the proceedings, stating:

Federal courts should not provide a shield to potential claims by

entering broad protective orders that prevent public disclosure of

relevant information. The sharing of information among current and

potential litigants is furthered by open proceedings. . . . Absent a

showing that a defined and serious injury will result from open

proceedings, a protective order should not issue.

Glenmede, 56 F.3d at 485 (footnote omitted).

Glenmede emphasized the importance of judicial oversight to ensure that information that

is appropriately in the public domain remains accessible, rejecting a rule that would require

the issuance of protective orders to protect privileged materials sought in discovery until all

avenues of appeal are exhausted because “[s]uch a rule would be tantamount to permitting

the parties to control the use of protective orders.” Id. (footnote omitted).

• Another Third Circuit case has explained:

In the context of discovery, it is well-established that a party

wishing to obtain an order of protection over discovery material must

demonstrate that “good cause” exists for the order of protection.

FED. R. CIV. P. 26(c); Smith v. Bic Corp., 869 F.2d 194, 199 (3d Cir.

1989). . . . Protective orders over discovery materials and orders of

confidentiality over matters relating to other stages of litigation have

comparable features and raise similar public policy concerns. All

such orders are intended to offer litigants a measure of privacy, while
23

balancing against this privacy interest the public’s right to obtain

information concerning judicial proceedings. Also, protective orders

over discovery and confidentiality orders over matters concerning

other stages of litigation are often used by courts as a means to aid

the progression of litigation and facilitate settlements. Protective

orders and orders of confidentiality are functionally similar, and

require similar balancing between public and private concerns. We

therefore exercise our inherent supervisory power to conclude that

whether an order of confidentiality is granted at the discovery stage

or any other stage of litigation, including settlement, good cause must

be demonstrated to justify the order. Cf. City of Hartford v. Chase,

942 F.2d 130, 136 (2d Cir. 1991) (“We do not . . . give parties carte

blanche either to seal documents related to a settlement agreement or

to withhold documents they deem so ‘related.’ Rather, the trial

court—not the parties themselves—should scrutinize every such

agreement involving the sealing of court papers and [determine]

what, if any, of them are to be sealed, and it is only after very careful,

particularized review by the court that a Confidentiality Order may

be executed.”).

Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994) (alteration and second

omission in original) (footnote omitted). The court continued:

“Good cause is established on a showing that disclosure will

work a clearly defined and serious injury to the party seeking closure.

The injury must be shown with specificity.” Publicker Indus., Inc. v.

Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984). “Broad allegations of

harm, unsubstantiated by specific examples or articulated reasoning,”

do not support a good cause showing. Cipollone v. Liggett Group,

Inc., 785 F.2d 1108, 1121 (3d Cir. 1986), cert. denied, 484 U.S. 976,

108 S. Ct. 487, 98 L. Ed. 2d 485 (1987). The burden of justifying the

confidentiality of each and every document sought to be covered by

a protective order remains on the party seeking the order. Id. at 1122.

Id. at 786–87. The court elaborated:

In considering whether good cause exists for a protective

order, the federal courts have generally adopted a balancing process.

Arthur R. Miller, Confidentiality, Protective Orders, and Public

Access to the Courts, 105 HARV. L. REV. 427, 432–33 (1991). The

balancing conducted in the discovery context should be applied by

courts when considering whether to grant confidentiality orders at

any stage of litigation, including settlement:
24

[T]he court . . . must balance the requesting

party’s need for information against the injury that

might result if uncontrolled disclosure is compelled.

When the risk of harm to the owner of [a] trade secret

or confidential information outweighs the need for

discovery, disclosure [through discovery] cannot be

compelled, but this is an infrequent result.

Once the court determines that the discovery

policies require that the materials be disclosed, the

issue becomes whether they should “be disclosed only

in a designated way,” as authorized by the last clause

of Rule 26(c)(7) . . . . Whether this disclosure will be

limited depends on a judicial balancing of the harm to

the party seeking protection (or third persons) and the

importance of disclosure to the public. Courts also

have a great deal of flexibility in crafting the contents

of protective orders to minimize the negative

consequences of disclosure and serve the public

interest simultaneously.

Id. at 787 (alterations and omissions in original) (quoting Miller, supra, 105 HARV. L.REV.

at 433–35 (footnotes omitted)).

The court noted the need for flexibility in analyzing requests for protective orders:

The factors discussed above are unavoidably vague and are of

course not exhaustive. Although the balancing test discussed above

may be criticized as being ambiguous and likely to lead to

unpredictable results, we believe that such a balancing test is

necessary to provide the district courts the flexibility needed to justly

and properly consider the factors of each case.

Discretion should be left with the court to

evaluate the competing considerations in light of the

facts of individual cases. By focusing on the

particular circumstances in the cases before them,

courts are in the best position to prevent both the

overly broad use of [confidentiality] orders and the

unnecessary denial of confidentiality for information

that deserves it . . . .

Id. at 789 (alteration and omission in original) (quoting Miller, supra, 105 HARV. L. REV.

at 492).
25

Standard for Entering a Sealing Order

• The Third Circuit has recognized a right of public access to judicial proceedings, see, e.g.,

In re Cendant Corp. v. Forbes, 260 F.3d 183, 192 (3d Cir. 2001), and has explained that

“[t]he status of a document as a ‘judicial record,’ . . . depends on whether a document has

been filed with the court, or otherwise somehow incorporated or integrated into a district

court’s adjudicatory proceedings,” id. The Cendant court explained that sealing parts of the

judicial record requires a particularized showing:

In order to override the common law right of access, the party

seeking the closure of a hearing or the sealing of part of the judicial

record “bears the burden of showing that the material is the kind of

information that courts will protect” and that “disclosure will work

a clearly defined and serious injury to the party seeking closure.” In

delineating the injury to be prevented, specificity is essential. Broad

allegations of harm, bereft of specific examples or articulated

reasoning, are insufficient. As is often the case when there are

conflicting interests, a balancing process is contemplated. “[T]he

strong common law presumption of access must be balanced against

the factors militating against access. The burden is on the party who

seeks to overcome the presumption of access to show that the interest

in secrecy outweighs the presumption.”

Id. at 194 (internal citations omitted). The Cendant court emphasized that in the limited

circumstances in which sealing is warranted, the seal should be lifted as soon as practicable:

“Even if a sealing order was proper at the time when it was initially imposed, the sealing

order must be lifted at the earliest possible moment when the reasons for sealing no longer

obtain.” Id. at 196.

Standard for Modifying a Protective Order

• In Pansy, the Third Circuit explained that in considering whether to modify a protective

order, the court must evaluate the degree of reliance by the parties on the order. Pansy, 23

F.3d at 789 (“In determining whether to modify an already-existing confidentiality order, the

parties’ reliance on the order is a relevant factor.”). The court recognized that the various

circuits accord different weight to the parties’ reliance as a factor in determining whether

modification of a protective order is appropriate. See id. The court noted that the Second

Circuit had “announced a stringent standard for modification, holding that a confidentiality

order can only be modified if an extraordinary circumstance or compelling need warrants the

requested modification.” Id. (citations omitted). The court also noted that “[o]ther courts

of appeals have rejected this stringent standard, [and] have held that a more lenient test for

modification applies, but have failed to articulate precisely what that standard is.” Id.

(citations omitted). The Third Circuit determined that a standard less stringent than the

Second Circuit’s approach was appropriate:
26

We agree with these courts that the standard of the Court of

Appeals for the Second Circuit for modification is too stringent. The

appropriate approach in considering motions to modify

confidentiality orders is to use the same balancing test that is used in

determining whether to grant such orders in the first instance, with

one difference: one of the factors the court should consider in

determining whether to modify the order is the reliance by the

original parties on the confidentiality order. The parties’ reliance on

an order, however, should not be outcome determinative, and should

only be one factor that a court considers when determining whether

to modify an order of confidentiality.

Id. at 790 (footnote omitted). The court continued:

The extent to which a party can rely on a protective order

should depend on the extent to which the order induced the party to

allow discovery or to settle the case. For instance, reliance would be

greater where a trade secret was involved, or where witnesses had

testified pursuant to a protective order without invoking their Fifth

Amendment privilege . . . .

. . . Reliance will be less with a blanket order, because it is by

nature overinclusive.

Id. at 790 (quotation marks omitted) (quoting Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d

470, 475–76 (9th Cir. 1992)). The court also emphasized that parties could not rely on a

protective order that was not properly granted in the first place:

“[R]eliance on [confidentiality] orders [will] not insulate those orders

from subsequent modification or vacating if the orders were

improvidently granted ab initio . . . . [N]o amount of official

encouragement and reliance thereon could substantiate an

unquestioning adherence to an order improvidently granted.”

“Improvidence in the granting of a protective order is [a] justification

for lifting or modifying the order.” It would be improper and unfair

to afford an order presumptive correctness if it is apparent that the

court did not engage in the proper balancing to initially determine

whether the order should have been granted.

Id. (alterations and omission in original) (internal citations omitted).

The court set out the following procedure for determining whether to modify a protective

order:
27

The party seeking to modify the order of confidentiality must

come forward with a reason to modify the order. Once that is done,

the court should then balance the interests, including the reliance by

the original parties to the order, to determine whether good cause still

exists for the order.

If access to protected [material] can be granted

without harm to legitimate secrecy interests, or if no

such interests exist, continued judicial protection

cannot be justified. In that case, access should be

granted even if the need for the protected materials is

minimal. When that is not the case, the court should

require the party seeking modification to show why

the secrecy interests deserve less protection than they

did when the order was granted. Even then, however,

the movant should not be saddled with a burden more

onerous than explaining why his need for the

materials outweighs existing privacy concerns.

Pansy, 23 F.3d at 790 (alteration in original) (quoting Note, Nonparty Access to Discovery

Materials in the Federal Courts, 94 HARV. L. REV. 1085, 1092 (1981), cited with approval

in Meyer Goldberg, Inc. v. Fisher Foods, Inc., 823 F.2d 159, 163 (6th Cir. 1987)).

Finally, the Pansy court explained that an additional factor was relevant to the facts of that

case:

[W]here [a governmental entity] is a party to litigation, no protective,

sealing or other confidentiality order shall be entered without

consideration of its effect on disclosure of [government] records to

the public under [state and federal freedom of information laws]. An

order binding [governmental entities] shall be narrowly drawn to

avoid interference with the rights of the public to obtain disclosure of

[government] records and shall provide an explanation of the extent

to which the order is intended to alter those rights.

Id. at 791 (second, third, fourth, fifth, and sixth alterations in original) (quotation marks

omitted) (quoting Janice Toran, Secrecy Orders and Government Litigants: “A Northwest

Passage Around the Freedom of Information Act”?, 27 GA. L. REV. 121, 182 (1992)). The

court held:

[W]here it is likely that information is accessible under a relevant

freedom of information law, a strong presumption exists against

granting or maintaining an order of confidentiality whose scope
28

would prevent disclosure of that information pursuant to the relevant

freedom of information law. In the good cause balancing test, this

strong presumption tilts the scales heavily against entering or

maintaining an order of confidentiality. To avoid complicated

inquiries as to whether certain information would in fact be available

under a freedom of information law, courts may choose to grant

conditional orders.

Id. The court explained that “[n]either the interests of parties in settling cases, nor the

interests of the federal courts in cleaning their dockets, can be said to outweigh the important

values manifested by freedom of information laws.” Id. at 792.

• In Shingara v. Skiles, 420 F.3d 301, 306 (3d Cir. 2005), the Third Circuit explained that after

a court enters a protective order, “there must be good cause to maintain the order in the face

of a motion to vacate it, particularly when, as here, the moving party did not have an

opportunity to oppose the entry of the protective order in the first instance.”

• One district court in the Third Circuit, in considering a request for modification of a

protective order to provide more protection than originally granted, explained that the Third

Circuit requires good cause to modify a protective order, rather than the more stringent

“extraordinary circumstances” or “compelling need” required by the Second and Sixth

Circuits. See Green, Tweed of Delaware, Inc. v. DuPont Dow Elastomers, L.L.C., No. Civ.

A. 00-3058, 2002 WL 32349383, at *2 (E.D. Pa. Feb. 6, 2002). In addition to the factors

considered for granting a protective order, the court considered “the interests of fairness and

efficiency and the parties’ reliance on the protective order.” See id. at *4.

• Another district court discussed the various factors from Pansy in considering a request to

modify a protective order. The court explained:

Two factors to consider are (i) whether the information sought is

important to the public’s health and safety, and (ii) whether it

involves any legitimate public concern. If the parties or issues are of

a public nature, and are matters of legitimate public concern, that

should be a factor weighing in favor of disclosure. On the other

hand, “[w]here the parties are private, the right to rely on

confidentiality in their dealings is more compelling than where a

government agency is involved[.]”

Damiano v. Sony Music Entm’t, Inc., 168 F.R.D. 485, 491 (D.N.J. 1996) (alterations in

original) (internal citations omitted). The court also considered whether the party benefitting

from the confidentiality order was a public entity or official and whether sharing the

information would promote fairness and efficiency among the litigants. Id. at 491–92. In

addition, the court considered the purpose for which confidentiality was sought, and

concluded that seeking to use “raw discovery materials for financial profit is not what this
29

court considers to be a legitimate purpose for disclosure.” Id. at 492. Finally, the court

considered whether the parties had reasonably relied upon the protective order. Id. at

492–93.

• Another court explained that the standard used by the Seventh Circuit in Wilk v. American

Medical Ass’n, 635 F.2d 1295, 1299 (7th Cir. 1980), is the appropriate standard for

evaluating a request to modify a protective order:

[W]here an appropriate modification of a protective order can

place private litigants in a position they would otherwise reach only

after repetition of another’s discovery, such modification can be

denied only where it would tangibly prejudice substantial rights of

the party opposing modification. Once such prejudice is

demonstrated, however, the district court has broad discretion in

judging whether that injury outweighs the benefits of any possible

modification of the protective order. (citations omitted).

Koprowski v. Wistar Inst. of Anatomy & Biology, No. Civ. A. 92-CV-1182, 1993 WL

332061, at *2 (E.D. Pa. Aug. 19, 1993) (alteration in original) (quotation marks omitted)

(quoting Jochims v. Isuzu Motors, Ltd., 148 F.R.D. 624, 630 (S.D. Iowa 1993) (quoting Wilk,

635 F.2d at 1299)). The court concluded:

This standard is consistent with the purpose of the federal

rules to “secure the just, speedy, and inexpensive determination of

every action.” FED. R. CIV. P. 1. Courts have favored promotion of

full disclosure through discovery to meet the needs of parties in

pending litigation.

Accordingly, in applying the Wilk standard, a court must

weigh potential prejudice, if any, against the benefits of modification

of the confidentiality agreement.

Id. (internal citations omitted). The court also pointed out that “[t]he extent to which a party

can rely on a protective order or confidentiality agreement should depend on the extent to

which the order induced the party to allow discovery or to settle the case.” Id. The court

found it relevant that the intervenors seeking modification had agreed to use the information

in accordance with the protective order provisions, disposing of the threat of dissemination,

and disposing of the argument that modification would undermine the plaintiffs’ reliance.

Id. The court found that modification was appropriate, concluding that “[t]he potential

benefits to intervenors from modification of the confidentiality agreement—against which

must be weighed plaintiff’s potential prejudice—is the saving of time and expense which

may be achieved by avoiding duplicative discovery.” Id. at *3 (citations omitted).

• In Pichler v. UNITE, 585 F.3d 741 (3d Cir. 2009), petition for cert. filed, 60 U.S.L.W. 3500
30

(U.S. Feb. 9, 2010) (No. 09-951), the Third Circuit addressed standing to seek modification

of a protective order. The district court had granted a third party’s request to intervene, but

denied that party’s request to modify the protective order, noting that “‘what NRTW seeks

has not been filed with the court in any motions or pleadings; instead, it consists of

defendants’ production to the plaintiffs; such documents are raw discovery and are ordinarily

inaccessible to the public through the common law right of access; thus, NRTW has no path

of access to this information or a presumptive right to it.’” Id. at 745–46 (footnote omitted).

The Third Circuit noted that “[t]he right of access to judicial proceedings and judicial

records is beyond dispute,” id. at 746 n.5 (citing Pansy, 23 F.3d 772), but explained that

“because the documents the NRTW seeks have never been filed with the district court, they

are not judicial records, and, therefore, the NRTW cannot obtain access to them under the

right of access doctrine,” id. The court noted that it had previously held—in the context of

a gag order—that “‘the consent of the parties to the order limiting speech is irrelevant to

third-party standing analysis as long as the third party can demonstrate that an individual

subject to the order would speak more freely if the order is lifted or modified. . . .’” Id. at

750 (omission in original) (quoting United States v. Wecht, 484 F.3d 194, 203 (3d Cir.

2007)). But the court rejected the intervenor’s argument that it had third party standing to

seek modification of the protective order because the plaintiffs’ class counsel would provide

the requested records absent the protective order, explaining that this argument

“misinterprets the parameters of the willing speaker doctrine as well as the obstacles to

disclosure of the Disputed Search Records.” Id. The court explained that the records sought

were protected under the Driver’s Privacy Protection Act, and stated:

The least sympathetic case for discovery sharing is presented by a

request for access on behalf of someone who is merely contemplating

the commencement of litigation. The risk of a fishing expedition or

some other form of mischief is greatest in this context. The safest

course seems to be denial of discovery sharing until the requesting

party actually has begun a lawsuit, unless he demonstrates

extraordinary need.

Pichler, 585 F.3d at 752 (quotation marks omitted) (quoting Miller, supra, 105 HARV. L.

REV. at 499).

FOURTH CIRCUIT

Standard for Entering a Protective Order

• A district court in the Fourth Circuit has explained:

Under Rule 26(c) of the Federal Rules of Civil Procedure, a

court may enter a protective order upon motion of a party or persons

from whom discovery is sought. In order to obtain a protective order,

the party requesting the protective order must show good cause.
31

Brittain v. Stroh Brewery Co., 136 F.R.D. 408, 412 (M.D.N.C. 1991).

The request for a protective order must be based on a specific

demonstration of facts rather than speculative statements about the

need for a protective order and generalized claims of harm. Gulf Oil

v. Bernard, 452 U.S. 89, 102 n.16 (1981). “This requirement furthers

the goal that the court grant as narrow a protective order as is

necessary under the facts.” Brittain, 136 F.R.D. at 412.

Vallejo v. Alan Vester Auto Group, Inc., No. 5:07-CV-343-BO, 2008 WL 4610233, at *2

(E.D.N.C. Oct. 16, 2008).

Standard for Entering a Sealing Order

• In determining whether to seal court documents, the Fourth Circuit has differentiated

between a common law presumption in favor of access, which “attaches to all ‘judicial

records and documents,’” and a First Amendment guarantee of access, which “has been

extended only particular judicial records and documents.” Stone v. Univ. of Md. Med. Sys.

Corp., 855 F.2d 178, 180 (4th Cir. 1988) (citations omitted). “The common law presumption

of access may be overcome if competing interests outweigh the interest in access . . . .” Id.

(citations omitted). “Where the First Amendment guarantees access, on the other hand,

access may be denied only on the basis of a compelling governmental interest, and only if

the denial is narrowly tailored to serve that interest.” Id. The court explained that the

procedure for weighing competing interests in entering an order to seal judicial documents

was set forth in In re Knight Publishing Co., 743 F.2d 231 (4th Cir. 1984):

Under Knight, a court must first give the public notice of a request to

seal and a reasonable opportunity to challenge it. While individual

notice is unwarranted, the court must notify persons present in the

courtroom of the request, or docket it “reasonably in advance of

deciding the issue.” The court must consider less drastic alternatives

to sealing and, if it decides to seal documents, must “state the reasons

for its decision to seal supported by specific findings, and the reasons

for rejecting alternatives to sealing in order to provide an adequate

record for review.”

Stone, 855 F.2d at 181 (internal citations omitted).

Standard for Modifying a Protective Order

• A court within the Fourth Circuit has explained the factors to consider in evaluating a

request for a protective order: 

A number of factors may be employed to help guide a court

in exercising its discretion as to whether to modify a protective order.
3

 The court was considering a request by the plaintiffs to modify a stipulated, blanket protective order. It is unclear if

the court would require the party seeking modification to show good cause for modification if modification of a

stipulated order were requested by a party who had not agreed to a stipulated protective order.

32

These factors include: the reason and purpose for a modification,

whether a party has alternative means available to acquire the

information, the type of protective order which is at issue, and the

type of materials or documents which are sought.

SmithKline Beecham Corp. v. Sunthon Pharms. Ltd., 210 F.R.D. 163, 166 (M.D.N.C. 2002).

The court found that “[t]he party seeking to modify a protective order bears the burden of

showing good cause for the modification.”3

 Id. (citing TheStreet.com, 273 F.3d at 229;

Jochims v. Isuzu Motors, Ltd., 151 F.R.D. 338, 342 (S.D. Iowa 1993)). The court also noted

that some courts have applied a stringent standard to modification. See id. (“Some courts

even require a showing of compelling need, improvidence in consenting to the order, or

some extraordinary circumstance.” (citations omitted)). The court added that many courts

have found sufficient need for modification where modification would avoid duplicative

discovery, focusing on “the considerable efficiency and savings of time and effort in

avoiding duplicative discovery.” Id. (citing Beckman Indus., 966 F.2d 470; United Nuclear,

905 F.2d 1424; Jochims, 148 F.R.D. 624, as modified, 151 F.R.D. 338).

The court noted that even when a collateral litigant needs documents to avoid duplicative

discovery, that litigant would need to show an inability to obtain the information by

alternative means. Id. The court explained:

A court should be hesitant to modify protective orders for

matters unrelated to the litigation in front of it because otherwise, in

the long run, parties may begin to distrust protective orders.

Discovery, in turn, will become more complicated and expensive and

settlements will be more difficult. [TheStreet.com], 273 F.3d at 230.

A natural feeling of unfairness arises when the rules are modified

during the middle of the game, especially without very good cause.

Id. Second, modifying protective orders for other litigation involves

re-litigation over issues that have nothing to do with the lawsuit in

front of the court. Jochims, 151 F.R.D. at 343. This burdens both the

court and the parties. Longman v. Food Lion, Inc., 186 F.R.D. 331,

334 (M.D.N.C. 1999) (modification for ulterior purpose); Jochims,

151 F.R.D. at 343 (allowing modification but setting cut-off date for

continued litigation). Such modifications involve the court in a

controversy with which it is not familiar and over which it lacks

control. United Nuclear, 905 F.2d at 1428 (“district court must

refrain from issuing discovery orders applicable only to collateral

litigation.”). The court in which the matter is pending will be in a

better position to make rulings and the third party will have greater
33

control when it is directly involved in that controversy. For these

reasons, alternative means of obtaining the information should be

sought prior to attempting to modify a protective order entered in

another case.

Id. at 166–67. The court described additional factors relevant to the analysis:

In addition to the good cause and alternative means factors,

the type of protective order sought to be modified has a direct bearing

on the decision to modify. If the protective order has been entered

upon an actual finding that the information falls within Rule 26(c)

protection, great care should be exercised before modifying a

protective order for use outside of the litigation and the court’s

control. A blanket protective order, on the other hand, often is

nothing more than a FED.R.CIV.P. 29 stipulation between the parties

to keep discovery confidential. A party’s claimed reliance on such

orders to protect confidentiality is, consequently, less than if the party

had to make an actual or particular showing of confidentiality in

order to obtain the protective order. Therefore, when the

modification involves a blanket protective order, the nature of the

document which is sought assumes even greater importance.

The type of documents or information which will be revealed

by the modification to the protective order directly bears on the

decision to modify. To the extent that the documents are so-called

“judicial documents,” any presumption in favor of maintaining

confidentiality must now contend with a presumption in favor of

public access. While the parameters for defining a judicial document

may not be entirely set, there appears to be agreement that it does not

arise from the mere filing of papers or documents, but only those

used, submitted and relied upon by the court in making its decision.

And, even as to judicial documents, the court must balance the

confidentiality concerns of law enforcement, the private interests of

innocent third parties, and the parties themselves.

SmithKline Beecham, 210 F.R.D. at 167 (internal citations and footnote omitted). The court

added: “When the document or information does not fall under the judicial document

category, the court may look to the reasonableness of a party’s reliance on maintaining

confidentiality under a protective order.” Id. The court noted that “nothing else appearing,

a court may presume that any production of documents or information under a protective

order has been in reasonable reliance on that order,” but that “[f]acts, of course, may dispel

this presumption.” Id. The court further explained:

For example, greater credence may be given to reliance on the
34

confidentiality of settlement protective orders as opposed to more

temporary pretrial ones. On the other hand, when the documents at

issue do not likely involve highly confidential information, and/or the

reason opposing disclosure is mainly the desire to make litigation

more difficult, opposition to modification carries less weight. And,

the wholesale release of documents creates problems when doing so

impinges on a wide variety of confidentiality, from trade secrets to

less confidential business information. The burden of reviewing such

a wholesale request constitutes grounds for denying the same.

Id. at 167–68 (internal citations omitted). The court concluded by noting that while avoiding

duplicative discovery can be a proper ground for modifying a protective order, it “should,

in most cases, be the last resort of a party, not the first.” Id. at 169.

