FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In the Matter of: ROMAN CATHOLIC
ARCHBISHOP OF PORTLAND IN
OREGON, as Successors, a
Corporation Sole, DBA
Archdiocese of Portland in No. 10-35206
Oregon,
D.C. No.
6:09-cv-01396-AA
FATHER M; FATHER D, OPINION
Appellants,
v.
VARIOUS TORT CLAIMANTS,
Appellee.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted
May 4, 2011—Portland, Oregon
Filed September 21, 2011
Before: Alex Kozinski, Chief Judge, Carlos T. Bea and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
17903
IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP 17907
COUNSEL
Natalia Yegorova, Black Helterline LLP, Portland, Oregon,
for appellants Father M and Father D.
Erin K. Olson, Law Office of Erin Olson, P.C., Portland, Ore-
gon, for appellee Various Tort Claimants.
OPINION
IKUTA, Circuit Judge:
Documents produced in discovery and filed in the bank-
ruptcy court contained allegations that Fathers M and D, two
priests who were not parties to the Portland Archdiocese’s
bankruptcy case, had sexually abused children. The bank-
ruptcy court held that the discovery documents at issue could
17908 IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP
be disclosed to the public, because the public’s interest in dis-
closure of these discovery documents outweighed the priests’
privacy interests under Rule 26(c) of the Federal Rules of
Civil Procedure. It also held that the documents filed in court
could be disclosed to the public because they did not contain
“scandalous” allegations for purposes of 11 U.S.C § 107(b).
The district court affirmed. We affirm in part and reverse in
part.
I
The Portland Archdiocese was the subject of multiple law-
suits seeking millions of dollars in compensatory and punitive
damages for sexual abuse of children by specific clergy mem-
bers of the Archdiocese. In July 2004, while the tort claim-
ants’ lawsuits were pending, the Archdiocese filed for
Chapter 11 bankruptcy protection. The bankruptcy case thus
became the forum for many of the proceedings relating to the
tort claims.1 The appellees (referred to here as Appellee
Claimants) are a small subset of the many tort claimants who
were parties to the bankruptcy case.2
After the Chapter 11 filing, the bankruptcy court scheduled
mediation to give the tort claimants and the Archdiocese an
opportunity to settle the tort claims. Before mediation com-
menced, the tort claimants sought discovery regarding their
claims pursuant to Rule 26 of the Federal Rules of Civil Pro-
cedure (which is made applicable to bankruptcy proceedings
by Federal Rule of Bankruptcy Procedure 7026). In order to
prove that the Archdiocese had engaged in a pattern and prac-
1
Subject to certain exceptions, “all proceedings that arise during the
case are to take place before the bankruptcy court.” Collier on Bankruptcy
¶ 3.02[2] (16th ed. rev. 2011). A bankruptcy court is not, however,
authorized to determine the amount of damages awarded in a tort lawsuit;
that duty is entrusted only to the district court. See 28 U.S.C. § 157(b)(1),
(5).
2
There are about two dozen Appellee Claimants out of over 140 tort
claimants.
IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP 17909
tice of misconduct, the tort claimants sought discovery
regarding, among other things, all reports of sexual abuse by
priests within the Archdiocese, not just reports regarding the
priests who were the defendants in the tort suits.
The bankruptcy court entered two orders governing pre-
mediation discovery, both dated January 14, 2005. The first
order directed the Archdiocese to produce the personnel files
of 37 accused priests identified by the Archdiocese for the
“John Jay Study,” a national study of clergy abuse commis-
sioned by the United States Conference of Catholic Bishops,
and to make available four officials for deposition. Second,
the court entered a stipulated protective order, which had been
negotiated between the Archdiocese and the tort claimants.
Relevant here, paragraph 7 of the protective order provided as
follows:
In the event that tort claimants wish to remove from
the restrictions of this order any document desig-
nated as “Confidential” by Debtor pursuant to this
order, tort claimants shall provide prior written
notice to Debtor’s counsel and counsel for the priest
whose file is at issue, if any. Counsel shall then have
seven (7) days to file a motion with the court seeking
an order preventing the disclosure of such document.
