FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAR 14, 2007

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-13058

________________________

D. C. Docket No. 03-00575-CV-BE-W-KOB

JUAN AQUAS ROMERO, 

Plaintiff-Appellee, 

versus 

DRUMMOND COMPANY, INC., 

DRUMMOND, LTD, 

GARRY N. DRUMMOND, 

AUGUSTO JIMENEZ, 

Defendants-Appellees, 

STEPHEN FLANAGAN JACKSON, 

Intervenor-Appellant. 

________________________

No. 06-13059

_________________________

D. C. Docket No. 03-00575-CV-BE-W-KOB

IN RE: 
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by *

designation.

2

DANIEL M. KOVALIK, 

TERRENCE P. COLLINGSWORTH, 

DEREK J. BAXTER, 

ROBERT G. KERRIGAN, 

Interested-PartiesAppellants. 

________________________

Appeals from the United States District Court

for the Northern District of Alabama

_________________________

(March 14, 2007)

Before CARNES, PRYOR and FARRIS , Circuit Judges. *

PRYOR, Circuit Judge:

In these consolidated appeals, several lawyers challenge a sanction of

criminal contempt entered after the lawyers filed a motion and two declarations in

open court, and a journalist seeks access to the filings, which have since been

sealed following media reports about their contents. The underlying complaint

contains sordid allegations of intrigue, corruption, and assassination in Colombia,

“where the awful is ordinary.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1242 (11th

Cir. 2006). After the district court by letter asked the U.S. Department of State

whether this litigation would adversely affect the conduct of foreign affairs, the
3

plaintiffs twice moved the district court to inform the Department about the

contents of a recent declaration of a former Colombian official. The district court

then held the plaintiffs’ lawyers in criminal contempt and sealed their declarations

and their motion to reconsider even though a month earlier the district court had

decided that too many filings had been sealed.

There are two issues presented. The first issue is whether a protective order

forbidding lawyers from making extrajudicial comments about the expected

testimony of a witness clearly prohibited the lawyers from filing in open court

declarations of potential witnesses attached to a motion. The second issue is

whether the public has a common law right of access to the declarations and the

motion to reconsider providing the declarations to the Department of State. Derek

Baxter, Terrence Collingsworth, Robert Kerrigan, and Daniel Kovalik, the

attorneys for the plaintiffs, appeal the sanction of criminal contempt, and Stephen

Jackson, a free-lance journalist who intervened in the litigation, appeals the orders

that sealed the motion to reconsider and the declarations and denied Jackson’s

motion to lift the seal. We vacate the sanction of contempt, because the filings

were not clearly prohibited by the protective order, and we reverse, as unsupported

by good cause, the orders that sealed the motion and declarations.

I. BACKGROUND
4

In 2002, a group of named and unnamed plaintiffs, including union leaders

and relatives of deceased union members, filed a complaint against the Drummond

Company and several of its executives. The complaint alleged that the president of

Drummond Ltd., the Columbian subsidiary of Drummond, with the knowledge of

executives in the United States, hired Colombian paramilitaries to kill and torture

union members at a Drummond coal mine in Colombia. The district court allowed

many of the plaintiffs to proceed anonymously based on their alleged concern for

their safety in Colombia.

Drummond filed a motion to dismiss the complaint based on, among other

arguments, the political question doctrine and international comity. The district

court denied the motion and stated that the political question doctrine and issues of

comity were fact-intensive and better addressed on a motion for summary

judgment. The plaintiffs’ lawyers then, through their website, urged the public to

contact Drummond. They allegedly represented that the denial of the motion to

dismiss established the validity of their complaint.

On the motion of Drummond, the district court entered a protective order. In

addition to requiring counsel to remove from their website allegations about the

denial of the motion to dismiss, the protective order prohibited “all participants,

including potential witnesses . . . from making or authorizing extrajudicial
5

comments . . . to the media and the public concerning . . . the character, credibility,

reputation or criminal record of a party or witness, and the expected testimony of a

party or witness.” The protective order also directed “counsel for the parties [to]

avoid commenting in court papers that are not filed under seal on evidence that is

irrelevant to legal matters at issue therein.” Jackson intervened to challenge the

protective order based on the First Amendment. After a sharp exchange between

Jackson’s counsel and the court, the district court allowed Jackson to intervene,

agreed to withdraw the original protective order, and entered a revised protective

order.