• In a recent case, the Fourth Circuit affirmed the district court’s decision to place the burden

of maintaining confidentiality on a third party seeking confidential treatment, when another

party sought access to relevant information covered by a protective order. In Lefkoe v. Jos.

A. Bank Clothiers, Inc., 577 F.3d 240, 242 (4th Cir. 2009), a nonparty witness asserted a

right to anonymity under the First Amendment in a deposition taken pursuant to a subpoena.

The court that issued the subpoena, which was not the court presiding over the main action,

noted that the third party had “‘no legal right to complete anonymity,’” and entered a

protective order prohibiting the lawyers from disclosing the identity of the nonparty witness

to anyone else, including the parties. Id. at 242, 243 (emphasis omitted). The court specified

that its order was subject to modification by a Maryland district court, where the action was

pending. Id. at 242. The defendant then moved in the Maryland court for unsealing of the

deposition, and the Maryland court modified the protective order to allow the third party

deponent’s identity to be disclosed to the parties in the case, but maintained the portion of

the protective order prohibiting disclosure to the public. Id. at 245. The district court

concluded that the defendant had “‘made an adequate showing that this information [wa]s

relevant to its opposition to class certification as well as to certain defenses it might raise to

Plaintiff’s claims,’” and explained that the deponent’s “‘desire to keep this information

private simply does not rise to the level of good cause necessary to maintain it under seal

from the parties to this litigation and doing so interferes with Jos. A. Bank’s counsel’s ability

to represent its client.’” Id. at 247. The Fourth Circuit affirmed the district court’s

modification of the protective order, noting that the defendant had shown the information

was relevant and that the First Amendment right to anonymity was subject to the substantial

governmental interest expressed in Rule 26 in providing the defendant a fair opportunity to

defend itself in court. See id. at 249 (citing FED. R. CIV. P. 26(b)(1)).

• Another case noted that a court must be careful to protect the parties’ reliance on a protective

order, stating:

[U]nless strong evidence exists that a litigant did not rely on the

existence of a protective order during discovery (for example, when
35

the party continued to resist reasonable discovery requests) or that no

legitimate interest exists in maintaining confidentiality, the balancing

of the competing values that led the initial trial court to issue the

order should not be undermined in a later proceeding. The reality

seems obvious: for protective orders to be effective, litigants must be

able to rely on them.

State Auto Mutual Ins. Co. v. Davis, No. 2:06-cv-00630, 2007 WL 2670262, at *2 (S.D. W.

Va. Sept. 7, 2007) (quoting SRS Techs., Inc. v. Physitron, Inc., 216 F.R.D. 525, 529 (N.D.

Ala. 2003) (quoting Miller, supra, 105 HARV. L. REV. at 499–501)).

• In another case, the court assumed that only good cause was required to modify a protective

order, and explained that whether the burden of showing good cause rested with the party

seeking modification or with the party seeking confidentiality depends on the showing made

when the order was entered. See Factory Mut. Ins. Co. v. Insteel Indus., Inc., 212 F.R.D.

301, 303 (M.D.N.C. 2002) (“‘The standard for modifying a protective order depends on

whether the parties were required to demonstrate good cause for the issuance of the order,

whether the parties relied on the order, and whether the parties stipulated to the terms of the

order.’” (quoting Longman v. Food Lion, Inc., 186 F.R.D. 331, 333 (M.D.N.C. 1999))). The

court stated: “If good cause were not required to be shown when the order was initially

entered, the party who later seeks to prevent disclosure of the information bears the burden

of showing good cause. If good cause were shown initially, however, the party seeking to

modify the order must show good cause.” Id. (internal citation omitted). The Factory

Mutual Insurance court found that because the parties and a nonparty had entered into a

stipulated protective order, they had “‘implicitly acknowledged’ that there was good cause

for protecting” the information at issue, and the court held that the party seeking to lift the

protective order therefore bore the burden of showing good cause to modify the order. Id.

at 304. The court also noted that “when the party seeking modification stipulated to the

terms of the order, courts have treated the issue of showing good cause differently.” Id. at

304 n.2 (citations omitted); see also Longman, 186 F.R.D. at 334 (“It is not appropriate to

allow a party to agree to a protective order, only to attempt to undo their agreement at the

last possible moment.”); Omega Homes, Inc. v. Citicorp Acceptance Co., 656 F. Supp. 393,

404 (W.D. Va. 1987) (“When, however, the proposed modification affects a protective order

stipulated to by the parties, as opposed to one imposed by the court, it is clear that the shared

and explicit assumption that discovery was for the purposes of one case alone goes a long

way toward denying the movant’s request without more.”). The Factory Mutual Insurance

court also noted that it was “even more apparent” that the party seeking modification was

required to show good cause because “this issue is treated differently when modification is

sought for purely investigative purposes in which no actual litigation is involved.” 212

F.R.D. at 305. The court explained that “[i]n such a case, modification of the protective

order is less likely to be granted, in part because the absence of any pending litigation

diminishes the likelihood that costly and time-consuming discovery will be avoided.” Id.

(footnote and citation omitted). The court noted that the situation would be different if it

were clear that modification of the protective order would avoid duplicative discovery in
36

another case, relying on the standard set out by the Seventh Circuit. See id. at 305 n.4

(“Modification of protective orders may be appropriate if repetition of discovery could be

avoided without tangibly prejudicing the substantial rights of another party.” (citing Wilk,

635 F.2d at 1299)). The court found that good cause for modification was lacking and that

“[r]epetition of discovery is simply unavoidable when a party . . . seeks to modify or to

vacate a protective order solely to investigate possible collateral litigation.” Id. at 306.

FIFTH CIRCUIT

Standard for Entering a Protective Order

• The Fifth Circuit has explained:

Rule 26(c)’s requirement of a showing of good cause to support the

issuance of a protective order indicates that “[t]he burden is upon the

movant to show the necessity of its issuance, which contemplates a

particular and specific demonstration of fact as distinguished from

stereotyped and conclusory statements.” United States v. Garrett,

571 F.2d 1323, 1326 n.3 (5th Cir. 1978); see also 8 CHARLES ALAN

WRIGHT, ARTHUR R. MILLER AND RICHARD L. MARCUS, FEDERAL

PRACTICE AND PROCEDURE § 2035, at 483–86 (2d ed. 1994).

In re Terra Int’l Inc., 134 F.3d 302, 306 (5th Cir. 1998) (per curiam).

• In another case, the Fifth Circuit noted that “[t]he grounds for a protective order can include

privileged or work-product material, but can also include the improper sharing of

confidential information between litigants in separate cases.” Crosswhite v. Lexington Ins.

Co., 321 F. App’x 365, 368 (5th Cir. 2009) (unpublished) (citing Scott v. Monsanto Co., 868

F.2d 786, 792 (5th Cir. 1989)).

• A court within the Fifth Circuit has also stated:

“Good cause” exists when disclosure will result in a clearly

defined and serious injury to the party seeking the protective order.

Pansy, 23 F.3d at 786. The litigant seeking a protective order must

articulate the injury with specificity. “Broad allegations of harm,

unsubstantiated by specific examples,” do not support a showing of

good cause. The burden of justifying a protective order remains on

the litigant seeking the order. In determining good cause, the court

must balance the risk of injury without the protective order and the

requesting party’s need for information. The court has wide

discretion in determining the scope of a protective order.

Blanchard & Co., Inc. v. Barrick Gold Corp., No. 02-3721, 2004 WL 737485, at *5 (E.D.
37

La. Apr. 5, 2004).

Standard for Entering a Sealing Order

• The Fifth Circuit has described the following standard for sealing court documents:

Courts have recognized that the public has a common law

right to inspect and copy judicial records. Nixon v. Warner

Communications, Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 1312, 55

L. Ed. 2d 570 (1978); Belo Broadcasting Corp. v. Clark, 654 F.2d

423, 429 (5th Cir. 1981). However, the public’s common law right

is not absolute. Nixon, 435 U.S. at 598, 98 S. Ct. at 1312; see Belo,

654 F.2d at 430. “Every court has supervisory power over its own

records and files, and access has been denied where court files might

have become a vehicle for improper purposes.” Nixon, 435 U.S. at

598, 98 S. Ct. at 1312. Thus, the common law merely establishes a

presumption of public access to judicial records. Littlejohn v. BIC

Corp., 851 F.2d 673, 678 (3d Cir. 1988). Although the common law

right of access to judicial records is not absolute, “the district court’s

discretion to seal the record of judicial proceedings is to be exercised

charily.” Federal Savings & Loan Ins. Corp. v. Blain, 808 F.2d 395,

399 (5th Cir. 1987).

In exercising its discretion to seal judicial records, the court

must balance the public’s common law right of access against the

interests favoring nondisclosure. See Nixon, 435 U.S. at 599, 602, 98

S. Ct. at 1312, 1314 (court must consider “relevant facts and

circumstances of the particular case”); Belo, 654 F.2d at 434; see also

Bank of America Nat’l Trust v. Hotel Rittenhouse, 800 F.2d 339, 344

(3d Cir. 1986) (court had duty to “balance the factors favoring

secrecy against the common law presumption of access”); Newman

v. Graddick, 696 F.2d 796, 803 (11th Cir. 1983) (“The historic

presumption of access to judicial records must be considered in the

balance of competing interests.” (citing Belo)).

SEC v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993) (footnote omitted). The Van

Waeyenberghe court found that the district court had abused its discretion in sealing court

documents because there was no evidence that the district court balanced the competing

interests prior to entering the sealing order, noting that the district court had not mentioned

the presumption in favor of public access to judicial records and had not articulated any

reasons that would support sealing the documents at issue. See id. at 848–49.

The Van Waeyenberghe court distinguished between the public’s right to information and

the public’s right to access judicial records:
38

Although the public may have a right to the information that

Schwartz was enjoined, that right cannot be equated with the public’s

right of access to judicial records. The public’s right to information

does not protect the same interests that the right of access is designed

to protect. “Public access [to judicial records] 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.”

Id. at 849 (alteration in original) (citations omitted).

• The Fifth Circuit has also explained that the right of public access to judicial records applies

even in cases where the information may not be of particular interest to the public. In

Macias v. Aaron Rents, Inc., 288 F. App’x 913, 915 (5th Cir. 2008) (unpublished), the Fifth

Circuit found that the district court had not abused its discretion by refusing to seal court

documents because the concerns the party requesting sealing raised—“the lack of importance

to the public and the potential for employer retaliation against litigious employees—could

apply to nearly all cases filed in the federal courts, especially those involving title VII.” The

court continued: “If we were to decide that the court’s determination here was an abuse of

discretion, then the same argument could successfully be made by countless plaintiffs. Such

a result, however, would be contrary to our statement that ‘the district court’s discretion to

seal the record of judicial proceedings is to be exercised charily.’” Id. (quoting Van

Waeyenberghe, 990 F.2d at 848 (internal citations and quotations omitted) (emphasis

added)).

• A district court within the Fifth Circuit has explained the standard for sealing as follows:

To determine whether to disclose or seal a judicial record, the

Court must balance the public’s common law right of access against

interests favoring non-disclosure. See S.E.C. v. Van Waeyenberghe,

990 F.2d 845, 849 (5th Cir. 1993). “Courts have recognized that the

public has a common law right to access judicial records and

proceedings, although the right is not absolute.” Bahwell v.

Stanley-Bostitch, Inc., No. Civ.A. 00-0541, 2002 WL 1298777, at *1

(E.D. La. June 10, 2002). “Public access serves important interests,

such as ‘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

fairness.’” Id. (quoting Van Waeyenberghe, 990 F.2d at 849).

“Accordingly, ‘the district court’s discretion to seal the record of

judicial proceedings is to be exercised charily.’” Id. (quoting Van

Waeyenberghe, 990 F.2d at 848). Although countervailing interests

may outweigh the right of public access, the party seeking to

overcome the presumption of access bears the burden of showing that
39

the interest in secrecy outweighs the presumption. Leucadia, Inc. v.

Applied Extrusion Technologies, Inc., 998 F.2d 157, 165 (3d Cir.

1993). The decision as to access is left to the discretion of the trial

court, Nixon v. Warner Communications, Inc., 435 U.S. 589, 599, 98

S. Ct. 1306, 55 L. Ed. 2d 570 (1978), but any doubt must be

construed in favor of disclosure. Marcus v. St. Tammany Parish Sch.

Bd., No. Civ.A. 95-3140, 1997 WL 313418, at *5 (E.D. La. June 9,

1997) (citing Grove Fresh Distributors, Inc. v. Everfresh Juice Co.,

24 F.3d 893, 897 (7th Cir. 1994)). Finally, that no third party objects

to the sealing of the records here is “inconsequential,” because the

presumption of openness does not depend on such an objection.

Stalnaker v. Novar Corp., 293 F. Supp. 2d 1260, 1263 (M.D. Ala.

2003); see also Citizens First Nat’l Bank of Princeton v. Cincinnati

Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999) (“The judge is the primary

representative of the public interest in the judicial process and is

duty-bound therefore to review any request to seal the record (or part

of it) . . .[ .] [She] may not rubber stamp a stipulation to seal the

record.”) (internal citations omitted).

Jaufre ex rel. Jaufre v. Taylor, 351 F. Supp. 2d 514, 516 (E.D. La. 2005) (second alteration

in original). In discussing possible interests that might outweigh the right to public access,

the court stated that “[c]ourts have recognized that the privacy of children may constitute a

compelling interest that outweighs the presumption in favor of public access.” Id. (citations

omitted). The court also noted that “[c]ourts have also recognized, however, that the

public’s interest in access to court records ‘is particularly legitimate and important where,

as in this case, at least one of the parties to the action is a public entity or official.’” Id. at

517 (citations omitted). The court emphasized that “[w]hen courts find that a privacy

interest justifies restricting the public’s access, they restrict access in a way that will

minimize the burden on the public’s right, such as by sealing or redacting only those records

that contain sensitive information,” id. at 517–18 (citations omitted), and that “‘[a] blanket

sealing order . . . would rarely, if ever, be appropriate,’” id. at 518 (additional citation

omitted) (quoting T.K. & R.K. v. Waterbury Bd. of Ed., No. Civ. 303CV1747, 2003 WL

2290433, at *1 (D. Conn. Oct. 19, 2003)). The court also recognized that where the public

has already had access to documents, that is a factor weighing “in favor of continued public

access.” Id. (citation omitted); see also Weiss v. Allstate Ins. Co., No. 06-3774, 2007 WL

2377119, at *5 (E.D. La. Aug. 16, 2007) (“[T]his Court has consistently refused to seal

judicial records to which the public has already had access.” (citations omitted)).

Standard for Modifying a Protective Order

• The Fifth Circuit has recognized that modification of a protective order to avoid duplicative

discovery in collateral litigation should generally be permitted, but has emphasized that

requests for modification should not be used simply to obtain documents that were not

produced in discovery in another case because the more efficient course would be to seek
40

to compel the discovery in the collateral case. See Stack v. Gamill, 796 F.2d 65, 68 (5th Cir.

1986) (“Discovery has already taken place in [the collateral litigation] and the [collateral]

plaintiffs seek only to obtain documents which Tenneco allegedly failed to produce in that

case. As the district court noted, requiring the [collateral] plaintiffs to move to compel

discovery in their own case would not cause undue wastefulness; indeed, such a motion

would be the most efficient way to obtain the desired discovery.”).

• In a recent district court case, the court considered a party’s request to modify a stipulated

protective order to allow discovery for collateral litigation, and recognized several factors

a court should consider in deciding whether to grant a request for modification:

Parties may seek modification of a protective order to gain

access to previously deemed confidential materials. The Fifth Circuit

has “recognize[d] that protective order[s] should generally be

modified to allow discovery in other actions . . . .” Stack v. Gamill,

796 F.2d 65, 68 (5th Cir. 1986). . . .

. . . .

. . . The following factors should be considered in deciding

whether to modify a protective order: “(1) the nature of the protective

order, (2) the foreseeability, at the time of issuance of the order, of

the modification requested, (3) the parties’ reliance on the order[,]

and most significantly[,] (4) whether good cause exists for the

modification.”

Schafer v. State Farm & Fire Cas. Co., No. 06-8262, 2009 WL 650263, at *2 (E.D. La. Mar.

11, 2009) (first alteration and first omission in original) (citations omitted); accord Raytheon

Co. v. Indigo Sys. Corp., No. 4:07-cv-109, 2008 WL 4371679, at *2 (E.D. Tex. Sept. 18,

2008) (listing same four factors for consideration in deciding whether to modify a protective

order at the request of a party who originally agreed to the order); Peoples v. Aldine Indep.

Sch. Dist., No. 06-2818, 2008 WL 2571900, at *2 (S.D. Tex. June 19, 2008) (same); Holland

v. Summit Tech., Inc., No. Civ. A. 00-2313, 2001 WL 1132030, at *2 (E.D. La. Sept. 21,

2001) (same).

• In considering the same four factors listed in Schafer, another court elaborated:

First, the court considers the nature of the protective order.

Protective orders generally may be ascribed one of three labels.

Specific protective orders are the narrowest type and cover

specifically identified information. Umbrella protective orders are at

the other end of the spectrum and provide for the designation of all

discovery as protected without any screening by either the parties or

the court. Blanket protective orders, which require the parties to
41

designate as protected that information that each side reasonably

believes to be particularly sensitive are common in litigation between

direct competitors. Specific protective orders are the least susceptible

to modification, umbrella protective orders are the most susceptible

to modification, and blanket protective orders fall somewhere in

between.

Raytheon, 2008 WL 4371679, at *2 (internal citations omitted). The court noted that

although “blanket orders are moderately susceptible to modification,” the fact that the parties

had stipulated to the protective order weighed against modification. Id. The court

continued:

Foreseeability in this context consists of inquiry into “whether

the need for modification was foreseeable at the time the parties

negotiated the original stipulated protective order.” . . . .

. . . . 

The reliance factor focuses on the extent to which the party

opposing the modification relied on the protective order in deciding

the manner in which documents would be produced in discovery. It

is important that litigants can place their confidence in the integrity

of protective orders so that sufficient information passes between the

parties “to secure the just, speedy, and inexpensive determination,”

FED. R. CIV. P. 1, of lawsuits while protecting from excess

dissemination that which rightly should be.

Id. at *2–3 (internal citations omitted). The court explained that if the protective order is

initially entered on a showing of good cause, the party seeking modification has the burden

to establish good cause for modification. See id. at *3. The good cause inquiry involves

balancing the need of the party requesting modification with the opposing party’s need for

protection, and requires taking into account available alternatives to modification. Id.

Another court explained that “‘[g]ood cause’ in this context requires ‘changed circumstances

or new situations’ warranting modification of a protective order,” and that “[g]ood cause

includes the need to make information available for use in subsequent proceedings.”

Peoples, 2008 WL 2571900, at *3.

• In the context of a nonparty seeking to obtain documents subject to a protective order,

another district court has explained that the Fifth Circuit has rejected the strict standard

applied in the Second Circuit for modifying protective orders to provide access to discovery

for collateral litigation. See In re United States’ Motion to Modify Sealing Orders, No. 5:03-

MC-2, 2004 WL 5584146, at *3 (E.D. Tex. June 8, 2004) (explaining that the “extraordinary

circumstances” test for modification used by the Second Circuit in Martindell “has not

prevailed in the arena of ideas,” and stating that “‘[w]hatever the status of the Second Circuit
42

view, the prevailing approach is more flexible, calling for a balancing test that accords

substantial importance to avoiding repetitive discovery.’” (quoting 8 CHARLES A.WRIGHT,

ARTHUR R.MILLER &RICHARD L.MARCUS,FEDERAL PRACTICE AND PROCEDURE § 2044.1

(2d ed. 1994))). The court found that determining which party or nonparty bears the burden

of showing good cause depends on the public interest in the case: “The criterion for

modification of a protective order by a nonparty seeking to obtain access to information of

public interest is a ‘good cause’ standard. When the case is of great interest to the public and

media, the courts refuse to shift the burden to the party seeking to modify the protective

order. Instead, the party seeking to maintain confidentiality must show good cause for

continued protection.” Id. at *2.

The court explained the more flexible approach adopted by the Fifth Circuit, see id. at *3

(“[T]he Fifth Circuit embraces a flexible approach towards the modification of protective

orders.”), and noted that the Fifth Circuit has relied on the approach stated in Wilk v.

American Medical Ass’n, 635 F.2d 1295 (7th Cir. 1980). The court stated:

[W]here an appropriate modification of a protective order can place

private litigants in a position they would otherwise reach only after

repetition of another’s discovery, such modification can be denied

only where it would tangibly prejudice substantial rights of the party

opposing modification. Once such prejudice is demonstrated,

however, the district court has broad discretion in judging whether

that injury outweighs the benefits of any possible modification of the

protective order.

Motion to Modify Sealing Orders, 2004 WL 5584146, at *4 (quotation marks omitted)

(quoting Wilk, 635 F.2d at 1299 (certain citations omitted)); accord Bell v. Chrysler Corp.,

No. 3:99-CV-0139-M, 2002 WL 172643, at *2 (N.D. Tex. Feb. 1, 2002). Another court

elaborated that “[t]he clear majority of courts utilizing the test for modification of protective

orders set out in Wilk have allowed liberal modification. However, in most instances where

modification is allowed there has been no discovery in the collateral action and the court is

thus reluctant to require wasteful and needlessly repetitive discovery.” Forest Oil Corp v.

Tenneco, 109 F.R.D. 321, 322 n.2 (S.D. Miss. 1985) (citing Phillips Petroleum Co. v.

Pickens, 105 F.R.D. 545, 551 (N.D. Tex. 1985)), appeal dismissed for lack of jurisdiction,

Stack v. Gamill, 796 F.2d 65 (5th Cir. 1986).

• Another court has explained that in cases involving a large amount of discovery, courts can

enter umbrella protective orders and delay findings of good cause as to particular documents

until confidentiality designations are challenged: “‘[B]ecause of the benefits of umbrella

protective orders in cases involving large-scale discovery, the court may construct a broad

umbrella protective order upon a threshold showing by the movant of good cause. After

delivery of the documents, the opposing party would have the opportunity to indicate

precisely which documents it believed not to be confidential, and the party seeking to

maintain the seal would have the burden of proof with respect to those documents.’”
43

Holland v. Summit Tech., Inc., No. Civ. A. 00-2313, 2001 WL 1132030, at *2 (E.D. La.

Sept. 21, 2001) (quoting Pansy, 23 F.3d at 787 n.17).

• Another court noted that “[i]t is well established that nonparties to a case seeking access to

documents and records under a protective order or under seal in a civil case may do so by

a motion for permissive intervention under Rule 24(b)(2).” See Newby v. Enron Corp. (In

re Enron Corp. Sec. Derivative & “ERISA” Litig.), 229 F.R.D. 126, 130 (S.D. Tex. 2005)

(footnote and citations omitted). The court also noted that an intervening party must have

standing. See id. The court explained that “[n]ormally the would-be intervenor must

demonstrate that it has (1) an independent ground for subject matter jurisdiction, (2) a timely

motion, and (3) a claim or defense that has a question of law or fact in common with the

main action,” but explained that “[s]ome courts have carved out a narrow exception to the

first prong where the party seeks intervention for the limited purpose of obtaining access to

documents protected by a confidentiality order because the would-be intervenor is merely

asking the court to exercise a power it already has, i.e., to modify the confidentiality order,

and not to rule on the merits of a claim or defense.” Id. (citing EEOC v. Nat’l Children’s

Ctr., 146 F.3d 1042, 1046, 1047 (D.C. Cir. 1998)).

SIXTH CIRCUIT

Standard for Entering a Protective Order

• The Sixth Circuit has emphasized that public access to pretrial discovery documents is

limited:

The Supreme Court has directly addressed the

constitutionality of orders limiting access to the fruits of discovery in

Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S. Ct. 2199, 81 L.

Ed. 2d 17 (1984). . . . The Supreme Court observed that “an order

prohibiting dissemination of discovered information before trial is not

the kind of classic prior restraint that requires exacting First

Amendment scrutiny,” 467 U.S. at 33, 104 S. Ct. at 2208, because

“such a protective order prevents a party from disseminating only that

information obtained through use of the discovery process.” Id. at

34, 104 S. Ct. [at] 2208. Pretrial discovery, the Court stated, is

traditionally subject to the control and discretion of the trial judge,

and ordinarily proceeds as a private interchange between the parties,

the fruits of which are not presumptively public. Accordingly, any

judicial review of protective orders entered in the discovery context

must take into account “the unique position that such orders occupy

in relation to the First Amendment.” Id. Concluding that “[t]he

unique character of the discovery process requires that the trial court

have substantial latitude to fashion protective orders,” id. at 36, 104

S. Ct. at 2209, the Seattle Times Court held:
44

[W]here, as in this case, a protective order is entered

on a showing of good cause, . . . is limited to the

context of pretrial civil discovery, and does not

restrict the dissemination of the information if gained

from other sources, it does not offend the First

Amendment.

In re Courier-Journal v. Marshall, 828 F.2d 361, 364 (6th Cir. 1987) (second and third

alterations and second omission in original) (quoting Seattle Times, 467 U.S. at 37); see also

R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262, 269 (6th Cir. 2010) (“The district

court did not abuse its discretion in denying Olmstead employees access to the CUI end use

product (the CUI software interface) because the district court’s decision to grant Olmstead’s

experts access to the software properly balanced the need for Olmstead to have access to

relevant and necessary information with CUI’s interest in preventing a potential competitor

from having access to its software.”).