The document or documents shall remain subject to
this order unless the court rules otherwise following
the filing of counsel’s motion.
The protective order allowed the Archdiocese to designate
“any and all documents produced pursuant to the [first discov-
ery] order” as confidential.
Among the documents disclosed pursuant to the bankruptcy
court’s discovery order were the personnel files of Father M
and Father D. The Archdiocese produced these files only
because their names were included in the John Jay Study; nei-
ther had been sued by the tort claimants. Father M, 72 years
17910 IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP
old, had left Portland in 2000 or 2001, and Father D, 88 years
old, had retired in 1989. Neither was notified about the par-
ties’ negotiation of the discovery order, nor that their files had
been disclosed. Their personnel files, along with the others,
were filed under seal in the bankruptcy case.
During 2007, the Archdiocese and the tort claimants
engaged in negotiations regarding both the damage claims and
the scope of disclosure of documents produced in the bank-
ruptcy filing.
In connection with the negotiations to settle the damage
claims, the Appellee Claimants filed a memorandum on
March 6, 2007, which “summarize[d] the pattern and practice
evidence and the punitive damages evidence in support of the
estimation” of five unresolved tort claims. The memorandum
included, as attachments, the clergy personnel files of 27
priests (including Father M and Father D), plus deposition
excerpts and other documents. These documents were filed
under seal pursuant to the court’s protective order. The tort
claimants (including the Appellee Claimants) settled most of
the claims against the Archdiocese.
While these settlement talks were underway, the parties
also negotiated the scope of release of bankruptcy documents.
Counsel for several tort claimants (but not Appellee Claim-
ants) invoked paragraph 7 of the protective order, notifying
the Archdiocese of their intent to release some 1,760 pages of
material that were produced by the Archdiocese in discovery
as well as deposition transcripts. As was their right under the
protective order, the Archdiocese and nine individual priests
moved the bankruptcy court to prevent the release of the dis-
covery material. The parties entered into a new round of
negotiations regarding which sealed documents would be
made public. Fathers M and D were not part of these negotia-
tions. On May 24, 2007, counsel for the tort claimants
informed the bankruptcy court that the parties had agreed to
a resolution. As a result of this agreement, the Archdiocese
IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP 17911
released over 2,000 documents and posted them to a public
website. This resolution did not bind Appellee Claimants.
On September 28, 2007, the bankruptcy court closed the
Archdiocese’s Chapter 11 case, retaining jurisdiction over any
pending adversary proceedings. The conclusion of the Archdi-
ocese’s bankruptcy proceedings did not, however, resolve
whether there would be public disclosure of documents desig-
nated as confidential or filed under seal. As noted above,
Appellee Claimants were not bound by the May 24, 2007
mediation agreement, and they filed a motion to unseal the
punitive damage estimation memorandum and exhibits filed
as part of the successful negotiations to settle the tort claims.
Appellee Claimants also notified the Archdiocese that they
intended to release all personnel records from the clergy files
that were produced in discovery. The Archdiocese opposed
the Appellee Claimants’ motion to unseal the court documents
and also sought an order preventing the disclosure of the dis-
covery documents. A number of priests whose files stood to
be released, including Fathers M and D, filed similar motions.
After a hearing in which counsel for Fathers M and D par-
ticipated, the bankruptcy court ruled in favor of the Appellee
Claimants. The court first considered the personnel records
produced in discovery. Applying Rule 26(c),3 the court con-
3
Rule 26(c) of the Federal Rules of Civil Procedure provides, in perti-
nent part:
(c) Protective Orders.
(1) In General. A party or any person from whom discovery
is sought may move for a protective order in the court where
the action is pending—or as an alternative on matters relat-
ing to a deposition, in the court for the district where the
deposition will be taken. The motion must include a certifi-
cation that the movant has in good faith conferred or
attempted to confer with other affected parties in an effort to
resolve the dispute without court action. The court may, for
good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense, including one or more of the following:
(A) forbidding the disclosure or discovery . . . .