The revised protective order applied only to counsel of record and prohibited

them from “making or authorizing extrajudicial comments, and disseminating or

authorizing the dissemination of information to the media and the public

concerning . . . the expected testimony of a party or witness [or] [m]atters that

counsel know, or reasonably should know, will be inadmissable at trial, and would

if disclosed create a substantial risk of prejudicing an impartial trial.” The order

allowed an attorney to state “without elaboration or any kind of characterization

whatsoever . . . [a]n allegation or defense made in this case, [i]nformation properly

contained in the public record of this case; [s]cheduling information, or [a]ny

decision made or order issued by the court that is a matter of public record.” The
6

revised protective order did not define its terms, require that any filings be made

under seal, or limit references to evidence in court filings.

Unbeknownst to the plaintiffs and the district court, Drummond had been

lobbying the Department of State to intervene in the litigation, but its efforts were

hindered because it could not share sealed documents with the Department. 

Without making any findings about the need to file documents under seal, the

district court had allowed the parties to file motions under seal and to designate

discovered material as confidential. 

On December 19, 2005, Drummond moved to unseal several documents. On

April 7, 2006, the district court expressed its agreement with Drummond that too

many documents were sealed: “At the outset, virtually everything filed in this case

has been filed under seal. The court now questions the wisdom and propriety of

such a blanket order.” The district court ordered the parties to identify documents

that could be unsealed or redacted without jeopardizing the safety or privacy of any

party or witness. The district court also “join[ed] in the Plaintiffs’ expressed

concern about Defendants’ unilateral contact with the State Department” and

“deem[ed] it advisable that certain documents in this case be provided directly to

the State Department for its review and evaluation . . . by the court.” The district

court instructed the parties not to contact the State Department about the lawsuit
7

and proposed that it would prepare a letter to solicit the advisory opinion of the

State Department on whether the litigation might affect foreign relations. 

On April 26, 2006, the district court held a hearing to determine the form of

the letter and its attachments and reiterated its concern that too many documents

were under seal. The district court complained that “as I looked back over this

case, probably ninety-eight percent of what has been filed has been filed under

seal. . . . I can’t tell what’s going on by looking at the docket sheet.” Commenting

on the inquiry to the State Department, the district court explained that it did not

intend to “completely preclud[e the parties] from contacting [the government], but

[the court] will act as the gatekeeper.” 

On May 15, 2006, the district court notified the parties that it had sent a

letter to the State Department with copies of the pleadings. The district court also

formally ordered the parties not to contact either executive officials of the United

States or officials of Colombia: 

No party or counsel or representative of any party or counsel shall

make any unilateral, ex parte communication with anyone at the

Un[i]t[]ed States Department of State, United States Department of

Justice, or any representative of the Government of Col[o]mbia

regarding any information relevant to or any matter at issue in this

case, or the opinion requested of the Department of State.

The district court explained that it intended to arrange a telephone conference call

with a representative from the State Department within a month.
8

On May 16, 2006, the plaintiffs filed a “Motion To Submit Pertinent

Information To U.S. State & Justice Departments” to which they attached

declarations of a former public official incarcerated in Colombia and Daniel

Kovalik, a lawyer for the plaintiffs. The former Colombian official stated that he

witnessed the head of the Colombian operations of Drummond hand a briefcase of

cash to a paramilitary leader in exchange for killing two union leaders. Kovalik’s

declaration explained that on May 13, 2006, he flew to Colombia and interviewed

the former official. On May 17, 2006, Drummond moved, under seal, to seal the

motion and declarations. The district court immediately sealed the declarations,

but not the motion itself, and denied the plaintiffs’ motion.