The Courier-Journal court rejected a news organization’s “claim of a first amendment right

of access to the fruits of discovery” as “unavailing.” Courier-Journal, 828 F.2d at 366. The

court approved of the protective orders at issue because they were “‘limited to the context

of pretrial civil discovery,’ and they did not ‘restrict the dissemination of the information if

gained from other sources,’” id. at 367 (quoting Seattle Times, 467 U.S. at 37), and because

the orders were entered on a showing of “good cause,” “after fairly balancing the very

limited right of access the press has to the presumptively nonpublic fruits of civil discovery

against the right of civil rights plaintiffs to obtain discovery . . . over a claimed privilege

based on first amendment associational rights.” Id.

• The Sixth Circuit has also stated the standard as follows:

Rule 26 of the Federal Rules of Civil Procedure permits courts to

issue a protective order, if justice requires and to protect individuals

from “annoyance, embarrassment, oppression, or undue burden or

expense” FED. R. CIV. P. 26(c). The burden of establishing good

cause for a protective order rests with the movant. See General

Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir.

1973). “To show good cause, a movant for a protective order must

articulate specific facts showing ‘clearly defined and serious injury’

resulting from the discovery sought and cannot rely on mere

conclusory statements.” Avirgan v. Hull, 118 F.R.D. 252, 254

(D.D.C. 1987) (citations omitted).

Nix v. Sword, 11 F. App’x 498, 500 (6th Cir. 2001) (unpublished) (per curiam).
45

Standard for Entering a Sealing Order

• The Sixth Circuit has explained that while a court may have some discretion to seal court

documents, that discretion is limited by “long-established legal tradition.” Brown &

Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177 (6th Cir. 1983). The court

explained that “[t]he English common law, the American constitutional system, and the

concept of the ‘consent of the governed’ stress the ‘public’ nature of legal principles and

decisions.” Id. (footnote omitted). The court analyzed the Supreme Court’s decision in

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), which discussed the history

behind the right of access to legal proceedings. See Brown & Williamson, 710 F.2d at 1178.

The Brown & Williamson court described the policies emphasized by the Supreme Court in

Richmond Newspapers:

The Supreme Court’s historical argument is based on policy

considerations developed in the past that remain valid today. First,

public trials play an important role as outlets for “community

concern, hostility, and emotions.” Richmond Newspapers, supra, 448

U.S. at 571, 100 S. Ct. at 2824. When judicial decisions are known

to be just and when the legal system is moving to vindicate societal

wrongs, members of the community are less likely to act as

self-appointed law enforcers or vigilantes. “The crucial prophylactic

aspects of the administration of justice cannot function in the dark;

no community catharsis can occur if justice is ‘done in a corner [or]

in any covert manner.’” Id. at 571, 100 S. Ct. at 2824.

Second, public access provides a check on courts. Judges

know that they will continue to be held responsible by the public for

their rulings. Without access to the proceedings, the public cannot

analyze and critique the reasoning of the court. The remedies or

penalties imposed by the court will be more readily accepted, or

corrected if erroneous, if the public has an opportunity to review the

facts presented to the court. In his concurrence, Justice Brennan

emphasized this link between access to the courtroom and the popular

control necessary in our representative form of government. Id. at

592, 100 S. Ct. at 2835. Although the federal judiciary is not a

majoritarian institution, public access provides an element of

accountability. One of the ways we minimize judicial error and

misconduct is through public scrutiny and discussion.

Finally, Justice Brennan points out that open trials promote

“true and accurate fact finding.” Id. at 596, 100 S. Ct. at 2838. When

information is disseminated to the public through the media,

previously unidentified witnesses may come forward with evidence.

Witnesses in an open trial may be less inclined to perjure themselves.
46

Public access creates a critical audience and hence encourages

truthful exposition of facts, an essential function of a trial.

Id. (alteration in original) (some internal citations omitted). Brown & Williamson concluded

that “[t]he Supreme Court’s analysis of the justifications for access to the criminal courtroom

apply as well to the civil trial.” Id.

However, the court noted that “[t]he right of access is not absolute . . . , despite these

justifications for the open courtroom.” Id. at 1179. The court explained that courts have

made several exceptions to the strong presumption of access, which it stated fall into the

categories of “those based on the need to keep order and dignity in the courtroom and those

which center on the content of the information to be disclosed to the public.” Id. With

respect to the first category, the court stated that regulations on access “must pass the

following three-part test: that the regulation serve an important governmental interest; that

this interest be unrelated to the content of the information to be disclosed in the proceeding;

and that there be no less restrictive way to meet that goal.” Brown & Williamson, 710 F.2d

at 1179 (citing United States v. O’Brien, 391 U.S. 367, 377 (1968)). With respect to the

second category, the court found that “content-based exceptions to the right of access have

been developed to protect competing interests,” and that “[i]n addition to the defendant’s

right to a fair trial, these interests include certain privacy rights of participants or third

parties, trade secrets and national security.” Id. (citations omitted). The court concluded that

harm to a company’s reputation is not sufficient to warrant sealing. Id.

The court held that sealing was not appropriate and focused on the fact that the subject of

the litigation—the accuracy of testing the “tar” and nicotine content of cigarettes—was one

in which the public had a strong interest and that potentially involved the public’s health.

See id. at 1180–81.

• In another case, the Sixth Circuit noted the long history of the presumption of public access

to the courts, but explained that there are several “important exceptions which limit the

public’s right of access to judicial records.” In re Knoxville News-Sentinel Co., 723 F.2d

470, 474 (6th Cir. 1983). The court explained:

[T]he right to inspect and copy judicial records is not

absolute. Every court has supervisory power over its own records

and files, and access has been denied where court files might have

become a vehicle for improper purposes. For example, the common

law right of inspection has bowed before the power of a court to

insure that its records are not “used to gratify private spite or promote

public scandal” through the publication of “the painful and

sometimes disgusting details of a divorce case.” Similarly, courts

have refused to permit their files to serve as reservoirs of libelous

statements for press consumption, or as sources of business

information that might harm a litigant’s competitive standing.
47

Id. (alteration in original) (quotation marks omitted) (quoting Nixon v. Warner Commc’ns,

435 U.S. 589, 598 (1978) (citations omitted)). The court stated that “trial courts have always

been afforded the power to seal their records when interests of privacy outweigh the public’s

right to know,” and that “the decision as to when judicial records should be sealed is left to

the sound discretion of the district court, subject to appellate review for abuse.” Id. (citations

omitted). The Sixth Circuit emphasized that the district court should have afforded the press

a reasonable opportunity to object to the protective order sealing the court record, id. at

474–75, and explained that “the district court had an obligation to consider the rights of the

public and the press,” id. at 475. The court formulated a procedure for ensuring the press

and the public’s right to object to sealing:

In order to protect this right to be heard, the most reasonable

approach would be to require that motions to seal be docketed with

the clerk of the district court. The records maintained by the clerk are

public records. If a party moves to seal a document, or the entire

court record, such a motion should be made “sufficiently in advance

of any hearing on or disposition of the [motion to seal] to afford

interested members of the public an opportunity to intervene and

present their views to the court.” The district court should then allow

interested members of the public a reasonable opportunity to present

their claims, without causing unnecessary or material delay in the

underlying proceeding.

Id. at 475–76 (alteration in original) (internal citations omitted). The court explained that

“[o]nly the most compelling reasons can justify non-disclosure of judicial records.”

Knoxville News, 723 F.2d at 476 (citing Brown & Williamson, 710 F.2d at 1179–80; United

States v. Myers (In re Nat’l Broadcasting Co.), 635 F.2d 945, 952 (2d Cir. 1980)).

• A district court in the Sixth Circuit recently emphasized that compelling reasons are

necessary to seal court documents. See Pucci v. 19th Dist. Court, No. 07-10631, 2009 WL

596196, at *9 (E.D. Mich. Mar. 6, 2009). The court recognized the long history of the

presumption of public access to judicial records, and stated that “[i]n exercising its discretion

to seal judicial records, the Court must balance the public’s common law right of access

against the interests favoring nondisclosure.” Id. at *8 (citations omitted). The court

explained that “‘[o]nly the most compelling reasons can justify non-disclosure of judicial

records,’” id. at *9 (quoting Knoxville News, 723 F.2d at 476), and that “‘[t]he mere fact that

the production of records may lead to a litigant’s embarrassment, incrimination, or exposure

to further litigation will not, without more, compel the court to seal its records,’” id. (quoting

Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)).

• In the context of considering a request to seal a doctor’s report evaluating the competency

of a habeas petitioner, another case discussed the competing interests weighed in connection

with a request to seal judicial documents. The court explained:
48

Historically, there has been a presumption of openness and

public access to judicial proceedings and documents.

Press-Enterprise Co. v. Superior Court of Cal. (Press-Enterprise II),

478 U.S. 1, 10, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986);

Press-Enterprise Co. v. Superior Court of Cal. (Press-Enterprise I),

464 U.S. 501, 507, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984);

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct.

2814, 65 L. Ed. 2d 973 (1980). Addressing the presumption of

access to judicial proceedings, in Press-Enterprise II, the Supreme

Court held that there is a qualified right of public access to judicial

proceedings, rooted in the First Amendment, if there is “a tradition of

accessibility” to the nature of the proceedings involved and if public

access “plays a significant positive role in the functioning of the

particular process in question.” Press-Enterprise II, 478 U.S. at 8–9,

106 S. Ct. 2735.

Beyond the First Amendment analysis, there exists a common

law right of access to judicial proceedings and documents that does

not rise to a constitutional dimension and is left to the sound

discretion of the trial court. Nixon v. Warner Communications, Inc.,

435 U.S. 589, 597–99, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978).

Distinguishing between access to judicial proceedings and access to

judicial documents, the Sixth Circuit has addressed whether there is

a First Amendment right to inspect and copy judicial documents, or

only a common law right of access. Compare United States v.

Beckham, 789 F.2d 401, 406–409, 412–15 (6th Cir. 1986) (holding

that media members had no constitutional right of access to tapes),

with Application of National Broadcasting Company, Inc., 828 F.2d

340, 345 (6th Cir. 1987) (holding that there is a qualified First

Amendment right of access to proceedings and documents relating to

disqualification of a judge in a criminal case and to conflicts of

interest between attorneys in a criminal case).

With respect to the common law right of access, a trial court’s

discretion is not unfettered and typically involves a fact-intensive and

context-specific balancing of the competing interests of those who

seek access and those who seek to deny it. The interests to be

weighed include (1) the Court’s supervisory powers over its own

documents; (2) the benefit to the public from the incremental gain in

knowledge that would result from access to the materials in question;

(3) the degree of danger to the petitioner or other persons mentioned

in the materials; (4) the possibility of improper motives on the part of

the media; and (5) any special circumstances in the case. That said,

there is a strong presumption in favor of access, and any balancing of
4

 The court noted that “[b]ecause the Court is persuaded that a common law right of access exists with respect to the

competency evaluation reports that have and will be submitted in this case, the Court need not reach the question of

whether, or to what extent, there also exists a First Amendment right of access.” Ashworth, 351 F. Supp. 2d at 789.

49

interests begins with that presumption in favor of access. In light of

the presumption in favor of access, merely articulating rational

justifications for denying access will not suffice; rather, a district

court must set forth “substantial reasons” for denying access.

Ashworth v. Bagley, 351 F. Supp. 2d 786, 788–89 (S.D. Ohio 2005) (some internal citations

omitted).4

• Another district court case emphasized the difference in proof required to obtain a discovery

protective order and an order to seal documents. See White v. GC Servs. Ltd. P’ship, No. 08-

11532, 2009 WL 174503, at *1 (E.D. Mich. Jan. 23, 2009) (recognizing “the differing

standards of proof that apply to Rule 26(c) discovery-phase orders vis-a-vis orders to seal

documents that are submitted to the court for filing”). The court explained that a party must

show “good cause” to obtain a protective order governing discovery material, but that

“[o]nce documents are filed with the court, there is a strong presumption, grounded in both

the First Amendment and the common law, that they should be open to the public.” Id.

(citations omitted). The court stated that “[w]hile protective orders and sealing orders for

court documents are permissible under the First Amendment, the ‘good cause’ standard of

Rule 26(c) does not suffice. Rather, the party seeking to seal documents must show

‘compelling reasons.’” Id. (internal citation omitted).

Standard for Modifying a Protective Order

• The Sixth Circuit appears to leave the determination of whether to modify a protective order

to the discretion of the district court, rather than mandate a particular standard to be used in

every case. See United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1428 (10th Cir.

1990) (noting that when a collateral litigant requests modification of a protective order to

access protected discovery, the circuits have adopted various approaches to balancing the

interests at stake, and that some, including the Sixth Circuit, “have simply left the balancing

to the discretion of the trial court” (citing Stavro v. Upjohn Co. (In re Upjohn Co. Antibiotic

Cleocin Prods. Liab. Litig.), 664 F.2d 114, 120 (6th Cir. 1981))).

• In one case, the Sixth Circuit has favorably cited the relatively less stringent standard used

in Wilk:

We therefore agree with the results reached by every other

appellate court which has considered the issue, and hold that where

an appropriate modification of a protective order can place private

litigants in a position they would otherwise reach only after repetition

of another’s discovery, such modification can be denied only where
5

 The district court’s decision in Agent Orange was affirmed by the Second Circuit, see In re “Agent Orange” Prod.

Liab. Litig., 821 F.2d 139 (2d Cir. 1987), but portions of the Second Circuit’s Agent Orange opinion discussing a

presumption of public access to discovery materials have subsequently been questioned in light of an amendment to

Federal Rule of Civil Procedure 5 that instructed parties not to file discovery materials with the court in most instances.

See, e.g., TheStreet.com, 273 F.3d at 233 n.11 (“[T]o the extent that Agent Orange relied upon Federal Rule of Civil

Procedure 5(d) to find a statutory right of access to discovery materials, we observe that the recent amendment to this

rule provides no presumption of filing all discovery materials, let alone public access to them. Indeed, the rule now

prohibits the filing of certain discovery materials unless they are used in the proceeding or the court orders filing.” (citing

FED. R. CIV. P. 5(d))).

50

it would tangibly prejudice substantial rights of the party opposing

modification.

Upjohn, 664 F.2d at 118 (quoting Wilk, 635 F.2d at 1299) (quotation marks omitted).

• Another Sixth Circuit case also recognized discretion to modify protective orders, but

focused on the parties’ reliance on a protective order and discussed the need for the party

requesting continued sealing of documents subject to a protective order to show compelling

reasons. See Meyer Goldberg, Inc. v. Fisher Foods, Inc., 823 F.2d 159, 161, 164 (6th Cir.

1987). The court described the applicable standard for considering a request for

modification of a protective order:

Given that proceedings should normally take place in public,

imposing a good cause requirement on the party seeking modification

of a protective order is unwarranted. If access to protected fruits can

be granted without harm to legitimate secrecy interests, or if no such

interests exist, continued judicial protection cannot be justified. In

that case, access should be granted even if the need for the protected

materials is minimal. When that is not the case, the court should

require the party seeking modification to show why the secrecy

interests deserve less protection than they did when the order was

granted. Even then, however, the movant should not be saddled with

a burden more onerous than explaining why his need for the materials

outweighs existing privacy concerns.

Nonparty Access to Discovery Materials in Federal Courts, 94

HARV. L. REV. 1085, 1092 (1981). (footnotes omitted).

Id. at 163 (quotation marks omitted) (quoting In re “Agent Orange” Prod. Liab. Litig., 104

F.R.D. 559, 570 (E.D.N.Y. 1985))5; accord Haworth, Inc. v. Steelcase, Inc., No.

4:85:CV:526, 1993 WL 195116, at *1 (W.D. Mich. 1993), aff’d, 12 F.3d 1090 (Fed. Cir.

1993); Kerasotes Mich. Theatres, Inc. v. Nat’l Amusements, Inc., 139 F.R.D 102, 104 (E.D.

Mich. 1991). The Meyer Goldberg court found that “[p]rotective orders may be subject to

modification ‘to meet the reasonable requirements of parties in other litigation,’” 823 F.2d

at 164 (quoting United States v. GAF Corp., 596 F.2d 10, 16 (2d Cir. 1979); citing Wilk, 635
6

 The court explained that the Upjohn court had focused on the following issues in deciding to lift the protective order:

“(1) whether diversity of citizenship should serve as the basis for determining which plaintiffs may share in discovery

material, (2) the ‘similar interests and motives’ of the entities requesting to share the information, and (3) a desire to

allow the plaintiffs to develop their cases more fully.” In re Air Crash Disaster, 130 F.R.D. at 639–40. The court found

that those considerations were not applicable to the request to modify in its own case because in its own case, a party

sought modification to allow it to provide discovery to the National Transportation Safety Board, which was not a party

to a pending lawsuit. Id. at 640.

51

F.2d at 1299), but remanded and implied that “compelling reasons” had to be present to

allow denial of access to discovery material filed with the court, see id. (“We direct a

remand, because the record does not reflect the district court’s consideration of the strong

underlying tradition of open records, and that only compelling reasons justify denial or

continued denial of access to records of the type sought . . . .”).

• One district court found Upjohn to be distinguishable, and applied the more stringent

standard from Meyer Goldberg. See In re Air Crash Disaster at Detroit Metro. Airport on

Aug. 16, 1987, 130 F.R.D. 634, 640 (E.D. Mich. 1989). The court explained that “‘[i]n

considering motions to modify protective orders, courts are split as to whether the burden

of showing good cause for continued protection lies with the protected party or with the

party seeking modification.’” Id. at 638 (alteration in original) (citation omitted). But the

court cited the language in Meyer Goldberg regarding the standard in the Sixth Circuit. Id.

The court recognized that Upjohn puts less of a burden on the party requesting modification

of a protective order, but found the Upjohn analysis inapplicable, stating:

The Upjohn Court instructs that the party, who opposes a

modification of a protective order, must assume the burden of proof

when a party in a pending case seeks to use discovery information

that had been obtained pursuant to a protective order in a parallel

case. In contrast, the Sixth Circuit Court of Appeals stated in a case,

which was factually distinct from Upjohn, that when “legitimate

secrecy interests” are involved, the party requesting a modification

. . . must “show why [its] needs for the materials outweighs existing

privacy concerns.” Fisher Foods, 823 F.2d at 163. Therefore, this

Court concludes that neither the reasoning, the holding, nor the

requisite burden of proof in Upjohn supports [the] instant request [for

modification].

Id. at 640 (first alteration in original).6

• In another case, the court relied on the standard discussed in Meyer Goldberg, and found that

a sealed transcript should remain sealed in the face of a request to modify a protective order

because there was no pending related litigation and the deponent objected to releasing the

seal. See In re Bell & Beckwith, 198 B.R. 265, 269 (Bankr. N.D. Ohio 1996). The court

quoted the Second Circuit opinion in Martindell, which emphasized the importance of the

parties’ reliance on protective orders and which stated that “absent a showing of
7

 The bankruptcy trustee had requested that all documents be released from seal “to further the bankruptcy policy of

open disclosure . . . .” Bell & Beckwith, 198 B.R. at 266.

52

improvidence in the grant of a Rule 26(c) protective order or some other extraordinary

circumstance or compelling need, . . . a witness should be entitled to rely upon the

enforceability of a protective order against third parties, including the Government, and that

such an order should not be vacated or modified merely to accommodate the Government’s

desire to inspect protected testimony for possible use in a criminal investigation . . . .” Id.

at 167–68. The Bell & Beckwith court noted that in Meyer Goldberg, the Sixth Circuit had

cited Martindell as well as the standard in Agent Orange. Id. at 168. The court held that

unsealing was not warranted because “there is no related litigation or even anyone who

specifically requests these documents for particular purposes,”7

 and because the deponent

had relied on the protective order and opposed unsealing. Id. at 269.

• A district court in the Sixth Circuit has explained that in determining where to place the

burden of showing good cause upon a request for modification of a protective order, it is

relevant whether good cause was shown when the order was entered: “If a protective order

was initially issued based upon good cause shown, the party seeking to modify the order has

the burden of proof. However, if good cause was not shown when the protective order was

issued, the party seeking to maintain the order has the burden of proof.” Playa Marel, P.M.,

S.A. v. LKS Acquisitions, Inc., No. C-3-06-366, 2007 WL 756697, at *3 (S.D. Ohio Mar. 8,

2007) (internal citation omitted). The court recognized four factors to be considered in

determining whether a protective order should be modified:

Several factors may be used to assist a court in exercising its

discretion as to whether to modify a protective order. They include

(1) whether good cause exists for the modification, (2) the nature of

the protective order, (3) the foreseeability of the modification

requested at the time of issuance of the order, and (4) the parties’

reliance on the order.

Id. at *4 (citations omitted).

SEVENTH CIRCUIT

Standard for Entering a Protective Order

• The Seventh Circuit has emphasized the court’s duty to examine proposed protective orders

to prevent the parties from having complete control over the degree of public access. See

Citizens First Nat’l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 944 (7th Cir.

1999). In Citizens First National Bank, the Seventh Circuit noted that the judge is required
8

 The protective order at issue in Citizens First National Bank had been issued by the district judge in accordance with

a stipulation by the parties, and “authoriz[ed] either party to designate as confidential, and thus keep out of the public

record of the litigation, any document ‘believed to contain trade secrets or other confidential or governmental

information, including information held in a fiduciary capacity.’” 178 F.3d at 944. On appeal, one of the parties sought

permission to file an appendix under seal, based on the district court’s protective order. See id. The Seventh Circuit

expressed concern because the protective order was not limited to the pretrial stage and because the public has an interest

in what occurs at all stages of a judicial proceeding. Id. at 945.

9

 The Citizens First National Bank decision was issued before the 2000 amendment to Federal Rule of Civil Procedure

5, which removed the requirement of filing discovery materials with the court. To the extent the court’s decision was

based on Rule 5’s previous requirement of filing discovery materials, its discussion of public access to discovery

materials may have less relevance to current protective order standards. See Bond v. Utreras, 585 F.3d 1061, 1075–76

(7th Cir. 2009) (noting that cases suggesting that Rule 26(c) creates a substantive right of public access to discovery were

based on the prior version of Rule 5(d) that required all discovery materials to be filed with the court, and explaining

that “[w]hatever force these decisions had was destroyed by the 2000 amendment to Rule 5(d), which reversed the

longstanding rule generally requiring discovery to be filed with the court”); see also In re Thow, 392 B.R. 860, 868

53

to make a determination of good cause to seal any part of the record of a case,8

 and explained

that “[t]he parties to a lawsuit are not the only people who have a legitimate interest in the

record compiled in a legal proceeding.” Id. The court recognized that “pretrial discovery,

unlike the trial itself, is usually conducted in private,” but noted that “the public at large pays

for the courts and therefore has an interest in what goes on at all stages of a judicial

proceeding.” Id. at 944–45. The court explained that the public’s interest “does not always

trump the property and privacy interests of the litigants, but it can be overridden only if the

latter interests predominate in the particular case, that is, only if there is good cause for

sealing a part or the whole of the record in that case.” Id. at 945 (citations omitted). The

court emphasized:

The determination of good cause cannot be elided by allowing the

parties to seal whatever they want, for then the interest in publicity

will go unprotected unless the media are interested in the case and

move to unseal. The judge is the primary representative of the public

interest in the judicial process and is duty-bound therefore to review

any request to seal the record (or part of it). He may not rubber

stamp a stipulation to seal the record.

Id. (internal citation omitted).

The Citizens First National Bank court recognized that some courts may find that blanket

protective orders entered by stipulation, without judicial review, that allow litigants to seal

all documents produced in discovery, are useful aids to expediting the discovery process and

not problematic because there is no tradition of public access to discovery materials, but

pointed out that the weight of authority is to the contrary. Id. at 945–46. The court stated

that “[m]ost cases endorse a presumption of public access to discovery materials, and

therefore require the district court to make a determination of good cause before he may

enter the order.”9

 Citizens First Nat’l Bank, 178 F.3d at 946 (internal citations omitted).
(Bankr. W.D. Wash. 2007) (questioning the “continued viability” of a statement in a Ninth Circuit case that “the fruits

of pretrial discovery are ‘presumptively public,’” and noting that “when Agent Orange and Public Citizen were decided,

FRCP 5(d) required the filing of discovery materials with the court (subject to local rule or court order to the contrary)”).

Another court explained that while “in Citizens First National Bank, 178 F.3d at 946, the Seventh Circuit summarized

that ‘[m]ost cases endorse a presumption of access to discovery materials,’ . . . it does not follow . . . that courts can

therefore order parties to make available all discovery items exchanged amongst themselves.” In re

Bridgestone/Firestone, Inc., 198 F.R.D. 654, 657 (S.D. Ind. 2001). The court continued: “In . . . Citizens First National

Bank . . . , the court[] discussed access to discovery materials in the context of items that had been filed with the court.

Access to discovery materials when those materials have been presented to the court is one issue and quite another issue

[is presented] when the parties are exchanging the materials amongst themselves.” Id. The court explained that “[a]bsent

a protective order, parties to a law suit may disseminate materials obtained during discovery as they see fit,” and that

“if they do not see fit to disseminate discovery information, the parties need not do so.” Id. (quotation marks and

citations omitted).