17912 IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP
cluded that the Archdiocese had not demonstrated “good
cause” sufficient to overcome the presumption of public
access to the names of and allegations against the accused
clergy, although there was good cause to redact the addresses,
social security numbers, financial information, and family
information of those priests. This ruling applied with equal
force to the personnel files of Fathers M and D. The bank-
ruptcy court also considered the Appellee Claimants’ motion
to make public certain deposition transcripts and attached
exhibits, and held that even if these documents were covered
by the protective order, no party had opposed the Appellee
Claimants’ motion or shown good cause to continue any pro-
tection. Accordingly, the court also permitted their release.
Second, the court considered whether 11 U.S.C. § 1074 pre-
cluded the release of attachments to the Appellee Claimants’
punitive damage estimation memorandum that had been filed
with the court. The priests argued that the personnel files
attached to the memorandum contained “scandalous” materi-
als, and thus qualified for the exception to disclosure in
§ 107(b). The bankruptcy court rejected this argument. It
defined the word “scandalous” to mean a document that “im-
properly casts a derogatory light on someone,” and deter-
mined that the Appellee Claimants were not using the
personnel files for an improper purpose. Therefore, it ordered
the release of these files.
4
11 U.S.C. § 107 provides, in pertinent part:
(a) Except as provided in subsections (b) and (c) and subject to
section 112, a paper filed in a case under this title and the dockets
of a bankruptcy court are public records and open to examination
by an entity at reasonable times without charge.
(b) On request of a party in interest, the bankruptcy court shall,
and on the bankruptcy court’s own motion, the bankruptcy court
may . . .
(2) protect a person with respect to scandalous or defamatory
matter contained in a paper filed in a case under this title.
IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP 17913
Fathers M and D appealed the bankruptcy court’s order to
the district court. The district court affirmed, and Fathers M
and D timely appealed. The bankruptcy court stayed the order
pending the outcome of this appeal.
We review the district court’s decision on appeal from a
bankruptcy court de novo, giving no “deference to the district
court’s determinations.” In re Mantz, 343 F.3d 1207, 1211
(9th Cir. 2003) (quoting Batlan v. TransAm. Commercial Fin.
Corp., 265 F.3d 959, 963 (9th Cir. 2001) (internal quotation
marks omitted).
II
We first consider the bankruptcy court’s ruling under Rule
26 of the Federal Rules of Civil Procedure allowing the
release of Fathers M and D’s personnel files, which were pro-
duced during discovery but not filed with the court.
A
“We review a lower court’s decision to grant, lift or modify
a protective order for abuse of discretion.” Phillips v. Gen.
Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002). A court
abuses its discretion when it fails to identify and apply “the
correct legal rule to the relief requested,” United States v.
Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc), or
if its application of the correct legal standard was “(1) ‘illogi-
cal,’ (2) ‘implausible,’ or (3) without ‘support in inferences
that may be drawn from the facts in the record,’ ” id. at 1262
(quoting Anderson v. City of Bessemer, 470 U.S. 564, 577
(1985)). We review the bankruptcy court’s findings of fact for
clear error and its conclusions of law de novo. In re Craig,
579 F.3d 1040, 1044 (9th Cir. 2009).
[1] As a general rule, the public is permitted “access to liti-
gation documents and information produced during discov-
ery.” Phillips, 307 F.3d at 1210; see also San Jose Mercury
17914 IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP
News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1103 (9th Cir.
1999) (“It is well-established that the fruits of pretrial discov-
ery are, in the absence of a court order to the contrary, pre-
sumptively public.”). Under Rule 26, however, “[t]he court
may, for good cause, issue an order to protect a party or per-
son from annoyance, embarrassment, oppression, or undue
burden or expense.” Fed. R. Civ. P. 26(c)(1). The party
opposing disclosure has the burden of proving “good cause,”
which requires a showing “that specific prejudice or harm will
result” if the protective order is not granted. Foltz v. State
Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130 (9th Cir.
2003).
While courts generally make a finding of good cause before
issuing a protective order, a court need not do so where (as
here) the parties stipulate to such an order. When the protec-
tive order “was a stipulated order and no party ha[s] made a
‘good cause’ showing,” then “the burden of proof . . .
remain[s] with the party seeking protection.” Phillips, 307
F.3d at 1211 n.1. If a party takes steps to release documents
subject to a stipulated order, the party opposing disclosure has
the burden of establishing that there is good cause to continue
the protection of the discovery material.