On May 18, the plaintiffs moved for reconsideration of their motion. The

plaintiffs argued that they had submitted the evidence as soon as it was available

and that the evidence was relevant to the inquiry. They alleged that the district

court had allowed Drummond to supplement the inquiry with additional contact

addresses and a request for the criminal records of a plaintiffs’ witness. The

plaintiffs objected to the decision of the district court to seal the declarations as

contrary to previous orders that the parties confer to unseal previously sealed

documents and objected that they were not allowed to respond to the motion of

Drummond to seal the declarations. The plaintiffs also argued that the sealed
9

motion of Drummond to seal their filings was an ex parte communication with the

district court because the plaintiffs never received a copy. 

On May 19, Drummond moved, again under seal, to seal the plaintiffs’

motion for reconsideration and notified the court about a news article published

that day in the Miami Herald. The Miami Herald reported the allegations of the

former Colombian official:

A former Colombian intelligence officer has claimed that he saw the

head of the Colombian branch of a U.S. coal company hand over a

suitcase full of cash to pay for the assassinations of two labor leaders,

according to a document filed in a U.S. court.

The sworn statement by Rafael Garcia was made to U.S. lawyers for

U.S. labor-rights groups who filed a civil suit in 2002 alleging the

killers were “acting as employees or agents” of the Alabama-based

Drummond Company Inc. The trial in Birmingham is scheduled to

begin in October.

The district court sealed the motion for reconsideration and supporting

documents, denied the motion for reconsideration, and sua sponte ordered the

plaintiffs’ lawyers to show cause why they should not be held in contempt for

violating the revised protective order. The written order of the district court stated,

“Not only did counsel gratuitously publicly file an affidavit of a potential witness,

the court has before it circumstantial evidence that indicates counsel may have

directly or indirectly provided such expected testimony to a reporter for public

dissemination.”
10

Jackson moved to unseal the declarations, motion to reconsider, and the

motions of Drummond to seal. Jackson argued that the seal violated the common

law right of access to court records. The district court denied the motion. The

district court, citing Chicago Tribune v. Bridgestone/Firestone, 263 F.3d 1304 (11th

ir. 2001), determined that the public had no common law right to access the

documents because they were not “filed in connection with pretrial motions that

require judicial resolution of the merits.” The court reasoned that the equities

weighed against opening the declarations to the press because the declarations

were incredible, appeared to be an attempt to circumvent the revised protective

order, and would likely taint the jury pool and prejudice the right of Drummond to

a fair trial. The district court also explained that it sealed the motion to reconsider

because it “outlined much of the [other] sealed material.” The district court did not

provide any reasons for its decision not to unseal the motions filed by Drummond. 

Jackson appealed the orders sealing the declarations and the motion for

reconsideration and the order denying his motion to unseal.

The district court held a contempt hearing without referring the matter to the

United States Attorney or appointing a prosecutor. The plaintiffs’ lawyers argued

that the revised protective order was unclear and testified that they honestly

thought that the State Department should know that their complaint was supported
11

by evidence. For fear of exposing attorney work product, the plaintiffs’ lawyers

requested to explain in camera their involvement with the Miami Herald reporter

and how they attained the declaration. The district court granted their request, and,

in addition to discussing privileged work product, the plaintiff’s lawyers admitted

that they spoke with the reporter, testified that they did not tell the Miami Herald

about the declaration, and asserted that, to the best of their knowledge, the reporter

learned of the declaration independently. 

Upon returning to the courtroom, the district court concluded that the

plaintiffs’ lawyers either had been overzealous in their advocacy or had

intentionally plotted to evade the revised protective order. The district court held

the plaintiffs’ lawyers in contempt and fined them $500. The district court released

the Drummond attorneys from the strictures of the revised protective order so that

the attorneys could comment on the allegations in the declaration.

The plaintiffs’ lawyers appealed and moved to stay the fine during the

appeal. The district court granted the request for a stay but wrote at length about

its reasons for finding that the plaintiffs’ lawyers committed contempt. The court

noted that “[f]rom the beginning of this case, counsel have demonstrated either a

lack of knowledge of, or a tendency to ignore or flaunt the Rules of Procedure and

the Rules of Professional Conduct.” The court noted that the bar on “extrajudicial”
12

comments in the revised protective order incorporated the Alabama Rules of

Professional Conduct and that the original protective order, with emphasis added,

had defined “extrajudicial” as “not forming a valid part of open legal proceedings

in this case.”