54

The court stated that “Rule 26(c) would appear to require no less,” and noted that “both the

First and Third Circuits, which used to endorse broad umbrella orders (e.g., Cryovac,

Cipollone), have moved away from that position (Public Citizen, Glenmede, Pansy,

Leucadia).” Id.

The court emphasized that good cause must be found, but need not be determined for each

individual document, stating:

We do not suggest that all determinations of good cause must

be made on a document-by-document basis. In a case with thousands

of documents, such a requirement might impose an excessive burden

on the district judge or magistrate judge. There is no objection to an

order that allows the parties to keep their trade secrets (or some other

properly demarcated category of legitimately confidential

information) out of the public record, provided the judge (1) satisfies

himself that the parties know what a trade secret is and are acting in

good faith in deciding which parts of the record are trade secrets and

(2) makes explicit that either party and any interested member of the

public can challenge the secreting of particular documents.

Id.

• Another case also emphasized that courts have an independent duty to find good cause

before entering a protective order, even if the parties stipulate to the terms. The court stated:

Stipulated protective orders place the district court in an

unusual position. Normally, the court is quick to ratify (and rightly

so) any areas of agreement between opposing parties. However,

under Fed. R. Civ. Pro. 26(c), the district court has the power to issue

a protective order only upon a showing of “good cause.” Even if the

parties agree that a protective order should be entered, they still have

“the burden of showing that good cause exists for issuance of that
55

order. It is equally apparent that the obverse is also true, i.e., if good

cause is not shown, the discovery materials in question should not

receive judicial protection . . . .”

Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994) (quoting Pub.

Citizen v. Liggett Group, Inc., 858 F.2d 775, 789 (1st Cir. 1988)); accord Salmeron v. Enter.

Recovery Sys., Inc., 579 F.3d 787, 795 (7th Cir. 2009) (“It is of course true, as Jepson holds,

that a district court is required to ‘independently determine if ‘good cause’ exists’ before

judicially protecting discoverable documents from third-party disclosure.” (quoting Jepson,

30 F.3d at 858; citing FED. R. CIV. P. 26(c))).

Standard for Entering a Sealing Order

• Another Seventh Circuit court has explained:

Secrecy is fine at the discovery stage, before the material enters the

judicial record. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104

S. Ct. 2199, 81 L. Ed. 2d 17 (1984). But those documents, usually a

small subset of all discovery, that influence or underpin the judicial

decision are open to public inspection unless they meet the definition

of trade secrets or other categories of bona fide long-term

confidentiality. See, e.g., Grove Fresh Distributors, Inc. v. Everfresh

Juice Co., 24 F.3d 893 (7th Cir. 1994); In re Continental Illinois

Securities Litigation, 732 F.2d 1302 (7th Cir. 1984). Information

transmitted to the court of appeals is presumptively public because

the appellate record normally is vital to the case’s outcome.

Agreements that were appropriate at the discovery stage are no longer

appropriate for the few documents that determine the resolution of an

appeal, so any claim of secrecy must be reviewed independently in

[the appellate] court.

Baxter Int’l Inc. v. Abbott Labs., 297 F.3d 544, 545–46 (7th Cir. 2002); see also

Containment Techs. Group, Inc. v. Am. Society of Health Sys. Pharmacists, No. 1:07-cv-997-

DFH-TAB, 2008 WL 4545310, at *4 (S.D. Ind. Oct. 10, 2008) (“[M]ost documents

designated as confidential will never be filed with the Court or used in any Court proceeding.

As a result, heightened attention to confidentiality designations is more appropriate at the

time the document is filed with the Court or used in a Court proceeding (if ever), as opposed

to the time such a document is produced as part of what may often be a massive discovery

response.”).

The Baxter court recognized that while confidentiality may be appropriate in early stages in

the litigation, it is rarely appropriate when the materials relate to judicial decision making,

stating:
10 In Bond v. Utreras, the Seventh Circuit recently noted that “[t]o the extent . . . that these cases [Grove Fresh, Wilk,

and other cases addressing collateral litigants’ access to discovery in parallel litigation] are premised upon a principle

that ‘‘pre-trial discovery must take place in . . . public unless compelling reasons exist for denying the public access to

the proceedings,’’ they have been superseded by the 2000 amendment to Rule 5 of the Federal Rules of Civil

Procedure.” 585 F.3d at 1068 n.4 (second omission in original) (internal citation omitted).

56

Yet the sort of agreement that governs discovery (or

arbitration) is even weaker as a reason for appellate secrecy than is

a contemporaneous agreement limited to the record on appeal.

Allowing such an agreement to hold sway would be like saying that

any document deemed provisionally confidential to simplify

discovery is confidential forever. That would contradict Grove Fresh

and its predecessors, which hold that the dispositive documents in

any litigation enter the public record notwithstanding any earlier

agreement. How else are observers to know what the suit is about or

assess the judges’ disposition of it? Not only the legislature but also

students of the judicial system are entitled to know what the heavy

financial subsidy of litigation is producing. These are among the

reasons why very few categories of documents are kept confidential

once their bearing on the merits of a suit has been revealed. In civil

litigation only trade secrets, information covered by a recognized

privilege (such as the attorney-client privilege), and information

required by statute to be maintained in confidence (such as the name

of a minor victim of a sexual assault), is entitled to be kept secret on

appeal. . . . [M]any litigants would like to keep confidential the

salary they make, the injuries they suffered, or the price they agreed

to pay under a contract, but when these things are vital to claims

made in litigation they must be revealed.

Baxter, 297 F.3d at 546–47 (internal citations omitted).

• The Seventh Circuit has also used a balancing approach to determine whether sealing court

documents is warranted, recognizing the presumption that the public has a right of access

to documents relied on in making dispositive decisions. See Grove Fresh Distribs., Inc. v.

Everfresh Juice Co., 24 F.3d 893, 898 (7th Cir. 1994).10 The court stated:

[T]he right of the press to obtain timely access to judicial decisions

and the documents which comprise the bases of those decisions is

essential. We conclude, therefore, that once the press has adequately

demonstrated that its access has been unjustifiably limited, but where

there are legitimate concerns of confidentiality, the burden should

shift to the litigants to itemize for the court’s approval which

documents have been introduced into the public domain. We believe

that such an approach provides a legitimate means of reconciling the
11 The Bond court noted that “Grove Fresh refers only summarily to the question of the intervenors’ standing,” and that

its conclusion that the press has standing to challenge a protective order for abuse or impropriety was based on cases

regarding access to sealed documents in court files and a case regarding intervention to challenge a protective order in

an ongoing suit. Bond, 585 F.3d at 1070 n.5. The Bond court differentiated the situation in its case, where the intervenor

sought documents that were not in the court file in a lawsuit that had already been settled and dismissed. Id.

12 In Bond, the Seventh Circuit recently noted that “Wilk did not address either the intervenors’ standing or the standards

for intervention under Rule 24 but instead skipped directly to the merits of the collateral litigants’ request for access to

discovery.” 585 F.3d at 1068 n.4. As previously noted, the Bond court also stated that “[t]o the extent . . . that these

cases [Grove Fresh, Wilk, and other cases addressing collateral litigants’ access to discovery in parallel litigation] are

premised upon a principle that ‘‘pre-trial discovery must take place in . . . public unless compelling reasons exist for

denying the public access to the proceedings,’’ they have been superseded by the 2000 amendment to Rule 5 of the

Federal Rules of Civil Procedure.” 585 F.3d at 1068 n.4 (second omission in original) (internal citation omitted).

57

press’s rights with the time constraints facing the trial courts.

Id.

The Grove Fresh court also recognized that although “the media’s right of access does not

extend to information gathered through discovery that is not part of the public record, the

press does have standing to challenge a protective order for abuse or impropriety.”11 Id.

(citations omitted). The court concluded that “where the rights of the litigants come into

conflict with the rights of the media and public at large, the trial judge’s responsibilities are

heightened. In such instances, the litigants’ purported interest in confidentiality must be

scrutinized heavily.” Id. at 899.

Standard for Modifying a Protective Order

• The Seventh Circuit has used the following standard for considering requests for

modification to allow for use of protected documents in collateral litigation:

[W]here an appropriate modification of a protective order can place

private litigants in a position they would otherwise reach only after

repetition of another’s discovery, such modification can be denied

only where it would tangibly prejudice substantial rights of the party

opposing modification. Once such prejudice is demonstrated,

however, the district court has broad discretion in judging whether

that injury outweighs the benefits of any possible modification of the

protective order. 

Wilk v. Am. Med. Ass’n, 635 F.2d 1295, 1299 (7th Cir. 1980) (internal citation omitted);12

accord Griffith v. Univ. Hosp., L.L.C., 249 F.3d 658, 661 (7th Cir. 2001) (quoting Wilk, 635

F.2d at 1299); Jepson, 30 F.3d at 861 (“Wilk has been followed by this and other circuits.”)

(citations omitted). Wilk distinguished Martindell v. Int’l Tel. & Tel. Corp., 594 F.2d 291

(2d Cir. 1979), and GAF Corp. v. Eastman Kodak Co., 415 F. Supp. 129 (S.D.N.Y. 1976),

which applied a more stringent standard to requests for modification:
13 As noted earlier, the Second Circuit has clarified that the Martindell standard is not limited to requests for

modification made by the government. See TheStreet.com, 273 F.3d at 229 n.7.

58

These cases are distinguishable in that the party seeking access in

them was the federal government, which in each case had at its

disposal special investigatory powers not available to private

litigants. Thus, the government could have employed a grand jury in

aid of its perjury investigation in Martindell, and since the antitrust

investigation it conducted in Eastman Kodak could have led to

criminal or civil proceedings, it might have used either a grand jury

or the special “civil investigative demand” created by 15 U.S.C. [§]

1312. As the opinions in both cases suggest, the explicit grant of

such extensive investigatory powers should be construed to preclude

the implication of supplemental powers, absent unusual

circumstances. When the investigator is the government, there is also

a unique danger of oppression. This case involves neither

circumstance.

Wilk, 635 F.2d at 1300 (footnotes omitted).13 The court described the Seventh Circuit’s

reference to “exceptional considerations” in American Telephone and Telegraph Co. v.

Grady, 594 F.2d 594 (7th Cir. 1979), as “an unfortunate choice of words.” Wilk, 635 F.2d

at 1300. The court recognized that “[a] collateral litigant should not be permitted to exploit

another’s discovery in the sense of instituting the collateral litigation simply as a device to

obtain access to the sealed information”; that “federal discovery may not be used merely to

subvert limitations on discovery in another proceeding”; and that “a collateral litigant has

no right to obtain discovery materials that are privileged or otherwise immune from eventual

involuntary discovery in the collateral litigation.” Id. (citations omitted).

• The Seventh Circuit recently examined whether a journalist had standing to intervene to seek

modification of an agreed protective order. The court explained that “there is no

constitutional or common-law right of public access to discovery materials exchanged by the

parties but not filed with the court,” and that “[u]nfiled discovery is private, not public.”

Bond v. Utreras, 585 F.3d 1061, 1066 (7th Cir. 2009). The court rejected the journalist’s

argument that a “‘presumption’ of public access emanat[es] from Rule 26(c)’s ‘good cause’

requirement,” stating that “[t]here is no such presumption for discovery that is not part of the

court file and therefore no ‘right’ or legally protected interest to support [the journalist’s]

standing to intervene.” Id. The court also noted that the Rules provide for the use of

protective orders for good cause, and that “[p]rotective orders are often entered by

stipulation when discovery commences.” Id. at 1067.

The court stated that it “ha[d] previously held that permissive intervention is a procedurally

appropriate device for bringing a third-party challenge to a protective order,” id. at 1068

(citing Jessup v. Luther, 227 F.3d 993, 996–97 (7th Cir. 2000); In re Associated Press, 162

F.3d 503, 507 (7th Cir. 1998); Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d
59

893, 896 (7th Cir. 1994)), but explained that “that was in the context of requests for access

to sealed records in the court file (Jessup, Associated Press) and requests for intervention

made during ongoing litigation (Grove Fresh),” id. (footnote omitted). The court

distinguished the situation present in Bond, in which “the litigation was over, the case was

dismissed, and [the journalist] wanted to intervene in order to press a claimed right of access

to unfiled discovery material . . . .” Id. The court noted that Grove Fresh, Wilk, and some

other cases had addressed collateral litigants’ access to discovery in parallel litigation and

were therefore of little relevance in Bond, but stated that “[t]o the extent, however, that these

cases are premised upon a principle that ‘‘pre-trial discovery must take place in . . . public

unless compelling reasons exist for denying the public access to the proceedings,’’ they have

been superseded by the 2000 amendment to Rule 5 of the Federal Rules of Civil Procedure.”

Bond, 585 F.3d at 1068 n.4 (omission in original) (internal citations omitted).

With respect to the standing inquiry, the court stated that “‘at some fundamental level the

proposed intervenor must have a stake in the litigation’ in order to satisfy Article III.” Id.

at 1070 (quoting Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941, 946 (7th Cir. 2000)).

The court explained that using permissive intervention to allow a third party to challenge a

protective order may not be procedurally proper in some circumstances:

Intervention for purposes of challenging a protective order is

an unusual species of permissive intervention that triggers its own

unique standing issues. Rule 24(b) allows intervenors to join as

parties to a lawsuit when they raise a “claim” or a “defense” that

“shares with the main action a common question of law or fact.”

FED.R.CIV.P. 24(b)(1)(B). We have held that this language is broad

enough to encompass a third-party challenge to a protective order

even though it is not a neat fit: The “interest” being asserted by such

an intervenor is not really a “claim” or “defense.” See Jessup, 227

F.3d at 998; Grove Fresh, 24 F.3d at 896; see also EEOC v. Nat’l

Children’s Ctr., Inc., 146 F.3d 1042, 1045 (D.C. Cir. 1998) (“On its

face, Rule 24(b) would appear to be a questionable procedural basis

for a third-party challenge to a confidentiality order.”).

Also, when a third party intervenes to challenge a protective

order, it cannot be said to have intervened on an existing party’s

“side” unless that party also opposes the protective order. Where, as

in many cases and in this case, the protective order is entered by

stipulation of the parties, “the extra litigant . . . is not simply along for

the ride” but rather shifts the progress of the lawsuit in a new

direction to obtain relief that neither the plaintiff nor the defendant

may want. Intervention to challenge a protective order after a case

has been dismissed interferes even more fundamentally: It revives a

concluded case for the purpose of entertaining an outsider’s claim of

interest in the proceeds of the parties’ discovery process. Rule 24(b)
60

specifically provides that in deciding whether to permit intervention,

“the court must consider whether the intervention will unduly delay

or prejudice the adjudication of the original parties’ rights.” FED.R.

CIV. P. 24(b)(3) (emphasis added). This language suggests that

intervention postjudgment—which necessarily disturbs the final

adjudication of the parties’ rights—should generally be disfavored.

Id. at 1070–71 (omission in original) (footnote and internal citation omitted). The court did

not decide whether a permissive intervenor needs to establish standing to challenge a

protective order in an ongoing case, but concluded that it must establish standing after the

case has been dismissed. Id. at 1071. The court noted that while it did “not decide whether

a permissive intervenor needs independent standing to intervene in a live controversy for the

purpose of challenging a protective order[,] . . . most cases addressing third-party challenges

to protective orders in ongoing lawsuits overlook the standing question, and those that do

address it are conflicting.” Id. at 1071 n.7 (citations omitted). The court held that “when a

third party seeks intervention under Rule 24(b) for the purpose of challenging a protective

order in a case or controversy that is no longer live—as when the case has been dismissed

and none of the original parties has sought this relief postjudgment—the intervenor must

meet the standing requirements of Article III in addition to Rule 24(b)’s requirements for

permissive intervention.” Id. at 1072. The court concluded that the standing inquiry

involved consideration of whether the documents sought had been filed with the court:

Many of our decisions—as well as decisions from other

circuits—speak broadly about a “presumption of public access to

discovery materials.” Citizens First Nat’l Bank, 178 F.3d at 946; see

also Public Citizen, 858 F.2d at 788–89; In re Agent Orange Prod.

Liab. Litig., 821 F.2d 139, 146 (2d Cir.1987) (referring to the

public’s “presumptive right of access to discovery materials”). To

the extent that this language suggests the existence of a general

public right to access the materials that litigating parties exchange in

response to discovery requests, it sweeps too broadly. As we will

explain, while the public has a presumptive right to access discovery

materials that are filed with the court, used in a judicial proceeding,

or otherwise constitute “judicial records,” the same is not true of

materials produced during discovery but not filed with the court.

Generally speaking, the public has no constitutional, statutory

(rule-based), or common-law right of access to unfiled discovery.

It is beyond dispute that most documents filed in court are

presumptively open to the public; members of the media and the

public may bring third-party challenges to protective orders that

shield court records and court proceedings from public view. See,

e.g., Jessup, 227 F.3d at 997 (“‘[T]hose who seek access to [sealed

court] material have a right to be heard in a manner that gives full
61

protection to the asserted right.’” (quoting Associated Press, 162 F.3d

at 507)); Citizens First Nat’l Bank, 178 F.3d at 945–46 (regarding

filing of appellate appendix under seal); Associated Press, 162 F.3d

at 507 (regarding press access to sealed court records). This right is

derived from the common-law principle that courts are public

institutions that operate openly—a principle codified at 28 U.S.C. §

452—and judicially imposed limitations on this right are subject to

the First Amendment. See, e.g., Globe Newspaper Co. v. Super. Ct.

for Norfolk County, 457 U.S. 596, 603–06, 102 S. Ct. 2613, 73 L. Ed.

2d 248 (1982); Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597,

98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978) (“It is clear that the courts of

this country recognize a general right to inspect and copy public

records and documents, including judicial records and documents.”

(footnote omitted)); see also Smith v. U.S. Dist. Ct. for S. Dist. of Ill.,

956 F.2d 647, 650 (7th Cir. 1992) (recognizing that although this

principle originally stemmed from a need to ensure access to criminal

proceedings, the right of access has subsequently been expanded to

civil proceedings).

While the public’s right to access court records is not

unlimited, see Nixon, 435 U.S. at 598, 98 S. Ct. 1306;

Press-Enterprise Co. v. Super. Ct. of Cal., Riverside County, 464

U.S. 501, 510, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984), and Rule

26(c) allows a court to shield certain documents from the public when

there is good cause to do so, Citizens First Nat’l Bank, 178 F.3d at

945 (public interest in observing judicial process can be overridden

if “the property and privacy interests of the litigants . . . predominate

in the particular case”), the general right of public access to judicial

records is enough to give members of the public standing to attack a

protective order that seals this information from public inspection.

See Jessup, 227 F.3d at 997–98; Grove Fresh, 24 F.3d at 897–98;

Associated Press, 162 F.3d at 506–09.

Bond, 585 F.3d at 1073–74 (alterations and omission in original). The court differentiated

the case before it, in which the journalist sought “access to discovery materials that have

never been filed with the court and have never influenced the outcome of a judicial

proceeding,” explaining that “[t]he Supreme Court has held that the public’s right of access

is limited to traditionally publicly available sources of information, and ‘discovered, but not

yet admitted information’ is not ‘a traditionally public source of information.’” Id. at 1074

(quoting Seattle Times, 467 U.S. at 33; citing Grove Fresh, 24 F.3d at 897–98 (“‘[U]ntil

admitted into the record, material uncovered during pretrial discovery is ordinarily not

within the scope of press access.’”) (alteration in original)). The court further explained that

“[a]t common law, pretrial proceedings were closed to the public, and the federal discovery

rules have not changed this common-law tradition.” Id. (internal citation omitted). The
62

court stated that “[a]s the Court noted in Seattle Times, ‘[d]iscovery rarely takes place in

public,’ and the system created by Rule 26 contemplates that the exchange of information

in discovery will occur with minimal judicial involvement.” Id. (emphasis added) (second

alteration in original) (internal citation omitted). The court discussed the rationale for

differentiating between materials filed with the court and those just exchanged between the

parties:

There are good reasons to treat the public’s right to access

filed and unfiled discovery materials differently. For starters,

“pretrial discovery, unlike the trial itself, is usually conducted in

private.” Citizens First Nat’l Bank, 178 F.3d at 944. Pretrial

discovery—depositions, interrogatories, and the production of

documents—“are not public components of a civil trial,” “were not

open to the public at common law,” and “in general, are conducted

in private as a matter of modern practice.” Seattle Times, 467 U.S.

at 33, 104 S. Ct. 2199. That the court’s discovery processes and rules

are used to require litigants to produce otherwise private information

to an opposing party is not enough to alter the legal rights of the

general public. Discovery rules are “a matter of legislative grace,”

and “[l]iberal discovery is provided for the sole purpose of assisting

in the preparation and trial, or the settlement, of litigated disputes.”

Seattle Times, 467 U.S. at 32, 34, 104 S. Ct. 2199. We have said that

“[s]ecrecy is fine at the discovery stage, before the material enters the

judicial record.” Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 545

(7th Cir. 2002).

The rights of the public kick in when material produced

during discovery is filed with the court. See Seattle Times, 467 U.S.

at 33 & n.19, 104 S. Ct. 2199 (recognizing that the public has a right

to access anything that is a “traditionally public source of

information” and observing that “courthouse records could serve as

a source of public information”). At this point, the documents have

been “used in [a court] proceeding,” FED. R. CIV. P. 5(d), and

consequently the possibility exists that they could “influence or

underpin the judicial decision” and they are therefore presumptively

“open to public inspection unless they meet the definition of trade

secret or other categories of bona fide long-term confidentiality.”

Baxter Int’l, 297 F.3d at 545; see also Citizens First Nat’l Bank, 178

F.3d at 945.

Id. at 1074–75 (alterations in original) (footnote omitted). The court noted, however, that

“the public does not acquire a right to access discovery material just because a judge might

review it in camera in the course of discovery proceedings.” Id. at 1075 n.8 (citing

TheStreet.com, 273 F.3d at 233; Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263
63

F.3d 1304, 1312–13 (11th Cir. 2001); United States v. Wolfson, 55 F.3d 58, 61 (2d Cir.

1995)).

The court further noted that cases suggesting that Rule 26(c) creates a right of public access

to discovery lacked force following the 2000 amendment to Rule 5:

It is true that some cases suggest that Rule 26(c) creates a

substantive right of public access to discovery. See San Jose

Mercury News, Inc. v. U.S. Dist. Court for N. Dist., 187 F.3d 1096,

1103 (9th Cir. 1999); Public Citizen, 858 F.2d at 787–90; Agent

Orange, 821 F.2d at 145–47. These cases, however, were based on

a prior version of Rule 5(d) of the Federal Rules of Civil Procedure

that generally required all discovery materials to be filed with the

court unless the court ordered otherwise. See, e.g., Agent Orange,

821 F.2d at 146 (citing a prior version of Rule 5(d)). The drafters of

a 1980 amendment to Rule 5(d) considered establishing a rule that

discouraged the filing of all discovery but decided not to; “such

materials are sometimes of interest to those who may have no access

to them except by a requirement of filing, such as members of a class,

litigants similarly situated, or the public generally.” FED. R. CIV. P.

5(d), advisory committee note (1980). Accordingly, some courts read

the prior Rule 5(d) together with Rule 26(c) and concluded that these

rules implied the existence of a public right to access discovery even

if the discovery was not filed with the court. E.g., Agent Orange, 821

F.2d at 145–46.

Whatever force these decisions had was destroyed by the

2000 amendment to Rule 5(d), which reversed the longstanding rule

generally requiring discovery to be filed with the court. Since 2000,

information exchanged in discovery “must not be filed” until it is

“used in the proceeding” or until “the court orders filing.” FED. R.

CIV. P. 5(d) (emphasis added). In its present form, then, Rule 5(d)

separates discovery material—regardless of whether it is subject to

a Rule 26(c) protective order—into two categories: (1) that which is

filed with the court (because it is used in a court proceeding or is

ordered to be filed); and (2) that which remains unfiled and therefore

not part of the public court record. As the Second Circuit has

recognized, this amendment eliminated any implied right of public

access to unfiled discovery emanating from the procedural rules. See

SEC v. TheStreet.com, 273 F.3d 222, 233 n. 11 (2d Cir. 2001)

(observing that the 2000 amendment to Rule 5(d) “provides no

presumption of filing of all discovery materials, let alone public

access to them”) (abrogating Agent Orange). Accordingly, nothing

in Rule 26(c)—either standing alone or when read in conjunction
64

with the current version of Rule 5(d)—confers substantive rights

upon third parties seeking access to the fruits of discovery.

Bond, 585 F.3d at 1075–76 (footnote omitted). The court concluded that the district court

had erred by relying on language in cases mentioning a presumption of public access to

discovery materials, explaining that “[t]he ‘presumption’ mentioned in these cases simply

refers to the general right of the public to access material contained in court files and the

limited right of litigants under the First Amendment to ‘disseminate information discovered

in advance of trial,’” and that “[i]t is a mistake to conclude, as the district court did, that Rule

26(c) creates a freestanding public right of access to unfiled discovery.” Id. at 1076. The

court held that the journalist’s standing could not be grounded in Rule 26(c). Id. (footnote

omitted). The court noted that the journalist had not sought to obtain the documents under

the state’s Freedom of Information Act, and that “[t]he protective order d[id] not interfere

with [the journalist’s] ability to try to obtain the documents he s[ought] directly from the

City under the Illinois FOIA.” Id. at 1076 n.10. The court explained that “nothing in the

protective order here prohibits the City from disclosing any of its police department records

to the public upon request.” Id.