A court considering a motion for a continuation of the pro-
tective order must proceed in two steps. First, it must deter-
mine whether “particularized harm will result from disclosure
of information to the public.” Id. at 1211. As we have
explained, “[b]road 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) (quoting Cipollone v. Liggett
Group, Inc., 785 F.2d 1108, 1121 (3rd Cir.1986)) (internal
quotation marks omitted). Rather, the person seeking protec-
tion from disclosure must “allege specific prejudice or harm.”
See id. Second, if the court concludes that such harm will
result from disclosure of the discovery documents, then it
must proceed to balance “the public and private interests to
IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP 17915
decide whether [maintaining] a protective order is necessary.”
Phillips, 307 F.3d at 1211. We have directed courts doing this
balancing to consider the factors identified by the Third Cir-
cuit in Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483
(3d Cir. 1995).5 See Phillips, 307 F.3d at 1211.
But even when the factors in this two-part test weigh in
favor of protecting the discovery material (i.e., where the
court determines that disclosure of information may result in
“particularized harm,” and the private interest in protecting
the discovery material outweighs the public interest in disclo-
sure), a court must still consider whether redacting portions of
the discovery material will nevertheless allow disclosure.
Foltz, 331 F.3d at 1136-37. In Foltz, an insurer argued that
documents produced in discovery “contained confidential
information that would satisfy the ‘good cause’ standard of
Rule 26(c),” id. at 1131, such as “confidential financial infor-
mation, third-party medical records, personnel files, and trade
secrets,” id. at 1136. Based on our review of the record, we
concluded that “the limited number of third-party medical and
personnel records [could] be redacted easily to protect third-
party privacy interests while leaving other meaningful infor-
mation.” Id. at 1137.
[2] Accordingly, in determining whether to protect discov-
ery materials from disclosure under Rule 26(c), a court must
5
Those factors are:
(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 infor-
mation will cause a party embarrassment; (4) whether confidenti-
ality is being sought over information important to public health
and safety; (5) whether the sharing of information among liti-
gants 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.
Glenmede Trust, 56 F.3d at 483.
17916 IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP
not only consider whether the party seeking protection has
shown particularized harm, and whether the balance of public
and private interests weighs in favor, but also keep in mind
the possibility of redacting sensitive material.
B
In light of these principles, we now turn to Fathers M and
D’s argument that the bankruptcy court erred in rejecting their
motion under Rule 26(c) to protect their personnel files from
disclosure. The priests raise two different arguments: first,
that the bankruptcy court should have presumed that they had
good cause to protect their personnel files from disclosure,
because they were not sued and had not intervened; and sec-
ond, even if they were not relieved of the burden of proving
good cause, they had carried that burden, and the bankruptcy
court erred in concluding otherwise. We address their argu-
ments in turn.
1
We begin by considering Fathers M and D’s request that
we develop a new rule governing the disclosure of discovery
material containing confidential information about third par-
ties. First, the priests assert that the types of personnel files at
issue raise privacy concerns that are appropriately subject to
protective orders, particularly with respect to third parties. See
Foltz, 331 F.3d at 1130; Knoll v. AT&T, 176 F.3d 359 (6th
Cir. 1999) (upholding a protective order limiting plaintiffs’
access to the personnel files of non-party AT&T employees).
Given the likelihood that third parties may not be notified
when their confidential information is at risk of being dis-
closed by a defendant (such as an employer, hospital, or com-
puterized data management company), Fathers M and D
propose that we adopt a presumption of good cause to forbid
disclosure of third party records, which the party seeking dis-
closure would have to rebut. According to Fathers M and D,
the justification for such a rule is even stronger when modifi-
IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP 17917
cation is sought after a case has settled, by which point only
the non-parties whose private information is at risk have a
stake in the proceedings.
[3] Although this argument is not without merit, we
decline to adopt the priests’ proposed rule because it is not
consistent with the language of Rule 26(c)(1) or our prece-
dent. As noted above, Rule 26(c) provides that “[t]he court
may, for good cause, issue an order to protect a party or per-
son from annoyance, embarrassment, oppression, or undue
burden or expense” by, among other things, “forbidding the
disclosure” of discovery material. Fed. R. Civ. P. 26(c)(1).