II. STANDARDS OF REVIEW

Two standards of review apply to this appeal. First, “[i]n reviewing the

sufficiency of the evidence in support of a finding of criminal contempt, we must

determine whether the evidence, construed in the light most favorable to the

government, would permit the trier of fact to find the defendant guilty beyond a

reasonable doubt.” United States v. Maynard, 933 F.2d 918, 920 (11th Cir. 1991)

(internal quotation marks and citations omitted); United States v. Turner, 812 F.2d

1552, 1563 (11th Cir. 1987). Second, we review for abuse of discretion the refusal

of a district court to unseal court documents. See Chi. Tribune Co. v.

Bridgestone/Firestone, Inc., 263 F.3d 1304, 1309 (11th Cir. 2001).

III. DISCUSSION

Before we address the merits of the appeals, we briefly address our

jurisdiction to review the orders of the district court. First, the plaintiffs’ lawyers

argue that the district court erred by holding them in contempt of court and

imposing a $500 fine. Because the district court assessed a punitive fine against
13

the plaintiffs’ lawyers, the contempt order is criminal in nature. United States v. K

S & W Offshore Eng’g, Inc., 932 F.2d 906, 908 (11th Cir. 1991) (“[T]he

imposition of a penalty against attorneys for a punitive purpose [i]s a criminal

contempt sanction.”). Unlike civil contempt, an order of criminal contempt is a

final decision that is immediately appealable. Marrese v. Am. Acad. of

Orthopaedic Surgeons, 470 U.S. 373, 379, 105 S. Ct. 1327, 1331 (1985). Second,

Jackson has appealed both the orders of the district court that sealed the documents

and the order that denied Jackson’s motion to unseal the documents. These orders

are appealable as collateral to the underlying action because they conclusively

determine a disputed question, resolve an important issue, and are effectively

unreviewable on appeal from a final judgment. See Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 1225 (1949).

Our discussion of the merits of these appeals is in two parts. We first

address the challenge of the plaintiffs’ lawyers to their conviction for criminal

contempt. We then address whether the district court abused its discretion when it

sealed and later refused to unseal the declarations, the plaintiffs’ motion, and the

motions of Drummond to seal.

A. The Evidence Was Not Sufficient to Support a Conviction for Criminal

Contempt.
14

Contempt of court may be punished as a criminal offense. 18 U.S.C. § 402. 

The three elements of criminal contempt are (1) a lawful and reasonably specific

order that (2) the defendant has violated (3) willfully. United States v. Bernadine,

237 F.3d 1279, 1282 (11th Cir. 2001); see 18 U.S.C. § 401(3). A federal court

may punish contemptuous conduct that occurs outside its presence only after

giving notice of “the essential facts constituting the charged criminal contempt,”

“request[ing] that the contempt be prosecuted by an attorney for the government,”

and affording other procedural protections. Fed. R. Crim. P. 42; see also United

States v. Baldwin, 770 F.2d 1550, 1553-57 (11th Cir. 1985) (discussing difference

in procedure required for direct and indirect criminal contempt). The defendant “is

not only entitled to be informed of the nature of the charge against him, but to

know that it is a charge, and not a [civil] suit.” Gompers v. Buck’s Stove & Range

Co., 221 U.S. 418, 446, 31 S. Ct. 492, 500 (1911); see also Lamar Fin. Corp. v.

Adams, 918 F.2d 564, 567 (5th Cir. 1990) (vacating contempt sanction when

defendant not given specific notice that hearing was criminal in nature). “[I]n

proceedings for criminal contempt the defendant is presumed to be innocent, he

must be proved to be guilty beyond a reasonable doubt, and cannot be compelled to

testify against himself.” Gompers, 221 U.S. at 444, 31 S. Ct. at 499. 