The court also concluded that standing could not be based on the First Amendment,

explaining that “[t]he only First Amendment concern raised by a protective order limiting

disclosure of unfiled discovery is the effect such an order may have on a litigant’s freeexpression rights, which the Supreme Court has said are limited by the context through

which the information is acquired.” Id. at 1077. The court continued:

Seattle Times made it clear that “[a] litigant has no First

Amendment right of access to information made available only for

purposes of trying his suit.” 467 U.S. at 32, 104 S. Ct. 2199. As

such, “judicial limitations on a party’s ability to disseminate

information discovered in advance of trial implicate[ ] the First

Amendment rights of the restricted party to a far lesser extent than

would restraints on dissemination of information in a different

context.” Id. at 34, 104 S. Ct. 2199; see also Arthur R. Miller,

Confidentiality, Protective Orders, and Public Access to the Courts,

105 HARV. L. REV.[ ] 427, 487 (1991) (describing the interest in

accessing information produced by discovery as a side effect of—and

therefore subordinate to—the judicial system’s central concern of

resolving disputes between litigants). Where, as here, the litigants

themselves agreed to the protective order and do not seek its

modification, this (limited) interest simply is not in play.

Bond, 585 F.3d at 1077 (first and second alterations in original). The court held that the

journalist could not claim standing based on a derivative First Amendment right to receive

information because there were no “willing speakers.” See id. The court noted that while

“[m]edia challenges to trial-court gag orders have been allowed where the orders interfere
65

with the right to receive information from parties and their attorneys who wish to

disseminate it,” “a stipulated protective order involves self-imposed secrecy and is therefore

not the equivalent of a gag order.” Id. (citations omitted). The court explained that “to

satisfy Article III on this type of claim, an intervenor must do more than simply assert that

a protective order interferes with his inchoate, derivative ‘right’ to receive discovery

information” because “[i]magining the existence of a willing speaker runs contrary to the

Supreme Court’s command that injuries-in-fact must be ‘actual or imminent, not conjectural

or hypothetical.’” Id. at 1078 (citations omitted). The court concluded that “[w]here, as

here, the litigants have voluntarily bound themselves to keep certain discovery confidential

and do not themselves seek relief from the requirements of the protective order, there is no

willing speaker on which to premise a First Amendment right-to-receive claim.” Id.

The Bond court further noted that “[a] sua sponte postjudgment modification of a protective

order does not fall within the court’s ancillary jurisdiction; it is not a matter ‘incidental to’

another matter that is ‘properly before’ the court.” Id. The court emphasized that “the

protective order did not operate to shield the court’s own records from public view,”

explaining that “although a court may have inherent authority to modify a protective order

sealing documents maintained in the court file, that’s not what’s at issue here.” Bond, 585

F.3d at 1079 (internal citation omitted).

The concurrence would have reached the same conclusion as the majority, but would have

done so on the merits, rather than on standing grounds. Id. at 1080 (Tinder, J., concurring).

Judge Tinder explained:

As the majority correctly explains, the district court erroneously

applied a presumption of public access under Rule 26(c) to the

unfiled discovery documents exchanged in this case. Such a

presumption is no longer tenable in light of the 2000 amendment to

Rule 5(d), which provided that discovery documents should not be

filed with the court until used in a judicial proceeding. So where, as

here, the parties have agreed to a confidentiality order covering

unfiled discovery materials which, for good cause, was judicially

approved, a district court should honor that order absent some

showing of abuse or other extraordinary circumstances. To require

any less of a showing would undermine the parties’ reliance on

protective orders, which are essential to a fair, efficient discovery

process. See SEC v. TheStreet.com, 273 F.3d 222, 229–30 (2d Cir.

2001). The district court relied on the public’s significant interest in

monitoring police misconduct as the basis for lifting the protective

order. In my view, this generalized public interest in allegations of

police misconduct, while not insignificant, is, standing alone, not

sufficiently compelling to conclude that the parties’ stipulated

confidentiality order lacks good cause under Rule 26(c). But [the

intervening journalist] presented nothing more so he clearly failed to
66

make a sufficient showing to undo the protective order.

Id. (internal citation omitted). Judge Tinder argued that while it was a close call, the

journalist had standing to challenge the protective order:

Courts have recognized that third parties can challenge a

protective order under Rule 26(c) for good cause, even where the

order covers non-judicial records that fall outside of the public’s

common law right of access. See Public Citizen v. Liggett Group,

Inc., 858 F.2d 775, 787–88 (1st Cir. 1988) (public interest group had

standing to demand good cause under Rule 26(c) to maintain a

protective order covering discovery materials); In re Alexander Grant

& Co. Litigation, 820 F.2d 352, 354–56 (11th Cir. 1987) (per curiam)

(journalists had standing to bring a Rule 26(c) challenge to a

protective order even though they had no First Amendment right of

access to the discovery documents). As we explained in Grove Fresh

Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 898 (7th Cir.

1994), the press has standing to challenge a protective order for abuse

or impropriety. A third party may claim that a litigant is exploiting

a court’s confidentiality order to insulate embarrassing documents

that present no “good cause” for secrecy within the meaning of Rule

26(c). Id.; cf. Citizens First Nat’l Bank of Princeton v. Cincinnati

Ins. Co., 178 F.3d 943, 944–46 (7th Cir. 1999) (concluding that a

protective order allowing the parties to designate virtually any

discovery materials as confidential, even those introduced into the

judicial record, was overbroad).

After a very thorough review of these and other cases, the

majority explains that courts in the past have failed to carefully

distinguish between the public’s rights of access to judicial records

and to unfiled discovery materials, and that Rule 26(c)’s “good

cause” requirement does not support any “presumption” of public

access to the latter. That is true, and because the information sought

here has never been filed with the court, this matter calls for an even

more stringent review of standing than the host of cases involving

court-filed documents. But I respectfully suggest that it does not

follow that a third-party intervenor necessarily lacks standing to bring

a Rule 26(c) challenge to a protective order covering unfiled

discovery documents. Although unfiled discovery does not fall

within the public’s presumptive right of access, the public still “has

an interest in what goes on at all stages of a judicial proceeding.”

Citizens First Nat’l Bank, 178 F.3d at 945. As noted, third-party

Rule 26(c) claims may prevent litigants from abusing a

court-approved confidentiality order to seal whatever they want. See
67

Grove Fresh, 24 F.3d at 898. Other circumstances (not present here)

could arise where a third party shows such an “extraordinary

circumstance or compelling need” for unfiled discovery documents

that a district court should modify an order protecting those

documents. TheStreet.com, 273 F.3d at 229. [The journalist’s]

request came so late in the life of this case and is so lacking in merit

that it is tempting to simply join in the majority’s well-reasoned and

persuasive standing conclusion. However, I hesitate to do so because

I fear that a determination that [the journalist] lacks standing might

be read as a categorical bar to third parties who would seek unfiled

discovery materials that are subject to protective orders. While

circumstances in which such requests might be granted ought to be

exceedingly rare, I think [the journalist] presented just enough to the

district court to get in the door to argue his position.

Id. at 1080–81 (internal citation omitted).

EIGHTH CIRCUIT

Standard for Entering a Protective Order

• A court in the Eighth Circuit has explained: “Under Rule 26(c), a court may grant a

protective order only upon a showing of good cause by the moving party. The movant must

articulate ‘a particular and specific demonstration of fact, as distinguished from stereotyped

and conclusory statements.’” Pochat v. State Farm Mutual Auto. Ins. Co., No. 08-5015-

KES, 2008 WL 5192427, at *3 (D.S.D. Dec. 11, 2008) (internal citation omitted) (quoting

Gen. Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973)). “Such

determination must also include a consideration of the relative hardship to the non-moving

party should the protective order be granted.” Gen. Dynamics Corp., 481 F.2d at 1212

(citation omitted). The Pochat court noted that protective orders over discovery require

“‘balancing between public and private concerns.’” Pochat, 2008 WL 5192427, at *3

(quoting Pansy, 23 F.3d at 786). The court explained: 

In considering whether good cause exists for a protective

order, the federal courts have generally adopted a balancing process

. . . . [T]he court . . . must balance the requesting party’s need for

information against the injury that might result if uncontrolled

disclosure is compelled. When the risk of harm to the owner of [a]

trade secret or confidential information outweighs the need for

discovery, disclosure [through discovery] cannot be compelled, but

this is an infrequent result.

Once the court determines that the discovery policies require

that the materials be disclosed, the issue becomes whether they
68

should “be disclosed only in a designated way,” as authorized by the

last clause of Rule 26(c)(7) . . . . Whether this disclosure will be

limited depends on a judicial balancing of the harm to the party

seeking protection (or third persons) and the importance of disclosure

to the public. Courts also have a great deal of flexibility in crafting

the contents of protective orders to minimize the negative

consequences of disclosure and serve the public interest

simultaneously.

Id. at *4 (alterations and omissions in original) (internal quotation marks omitted) (quoting

Pansy, 23 F.3d at 787). The court described various factors listed in Pansy that might be

considered in determining whether to enter a protective order. See id. The court emphasized

that “[t]hese factors . . . ‘are unavoidably vague and are of course not exhaustive’ so as to

provide courts with ‘the flexibility needed to justly and properly’ resolve discovery

disputes.” Id. (citing Pansy, 23 F.3d at 787). The court rejected a proposed protective order

that would allow the parties to designate material they believed contained trade secrets or

other confidential material because the court was “concerned that this broad language will

serve to give each party ‘carte blanche to decide what portions of the record shall be kept

secret.’” Id. at *10 (quoting Citizens First Nat’l Bank, 178 F.3d at 945).

Standard for Entering a Sealing Order

• In the context of reviewing a sealing order entered by a bankruptcy judge, the Eighth Circuit

has recognized the public’s right to inspect judicial records and stated that compelling

reasons are necessary to infringe on that right. See In re Neal, 461 F.3d 1048, 1053 (8th Cir.

2006) (noting that courts recognize a general right to inspect judicial records and that courts

have supervisory power over their records and may deny access if the records may be used

for improper purposes, but that while “the court is given this supervisory power [to deny

access], ‘only the most compelling reasons can justify non-disclosure of judicial records’”

(quoting In re Gitto Global Corp., 422 F.3d 1, 6 (1st Cir. 2005) (internal brackets and

quotations omitted))).

• In another case, the Eighth Circuit stated that whether to seal a court record is a decision

within the district court’s discretion. See Jochims v. Isuzu Motors, Ltd., 151 F.R.D. 338, 340

(S.D. Iowa 1993) (“[T]he decision of whether court records should be sealed is one

committed to the sound discretion of the trial court.” (citing Webster Groves Sch. Dist. v.

Pulitzer Publishing Co., 898 F.2d 1371, 1374 (8th Cir. 1990))). The court explained that

“[w]hile recognizing a common law right of access to court records, the Eighth Circuit has

expressly declined to adopt a ‘strong presumption’ of common law access.” Id. The court

noted that there is a “need to balance the competing interests involved, and to make this

determination in light of the facts and circumstances of this particular case.” Id. at 341

(citations omitted). The court concluded that “the public good would be substantially

disserved if the introduction of a document in a civil trial deprived it of its otherwise

confidential status.” Id. at 342. The court continued: “Discovery, often a contentious and
69

difficult process in complex cases, would become even more contentious and expensive, if

there was no assurance of continued protection for confidential business information.” Id.

(citing Seattle Times, 467 U.S. at 34); State ex rel. Butterworth v. Jones Chems., Inc., 148

F.R.D. 282, 288 (M.D. Fla. 1993)). The court explained that “[c]oncern with the ‘efficient

administration of justice’ is also a valid interest to be considered in making this

determination [of whether to grant access].” Id. (citation omitted). The court noted that

“[n]either the Supreme Court nor the Eighth Circuit has recognized a constitutional right of

access in a civil case,” but concluded that even if a constitutional right exists, the order at

issue only sealed a small number of exhibits in comparison to the number entered at trial and

did so to protect a legitimate interest in confidentiality. See Jochims, 151 F.R.D. at 342 n.8.

• In a district court case, the court noted that the Eighth Circuit had recognized a general right

to inspect judicial records, and that “[a] party seeking closure or sealing of court documents

must show that a restriction of the right of public access is necessitated by a compelling

government interest.” SEC v. Shanahan, No. 4:06-MC-546 CAS, 2006 WL 3330972, at *3

(E.D. Mo. Nov. 15, 2006) (citing Goff v. Graves, 362 F.3d 543, 550 (8th Cir. 2004)). The

court emphasized that “[i]f a district court decides to close a proceeding or seal certain

documents, it must explain why closure or sealing was necessary and why less restrictive

alternatives were not appropriate.” Id. at *4 (citing In re Search Warrant for Secretarial

Area Outside Office of Gunn, 855 F.2d 569, 574 (8th Cir. 1988) (citation omitted)). The

court noted that “Eighth Circuit precedent indicates that in order to seal records or

documents, there must be a compelling governmental interest.” Id. (citation omitted) The

court distinguished private interests, which it deemed insufficient to warrant sealing:

In the absence of evidence that court files might be used for improper

purposes such as to “gratify private spite” or “promote public

scandal,” the respondents’ interest in keeping their names out of the

public record is not a governmental interest at all, but rather a private

interest. “The mere fact that the production of records may lead to a

litigant’s embarrassment, incrimination, or exposure to further

litigation will not, without more, compel the court to seal its records.”

Id. (internal citation omitted).

• Another district court described the following standard for sealing court documents:

There is a common-law right of access to judicial records.

See Webster Groves Sch. Dist. v. Pulitzer Publ’g Co., 898 F.2d 1371,

1376 (8th Cir. 1990). The Eighth Circuit has held that this right of

access “is not absolute, but requires a weighing of competing

interests.” Id. A court has supervisory power over its own records,

and the decision to seal a file is within the court’s discretion. Id. The

Court finds that Guidant and Duron have a heightened burden to

overcome the presumptive right of the public to access of the briefs
14 On reconsideration, the Eighth Circuit “adhere[d] in general to the views expressed” in its original opinion, but found

that formal issuance of mandamus had been improvident because compelling reinstatement of the protective order would

not alter the status quo, as there was no basis for requiring the Subcommittee to return the documents it obtained and the

order lifting the protective order had only pertained to the documents provided in response to the subpoena, meaning

70

and supporting documents at issue because they were filed in support

of and in opposition to motions for summary judgment. See Joy v.

North, 692 F.2d 880, 893 (2d Cir. 1982) (“[D]ocuments used by

parties moving for, or opposing, summary judgment should not

remain under seal absent the most compelling reasons.”).

Duron v. Guidant Corp. (In re Guidant Corp. Implantable Defibrilators Prods. Liab. Litig.),

245 F.R.D. 632, 636 (D. Minn. 2007) (alteration in original). After the parties objected to

unsealing certain documents, the court reviewed the documents in camera “for good cause

under FED.R.CIV. P. 26[,] and weighed the competing interests regarding the common-law

right of access to judicial records.” Id. (footnote omitted). Specifically, “[t]he Court

determined which documents contain[ed] trade secrets, proprietary information, or other

confidential information and then weighed [the intervenor’s] need for disclosure against the

potential harm that unsealing m[ight] cause [the opposing parties].” Id.

• Another court concluded that “there is no established right of public access to prejudgment

records in civil cases.” Simon v. G.D. Searle & Co., 119 F.R.D. 683, 684 (D. Minn. 1987)

(citation omitted). The court concluded that it had “discretion to deny access to documents

filed, but not admitted into evidence or relied upon by the Court.” Id. (citing Anderson v.

Cryovac, Inc., 805 F.2d 1 (1st Cir. 1986); Tavoulareas v. Washington Post Co., 111 F.R.D.

653 (D.D.C. 1986)). The court also found that “[a]t best, the presumption of public access

to judicial records has force only when the Court relies on particular documents to determine

the litigants’ substantive rights,” id. (citing Anderson, 805 F.2d at 13), and explained that

“even in cases which do not involve confidential documents, this Court, as a matter of

course, has never sanctioned wholesale filing of discovery materials, depositions or exhibits

until it is clear said materials will be relied on and considered by the Court,” id.

Standard for Modifying a Protective Order

• The Eighth Circuit has at least implied that a party requesting modification of a protective

order must show intervening circumstances warranting modification. In Iowa Beef

Processors, Inc. v. Bagley, 601 F.2d 949, 952 (8th Cir. 1979), a defendant requested that the

court dissolve a protective order to allow him to comply with subpoenas issued by a

congressional subcommittee investigating pricing practices in the meat industry. The district

court partially lifted the protective order to allow the defendant to respond to the subpoena.

Id. The Eighth Circuit vacated the order modifying the protective order, noting that the

district court had made the modification “without any showing that intervening

circumstances had in any way obviated the potential prejudice to [the protected party] . . .

.”14 Id. at 954 (emphasis added).
that any further disclosures would violate even the modified protective order. 601 F.2d at 956.

71

• A district court has explained that “‘[t]he party seeking to modify the protective order bears

the burden of showing good cause for the modification,’” Guzhagin v. State Farm Mut. Auto.

Ins. Co., No. 07-4650 (JRT/FLN), 2009 WL 294305, at *2 (D. Minn. Feb. 5, 2009) (quoting

Medtronic, Inc. v. Boston Sci. Corp., No. Civ. 99-1035, 2003 WL 352467, at *1 (D. Minn.

Feb. 14, 2003)), and that “[w]hen a party to a stipulated protective order seeks to modify that

order, ‘that party must demonstrate particular good cause to obtain relief,’” id. (quoting

Jochims v. Isuzu Motors, Ltd., 145 F.R.D. 499, 501 (S.D. Iowa 1992)). The court recognized

that “[c]ourts outside [the Eighth] Circuit have noted a ‘sufficient need for modification . .

. to avoid duplicative discovery when parties in other litigation seek to obtain discovery in

concluded litigation,’” id. (omission in original) (quoting SmithKline Beecham Corp. v.

Synthon Pharms., Ltd., 210 F.R.D. 163, 166 (M.D.N.C. 2002)), but explained that

“SmithKline cautions . . . against modifying protective orders ‘in a controversy with which

[the Court] is not familiar and over which it lacks control,’” id. (alteration in original)

(quoting SmithKline, 210 F.R.D. at 166). The court implied that “compelling need” was

required to warrant modification of a protective order. See id. (“State Farm has therefore

satisfied its burden by demonstrating compelling need for modification.” (emphasis added)).

• Another district court explained the standard as follows:

“When a party seeks modification of a confidentiality order,

they must ‘come forward with a reason to modify the order.’” Arnold

v. Pennsylvania, Dep’t of Transp., 477 F.3d 105, 108 (3d Cir. 2007)

(quoting Pansy v. Borough of Stroudsburg, 23 F.3d 772, 790 (3d Cir.

1994)). Specifically, “[t]he party seeking the modification must

explain why its need for the materials outweighs existing privacy

concerns.” MSC.Software Corp. v. Altair [Eng’g], Inc., No.

07-CV-12807, 2008 WL 2478313, at *1 (E.D. Mich. June 17, 2008)

(Slip Copy). Some courts hold the burden is not easily met as there

is a “stringent standard for modification,” . . . “a confidentiality order

can only be modified if an extraordinary circumstance or compelling

need warrants the requested modification.” Pansy, 23 F.3d at 789

(citing cases). In contrast, other courts hold the movant to a more

lenient standard by incorporating a balancing test. Id. at 789–90

(citing cases). The Pansy court identified a number of factors for the

good cause balancing test used to issue or modify a protective order

including: (1) the interest in privacy of the party seeking protection;

(2) whether the information is being sought for a legitimate purpose

or an improper purpose; and (3) the parties’ reliance on the protective

order. Id. at 787–89.

Streck, Inc. v. Research & Diagnostic Sys., Inc., No. 8:06CV458, 2008 WL 2813081, at *3
15 The earlier version of this memo discussed Pintos v. Pacific Creditors Association, 565 F.3d 1106 (9th Cir. 2009).

That opinion was amended and superseded on denial of rehearing by the May 21, 2010 opinion cited in this version of

the memo. The amended opinion added language to a footnote that is not relevant for purposes of this memo. 

72

(D. Neb. July 18, 2008) (first alteration and omission in original). The court indicated that

compelling need and extraordinary circumstances were sufficient (and perhaps necessary)

for modification. See id. at *4 (“The plaintiff has presented a legitimate and not improper

purpose for use of the documents outside this litigation. The plaintiff’s need is compelling

and presents an extraordinary circumstance.” (emphasis added)).

• Another case found that the magistrate judge had erred by relying on the standard for

modification set out in Wilk when the “controlling standard is found in Iowa Beef

Processors, Inc. v. Bagley, 601 F.2d 949 (8th Cir.), cert denied, 441 U.S. 907, 99 S. Ct.

1997, 60 L. Ed. 2d 376 (1979).” Jochims v. Isuzu Motors, Ltd., 151 F.R.D. 338, 342 (S.D.

Iowa 1993). The court explained that Iowa Beef Processors set out the following standard:

[T]he Eighth Circuit recognized that the initial showing of good

cause for entry of a protective order under FED.R.CIV. P. 26(c) is on

the party seeking protection. However, when an attempt is made to

amend or lift that protection, there must be a showing that intervening

circumstances have obviated or eliminated any potential prejudice to

the protected party. I believe that Bagley’s requirement of a showing

of intervening circumstances implicitly places the burden of making

the showing on the party seeking to amend or lift the protective order.

This standard is fully applicable to a petition by plaintiffs in other

litigation, such as intervenors.

Id. (internal citations omitted).

NINTH CIRCUIT

Standard for Entering a Protective Order

• In Pintos v. Pacific Creditors Association, 605 F.3d 665 (9th Cir. 2010),15 the Ninth Circuit

explained the differences between the standard for entering a protective order and the

standard for entering a sealing order:

Two standards generally govern motions to seal documents

like the one at issue here. First, a “compelling reasons” standard

applies to most judicial records. See Kamakana v. City & County of

Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (holding that “[a]

party seeking to seal a judicial record . . . bears the burden of . . .

meeting the ‘compelling reasons’ standard”); Foltz v. State Farm

Mut. Auto. Ins. Co., 331 F.3d 1122, 1135–36 (9th Cir. 2003). This
73

standard derives from the common law right “to inspect and copy

public records and documents, including judicial records and

documents.” Kamakana, 447 F.3d at 1178 (citation and internal

quotation marks omitted). To limit this common law right of access,

a party seeking to seal judicial records must show that “compelling

reasons supported by specific factual findings . . . outweigh the

general history of access and the public policies favoring disclosure.”

 Id. at 1178–79 (internal quotation marks and citations omitted).

Second, a different standard applies to “private materials

unearthed during discovery,” as such documents are not part of the

judicial record. Id. at 1180. Rule 26(c) of the Federal Rules of Civil

Procedure governs here, providing that a trial court may grant a

protective order “to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense.”

The relevant standard for purposes of Rule 26(c) is whether

“‘good cause’ exists to protect th[e] information from being disclosed

to the public by balancing the needs for discovery against the need

for confidentiality.” Phillips ex rel. Estates of Byrd v. Gen. Motors

Corp., 307 F.3d 1206, 1213 (9th Cir. 2002). This “good cause”

standard presents a lower burden for the party wishing to seal

documents than the “compelling reasons” standard. The cognizable

public interest in judicial records that underlies the “compelling

reasons” standard does not exist for documents produced between

private litigants. See Kamakana, 447 F.3d at 1180 (holding that

“[d]ifferent interests are at stake with the right of access than with

Rule 26(c)”); Foltz, 331 F.3d at 1134 (“When discovery material is

filed with the court . . . its status changes.”).

The “good cause” standard is not limited to discovery. In

Phillips, we held that “good cause” is also the proper standard when

a party seeks access to previously sealed discovery attached to a

nondispositive motion. 307 F.3d at 1213 (“when a party attaches a

sealed discovery document to a nondispositive motion, the usual

presumption of the public’s right of access is rebutted”).

Nondispositive motions “are often ‘unrelated’, or only tangentially

related, to the underlying cause of action,” and, as a result, the

public’s interest in accessing dispositive materials does “not apply

with equal force” to nondispositive materials. Kamakana, 447 F.3d

at 1179. In light of the weaker public interest in nondispositive

materials, we apply the “good cause” standard when parties wish to

keep them under seal. Applying the “compelling interest” standard

under these circumstances would needlessly “undermine a district
74

court’s power to fashion effective protective orders.” Foltz, 331 F.3d

at 1135.

Id. at 677–78 (alterations and omissions in original) (footnote omitted).

• Another court has explained: “‘It is well-established that the fruits of pretrial discovery are,

in the absence of a court order to the contrary, presumptively public. Rule 26(c) authorizes

a district court to override this presumption where ‘good cause’ is shown.’” AGA

Shareholders, LLC v. CSK Auto, Inc., No. CV-07-62-PHX-DGC, 2007 WL 4225450, at *1

(D. Ariz. Nov. 28, 2007) (quoting San Jose Mercury News, Inc. v. U.S. Dist. Court—N. Dist.