We have consistently read this language against the back-
ground principle that material produced in pretrial discovery
is “presumptively public,” San Jose Mercury News, 187 F.3d
at 1103, and held that this presumption can be rebutted only
by a showing of good cause by the one seeking protection,
Phillip, 307 F.3d at 1210-11 (holding that the party or interve-
nor “seeking protection bears the burden of showing specific
prejudice or harm will result if no protective order is grant-
ed”). See Beckman, 966 F.2d at 475. Under Rule 26(c)(1), the
one seeking protection may be either a “party” or a “person.”
Fed. R. Civ. P. 26(c)(1). The plain meaning of the word “per-
son” would include third parties who are not part of the litiga-
tion. Thus, we cannot logically exclude third parties from our
rule that whoever is seeking protection under Rule 26(c) bears
the burden of showing good cause.
[4] Our reading is supported by the observation that the
drafters of the Federal Rules of Civil Procedure knew how to
vary from the general rule that discovery material is presump-
tively public when they wanted to. Thus, Rule 5.2 provides
that “[u]nless the court orders otherwise,” and subject to cer-
tain exemptions inapplicable to third parties, an “electronic or
paper filing with the court” may include only “(1) the last four
digits of [a person’s] social-security number and taxpayer-
identification number; (2) the year of the individual’s birth;
(3) [a] minor’s initials; and (4) the last four digits of the
17918 IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP
financial-account number.” Fed. R. Civ. P. 5.2(a). While Rule
5.2 makes certain types of confidential information presump-
tively confidential, nothing in Rule 26(c), or any other rule,
suggests a similar intent by the drafters to presume confidenti-
ality of all sensitive information about third parties. Thus, we
decline to fashion such a rule.
2
We now turn to Fathers M and D’s second argument, that
the bankruptcy court erred in concluding that there was not
good cause to protect their personnel files from disclosure. As
noted above, the good cause analysis proceeds in three steps.
[5] First, a bankruptcy court must consider the evidence of
particularized harm resulting from disclosure. The priests sub-
mitted the following evidence of the “specific prejudice or
harm” that will result if their personnel files are disclosed.
Father M stated that no claims were made against him in the
bankruptcy proceeding, but if his name “is associated with the
Archdiocese bankruptcy proceeding and settlements in any
way, people will assume [he] was guilty of wrongdoing.”
Because of the seriousness of the allegations, and because
people will not “move forward and regain their trust” in the
priests involved in the matter, Father M concluded that “if my
name is released in connection with this case[,] I honestly
think my career and life will be ruined.”
In a June 2008 declaration, Father D stated that he was cur-
rently 85 years old, and had retired in August 1989 due to
severe depression. Further, he stated that “[n]o person has
ever filed a claim of sexual abuse against me or demanded
any settlement from the Archdiocese as a result of something
I allegedly did or did not do.” And he made clear that as a
retiree, he did not want the “public attention and humiliation”
that would result from being associated with the Archdiocese
child sex abuse settlements. Father D concluded that publica-
tion of his name “would ruin my reputation amongst my
IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP 17919
friends, family and community,” and “cause me to lose my
residence where, as a retired priest, I can live the remainder
of my life.” Finally, he stated that “I fear the stress caused
from being associated with this matter would be extremely
detrimental to my health.”
[6] The bankruptcy court here did not directly address
whether Fathers M and D had shown a particularized harm
resulting from disclosure. We may, however, infer that it
implicitly determined that the priests did carry their burden of
showing such a harm, because otherwise it would not have
proceeded to balance private and public interests. See Phillips,
307 F.3d at 1211. In any event, given the priests’ declarations
regarding the harm they would experience should their names
be associated with the Archdiocese bankruptcy and settle-
ment, including public humiliation, loss of career (in the case
of Father M), and possible eviction from a retirement home
(in the case of Father D), a finding that these priests did not
show particularized harm would have been “illogical, implau-
sible, or without support in inferences that may be drawn
from the facts in the record.” Hinkson, 585 F.3d at 1263.