Even when these procedures are followed, the contempt power is subject to
15

abuse. As the Supreme Court has observed, those “who make their way to the

bench sometimes exhibit vanity, irascibility, narrowness, arrogance, and other

weaknesses to which human flesh is heir.” Sacher v. United States, 343 U.S. 1, 12,

72 S. Ct. 451, 456-57 (1952). A proceeding regarding criminal contempt demands

“deliberateness and caution.” Turner, 812 F.2d at 1568. “Most judges, however,

recognize and respect courageous, forthright lawyerly conduct. They rarely

mistake overzeal or heated words of a [lawyer] fired with a desire to win, for the

contemptuous conduct which defies rulings and deserves punishment.” Sacher,

343 U.S. at 12, 72 S. Ct. at 457.

The reason that the district court held the plaintiffs’ lawyers in contempt is

not clear from the record, but Drummond defends the sanction on the grounds that

the plaintiffs’ lawyers violated the revised protective order both by making

extrajudicial comments to the Miami Herald and by filing the declarations. The

plaintiffs’ lawyers respond that the evidence was insufficient to support a finding

that they told anything to the reporter that violated the revised protective order, the

revised protective order was not reasonably specific if read to prohibit filing the

declarations attached to a motion, and under either theory the evidence was not

sufficient to find that they violated the order willfully. 

The issue before us is limited to the sufficiency of the evidence. The
16

plaintiffs’ lawyers do not present an argument about either the summary hearing or

the notice of the charges against them. We agree with the plaintiffs’ lawyers that

the evidence does not support their conviction.

1. The Evidence Was Insufficient for a Reasonable Finder of Fact to Have Found

that the Plaintiffs’ Lawyers Willfully Violated the Revised Protective Order by

Making Unauthorized Statements to a Reporter.

The plaintiffs’ lawyers persuasively argue that no reasonable finder of fact

could have found beyond a reasonable doubt that they willfully made comments to

the Miami Herald reporter that violated the revised protective order. At the in

camera portion of the show cause hearing, the plaintiffs’ lawyers denied telling the

Miami Herald reporter about the declaration and testified that the reporter probably

obtained the declaration from the witness or by observing the public filings in the

case. The record contains no evidence to the contrary and, as Drummond admits,

“[t]here is no admissible evidence in the record as to how the reporter actually

learned of the declaration.” 

Even if we were to assume that the plaintiffs’ lawyers’s explanations in the

in camera hearing were false, there is still no evidence that the plaintiffs’ lawyers

ever made a statement that violated the revised protective order. The information

in the Miami Herald article is the kind that the revised protective order explicitly

allowed the attorneys to disclose to the press: “allegation[s] . . . made in th[e] case
17

[and] [i]nformation properly contained in the public record.” The Miami Herald

article neither quoted the plaintiffs’ lawyers nor contained information that would

not have been available to anyone observing public filings in the case. If the

district court based its finding of contempt on the circumstantial evidence of the

existence of the article, that evidence was insufficient to prove a willful violation

beyond a reasonable doubt.

2. The Revised Protective Order Did Not Forbid with Reasonable Specificity the

Filing of the Declarations.

The plaintiffs’ lawyers argue that the revised protective order did not

prohibit the filing of the declarations or, if somehow read to prohibit the filing, was

not reasonably specific. Again, we agree. “An order meets the reasonable

specificity requirement only if it is a clear, definite, and unambiguous order

requiring [or prohibiting] the action in question.” In re E.I. DuPont de Nemours &

Co.–Benlate Litig., 99 F.3d 363, 370 (11th Cir. 1996) (internal quotation marks

omitted). “The reasonableness of the specificity of an order . . . must be evaluated

in the context in which it is entered and the audience to which it is addressed.” 

Turner, 812 F.2d at 1565. 

The revised protective order prohibited “making or authorizing extrajudicial

comments, and disseminating . . . information to the media and the public
18

concerning . . . the expected testimony of a party or witness; and [m]atters that

counsel know, or reasonably should know, will be inadmissable at trial, and would

if disclosed create a substantial risk of prejudicing an impartial trial.” Unlike the

original protective order, the revised protective order did not address what

evidence the attorneys could reference in public filings. The revised protective

order also did not address what motions should be filed under seal, what

supporting documents should be filed under seal, or what documents the district

court might submit to the State Department. 