(San Jose), 187 F.3d 1096, 1103 (9th Cir. 1999)). The court stated:

For good cause to exist under Rule 26(c), “the party seeking

protection bears the burden of showing specific prejudice or harm

will result if no protective order is granted.” Phillips v. G.M. Corp.,

307 F.3d 1206, 1210–11 (9th Cir. 2002). “‘Broad allegations of

harm, unsubstantiated by specific examples or articulated reasoning,

do not satisfy the Rule 26(c) test.’” Beckman Indus., Inc. v. Int’l Ins.

Co., 966 F.2d 470, 476 (9th Cir. 1992) (citation omitted). Rather, the

party seeking protection must make a “particularized showing of

good cause with respect to [each] individual document.” San Jose

Mercury News, 187 F.3d at 1102.

Id. (alteration in original).

Standard for Entering a Sealing Order

• The Ninth Circuit has also explained that with respect to court documents, the showing that

must be made to seal the documents depends on whether the documents are associated with

a dispositive motion. See Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135–36

(9th Cir. 2003). The court explained that the Ninth Circuit has “a strong presumption in

favor of access to court records,” but that “[t]he common law right of access . . . is not

absolute and can be overridden given sufficiently compelling reasons for doing so.” Id. at

1135 (citing San Jose Mercury News, 187 F.3d at 1102); see also Pintos, 605 F.3d at 678

(noting that “[t]o limit this common law right of access, a party seeking to seal judicial

records must show that ‘compelling reasons supported by specific factual findings . . .

outweigh the general history of access and the public policies favoring disclosure,’” but

explaining that “[i]n light of the weaker public interest in nondispositive materials, we apply

the ‘good cause’ standard when parties wish to keep them under seal” (first alteration and

omission in original) (quoting Kamakana, 447 F.3d at1178–79 (internal quotation marks and

citations omitted))); Ctr. for Food Safety v. Johanns, 310 F. App’x 964, 965 (9th Cir. 2009)

(unpublished) (“The applicable standards for sealing documents are drawn from Kamakana

v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), and a compelling interest

was required to have been shown in this case because the documents were attached to a
75

dispositive motion.”). The Foltz court explained that in determining whether the common

law right of access can be overridden, a court should consider all relevant factors, including:

the public interest in understanding the judicial process and whether

disclosure of the material could result in improper use of the material

for scandalous or libelous purposes or infringement upon trade

secrets . . . . After taking all relevant factors into consideration, the

district court must base its decision on a compelling reason and

articulate the factual basis for its ruling, without relying on

hypothesis or conjecture.

Foltz, 331 F.3d at 1135 (omission in original) (quotation marks omitted) (quoting Hagestad

v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)); accord Pintos, 605 F.3d at 679 (“Under

the ‘compelling reasons’ standard, a district court must weigh ‘relevant factors,’ base its

decision ‘on a compelling reason,’ and ‘articulate the factual basis for its ruling, without

relying on hypothesis or conjecture.’” (footnote omitted) (quoting Hagestad, 49 F.3d at

1434)). The court explained that with respect to sealed discovery attached to nondispositive

motions, “‘the usual presumption of the public’s right of access is rebutted,’” and “‘good

cause’ suffices to warrant preserving the secrecy of sealed discovery material attached to

nondispositive motions.” Foltz, 331 F.3d at 1135 (quoting Phillips ex rel. Estates of Byrd

v. Gen. Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002)). The court held that “the

presumption of access is not rebutted where . . . documents subject to a protective order are

filed under seal as attachments to a dispositive motion,” and that in that scenario, “[t]he

Hagestad ‘compelling reasons’ standard continues to apply.” Id. at 1136. The court

explained that “[t]here are good reasons to distinguish between dispositive and

nondispositive motions” because “[i]n Seattle Times, the Supreme Court noted that ‘[m]uch

of the information that surfaces during pretrial discovery may be unrelated, or only

tangentially related, to the underlying cause of action,’” but “[t]he same cannot be said for

materials attached to a summary judgment motion because ‘summary judgment adjudicates

substantive rights and serves as a substitute for trial.’” Id. (third alteration in original)

(citations omitted).

• In Pintos, the court emphasized that the “compelling reasons” standard applicable to most

requests to seal judicial records is a higher standard than the “good cause” standard

applicable under Rule 26(c) to private documents exchanged in discovery, stating: “A

determination by the district court that good cause exists for sealing Experian’s documents

does not establish that there are ‘compelling reasons’ to do so.” Pintos,605 F.3d at 679

(citing Kamakana, 447 F.3d at 1180 (“holding that ‘a ‘good cause’ showing . . . will not

suffice to fulfill the ‘compelling reasons’ standard that a party must meet to rebut the

presumption of access to dispositive pleadings and attachments’” (omission in original))).

Standard for Modifying a Protective Order

• The Ninth Circuit has explained that where the court enters a blanket protective order
76

without requiring the party seeking confidentiality to show good cause for specific

documents, upon a challenge by intervenors to the asserted confidentiality, the district court

should require a showing of good cause for continued protection of the documents under

Rule 26(c). See Foltz, 331 F.3d at 1131. The court explained that it “strongly favors access

to discovery materials to meet the needs of parties engaged in collateral litigation” because

“[a]llowing the fruits of one litigation to facilitate preparation in other cases advances the

interests of judicial economy by avoiding the wasteful duplication of discovery.” Id.

(citations omitted). The court quoted the Seventh Circuit standard described in Wilk, and

stated: “Where reasonable restrictions on collateral disclosure will continue to protect an

affected party’s legitimate interests in privacy, a collateral litigant’s request to the issuing

court to modify an otherwise proper protective order so that collateral litigants are not

precluded from obtaining relevant material should generally be granted.” Id. at 1132 (citing

Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 475 (9th Cir. 1992); Olympic Refining

Co. v. Carter, 332 F.2d 260, 265–66 (9th Cir. 1964)). But the court cautioned:

[A] court should not grant a collateral litigant’s request for such

modification automatically. As an initial matter, the collateral

litigant must demonstrate the relevance of the protected discovery to

the collateral proceedings and its general discoverability therein.

Requiring a showing of relevance prevents collateral litigants from

gaining access to discovery materials merely to subvert limitations on

discovery in another proceeding. See Wilk, 635 F.2d at 1300. Such

relevance hinges “on the degree of overlap in facts, parties, and

issues between the suit covered by the protective order and the

collateral proceedings.” Laurie Kratky Dore, Secrecy by Consent:

The Use and Limits of Confidentiality in the Pursuit of Settlement, 74

NOTRE DAME L. REV. 283, 366–67 (1999).

Id.

The court elaborated on the standard for considering the relevance of the documents sought

to the collateral litigation:

The case law suggests that the court that entered the protective order

should satisfy itself that the protected discovery is sufficiently

relevant to the collateral litigation that a substantial amount of

duplicative discovery will be avoided by modifying the protective

order. See Wilk, 635 F.2d at 1300 (comparing complaints to conclude

that “much, if not most,” of the protected discovery would be

eventually discoverable in the collateral suit); United Nuclear, 905

F.2d at 1428 (upholding the modification of a protective order but

admonishing the district court to leave the specific “[q]uestions of the

discoverability in the [collateral] litigation of the materials discovered

in [this] litigation” to the collateral courts (quoting Superior Oil Co.
77

v. Am. Petrofina Co., 785 F.2d 130, 130 (5th Cir. 1986) (internal

quotation marks omitted))). No circuits require the collateral litigant

to obtain a relevance determination from the court overseeing the

collateral litigation prior to requesting the modification of a

protective order from the court that issued the order. The court that

issued the order is in the best position to make the relevance

assessment for it presumably is the only court familiar with the

contents of the protected discovery.

Id. (alterations in original) (footnote omitted). But the court explained that the relevance

inquiry is limited to whether a modification of the protective order is appropriate, and does

not extend into determining whether the collateral litigant will actually obtain the

documents:

Because the district court that issued the order makes only a

rough estimate of relevance, however, the only issue it determines is

whether the protective order will bar the collateral litigants from

gaining access to the discovery already conducted. Even if the

issuing court modifies the protective order, it does not decide whether

the collateral litigants will ultimately obtain the discovery materials.

As the Fifth and Tenth Circuits have noted, once the district court has

modified its protective order, it must refrain from embroiling itself in

the specific discovery disputes applicable only to the collateral suits.

Id. at 1132–33 (citation omitted).

The court also explained that in addition to considering the relevance of the materials sought

through modification of the protective order, the court should consider other factors:

Of course, before deciding to modify the protective order, the

court that issued it must consider other factors in addition to the

relevance of the protected discovery to the collateral litigation. In

particular, it must weigh the countervailing reliance interest of the

party opposing modification against the policy of avoiding

duplicative discovery. See Beckman, 966 F.2d at 475. However, we

have observed that “[r]eliance will be less with a blanket [protective]

order, because it is by nature overinclusive.” Id. at 476. As noted

above, a party seeking the protection of the court via a blanket

protective order typically does not make the “good cause” showing

required by Rule 26(c) with respect to any particular document.

Thus, reliance on a blanket protective order in granting discovery and

settling a case, without more, will not justify a refusal to modify.

“[A]ny legitimate interest . . . in continued secrecy as against the

public at large can be accommodated by placing [the collateral
78

litigants] under the same restrictions on use and disclosure contained

in the original protective order.” United Nuclear, 905 F.2d at 1428;

see also Beckman, 966 F.2d at 476.

Id. at 1133 (alterations and omission in original). The court stated that “the extent to which

a party can rely on a protective order depends on the extent to which the order did

reasonably induce the party to allow discovery as opposed to settling the case.” Id. at

1137–38 (citations omitted).

• The Ninth Circuit has rejected application of the Second Circuit’s “extraordinary

circumstances” test for modification. See Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d

470, 475 (9th Cir. 1992) (“The ‘extraordinary circumstances’ test is incompatible with our

circuit’s law. Ninth Circuit precedent strongly favors disclosure to meet the needs of parties

in pending litigation.”). The Beckman court recognized the countervailing concern that

modification would result in slowing down discovery in the initial litigation, but found that

“legitimate interests in privacy can be protected by putting the intervenors under the same

restrictions as those contained in the original protective order.” Id. (citing United Nuclear,

905 F.2d at 1428). The court also recognized the importance of protecting the parties’

reliance interests, but explained that “[t]he extent to which a party can rely on a protective

order should depend on the extent to which the order induced the party to allow discovery

or to settle the case.” Id. The court noted that “reliance would be greater where a trade

secret was involved, or where witnesses had testified pursuant to a protective order without

invoking their Fifth Amendment privilege,” id. (citing Pub. Citizen, 858 F.2d at 791), and

that “[r]eliance will be less with a blanket order, because it is by nature overinclusive,” id.

at 476 (citing Pub. Citizen, 858 F.2d at 790).

• In the context of a party seeking modification of a stipulated protective order, one court

explained that “district courts have inherent authority to grant a motion to modify a

protective order where ‘good cause’ is shown.” CBS Interactive, Inc. v. Etilize, Inc., 257

F.R.D. 195, 201 (N.D. Cal. 2009) (citation omitted). “A party asserting good cause bears

the burden to show that specific prejudice or harm will result if the motion is not granted.”

Id. (citation omitted). The court explained that “[i]n the Ninth Circuit, issues concerning the

scope of protective orders for confidential information entail[] a balancing test of the

conflicting interests between the protection of Rule 26(c) and the broad mandate of the

admissibility of information in discovery conferred by Rule 26(b)(1) of the Federal Rules

of Civil Procedure.” Id. at 204–05 (citing Brown Bag Software v. Symantec Corp., 960 F.2d

1465, 1472 (9th Cir. 1992), cert. denied, 506 U.S. 869 (1992)). The court found that the

party seeking modification, who had agreed to a stipulated protective order, bore the burden

of showing good cause for modification to use documents in potential collateral litigation

alleging misappropriation of trade secrets. See id. at 205. The court concluded that because

there was questionable use of proprietary information, good cause was shown for

modification to allow the plaintiff to protect itself by using documents for separate trade

secret litigation. See id. The court stated: “A good cause analysis under Federal Rule of

Civil Procedure 26(c) entails a balancing of the needs for discovery against the need for
79

confidentiality. The typical analysis considers whether sufficient cause exists to protect such

information from being disclosed to the public.” Id. The court noted that “[i]n the Ninth

Circuit, there is a strong policy ‘favor[ing] access to discovery materials to meet the needs

of parties engaged in collateral litigation,’” and that “Ninth Circuit precedent also looks to

the needs of parties engaged in pending litigation and, in particular, the reliance interests on

the protective order of the party opposing its modification.” CBS Interactive, 257 F.R.D. at

206 (second alteration in original) (citations omitted). The court concluded that “[m]ere

reliance on a blanket protective order does not justify a refusal to modify it when a

reasonable request for disclosure has been made.” Id. (citation omitted). The court

explained that “[n]ormally, the court must also weigh the countervailing reliance interest of

the party opposing modification against the likelihood that the collateral action is sufficiently

related to the instant action, such that a significant amount of duplicative discovery may be

avoided by granting the modification request.” Id. (citing Foltz, 331 F.3d at 1133).

• Another court explained that while the Ninth Circuit favors providing access to documents

for collateral litigation, “adoption of such a policy in no way gives those seeking

intervention carte blanche to obtain all discovery produced as part of an underlying action,

as a matter of course.” In re Dynamic Random Access Memory (DRAM) Antitrust Litig., No.

M 02-1486 PJH, 2008 WL 4191780, at *1 (N.D. Cal. Sept. 10, 2008). The court discussed

the considerations used by the court in Foltz, but also considered the additional factor of

whether the underlying litigation in which the protective order was entered is still pending.

See id. at *2. The court explained that where the underlying action is still pending, “the

court must pay careful consideration . . . before granting movants’ request [to intervene to

modify the protective order], so as not to prejudice any of the existing parties or ongoing

litigation in the case.” Id. In addition, the court explained that it is important to consider

whether collateral litigants are seeking modification “merely to subvert limitations on

discovery in collateral litigation.” Id.

TENTH CIRCUIT

Standard for Entering a Protective Order

• The Tenth Circuit has stated:

Under Federal Rule of Civil Procedure 26(c), for “good cause” a

court may issue a protective order regarding discovery “to protect a

party or person from annoyance, embarrassment, oppression, or

undue burden or expense.” Such an order may forbid the disclosure

of discovery, see FED. R. CIV. P. 26(c)(1)(A), and require that

depositions be sealed and opened only upon court order, see id. Rule

26(c)(1)(F). The “good cause” standard of Rule 26(c) is “highly

flexible, having been designed to accommodate all relevant interests

as they arise.” United States v. Microsoft Corp., 165 F.3d 952, 959

(D.C. Cir. 1999).
80

Rohrbough v. Harris, 549 F.3d 1313, 1321 (10th Cir. 2008).

• The Tenth Circuit has recognized that blanket protective orders may be necessary in complex

cases to allow discovery to proceed:

These stipulated “blanket” protective orders are becoming standard

practice in complex cases. See MANUAL FOR COMPLEX LITIGATION,

SECOND, § 21.431 (1985). They allow the parties to make full

disclosure in discovery without fear of public access to sensitive

information and without the expense and delay of protracted disputes

over every item of sensitive information, thereby promoting the

overriding goal of the Federal Rules of Civil Procedure, “to secure

the just, speedy, and inexpensive determination of every action.”

FED. R. CIV. P. 1; see generally In re Alexander Grant & Co. Litig.,

820 F.2d 352, 356–57 (11th Cir. 1987); Marcus, Myth and Reality in

Protective Order Litigation, 69 CORNELL L. REV. 1, 9–11 (1983).

United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990).

• A court in the Tenth Circuit has stated: “The party seeking a protective order has the burden

to show good cause for it. To establish good cause, that party must submit ‘a particular and

specific demonstration of fact, as distinguished from stereotyped and conclusory

statements.’” Wilson v. Olathe Bank, 184 F.R.D. 395, 397 (D. Kan. 1999) (quoting Gulf Oil

Co. v. Bernard, 452 U.S. 89, 102 n.16 (1981)) (internal citation omitted).

• In another case, the court elaborated:

The decision to enter a protective order lies within the sound

discretion of the court. Despite this broad discretion, the court may

only issue a protective order if the moving “party demonstrates that

the basis for the protective order falls within one of the categories

enumerated in FED. R. CIV. P. 26(c)[,]” i.e., that the requested order

is necessary to protect the party “from annoyance, embarrassment,

oppression, or undue burden or expense.” “Rule 26(c) does not

provide for any type of order to protect a party from having to

provide discovery on topics merely because those topics are overly

broad or irrelevant, or because the requested discovery is not

reasonably calculated to lead to the discovery of admissible

evidence.” “Although a party may object to providing discovery on

the basis that the request is overly broad, irrelevant or not calculated

to lead to the discovery of admissible evidence, the court may only

rule on the validity of such an objection in the context of a motion to

compel.” “Such an objection is not a basis upon which the court may

enter a Rule 26(c) protective order.”
81

P.S. v. Farm, Inc., No. 07-CV-2210-JWL, 2009 WL 483236, at *3 (D. Kan. Feb. 24, 2009)

(footnotes omitted).

Standard for Entering a Sealing Order

• The Tenth Circuit has discussed the following standard for sealing court documents:

Courts have long recognized a common-law right of access to

judicial records. This right, however, is not absolute. The

“presumption of access . . . can be rebutted if countervailing interests

heavily outweigh the public interests in access.” Rushford v. New

Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988). “The party

seeking to overcome the presumption bears the burden of showing

some significant interest that outweighs the presumption.” Id.

Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (some internal citations omitted).

In Mann, the Tenth Circuit also found it important that much of the information contained

in the complaint sought to be sealed had been previously disclosed in other public court

proceedings, undermining the asserted privacy concerns. See id.

• In Riker v. Federal Bureau of Prisons, 315 F. App’x 752 (10th Cir. 2009) (unpublished),

cert. denied, Jordan v. Federal Bureau of Prisons, 130 S. Ct. 431 (2009), the court reiterated

the standard for sealing discussed in Mann, stating:

“Courts have long recognized a common-law right of access

to judicial records.” [Mann, 477 F.3d at 1149] (citing Nixon v.

Warner Commc’ns, Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 55 L. Ed.

2d 570 (1978)). “The right is an important aspect of the overriding

concern with preserving the integrity of the law enforcement and

judicial processes.” United States v. Hickey, 767 F.2d 705, 708 (10th

Cir. 1985); see also FTC v. Standard Fin. Mgmt. Corp., 830 F.2d

404, 410 (1st Cir. 1987) (“The appropriateness of making court files

accessible is accentuated in cases where the government is a party:

in such circumstances, the public’s right to know what the executive

branch is about coalesces with the concomitant right of the citizenry

to appraise the judicial branch.”). But this right of access is not

absolute; it can be rebutted when other interests outweigh the public

interests in access. Mann, 477 F.3d at 1149. “All courts have

supervisory powers over their own records and files. Thus a court,

in its discretion, may seal documents if the public’s right of access is

outweighed by competing interests.” Hickey, 767 F.2d at 708

(citations and quotation marks omitted). “The party seeking to

overcome the presumption [of access] bears the burden of showing

some significant interest that outweighs the presumption.” Mann,
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477 F.3d at 1149 (quotation marks omitted). Whether a trial court

exercises sound discretion will be based on the facts and

circumstances of the individual case and the weighing of the parties’

interests. See Hickey, 767 F.2d at 708.

Id. at 754–55 (second alteration in original). The court continued:

[W]e first consider the public’s interest in the documents. “[J]udicial

records are public documents almost by definition, and the public is

entitled to access by default.” Kamakana v. City & County of

Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006). Especially “where

documents are used to determine litigants’ substantive legal rights, a

strong presumption of access attaches.” Lugosch v. Pyramid Co. of

Onondaga, 435 F.3d 110, 121 (2d Cir. 2006); see also Standard Fin.

Mgmt. Corp., 830 F.2d at 409 (“[R]elevant documents which are

submitted to, and accepted by, a court of competent jurisdiction in the

course of adjudicatory proceedings, become documents to which the

presumption of public access applies[.]”). On the other hand, where

the documents “play only a negligible role in the performance of

Article III duties, the weight of the presumption is low and amounts

to little more than a prediction of public access absent a

countervailing reason.” Lugosch, 435 F.3d at 121 (quotation marks

omitted).

Id. at 755 (second, third, and fourth alterations in original).

With respect to the First Amendment analysis, the court stated:

The Supreme Court has not yet ruled that there is a

constitutional right to access court documents. See United States v.

Gonzales, 150 F.3d 1246, 1256 (10th Cir. 1998); United States v.

McVeigh, 119 F.3d 806, 812 (10th Cir. 1997). Even assuming,

without deciding, that there is a First Amendment right to court

documents, that right is not absolute. See Globe Newspaper, 457

U.S. at 606, 102 S. Ct. 2613. “Where . . . the State attempts to deny

the right of access in order to inhibit the disclosure of sensitive

information, it must be shown that the denial is necessitated by a

compelling government interest, and is narrowly tailored to serve that

interest.” Id. at 606–07, 102 S. Ct. 2613.

Id. at 756 (omission in original).

• In a district court case, the court explained that it had previously discussed the standard for

sealing the record of a case in a nondiscovery context:
83

Federal courts recognize a common-law right of access to judicial

records, although that right is not absolute. Whether to allow access

at the district court level is left to the discretion of the district court,

which has supervisory control over its own records and files. In

exercising that discretion, the district court must consider the relevant

facts and circumstances of the case and balance the public’s right of

access, which is presumed paramount, with the parties’ interests in

sealing the record. The public has an interest “in understanding

disputes that are presented to a public forum for resolution” and “in

assuring that the courts are fairly run and judges are honest.” Courts

have denied access in cases in which the court files have been sought

for improper purposes such as promoting public scandal or harming

a business litigant’s competitive standing.

Bryan v. Eichenwald, 191 F.R.D. 650, 652 (D. Kan. 2000) (quotation marks omitted)

(quoting Ramirez v. Bravo’s Holding Co., No. Civ. A. 94-2396-GTV, 1996 WL 507238, at

*1 (D. Kan. Aug. 22, 1996)). The court explained that “[u]nless a party establishes a ‘public

or private harm sufficient to overcome the public’s right of access to judicial records,’ the

court declines to seal any part of the record in the case.” Id. (quoting Ramirez, 1996 WL

507238, at *1). The court emphasized that even if the parties agree to sealing, the court must

independently determine whether sealing is appropriate. See id. (“‘The fact that all litigants

favor sealing the record is of interest, but not determinative.’” (quoting Ramirez, 1996 WL

507238, at *1)).

The Bryan court explained that balancing public and private interests is necessary regardless

of the stage of the litigation:

Although cognizant of the inapplicability of FED. R. CIV. P.

26(c) in non-discovery contexts . . . , the court, nevertheless, views

the standards for permitting documents to be filed under seal to be the

same regardless of the stage of litigation [in which] the issue arises.

At the discovery stage, the court may speak in terms of “good cause.”

At other stages, the court may simply refer to its discretion to

supervise its own records and files. At whatever stage of the

litigation, however, the movant must demonstrate a public or private

harm sufficient to overcome the public’s right of access to judicial

records.

Id. at 652–53; see also Allen v. Kline, No. 07-2037-KHV, 2007 WL 3396470, at *2 (D. Kan.

Nov. 13, 2007) (noting the same standard and explaining that “political consequences do not

amount to a public harm that would be suffered if the underlying motion were filed on an

unsealed basis”).
84

• Another court stated the standard as follows:

It is well settled that federal courts recognize a common-law right of

access to judicial records.[] This right derives from the public’s

interest “in understanding disputes that are presented to a public

forum for resolution” and is intended to “assure that the courts are

fairly run and judges are honest.” This public right of access,

however, is not absolute. As federal district courts have supervisory

control over their own records and files, the decision whether to

allow access to those records is left to the court’s sound discretion.

In exercising that discretion, the court must consider the relevant

facts and circumstances of the case and balance the public’s right of

access, which is presumed paramount, with the parties’ interests in

sealing the record or a portion thereof. Documents should be sealed

“only on the basis of articulable facts known to the court, not on the

basis of unsupported hypothesis or conjecture.”

Hatfield v. Price Mgmt. Co., No. 04-2563-JWL-DJW, 2005 WL 375665, at *1 (D. Kan. Feb.

16, 2005) (footnotes omitted).

• In another case, the court recognized that a party seeking sealing must demonstrate a public

or private harm that overcomes the public’s right of access, regardless of the stage of the

litigation, but noted that “[o]ther courts in [its] district have distinguished somewhat between

the broad latitude the court has to accord confidentiality to the parties’ discovery and other

preliminary proceedings, and the narrower discretion the court has in issuing orders

resolving litigation.” Snyder-Gibson v. Cessna Aircraft Co., No. 06-1177-JTM, 2007 WL

527835, at *5 & n.6 (D. Kan. Feb. 14, 2007) (citing Vulcan Materials Co. v. Atofina Chems.

Inc., 355 F. Supp. 2d 1214, 1216–18 (D. Kan. 2005)).

Standard for Modifying a Protective Order

• The Tenth Circuit has explained that a district court has discretion to modify a protective

order and discussed the competing interests to be considered in deciding whether

modification is appropriate:

Allowing modification of protective orders for the benefit of

collateral litigants tends to undermine the order’s potential for more

efficient discovery. But when a collateral litigant seeks access to

discovery produced under a protective order, there is a

counterv[a]iling efficiency consideration—saving time and effort in

the collateral case by avoiding duplicative discovery. In striking this

balance, some circuits have adopted a presumption in favor of the

continued integrity of the protective order, see, e.g., Agent Orange,

821 F.2d at 147–48 (protective orders modifiable only under
85

extraordinary circumstances), others have tipped the balance in favor

of avoiding duplicative discovery, see, e.g., Wilk, 635 F.2d at 1299;

Olympic Refining Co. v. Carter, 332 F.2d 260, 264–66 (9th Cir.