[7] Accordingly, we proceed to the second step, namely,
whether the balance of public and private interests weighed in
favor of the priests’ interest in confidentiality. Here, the bank-
ruptcy court concluded that Fathers M and D’s “desire to be
protected from scandal does not demonstrate a clearly defined
and serious injury outweighing the public interest necessary
to establish good cause.” The bankruptcy court reasoned that
although no claims of misconduct had been filed against the
priests in the bankruptcy case, the personnel files established
that “there were credible allegations of abuse made.” Accord-
ing to the court, allegations against Father M had been
brought to the attention of the district attorney, who did not
prosecute because the statute of limitations had run. Further,
the court noted that allegations had been made against Father
M in a newspaper article posted on a public website. Turning
to Father D, the court noted that he had admitted misconduct
17920 IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP
to the Archbishop, and that his name appeared on the exhibit
list for the Archbishop’s deposition, which had been posted
on a public website.
[8] While the bankruptcy court did not expressly identify
the public and private interests, we infer that it concluded that
the private interest was small, given that Fathers M and D’s
names had both been publicly disclosed, and that the public
interest was large due to the credibility of the allegations of
misconduct. The Appellee Claimants provide additional argu-
ments regarding the public interest in disclosure of Fathers M
and D’s personnel files. Specifically, they argue that the pub-
lic has an interest in identifying sexual abusers of children,
particularly those occupying positions of power and trust;
public safety; giving other victims comfort from knowing
they are not alone; and exposing church officials’ knowledge
of the rampant abuse.
[9] Thus, we must now consider whether the bankruptcy
court abused its discretion in determining that the balance
between public and private interests weighed in favor of dis-
closure. We first note that the mere allegation of misconduct
in the discovery documents filed in this case, without more,
does not create a public interest sufficiently large to outweigh
the priests’ private interests in confidentiality. There has been
no judicial determination regarding the truth of the allegations
against Fathers M and D, and neither priest has been given an
opportunity to put on evidence, provide argument, or other-
wise litigate the allegations either in the bankruptcy court or
elsewhere. Second, given the nature of the allegations, the pri-
vate interest in confidentiality is significant, and it is not evis-
cerated by a small number of public disclosures of a third
party’s name. Indeed, we recently held that even after accu-
rate confidential information has been disclosed in national
newspapers, the subjects of such leaked confidential data
retained their interests in preventing further disclosures. See
United States v. Comprehensive Drug Testing, Inc., 621 F.3d
1162, 1174 (9th Cir. 2010) (en banc) (holding that the court
IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP 17921
did not abuse its discretion in concluding that “equitable con-
siderations” required sequestration and the return of copies of
illegally seized evidence, even though some professional
baseball players’ positive drug tests had already been reported
in the New York Times and other newspapers).
[10] The public does, however, have a weighty interest in
public safety and in knowing who might sexually abuse chil-
dren. See New York v. Ferber, 458 U.S. 747, 756-63 (1982)
(recognizing the government’s compelling interest in “safe-
guarding the physical and psychological well-being” of chil-
dren, such as by preventing sexual abuse). Although the
bankruptcy court did not mention this reason, we may affirm
on any ground supported by the record, even if not relied
upon by the bankruptcy court or district court. See Tanaka v.
Univ. of S. Cal., 252 F.3d 1059, 1062 (9th Cir. 2001). The
record reflects that Father M is not retired but continues to
work as a priest in his community, where his clerical duties
may bring him into contact with children. In light of this evi-
dence, we cannot say the bankruptcy court’s conclusion as to
Father M is “illogical, implausible, or without support in . . .
the record.” Hinkson, 585 F.3d at 1263.
This public safety concern is not applicable to Father D,
however. Father D has been retired for many years, and noth-
ing in the record indicates that he continues working in the
community. Nor is it clear that the other public interests iden-
tified by the Appellee Claimants, namely comforting victims
of abuse and exposing church officials, outweigh Fathers D’s
privacy interests.