When the revised protective order is read in context with other parts of the

record, it is unclear that the revised protective order prohibited filing the

declarations as part of the public record. The revised protective order allowed

attorneys to make unembellished statements about allegations and public filings,

such as the allegations in the declarations, and the district court both had ordered

the parties to unseal or redact most previous filings and warned the parties to stop

routinely requesting that documents be filed under seal. The letter to the State

Department and the order prohibiting the parties from contacting the State

Department also were filed in the public record. To the extent the revised

protective order can be interpreted to curtail public filings at all, its import in the

context of the other rulings of the district court is ambiguous.
19

Drummond argues, and the district court stated in its later order granting a

stay of the fine pending appeal, that the revised protective order incorporated the

definition of “extrajudicial comments” in the previous protective order. 

Drummond contends that the revised protective order prohibited any filing

determined not to be a “valid part of open legal proceedings,” with Drummond’s

emphasis added. Drummond argues that these declarations were not “valid” but

offers no guidance about defining the term “valid.”

The argument of Drummond is based on a strained interpretation of the

revised protective order, which does not define “extrajudicial comments” and does

not reference the ambiguous definition in the original protective order. Based on

our review, the revised protective order was intended to replace, not supplement,

the original protective order. It is also far from clear that the ambiguous definition

in the original order is the most apt definition of “extrajudicial.” The most widely

used legal dictionary, for example, defines “extrajudicial” as “outside the

functioning of the court system” or “any utterance made outside of court.” Black’s

Law Dictionary 497 (8th ed. 2005).

Even if we were to assume that the definition of “extrajudicial” proffered by

Drummond is correct, that definition still would not have prohibited with

reasonable specificity the plaintiffs from filing the declarations. Until the district
20

court held the plaintiffs’ lawyers in contempt, no order of the district court had

identified filing any unsealed motion or evidence as “[in]valid.” When the

plaintiffs’ lawyers filed the first motion and attached declarations, neither the

district court nor Drummond suggested that the filing was contemptuous. That sua

sponte suggestion of the district court came only after the plaintiffs’ lawyers filed

their motion for reconsideration. The district court apparently expected the

plaintiffs’ lawyers to apply an ambiguous order by importing a definition from a

previous order that itself is ambiguous. No “reasonable finder of fact could . . .

conclude that [the] attorneys were clever enough to figure out” that the bar of

extrajudicial comments in the revised protective order clearly prohibited filing

these declarations, especially in the light of the warning of the district court that the

parties not routinely request that documents be filed under seal. In re Benlate

Litig., 99 F.3d at 372.

B. The District Court Abused Its Discretion in Refusing to Unseal the Motions and

Declarations.

“The operations of the courts and the judicial conduct of judges are matters

of utmost public concern,” Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829,

839, 98 S. Ct. 1535, 1541 (1978), and “[t]he common-law right of access to

judicial proceedings, an essential component of our system of justice, is

instrumental in securing the integrity of the process,” Chi. Tribune, 263 F.3d at
21

1311. This right “includes the right to inspect and copy public records and

documents.” Id. (citation omitted). This right of access is not absolute, however. 

The right of access does not apply to discovery and, where it does apply, may be

overcome by a showing of good cause.

Because “[t]he prospect of all discovery material being presumptively

subject to the right of access would likely lead to an increased resistance to

discovery requests,” we have recognized an exception to the public right of access. 

Id. at 1312 n.10. “[D]ocuments filed in connection with motions to compel

discovery are not subject to the common-law right of access,” id. at 1312-13, but

“material filed in connection with pretrial motions that require judicial resolution

of the merits is subject to the common-law right,” id. at 1312. We have explained

that the need for public access to discovery is low because discovery is “essentially

a private process . . . the sole purpose [of which] is to assist trial preparation.” 

United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986). 