[(1964)]), cert. denied, 379 U.S. 900, 85 S. Ct. 186, 13 L. Ed. 2d 175

(1964), and still others have simply left the balancing to the

discretion of the trial court, see, e.g., Stavro v. Upjohn Co. (In re

Upjohn Co. Antibiotic Cleocin Prods. Liab. Litig.), 664 F.2d 114, 120

(6th Cir. 1981).

United Nuclear, 905 F.2d at 1427–28 (footnote omitted). The Tenth Circuit concluded that

the Seventh Circuit’s approach in Wilk was the most appropriate:

“[W]here an appropriate modification of a protective order can place

private litigants in a position they would otherwise reach only after

repetition of another’s discovery, such modification can be denied

only where it would tangibly prejudice substantial rights of the party

opposing modification. Once such prejudice is demonstrated,

however, the district court has broad discretion in judging whether

that injury outweighs the benefits of any possible modification of the

protective order.”

Id. at 1428 (alteration in original) (quoting Wilk, 635 F.2d at 1299 (citations omitted)); see

also Grundberg v. Upjohn Co., 140 F.R.D. 459, 464 (D. Utah 1991) (noting that “[w]here

. . . the case involves materials and information which are restricted from public access, such

as materials produced under a protective order and lodged with the court under seal, it is

necessary to weigh the rights of the private party litigants who produced such materials and

the reasons and policies for such restrictions against the interests of collateral and other

litigants in disclosure of such materials,” and stating that the Tenth Circuit has adopted the

standard for modification set out in Wilk). The United Nuclear court explained that allowing

collateral litigants to have access to protected discovery often is not problematic because

“any legitimate interest the defendants have in continued secrecy as against the public at

large can be accommodated by placing [i]ntervenors under the restrictions on use and

disclosure contained in the original protective order.” 905 F.2d at 1428 (citations omitted).

The court noted that “the district court must refrain from issuing discovery orders applicable

only to collateral litigation,” that “‘[f]ederal civil discovery may not be used merely to

subvert limitations on discovery in another proceeding . . . ,’” and that “‘a collateral litigant

has no right to obtain discovery materials that are privileged or otherwise immune from

eventual involuntary discovery in the collateral litigation.’” Id. (omission in original)

(quoting Wilk, 635 F.2d at 1300). But the court cautioned that “‘[q]uestions of the

discoverability in the [collateral] litigation of the materials discovered in [this] litigation are,

of course, for the [collateral] courts.’” Id. (alterations in original) (quoting Superior Oil Co.

v. Am. Petrofina Co., 785 F.2d 130, 130 (5th Cir. 1986)).

• The Tenth Circuit recently analyzed the standard for modification of a protective order in
86

a case in which the United States intervened to obtain modification of a protective order to

allow disclosure of documents obtained under the protective order to government agencies

other than the Securities and Exchange Commission (SEC) and the United States Attorney’s

Office. See SEC v. Merrill Scott & Assoc. Ltd., 600 F.3d 1262, 1268 (10th Cir. 2010). The

court noted that “‘[a]s a sheer matter of power[,] the court has authority to alter the terms of

a protective order it has entered, and . . . ordinarily requests to modify are directed to the

district court’s discretion and subject to review only for abuse of discretion.’” Id. at 1271

(omission in original) (quoting 8 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & RICHARD

L. MARCUS, FEDERAL PRACTICE AND PROCEDURE § 2044.1, at 575–76 (2d ed. 1994); citing

Rohrbough v. Harris, 549 F.3d 1313, 1321 (10th Cir. 2008)). The court emphasized the

importance of considering the parties’ reliance on a protective order before modification,

particularly in cases where the government seeks modification:

Protective orders serve the vital function of “secur[ing] the

just, speedy, and inexpensive determination of civil disputes by

encouraging full disclosure of all evidence that might conceivably be

relevant.” Martindell v. Int’l Tel. & Tel. Corp., 594 F.2d 291, 295

(2d Cir. 1979) (quotation and citation omitted). This being the case,

courts should be wary of retroactive attempts to modify them in ways

that undermine the justified reliance of a witness such as Dr. Gerber

on a valid order circumscribing the use and availability of

information disclosed through discovery. Unless protective orders

are “fully and fairly enforceable, witnesses relying upon such orders

will be inhibited from giving essential testimony in civil litigation,

thus undermining a procedural system that has been successfully

developed over the years for disposition of civil differences.” Id.

“[W]itnesses might be expected frequently to refuse to testify

pursuant to protective orders if their testimony were to be made

available to the Government for criminal investigatory purposes in

disregard of those orders.” Id. at 295–96.

These concerns overshadow the general rule that “the district

court has broad discretion in judging whether [the alleged] injury [to

the party opposing modification] outweighs the benefits of any

possible modification of the protective order.” Wilk v. Am. Med.

Ass’n, 635 F.2d 1295, 1299 (7th Cir. 1980). Typically, when

considering whether to modify a protective order, courts examine any

tangible prejudice to the party opposing modification that outweighs

the benefits of modification. Where, as here, it is the federal

government that seeks to undermine the continued integrity of the

protective order, however, courts have required a greater showing

than the typical standard. Given the government’s “vast

investigatorial resources and power for oppression,” United Nuclear,

905 F.2d at 1428 n.1, courts have required a showing of “unusual
87

circumstances,” Wilk, 635 F.2d at 1300, or even “extraordinary

circumstances,” United Nuclear, 905 F.2d at 1428 (quotation

omitted), before permitting the government to benefit from access to

confidential information provided pursuant to a protective order via

modification of the order.

Id. at 1272–73 (alterations in original).

• In a district court case, the court entered a stipulated, blanket protective order “upon a

threshold showing of good cause under FED. R. CIV. P. 26(c) that the discovery [would]

involve confidential, proprietary, or trade secret information . . . ,” and explained that the

order’s terms were consistent with cases in its district that “place the burden of proving

confidentiality on the party asserting the claim of confidentiality.” In re Cessna 208 Series

Aircraft Prods. Liab. Litig., No. 05-md-1721-KHV, 2009 WL 951532, at *2, *3 (D. Kan.

Apr. 7, 2009). The court explained that “the burden of proving confidentiality under a

blanket protective confidentiality order ‘never shifts from the party asserting that claim [of

confidentiality], only the burden of raising that issue.’” Id. at *3 (alteration in original)

(footnote omitted). The court noted that the retained power to modify protective orders acts

as a “safety valve” and “assumes particular importance in the context of blanket protective

orders, which are generally entered without extensive, if any, balancing of affected

interests.” Id. (footnote omitted). The court continued: “The uncontested nature of blanket

protective orders and the absence of any judicial determination of good cause with respect

to specific documents arguably make such confidentiality orders particularly vulnerable to

subsequent modification.” Id. (footnote omitted). The court noted that “[a] protective order

is always subject to modification or termination for good cause.” Id. at *4 (citing MANUAL

FOR COMPLEX LITIGATION (FOURTH) § 11.432 (2004)). The court relied on another case for

the proposition that “the ‘party seeking dissolution [of a longstanding protective order] bears

the burden of showing that intervening circumstances have removed potential prejudice from

disclosure that the protective order was initially intended to protect.’” Id. (alteration in

original) (quoting Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 529 F. Supp. 866, 894

(E.D. Penn. 1981)). The court held that when a party to an agreed protective order seeks to

modify the order, the moving party “should have the burden of persuasion” because the party

“agreed to the protective order . . . and the Court [initially] found sufficient good cause to

enter the parties’ joint protective order.” In re Cessna 208 Series Aircraft Prods. Liab.

Litig., 2009 WL 951532, at *4. The court described the following standard:

In assessing requests to modify, courts balance the potential

harm to the party seeking protection against the requesting party’s

need for the information and the public interest served by its release.

If good cause for the protective order existed when entered, only a

change in circumstances by which the good cause is either removed

or outweighed by other interests would justify modification. . . . .

Good cause requires balancing the harm to the party seeking
88

the protective order and the importance of disclosure to the public.

Some factors the court may consider in making this determination,

include “privacy interests, whether the information is important to

public health and safety and whether the party benefitting from the

confidentiality of the protective order is a public official.”

Id. at *5 (footnotes omitted).

• In the context of a defendant’s request to modify a protective order to allow the defendant’s

experts to publish their findings, one court concluded that the lenient standard in United

Nuclear and Wilk did not apply. See Taylor v. Solvay Pharms., Inc., 223 F.R.D. 544, 548–49

(D. Colo. 2004). The protective orders at issue were entered upon a finding of good cause,

based on concern for the privacy and safety of the families of the victims and perpetrators

of a school shooting, as well as the safety of the general public. Id. at 547. The court found

that “[t]he standard to be used in deciding whether to modify the [protective orders] is not

obvious.” Id. at 548. The court distinguished United Nuclear because the movant “had not

suggested that the materials at issue . . . would assist it in another lawsuit or that continued

protection of the materials would force it to engage in repetitive discovery in any other

case.” Id. at 548–49. The court also found that United Nuclear, and its requirement that

parties opposing modification of a protective order demonstrate prejudice to avoid

modification, was inapplicable because “[m]any of the families interested in the materials

[were] not parties to [the] case and no one appears to advocate on their behalf or on behalf

of the public at-large.” Id. at 549. The court also examined the more stringent Second

Circuit standard described in TheStreet.com, and concluded that “[t]hough that standard

might have application here, where the non-party families relied upon the protective order

by producing material and testifying in depositions, this case does not require such a

sweeping rule.” Id. The court settled on the following standard: “Because good cause for

the [protective orders] existed when the Magistrate Judge issued them, only a change in

circumstances by which the good cause is either removed or outweighed by other interests

would justify modification.” Id. The court determined that the First Circuit’s decision in

Public Citizen set out an appropriate standard under the facts, where the court upheld

modification because “the party seeking modification had met its burden of showing that ‘the

reasons underlying the initial promulgation of the order in respect to the particular document

sought no longer exist[ed]; and the district court made a reasoned determination that public

interest considerations favored allowing counsel to make those particular documents

public.’” Id. (alteration in original) (quoting Pub. Citizen, 858 F.2d at 791–92).

ELEVENTH CIRCUIT

Standard for Entering a Protective Order

• The Eleventh Circuit has recognized that there is no common-law right of access to

discovery materials not filed with the court, see In re Alexander Grant & Co. Litig., 820 F.2d

352, 355 (11th Cir. 1987) (per curiam) (holding that the news organizations’ “common-law
89

right of access does not extend to information collected through discovery which is not a

matter of public record”), and that news organizations “possess no First Amendment rights

to the protected [discovery] information which override the provisions of FED. R. CIV. P.

26(c),” id. The court explained that a protective order could be issued under Rule 26(c) upon

a showing of good cause, and elaborated:

“Good cause” is a well established legal phrase. Although difficult

to define in absolute terms, it generally signifies a sound basis or

legitimate need to take judicial action. In a different context, this

court has identified four factors for ascertaining the existence of good

cause which include: “[1] the severity and the likelihood of the

perceived harm; [2] the precision with which the order is drawn; [3]

the availability of a less onerous alternative; and [4] the duration of

the order.” Kleiner v. First National Bank of Atlanta, 751 F.2d 1193,

1205 (11th Cir. 1985). In addition, this circuit has superimposed a

“balancing of interests” approach to Rule 26(c). See Farnsworth v.

Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985).

Id. at 356.

The court explained that agreed protective orders can be necessary to facilitate discovery,

but that even when such orders are entered, the burden remains on the party seeking

confidentiality to show good cause for protecting individual documents upon a later

challenge:

Because parties often resist the exchange of confidential

information, “parties regularly agree, and courts often order, that

discovery information will remain private.” The Manual for

Complex Litigation, Second, prepared by the Federal Judicial Center,

suggests that in complicated cases where document-by-document

review of discovery materials would be unfeasible, an “umbrella”

protective order, similar to the one issued in this case, should be used

to protect documents designated in good faith by the producing party

as confidential. Under the provisions of umbrella orders, the burden

of proof justifying the need for the protective order remains on the

movant; only the burden of raising the issue of confidentiality with

respect to individual documents shifts to the other party. Protective

measures requested by the parties incorporating umbrella orders have

been approved by other courts pursuant to Rule 26(c).

Id. (internal citations omitted); see also Estate of Martin Luther King, Jr., Inc. v. CBS, Inc.,

184 F. Supp. 2d 1353, 1362 (N.D. Ga. 2002) (“[C]alling a document confidential does not

make it so in the eyes of the court; these consensual protective orders merely delay the

inevitable moment when the court will be called upon to determine whether Rule 26(c)
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protection is deserved, a decision ultimately rooted in whether the proponent demonstrates

‘good cause.’” (citation omitted)). The Alexander Grant court also articulated the reasons

that umbrella protective orders may be necessary:

The realities of today’s world have shown that discovery and

the exchange of information can become extremely difficult. Busy

courts are simply unable to hold hearings every time someone wants

to obtain judicial review concerning the nature of a particular

document. The order issued in this case, as in others, is designed to

encourage and simplify the exchanging of large numbers of

documents, volumes of records and extensive files without concern

of improper disclosure. After this sifting, material can be “filed” for

whatever purpose consistent with the issues being litigated whether

by pretrial hearing or an actual trial. Judicial review will then be

limited to those materials relevant to the legal issues raised. History

has confirmed the tremendous saving of time effected by such an

approach. The objective is to speed up discovery. Efficiency should

never be allowed to deny public access to court files or material of

record unless there has been an appropriate predicate established. The

procedures utilized here allow the litigation to proceed expeditiously

without compromising the rights of anyone. . . . We conclude that in

complex litigation where document-by-document review of discovery

materials would be unpracticable, and when the parties consent to an

umbrella order restricting access to sensitive information in order to

encourage maximum participation in the discovery process, conserve

judicial resources and prevent the abuses of annoyance, oppression

and embarrassment, a district court may find good cause and issue a

protective order pursuant to Rule 26(c).

820 F.2d at 356–57.

• The Eleventh Circuit has also set out the following standard:

Public disclosure of discovery material is subject to the

discretion of the trial court and the federal rules that circumscribe that

discretion. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 104

S. Ct. 2199, 2208, 81 L. Ed. 2d 17[] (1984). Where discovery

materials are concerned, the constitutional right of access standard is

identical to that of Rule 26(c) of the Federal Rules of Civil

Procedure. McCarthy v. Barnett Bank of Polk County, 876 F.2d 89,

91 (11th Cir. 1989) (citations omitted). Accordingly, where a third

party seeks access to material disclosed during discovery and covered

by a protective order, the constitutional right of access, like Rule 26,

requires a showing of good cause by the party seeking protection. Id.
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Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1310 (11th Cir. 2001)

(per curiam).

With respect to the common-law right of access to judicial documents, the court explained

that “[n]ot unlike the Rule 26 standard, the common-law right of access requires a balancing

of competing interests.” Id. at 1311 (citation omitted). But the court cautioned that there

is no common-law right of access to discovery materials:

Although there is some disagreement about where precisely

the line should be drawn, when applying the common-law right of

access federal courts traditionally distinguish between those items

which may properly be considered public or judicial records and

those that may not; the media and public presumptively have access

to the former, but not to the latter. An illustrative example is the

treatment of discovery material, for which there is no common-law

right of access, as these materials are neither public documents nor

judicial records.

Id. (footnote and citation omitted).

With respect to the balancing required under Rule 26(c), the court stated:

Rule 26(c) permits a court upon motion of a party to make a

protective order requiring “that a trade secret or other confidential

research, development, or commercial information not be revealed or

be revealed only in a designated way.” FED.R.CIV. P. 26(c)(7). The

prerequisite is a showing of “good cause” made by the party seeking

protection. See id. Federal courts have superimposed a balancing of

interests approach for Rule 26’s good cause requirement.

Farnsworth v. Procter & Gamble, Co., 758 F.2d 1545, 1547 (11th

Cir. 1985) (citations omitted). This standard requires the district

court to balance the party’s interest in obtaining access against the

other party’s interest in keeping the information confidential. Id.

Id. at 1313.

In her concurring opinion, Judge Black pointed out that discovery is necessarily a

presumptively private endeavor:

If it were otherwise and discovery information and discovery orders

were readily available to the public and the press, the consequences

to the smooth functioning of the discovery process would be severe.

Not only would voluntary discovery be chilled, but whatever

discovery and court encouragement that would take place would be
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oral, which is undesirable to the extent that it creates

misunderstanding and surprise for the litigants and the trial judge.

Id. at 1316 (Black, J., concurring) (quotation marks omitted) (quoting United States v.

Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986)). Judge Black explained that “the purpose

of discovery is to resolve legal disputes between parties, not to provide newsworthy

material.” Id. (Black, J., concurring). Judge Black further explained that the press could

intervene to challenge a protective order as overly broad, but that the courts do not have the

resources to deal with document-by-document challenges:

To facilitate prompt discovery and the timely resolution of

disputes, this Court has upheld the use of umbrella protective orders

similar to the one used in this case. See, e.g., McCarthy v. Barnett

Bank of Polk County, 876 F.2d 89, 91 (11th Cir. 1989); In re

Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987).

In these cases, we did not permit the media to challenge each and

every document protected by the umbrella order. See McCarthy, 876

F.2d at 92; Alexander Grant, 820 F.2d at 356. Instead, the media was

permitted only to challenge the umbrella order as being too broad,

based on a variety of factors. See id. (listing four factors). We have

restricted the scope of the media’s challenge because a

document-by-document approach would not only burden the trial

court, but, more importantly, it would interfere with the free flow of

information during discovery. See id. at 355–56. Such interference

by parties who have no interest in the underlying litigation could

seriously impair an Article III court from carrying out its core

function—resolving cases and controversies. See Brown v.

Advantage Eng’g, Inc., 960 F.2d 1013, 1017 (11th Cir. 1992)

(Edmondson, J., dissenting).

Id. at 1316–17 (Black, J., concurring) (footnotes omitted).

• A court in the Eleventh Circuit has stated:

Rule 26(c) authorizes the Court “for good cause shown” to

protect parties from “undue burden or expense” in discovery by

ordering “that a trade secret or other confidential research,

development, or commercial information not be revealed or be

revealed only in a designated way . . . .” FED. R. CIV. P. 26(c)(7).

The party moving for a protective order has the burden of

demonstrating “good cause.” Williams v. Taser Int’l, Inc., No.

1:06-CV-0051, 2006 WL 1835437, at *1 (N.D. Ga. June 30, 2006)

(Story, J.). In demonstrating good cause, the movant must “make a

‘particular and specific demonstration of fact as distinguished from
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stereotyped and conclusory statements’ supporting the need for a

protective order.” Id. (citations omitted); see also United States v.

Dentsply Int’l, Inc., 187 F.R.D. 152, 158 (D. Del. 1999) (“‘Broad

allegations of harm, unsubstantiated by specific examples,’ do not

support a showing for good cause.”) (quoting Cipollone v. Liggett

Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986)).

Estate of Manship v. United States, 240 F.R.D. 700, 702 (N.D. Ga. 2006) (omission in

original).

Standard for Entering a Sealing Order

• The Chicago Tribune court recognized a heightened standard under the common-law right

of access analysis where a court seals an entire case:

In certain narrow circumstances, the common-law right of

access demands heightened scrutiny of a court’s decision to conceal

records from the public and the media. Where the trial court conceals

the record of an entire case, making no distinction between those

documents that are sensitive or privileged and those that are not, it

must be shown that “the denial [of access] is necessitated by a

compelling governmental interest, and is narrowly tailored to that

interest.” This heightened scrutiny is necessitated by the fact that

entire civil cases otherwise open to the public are erased as if they

never occurred.

263 F.3d at 1311 (alteration in original) (internal citations omitted). In contrast, the court

stated that “[t]he common law right of access standard as it applies to particular documents

requires the court to balance the competing interests of the parties.” Id. at 1312. The court

concluded that the degree of public access to court documents depends on the documents’

involvement in judicial decisionmaking on the merits of a case: “The better rule is 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, and we so hold.” Id. (footnote

omitted).

• In connection with sealing documents filed with the court, the Eleventh Circuit has also

recognized that the court has an independent duty to scrutinize requests for sealing:

[E]ven where no third party challenges a protective order, “[t]he

judge is the primary representative of the public interest in the

judicial process and is duty-bound therefore to review any request to

seal the record (or part of it). He may not rubber stamp a stipulation

to seal the record.” Citizens First Nat’l Bank of Princeton v.
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Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999) (citations

omitted). Otherwise, “the interest in publicity will go unprotected

unless the media are interested in the case and move to unseal.” Id.

Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 184 F. Supp. 2d 1353, 1363 (N.D. Ga.

2002) (second alteration in original).

The Martin Luther King court discussed the common-law right of access to judicial records:

Because the “operations of the courts and the judicial conduct

of judges are matters of the utmost public concern,” courts have long

recognized the public’s right to inspect and copy judicial records.

Nevertheless, this common-law right of access to the courts is not

absolute. For example, the public has no common-law right of access

to discovery materials, exchanged during a process that is typically

conducted in private with minimal judicial supervision. Further, even

where litigants file discovery materials with a court in connection

with pretrial discovery motions, such as motions to compel, the

supporting discovery documents are not subject to the common-law

right of access. However, discovery materials filed with the court “in

conjunction with pretrial motions that require judicial resolution of

the merits [are] subject to the common-law right . . . .” This is

because, unlike privately exchanged discovery materials, “documents

filed as part of a dispositive motion, such as a summary judgment

motion,” assist the court in determining the parties’ substantive

rights, serve as a substitute for trial, and render those discovery

documents “judicial.”

Nevertheless, even where the common-law right of access

attaches, only in extraordinary circumstances need the denial of such

access be justified by a compelling interest. Instead, the

common-law right of access merely necessitates a “good cause”

analysis under Rule 26(c). This analysis requires the court to (1)

determine whether valid grounds for the issuance of a protective

order have been presented; and (2) balance the public’s interest in

access against the litigant’s interest in confidentiality. Where the

proponent of the protective order contends that the materials at issue

contain trade secrets, for example, the court must first determine

whether such assertion is true. To present a prima facie case for trade

secret protection, the proponent of the protective order must prove

that it consistently treated the information as a secret and took steps

to guard it, the information is of substantial value to the proponent,

the information would be valuable to the proponent’s competitors,

and the information “derives its value by virtue of the effort of its
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creation and lack of dissemination.” If the proponent fails to satisfy

this first inquiry, then no “good cause” exists for the protective order.

If satisfied, however, the court must then weigh the proponent’s

interest in confidentiality against the public’s interest in access before

ultimately deciding whether to issue the order.

Id. at 1365–66 (alteration and omission in original) (internal citations omitted).

With respect to the First Amendment right of access, the court stated that “‘[m]aterials

merely gathered as a result of the civil discovery process . . . do not fall within the scope of

the constitutional right of access’s compelling interest standard,’” and that “for purposes of

determining whether to unseal such discovery materials, the First Amendment right of access

standard is ‘identical to the Rule 26 good cause standard.’” Id. at 1366 (alteration and

omission in original) (citations omitted). The court also explained that “[w]ith respect to

discovery documents submitted to a court in connection with a dispositive motion, rather

than ‘[m]aterials merely gathered as a result of the civil discovery process,’ the Eleventh

Circuit has presented a somewhat muddled First Amendment analysis,” and stated that

“[e]ven though documents filed in support of dispositive motions are used to facilitate a

resolution of the action on the merits, and are likely considered by courts in lieu of a trial to

adjudicate the parties’ substantive rights, the Eleventh Circuit has declared that the good

cause standard, rather than the compelling interest test, satisfies any First Amendment

concerns.” Id. (second alteration in original) (citing Chicago Tribune, 263 F.3d at 1316;

Citizens First Nat’l Bank, 178 F.3d at 946).

Standard for Modifying a Protective Order

• The Eleventh Circuit has not firmly set out a specific standard for modifying a protective

order. See SRS Techs., Inc. v. Physitron, Inc., 216 F.R.D. 525, 526 (N.D. Ala. 2003). The

SRS Technologies court noted that there is “no consensus among the circuits as to the proper

standard to apply” to modification. Id. at 527. The court distinguished the First Circuit’s

Public Citizen case, explaining that in the case at bar, the parties mutually agreed to the

terms of the protective order and the plaintiff was not a public citizen group seeking to

obtain documents for public benefit, but a party seeking to use confidential documents in

lawsuits against third parties. Id. After surveying the approaches in different circuits, the

SRS Technologies court settled on the following approach:

While this review of authority reveals no majority rule or

consensus among the circuits, and no dispositive case in the Eleventh

Circuit, one undisputed point does emerge: the trial court retains the

power and the discretion to modify a prior protective order. See, e.g.,

Public Citizen, 858 F.2d at 782; United Nuclear, 905 F.2d at 1427.