[11] But even assuming that they do, we must still consider
the third step in the good cause analysis, the question of
redaction. Fathers M and D argue that redacting their identify-
ing information, as we did in Foltz, would not undermine the
interests identified by Appellee Claimants. We agree as to
Father D: victims can know that they are not alone, and
church officials’ complicity in the abuse can be revealed,
17922 IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP
without disclosing the names of accused priests. By contrast,
the public safety concern discussed above cannot be satisfied
if Father M’s name is redacted. We therefore hold that the
bankruptcy court abused its discretion in declining to redact
Father D’s name from the personnel files, but we uphold the
court’s decision as to Father M.
III
[12] We now turn to Fathers M and D’s argument that the
bankruptcy court erred in unsealing the punitive damage esti-
mation memorandum and the attached documents concerning
Fathers M and D that were filed in bankruptcy court.6 The
determination as to whether to release documents filed with
the court is governed by 11 U.S.C. § 107(a), which establishes
a general right of public access to bankruptcy filings. It states
broadly that “a paper filed in a case under this title and the
dockets of a bankruptcy court are public records.” 11 U.S.C.
§ 107(a). This general rule is subject to exceptions, however,
including the one invoked by Fathers M and D here: “On
request of a party in interest, the bankruptcy court shall . . .
protect a person with respect to scandalous or defamatory
matter contained in a paper filed in a case under this title.” 11
U.S.C. § 107(b)(2).
For its part, the bankruptcy court held that the documents
attached to the tort claimants’ punitive damage estimation
6
The Appellee Claimants argue that Fathers M and D waived the issue
of the bankruptcy court’s application of § 107 by failing to raise it before
the district court. In the bankruptcy context, we may entertain arguments
not raised before the district court “when the issue is one of law and either
does not depend on the factual record, or the record has been fully devel-
oped.” In re Am. W. Airlines, Inc., 217 F.3d 1161, 1165 (9th Cir. 2000)
(considering an issue of statutory construction raised in the bankruptcy but
not the district court). Because Fathers M and D’s “argument is a matter
of statutory construction,” the record “has been fully developed,” and
Appellee Claimants were able to brief the issue (and thus, will suffer no
prejudice), we exercise our discretion to address it. Id.
IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP 17923
memorandum were not “scandalous” matter for purposes of
§ 107(b),7 and therefore did not constitute an exception to the
general right of public access established by § 107(a). Relying
on two out-of-circuit cases, In re Gitto Global Corp., 422
F.3d 1 (1st Cir. 2005), and In re Neal, 461 F.3d 1048 (8th Cir.
2006), the court held that materials were “scandalous” if they
were likely to cause a reasonable person to alter his or her
opinion of the priests, and were either “untrue” or “potentially
untrue and irrelevant or included within a bankruptcy filing
for an improper end.”Fathers M and D argue that the bank-
ruptcy court erred in construing the word “scandalous” in this
manner, and thus erred in ruling that the § 107(b) exception
was inapplicable to them. We review the bankruptcy court’s
interpretation of a statute de novo. In re Cellular 101, Inc.,
377 F.3d 1092, 1095 (9th Cir. 2004).
A
Before we address Fathers M and D’s argument based on
their interpretation of the statutory language of § 107(b), we
must address the parties’ arguments as to whether the statute
supplants the common law right of public access to judicial
documents. At common law, there is a “strong presumption in
favor of access” to information filed with a court. Kamakana
v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir.
2006) (quoting Foltz, 331 F.3d at 1135) (internal quotation
marks omitted). To overcome the presumption, a party seek-
ing to seal a judicial record must demonstrate not just “good
cause,” but “compelling reasons,” Foltz, 331 F.3d at 1135-36,
or “sufficiently important countervailing interests,” Phillips,
307 F.3d at 1212. Generally speaking, compelling reasons
exist when court records “might have become a vehicle for
improper purposes,” such as to gratify private spite, promote
public scandal, commit libel, or release trade secrets. Nixon v.
Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978).
7
On appeal, Fathers M and D do not claim that the material is defama-
tory, so we do not consider that exception.