The district court erroneously concluded that the sealed documents “were

not subject to the common law right of public access” because “no dispositive

motion was before the court.” Material filed in connection with any substantive

pretrial motion, unrelated to discovery, is subject to the common law right of

access. Chi. Tribune, 263 F.3d at 1312 (difference between “material filed with
22

discovery motions and material filed in connection with more substantive

motions”); see also Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157,

164 (3d Cir. 1993) (“[T]here is a presumptive right of public access to pretrial

motions of a nondiscovery nature, whether preliminary or dispositive, and the

material filed in connection therewith.”). A motion that is “presented to the court

to invoke its powers or affect its decisions,” whether or not characterized as

dispositive, is subject to the public right of access. United States v. Amodeo, 71

F.3d 1044, 1050 (2d Cir. 1995); see also Leucadia, 998 F.2d at 164 (common law

right applies to motion to approve settlement agreement); In re Cont’l Ill. Sec.

Litig., 732 F.2d 1302, 1309 (7th Cir. 1984) (right of access applies to motion to

terminate derivative claim). 

Ordinarily, the plaintiffs would have been free to petition the State

Department not to intervene in their case with whatever materials they chose, but

an order of the district court, for reasons that are not apparent, made that privilege

contingent on an exercise of judicial power. The object of the motion to provide

the declarations to the State Department was not discovery. Because the plaintiffs’

motion asked the court to vary from its previous public order and did not involve

the disclosure of discovery materials, the common law presumption of public

access attached.
23

The common law right of access may be overcome by a showing of good

cause, which requires “balanc[ing] the asserted right of access against the other

party’s interest in keeping the information confidential.” Chi. Tribune, 263 F.3d at

1309. “[W]hether good cause exists . . . is . . . decided by the nature and character

of the information in question.” Id. at 1315. In balancing the public interest in

accessing court documents against a party’s interest in keeping the information

confidential, courts consider, among other factors, whether allowing access would

impair court functions or harm legitimate privacy interests, the degree of and

likelihood of injury if made public, the reliability of the information, whether there

will be an opportunity to respond to the information, whether the information

concerns public officials or public concerns, and the availability of a less onerous

alternative to sealing the documents. See In re Alexander Grant & Co. Litig., 820

F.2d 352, 356 (11th Cir. 1987); Shingara v. Skiles, 420 F.3d 301, 305-06 (3d Cir.

2005); Amodeo, 71 F.3d at 1050-51. A party’s privacy or proprietary interest in

information sometimes overcomes the interest of the public in accessing the

information. See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598, 98 S. Ct.

1306, 1312 (1978); Arthur R. Miller, Confidentiality, Protective Orders, and Public

Access to the Courts, 105 Harv. L. Rev. 427, 464-74 (1991).

Although “[d]ecisions less central to merits resolutions implicate lesser
24

right-to-access considerations,” 8 Charles Alan Wright, Arthur R. Miller &

Richard L. Marcus, Federal Practice and Procedure § 2035 (2d ed. 1994), the

plaintiffs’ motion for reconsideration was related both to the merits of the

underlying controversy and the conduct of the court. The motion concerned the

advisory opinion sought by the district court, which in turn involved an affirmative

defense of Drummond. As part of its decision to seek the opinion of the State

Department, the district court assumed the role of gatekeeper between the parties

and the executive branch of the federal government. The sealed documents

involve public concerns that are at the heart of the interest protected by the right of

access: “the citizen’s desire to keep a watchful eye on the workings of public

agencies . . . [and] the operation of government.” Nixon, 435 U.S. at 598, 98 S. Ct.

at 1312. 

Drummond argues that it has “enormous” interests in keeping the sealed

declarations confidential, but we disagree. Drummond did not produce the

declaration of the Colombian official during discovery and has neither a privacy

nor a proprietary interest in it. Cf. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34,

104 S. Ct. 2199, 2208 (1984) (affirming an order prohibiting the dissemination of

information gained by discovery so long as the parties could disseminate “identical

information . . . gained through means independent of the court’s processes”). 
25

Although court files that instigate public scandal or libel may be sealed, the

declarations in question support the already-public complaint against Drummond

and its executives. Although Drummond denies the allegations of that complaint,

its denial is not a legitimate basis for sealing the evidence.