Exactly what standard should guide a trial court in deciding whether

to modify a protective order is less clear. The Second Circuit test,

urged by defendants, applies a stringent standard that requires the
96

moving party to show extraordinary circumstance or a compelling

need to modify a protective order. In re Agent Orange, 821 F.2d at

147. As noted, the Eleventh Circuit rejected this strict standard in

favor of grand jury access to material produced in civil litigation and

covered by a protective order. In re Grand Jury Proceedings, 995

F.2d [1013,] 1020 [(11th Cir. 1993)]. The court assumes that the

Eleventh Circuit would not follow that rejected standard in a case

involving access to protected material for use in a future civil case,

even though the circumstances of these two cases vary widely. The

court concludes, however, that the Eleventh Circuit would not adopt

the per se rule of disclosure employed in In re Grand Jury

Proceedings, 995 F.2d at 1015, in situations like this case that do not

involve the special concerns of a grand jury subpoena.

This court finds that the better-reasoned standard applies a

balancing test to determine whether any justification exists for lifting

or modifying the protective order, similar to that employed by the

Third Circuit. See Pansy, 23 F.3d at 790. As the Third Circuit noted,

one factor the court should consider is the reliance placed by the

parties on the protective order. Id. Another important factor should

be the integrity of court orders and the purpose of confidentiality

orders in streamlining the discovery process. See Miller, supra, 105

HARV. L. REV. at 499–501.

Id. at 529–30. In considering modification, the court found it important that one of the

parties sought to undo the protective order after the parties had agreed to it, that the

defendant had relied on the protective order, that it was important to promote reliance

interests for future cases, that the plaintiff had waited until after the lawsuit settled to seek

changes, and that the parties had settled the lawsuit without either party admitting liability.

See id. at 530.

• In the context of a nonparty seeking modification of a stipulated protective order, a court in

the Eleventh Circuit has explained that the party seeking confidentiality bears the burden of

showing good cause for protection. See McCarty v. Bankers Ins. Co., 195 F.R.D. 39, 42

(N.D. Fla. 1998) (“[W]here good cause was not shown for the initial issuance of the

protective order, parties seeking to maintain the protective order must establish the need for

continued protection (i.e. good cause).” (citation omitted)). The court stated that although

“some jurisdictions have held that general concerns of case management and efficiency have

been held not to establish the requisite good-cause required for the initial issuance of a

protective order,” id. (footnote omitted), where there has been reliance on the protective

order, “the good-cause analysis for maintaining the protective order differs from the goodcause analysis which would normally accompany an initial request for a protective order,”

id. The court held that “additional factors such as reliance on the protective order, the status

and needs of the person or entity seeking modification, and the pendency of other litigation
97

brought by the person or entity seeking modification, will factor into the court’s

determination of the propriety of maintaining the protective order.” Id.

The court found reliance to be an important factor in considering modification, noting that

“‘[f]ailure to protect Defendants’ reliance on the Protective Order would not only prejudice

the confidentiality interests of Defendants, it would undermine the effectiveness of

protective orders in facilitating discovery.’” Id. at 43 (alteration in original) (footnote

omitted) (quoting State of Florida v. Jones Chems., Inc., 148 F.R.D. 282, 288 (M.D. Fla.

1993) (internal citations omitted)). The court also focused on whether other litigation was

pending against the party opposing modification, noting that “[c]ourts have reasoned that the

absence of any pending litigation makes it less likely that modification will avoid repetitious

or duplicative discovery, and that allowing modification may result in harassment.” Id.

(citation omitted). The court pointed out that another court had focused on the status of the

nonparty as an investigator, rather than a litigant, and found that this fact required the party

seeking modification to demonstrate adequate grounds for granting the request. Id. (citing

H.L. Hayden Co. of New York v. Siemens Med. Sys., Inc., 106 F.R.D. 551 (S.D.N.Y. 1985)).

D.C. CIRCUIT

Standard for Entering a Protective Order

• The D.C. Circuit has recognized the need for flexibility in considering protective orders:

Rule 26(c) is highly flexible, having been designed to

accommodate all relevant interests as they arise. See, e.g., Adv.

Comm. Note, 28 U.S.C. App., p. 715 (“The courts have not given

trade secrets automatic and complete immunity against disclosure,

but have in each case weighed their claim to privacy against the need

for disclosure”); Burka v. HHS, 87 F.3d 508, 517 (D.C. Cir. 1996)

(factors considered include “the requester’s need for the information

from this particular source, its relevance to the litigation at hand, the

burden of producing the sought-after material, and the harm which

disclosure would cause to the party seeking to protect the

information”); Hines v. Wilkinson, 163 F.R.D. 262, 266 (S.D. Ohio

1995) (“the Rule’s incorporation of the concept of ‘good cause’

implies that a flexible approach to protective orders may be taken,

depending upon the nature of the interests sought to be protected and

the interests that a protective order would infringe”); H.L. Hayden

Co. of New York, Inc. v. Siemens Med. Sys., Inc., 106 F.R.D. 551, 556

(S.D.N.Y. 1985) (assessing interests of third party state governments

that had subpoenaed from plaintiff documents plaintiff had obtained

from defendant in discovery subject to protective order); WRIGHT, 8

FEDERAL PRACTICE AND PROCEDURE 2D § 2036, at 484–86 (“the

existence of good cause for a protective order is a factual matter to be
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determined from the nature and character of the information sought

. . . weighed in the balance of the factual issues involved in each

action”).

United States v. Microsoft Corp., 165 F.3d 952, 959 (D.C. Cir. 1999) (omission in original).

The court noted that Rule 26 incorporates the flexibility necessary to accommodate the

interests at issue in different cases: “[A]lthough ‘the Rule contains no specific reference to

privacy or to other rights or interests that may be implicated, such matters are implicit in the

broad purpose and language of the Rule.’” Id. (quoting Seattle Times, 467 U.S. at 35 n.21).

The court explained: “[T]he good cause standard of Rule 26(c) comports with the first

amendment not fortuitously but precisely because it takes into account all relevant interests,

including those protected by the first amendment.” Id. at 959–60. The court concluded that

“the ‘good cause’ standard in the Rule is a flexible one that requires an individualized

balancing of the many interests that may be present in a particular case.” Id. at 960.

• A court in the D.C. Circuit has explained that the party seeking the protective order “must

make a specific demonstration of facts to support her request for the protective order

quashing the deposition.” Alexander v. FBI, 186 F.R.D. 71, 75 (D.D.C. 1998). The court

stated:

Specifically, good cause exists under Rule 26(c) when justice

requires the protection of a party or a person from any annoyance,

embarrassment, oppression, or undue burden or expense. The party

requesting a protective order must make a specific demonstration of

facts in support of the request as opposed to conclusory or

speculative statements about the need for a protective order and the

harm which will be suffered without one. Indeed, “[t]he moving

party has a heavy burden of showing ‘extraordinary circumstances’

based on ‘specific facts’ that would justify such an order.” Prozina

Shipping Co., Ltd. v. Thirty-Four Automobiles, 179 F.R.D. 41, [48]

(D. Mass. 1988). See also Bucher v. Richardson Hospital Auth., 160

F.R.D. 88, 92 (N.D. Tex. 1994) (stating that protective orders

prohibiting depositions are ‘rarely granted’ and then only if the

movant shows a “particular and compelling need” for such an order).

Moreover, the showing required under Rule 26(c) must be sufficient

to overcome plaintiffs’ legitimate and important interests in trial

preparation. See Farnsworth v. Procter & Gamble Co., 758 F.2d

1545, 1547 (11th Cir. 1985) (“[T]rial preparation and defense . . . are

important interests, and great care must be taken to avoid their

unnecessary infringement.”).

Id. (first and third alteration in original).

• Another court has stated:
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Note that plaintiff argues that there is a presumption under

Rule 26(c) that “discovery should be open.” I see no basis for such

a presumption in that Rule. See Richard L. Marcus, A Modest

Proposal: Recognizing (at Last) That the Federal Rules Do Not

Declare That Discovery Is Presumptively Public, 81 CHI.-KENT L.

REV[.]331 (2006). To the contrary, in my view, determining whether

there should be public access to materials disclosed in discovery

requires a nuanced balancing of various factors, including “(1) the

need for public access to the documents at issue; (2) the extent to

which the public had access to the documents prior to the sealing

order; (3) the fact that a party has objected to disclosure and the

identity of that party; (4) the strength of the property and privacy

interests involved; (5) the possibility of prejudice to those opposing

disclosure; and (6) the purposes for which the documents were

introduced.”

Huthnance v. Dist. of Columbia, 255 F.R.D. 285, 288 n.3 (D.D.C. 2008) (internal record

citation omitted) (quoting Anderson v. Ramsey, No. 04-CV-56, 2005 WL 475141, at *2

(D.D.C. Mar. 1, 2005) (citing United States v. Hubbard, 650 F.2d 293, 324–25 (D.C. Cir.

1980))). The court also explained:

“[G]ood cause exists under Rule 26(c) when justice requires the

protection of a party or a person from any annoyance,

embarrassment, oppression, or undue burden or expense.” Fonville

v. District of Columbia, 230 F.R.D. 38, 40 (D.D.C. 2005), but “[t]he

party requesting a protective order must make a specific

demonstration of facts in support of the request as opposed to

conclusory or speculative statements about the need for a protective

order and the harm which will be suffered without one.” Id.

“Accordingly, courts apply a balancing test, weighing the movant’s

proffer of harm against the adversary’s ‘significant interest’ in

preparing for trial.” Doe [v. Dist. of Columbia], 230 F.R.D. [47,] 50

[(D.D.C. 2005)].

Id. at 296 (first and second alteration in original).

Standard for Entering a Sealing Order

• In United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980), the D.C. Circuit discussed

factors to be considered in sealing court documents in the context of a criminal suppression

hearing. The court recognized the “important presumption in favor of public access to all

facets of criminal court proceedings.” Id. at 317. The court recognized the following factors

in considering whether the sealing of the documents at issue was appropriate: (1) the need
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for public access to the documents at issue; (2) previous public use of the documents; (3)

whether objections to unsealing are raised and the identity of those objecting; (4) the strength

of the generalized property and privacy interests asserted; (5) the possibility of prejudice by

disclosure; and (6) the purposes for which the documents were introduced to the court. See

id. at 317–22.

With respect to the first factor, the court considered the fact that the public had access to the

courtroom proceedings on the relevant motion, the memoranda filed by the parties, the trial

judge’s decisions on the motion, the stipulated record, and the trial of the criminal charges.

Id. at 317–18. The court also considered the fact that none of the documents at issue were

used in the examination of witnesses, referred to in the judge’s decision, or included as part

of the stipulated public record. Id. at 318.

With respect to the second factor, the court explained:

Previous access is a factor which may weigh in favor of subsequent

access. Determining whether, when and under what conditions the

public has already had access to court records in a given case cannot

of course guide decision concerning whether, when and under what

conditions the public should have access as an original matter.

However, previous access has been considered relevant to a

determination whether more liberal access should be granted to

materials formerly properly accessible on a limited basis through

legitimate public channels and to a determination whether further

dissemination of already accessible materials can be restrained.

Id. (footnotes omitted).

With respect to the third factor, the court noted: “The kinds of property and privacy interests

asserted by [a nonparty] to require retention of the documents under seal can be waived by

failure to assert them in timely fashion, and the strength with which a party asserts its

interests is a significant indication of the importance of those rights to that party.” Hubbard,

650 F.2d at 319 (footnote omitted). The court elaborated that “where a third party’s property

and privacy rights are at issue[,] the need for minimizing intrusion is especially great and the

public interest in access to materials which have never been judicially determined to be

relevant to the crimes charged is especially small.” Id. (footnote omitted).

With respect to the fourth factor, the court considered it important that the nonparty’s

property and privacy interests would be infringed by making the documents public. See id.

at 320.

With respect to the fifth factor, the court stated: “[T]he possibility of prejudice to the

defendants by sensational disclosure is a factor which may weigh in favor of denying

immediate public access. The likelihood of prejudice will in turn depend on a number of
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factors, including, most importantly, the nature of the materials disclosed. Until such an

examination is undertaken, the weight of this factor cannot be determined.” Id. at 320–21

(footnote omitted).

With respect to the sixth factor, the court considered it important that the documents at issue

were not relevant to the crimes charged, were not used in the trial, and were not relied upon

by the judge in issuing a decision on the motion to suppress. Id. at 321. The fact that the

connection to the proceedings was minimal weighed against public access. See id.

• Another case examined the propriety of granting public access to tapes used in a criminal

trial, and discussed the public’s general right of access to judicial documents, but also

recognized that exceptions to public access exist:

[T]he tradition of access is not without its time-honored exceptions:

Every court has supervisory power over its own

records and files, and access has been denied where

court files might have become a vehicle for improper

purposes. For example, the common-law right of

inspection has bowed before the power of a court to

insure that its records are not “used to gratify private

spite or promote public scandal” through the

publication of “the painful and sometimes disgusting

details of a divorce case.” Similarly, courts have

refused to permit their files to serve as reservoirs of

libelous statements for press consumption, or as

sources of business information that might harm a

litigant’s competitive standing.

[Nixon v. Warner Communications, 435 U.S. 589, 598, 98 S. Ct.

1306, 1312, 55 L. Ed. 2d 570 (1978)] (citations omitted). The public

has in the past been excluded, temporarily or permanently, from court

proceedings or the records of court proceedings to protect private as

well as public interests: to protect trade secrets, or the privacy and

reputation of victims of crimes, as well as to guard against risks to

national security interests, and to minimize the danger of an unfair

trial by adverse publicity.

In re Nat’l Broadcasting Co., 653 F.2d 609, 613 (D.C. Cir. 1981) (quotation marks omitted)

(quoting Hubbard, 650 F.2d at 315–16 (footnotes omitted)). The court explained that

“[b]ecause of the difficulties inherent in formulating a broad yet clear rule to govern the

variety of situations in which the right of access must be reconciled with legitimate

countervailing public or private interests, the decision as to access is one which rests in the

sound discretion of the trial court.” Id. (footnote and citations omitted). The court
16 The court denied the motion to seal, noting that the settlement agreement had not been filed with the court and there

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continued:

This discretion, however, is not open-ended. Rather, access may be

denied only if the district court, after considering “the relevant facts

and circumstances of the particular case”, and after “weighing the

interests advanced by the parties in light of the public interest and the

duty of the courts”, concludes that “justice so requires”. The court’s

discretion must “clearly be informed by this country’s strong

tradition of access to judicial proceedings”. In balancing the

competing interests, the court must also give appropriate weight and

consideration to the “presumption—however gauged—in favor of

public access to judicial records.” Any denial or infringement of this

“precious” and “fundamental” common law right remains subject to

appellate review for abuse.

Id. (footnotes and citations omitted).

• In DBI Architects, P.C. v. American Express Travel Related Services Co., 462 F. Supp. 2d

1 (D.D.C. 2006), the court applied the six factors from Hubbard in the context of

determining whether to seal a settlement agreement in a civil case. The court stated:

The following six factors are to be considered when determining

“whether and to what extent a party’s interest in privacy or

confidentiality of its processes outweighs this strong presumption in

favor of public access to judicial proceedings”[:]

[ ](1) the need for public access to the

documents at issue; (2) the extent to which the public

had access to the documents prior to the sealing order;

(3) the fact that a party has objected to disclosure and

the identity of that party; (4) the strength of the

property and privacy interests involved; (5) the

possibility of prejudice to those opposing disclosure;

and (6) the purposes for which the documents were

introduced.

Id. at 7–8 (alterations in original) (quoting Johnson v. Greater Se. Cmty. Hosp. Corp., 951

F. 2d 1268, 1277, 1277 n.14 (D.C. Cir. 1991)). The court noted that “[w]hile the sealing of

court records barring public access may be justified when a litigant’s privacy interest

outweighs the public’s right to know, the balancing of these important interests is a matter

committed to the trial court’s sound discretion.”16 Id. at 8 (citing Johnson, 951 F.2d at
was no need for its terms to be entered in the record of the case. See DBI Architects, 462 F. Supp. 2d at 8.

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1277).

Standard for Modifying a Protective Order

• The D.C. Circuit has explained that “[g]enerally, ‘[t]he decision to lift or modify a protective

order is proper where changed circumstances eliminate ‘a continued need for protection.’’”

In re Vitamins Antitrust Litig., No. Misc. 99-197(TFH), MDL 1285, 2001 WL 34088808,

at *6 (D.D.C. Mar. 19, 2001) (second alteration in original) (citation omitted). The court

also noted that “[p]rotective orders may also be modified to meet the need[s] of parties in

other litigation.” Id. (citation omitted). The court stated:

Courts have used various formulae in determining whether to modify

a protective order. In balancing competing interests, courts have

weighed, inter alia, efficiency concerns, reliance interests upon the

continued integrity of the protective order, and the public interest in

open access to records and documents. A significant factor for many

courts is whether the discovery sought will obviate the need for that

party to engage in duplicative discovery. Implicit in this

consideration is a determination of the discoverability of the

materials sought.

Id. (internal citations and footnotes omitted). The court also stated that “[c]ourts have

considered factors such as: whether the movant is a party to the original litigation or

non-party intervenor, whether the protective order was agreed upon by the parties, whether

the party seeking intervention is the government or a private party, and whether modification

is sought for purely private reasons or for public reasons.” Id. at *6 n.16.

The court noted that courts have taken various approaches to modification of a protective

order:

One line of authorities . . . place[s] the burden on the intervening

party moving for modification. The rationale for this line of cases is

that a party to a protective order is entitled to rely upon it. A second

line of cases, however, hold[s] that the party seeking to continue a

protective order bears the burden of demonstrating good cause. The

rationale underscoring this line of cases is that to place the burden on

the party seeking discovery of documents covered by a protective

order would place an undue burden on the public’s right of access

and generally ignores the fact that civil litigants have an obligation

to produce all relevant information.

Id. at *6 n.18 (quotation marks omitted) (quoting Jochims v. Isuzu Motors, Ltd., 145 F.R.D.
17 The court also considered the factors identified in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 124

S. Ct. 2466 (2004), to be used in assessing a discovery request under 28 U.S.C. § 1782(a), which governs proceedings

in a foreign tribunal. See Infineon, 247 F.R.D. at 4–5. The court recognized that the statute did not control the outcome

in its case, but found that the factors were helpful in assessing the motion for modification of a protective order, which

was made by a party for the purpose of providing documents to its counsel in Germany for use in proceedings there.

The Intel factors include: “(a) whether the person from whom discovery is sought is a participant in the foreign

proceeding; (b) the nature of the foreign tribunal, the character of the proceedings underway, and the receptivity of the

tribunal to U.S. federal judicial assistance; (c) whether the request is an attempt to circumvent foreign proof gather

restrictions; and (d) the intrusiveness or burden imposed by the discovery.” Id. at 4 (quoting Intel, 124 S. Ct. at 1483).

104

499, 502 n.7 (S.D. Iowa 1992)).

• A court in the D.C. Circuit has explained that protective orders “may be modified to serve

important efficiency or fairness goals in the court’s discretion.” Infineon Techs. AG v. Green

Power Techs. Ltd., 247 F.R.D. 1, 2 (D.D.C. 2005) (citing EEOC v. Nat’l Children’s Ctr.,

Inc., 146 F.3d 1042, 1046 (D.C. Cir. 1998); Alexander, 186 F.R.D. at 100). The court noted

that “[m]odification of a protective order requires a showing of good cause,” that “‘[g]ood

cause’ implies changed circumstances or new situations,” that “a continuing objection to the

terms of an order does not constitute good cause to modify or withdraw a protective order,”

and that “[t]he party seeking modification of a protective order bears the burden of showing

that good cause exists.” Id. (citations omitted); accord United States ex rel. Pogue v.

Diabetes Treatment Ctrs. of Am., No. Civ. 99-3298, 01-MS-50 (MDL)(RCL), 2004 WL

2009414, at *2 (D.D.C. May 17, 2004).

The Infineon court listed relevant factors, including: “(1) the nature of the protective order;

(2) the foreseeability of the modification; (3) the parties’ reliance on the protective order;

and (4) the presence of good cause for modification.” 247 F.R.D. at 2 (citations omitted).

In addition to considering these factors, the court also considered important the fact that the

party seeking confidentiality had not shown how it would be prejudiced by modification, and

noted that “confidentiality concerns can be allayed by the limited modification, and by

putting . . . counsel [in the related proceeding] under the terms of the Protective Order.” Id.

(citing In re Jenoptik AG, 109 F.3d 721, 723 (Fed. Cir. 1997)).17
18 The Federal Circuit applies the law of the regional circuit when considering procedural issues not unique to patent

law. See In re Advanced Micro Devices, Inc., 230 F. App’x 971, 972 (Fed. Cir. 2007) (unpublished) (“Because this case

involves a procedural issue not unique to patent law, we apply the law of the regional circuit . . . .” (citing In re Regents

of Univ. of Cal., 101 F.3d 1386, 1390 n.2 (Fed. Cir. 1996))); see also Baden Sports, Inc. v. Molten USA, Inc., 556 F.3d

1300, 1304 (Fed. Cir. 2009) (“We apply our own law with respect to issues of substantive patent law and also with

respect to certain procedural issues pertaining to patent law. We apply the law of the regional circuit on non-patent

issues.” (internal citation omitted)), cert. denied, 130 S. Ct. 111 (2009); Computer Docking Station Corp. v. Dell, Inc.,

519 F.3d 1366, 1373 (Fed. Cir. 2008) (“This court applies the law of the regional circuit to discovery issues.” (citation

omitted)). Because whether to grant or modify a protective order is a procedural issue not unique to patent law, the law

of the regional circuit, rather than the law of the Federal Circuit, would apply when the Federal Circuit considers requests

to grant or modify a protective order. See Advanced Micro Devices, 230 F. App’x at 972–73 (applying Ninth Circuit

law to the decision of whether to grant a motion for protective order); Schlafly v. Caro-Kann Corp., No. 98-1005, 1998

WL 205766, at *3 (Fed. Cir. Apr. 28, 1998) (unpublished table decision) (considering a request to review a protective

order under Ninth Circuit law because the Federal Circuit “review[s] matters not within [its] exclusive jurisdiction, such

as matters relating to discovery, under the applicable law of the regional circuit in which the district court sits . . . ”

(citation omitted)); but see In re Deutsche Bank Trust Co. Americas, 605 F.3d 1373, 1377–78 (Fed. Cir. 2010)

(concluding that “[a] determination of whether a trial lawyer should be denied access to information under a protective

order because of his additional role in patent prosecution, or alternatively be barred from representing clients in certain

matters before the U.S. Patent and Trademark Office (‘PTO’), is an issue unique to patent law,” and holding that “[g]iven

the unique relationship of this issue to patent law, and the importance of establishing a uniform standard, . . . the

determination of whether a protective order should include a patent prosecution bar is a matter governed by Federal

Circuit law”). As a result, the Federal Circuit does not have a unique set of decisions regarding the general standard for

granting or modifying protective orders. The cases discussed from the Federal Circuit are examples of the application

of the law of other circuits. In Deutsche Bank Trust, which applied Federal Circuit law to the determination of whether

a protective order should include a patent prosecution bar, the court noted the general standard that “[a] party seeking

a protective order carries the burden of showing good cause for its issuance,” and concluded that “[t]he same is true for

a party seeking to include in a protective order a provision effecting a patent prosecution bar.” 605 F.3d at 1378 (citing

FED. R. CIV. P. 26(c); Truswal Sys. Corp. v. Hydro-Air Eng’g, Inc., 813 F.2d 1207, 1209–10 (Fed. Cir. 1987)).

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FEDERAL CIRCUIT18

Standard for Entering a Protective Order

• In analyzing Court of Federal Claims Rule 26(c), the counterpart to Federal Rule of Civil

Procedure 26(c), the Federal Circuit explained that “[a] movant for a protective order . . .

must show ‘good cause’ why a protective order should issue. Good cause requires a

showing that the discovery request is considered likely to oppress an adversary or might

otherwise impose an undue burden.” Forest Prods. Northwest, Inc. v. United States, 453

F.3d 1355, 1361 (Fed. Cir. 2006) (citing Capital Props., Inc. v. United States, 49 Fed. Cl.

607, 611 (2001)).

Standard for Modifying a Protective Order

• In one case, applying First Circuit law, the Federal Circuit noted that “in determining

whether a protective order should be modified, the court must balance the privacy interests

of the parties against the public interest in access to the discovery information.” Baystate

Techs., Inc. v. Bowers, 283 F. App’x 808, 810 (Fed. Cir. 2008) (unpublished) (per curiam).
19 The dissent argued that the court also should have considered issues of comity, and argued that “[i]t is improper use

of United States discovery procedures, by a party to a German action, to place in evidence, in Germany, trade secret

information that is not discoverable under German law.” In re Jenoptik, 109 F.3d at 725 (Newman, J., dissenting).

106

• In another case, applying Ninth Circuit law, the Federal Circuit stated:

In Beckman Industries, Inc. v. International Insurance Co., 966 F.2d

470, 475 (9th Cir. 1992), the court stated that “Ninth Circuit

precedent strongly favors disclosure to meet the needs of parties in

pending litigation.” The court stated that “legitimate interests in

privacy can be protected by putting the intervenors [the parties

requesting modification of the protective order] under the same

restrictions as those contained in the original protective order” and

noted that the parties in the case had agreed to use the information

only in accordance with the protective orders. Id. 

In re Jenoptik, AG, 109 F.3d 721, 723 (Fed. Cir. 1997) (alteration in original).19