The district court provided three reasons for sealing the declarations and

motion for reconsideration: the documents would prejudice the right of Drummond

to a fair trial by creating a “firestorm” in the media; the plaintiffs’ lawyers filed the

documents with the bad faith intention of circumventing the revised protective

order; and the motion and declarations were irrelevant. These are “stereotyped and

conclusory statements” that do not establish good cause. United States v. Garrett,

571 F.2d 1323, 1326 n.3 (5th Cir. 1978); see also Press-Enterprise Co. v. Superior

Court, 478 U.S. 1, 15, 106 S. Ct. 2735, 2743 (1986) (“right of access cannot be

overcome by . . . conclusory assertion”); Wright, Miller & Marcus, supra, § 2035

(same). We address each in turn. 

The district court speculated that reporting on the documents would

prejudice the jury pool, but there are at least three problems with this rationale. 

First, the record does not contain any evidence to support this finding, and “pretrial

publicity, even if pervasive and concentrated, cannot be regarded as leading

automatically . . . to an unfair trial.” Neb. Press Ass’n v. Stuart, 427 U.S. 539, 565,
26

96 S. Ct. 2791, 2805 (1976). Second, because the substance of the Colombian

official’s declaration had already been reported by the Miami Herald, sealing these

documents could not remedy any of the highly unlikely harms that could be caused

by pretrial publicity. Third, the district court failed to explain why its decision to

allow the Drummond attorneys to comment about the declaration of the

government official was insufficient to counteract any purported prejudice. “If

there be time to expose through discussion the falsehood and fallacies, to avert the

evil by the processes of education, the remedy to be applied is more speech, not

enforced silence.” Whitney v. California, 274 U.S. 357, 377, 47 S. Ct. 641, 649

(1927) (Brandeis, J., concurring); see also Robert D. Richards & Clay Calvert,

Counterspeech 2000: A New Look at the Old Remedy for “Bad” Speech, 2000

BYU L. Rev. 553.

The district court also failed to substantiate its finding that allowing the

public access to the documents would vindicate improper motives of the plaintiffs’

lawyers. As we explained in the previous section, the plaintiffs’ lawyers did not

violate any clear directive of the revised protective order, so the documents were

not properly sealed incident to enforcing that order. Even if the plaintiffs’ lawyers

should have been punished, the sanction should not have been to close judicial

proceedings to the public. Cf. Brown v. Advantage Eng’g, Inc., 960 F.2d 1013,
27

1016 (11th Cir. 1992) (that both parties want to seal court documents “is

immaterial” to public right of access).

The remaining reason of the district court—that the motion and declarations

were irrelevant to the proceedings—also fails. Because the district court ordered

the parties not to contact the State Department without its permission, it is difficult

to comprehend how a motion to send more information to the State Department

“far exceeded the scope of the [inquiry to the State Department],” even if the

request was ultimately denied. It also does not follow from the denial of that

motion that the motion requesting reconsideration was so irrelevant or improper as

to be sealed. Without a more specific showing that the declarations and the motion

for reconsideration were abusive or improper, good cause for sealing the

documents was not established.

Finally, the district court did not offer any explanation for sealing or

refusing to unseal the motions of Drummond to seal the plaintiffs’ filings. 

Drummond also offers no argument on appeal that there is good cause for these

documents to remain sealed. Having reviewed these motions, we are unable to

discern any reason to keep them sealed.

The public has a right to access these documents that is more than powerful

enough to overcome the negligible interest of Drummond in preventing public
28

access. The reasons given for sealing the documents by the district court were

conclusory and speculative, and sealing these documents was an exaggerated

remedy for the harms the district court identified. The district court abused its

discretion in sealing these documents. 

IV. CONCLUSION

The order of the district court that held the plaintiffs’ lawyers in contempt is

VACATED. The order of the district court that sealed the evidence attached to the

motion to submit additional information to the State Department, the order of the

district court that sealed the motion for reconsideration, and the order of the district

court that denied Jackson’s request to unseal are REVERSED.

VACATED in part and REVERSED in part.