17924 IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP
There is, however, a narrow exception to the presumption
in favor of access for documents that were (1) subject to a
protective order issued by a court pursuant to a finding of
good cause, and (2) attached to non-dispositive motions. Phil-
lips, 307 F.3d at 1213. In such a case, the burden is on the
party seeking disclosure to “present sufficiently compelling
reasons why the sealed discovery document should be
released.”8 Id. We have not yet ruled on whether discovery
documents subject to a stipulated protective order and
attached to a non-dispositive motion, as in this case, fall
within this exception.
[13] We need not address this novel issue, however,
because we conclude that this common law right is not appli-
cable here. Although § 107(a) addresses the same public
access right as the common law, our comparison of common
law principles with the statute leads us to conclude that § 107
displaces the common law right of access in the bankruptcy
context. A statutory provision abrogates a well-established
common law rule if it “speak[s] directly to the question
addressed by the common law,” United States v. Texas, 507
U.S. 529, 534 (1993) (internal quotation marks omitted), and
indicates a statutory purpose not to apply the common law,
see id. (“[C]ourts may take it as a given that Congress has leg-
islated with an expectation that the [common law] principle
will apply except when a statutory purpose to the contrary is
evident.” (quoting Astoria Fed. Sav. & Loan Ass’n v.
Solimino, 501 U.S. 104, 108 (1991) (internal quotation marks
omitted)). A “statutory purpose to the contrary is evident”
when there is a divergence between the statute’s direction and
the common law. Thus, for example, in In re Hanford
Nuclear Reservation Litigation, we held that a statute com-
pensating victims of nuclear incidents and indemnifying con-
8
For all other documents (i.e., those attached to “dispositive pleadings,
including motions for summary judgment and related attachments”), the
“strong presumption of access to judicial records applies fully.” Kama-
kana, 447 F.3d at 1179.
IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP 17925
tractors was contrary to, and therefore abrogated, the common
law “government contractor defense,” which exempted con-
tractors from liability for design defects in military equipment
only under limited circumstances. 534 F.3d 986, 1000-02 (9th
Cir. 2008).
We perceive such a divergence between § 107 and the com-
mon law. The statute speaks directly to, and diverges from,
the common law right of judicial access. First, the common
law rule distinguishes between dispositive and non-dispositive
motions, while § 107 covers all papers filed in a bankruptcy
case. Second, the common law rule gives courts the discretion
to create exceptions to the general rule of disclosure to the
public. See, e.g., Times Mirror Co. v. United States, 873 F.2d
1210, 1218-19 (9th Cir. 1989) (extending exceptions to com-
mon law right of access to search warrant materials, at least
while pre-indictment investigation is ongoing). By contrast,
§ 107 has only three exceptions: confidential business infor-
mation, 11 U.S.C. § 107(b)(1), “scandalous or defamatory
matter,” id. § 107(b)(2), and “means of identification,” id.
§ 107(c)(1)(A). Third, the common law rule gives courts dis-
cretion to determine whether to protect or disclose documents,
while § 107 eliminates a court’s discretion by making it man-
datory for a court to protect documents falling into one of the
enumerated exceptions. See 11 U.S.C. § 107(b) (specifying
that “the bankruptcy court shall” provide specified protections
on “request of a party in interest” (emphasis added)). Because
§ 107(b) imposes this mandatory requirement, it eliminates
the balancing of public and private interests required by the
common law rule if a document is scandalous or defamatory.
Under § 107, the strength of the public’s interest in a particu-
lar judicial record is irrelevant; if the exception pertains, the
bankruptcy court must issue a protective order on a motion by
the affected person or party.
[14] Because § 107 speaks directly to and conflicts with
significant aspects of the common law right of access, we join
our sister circuits in holding that § 107 preempts the common
17926 IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP
law right of access in bankruptcy proceedings. See Gitto
Global, 422 F.3d at 7-8 (“Because § 107 speaks directly to the
question of public access . . . it supplants the common law for
purposes of determining public access to papers filed in a
bankruptcy case.”); In re Neal, 461 F.3d at 1053. Therefore,
we conclude that the bankruptcy court correctly held that
§ 107 supplanted the common law right of access in bank-
ruptcy proceedings.
B
In light of this conclusion, we must now determine whether
the bankruptcy court was correct in holding that to invoke the
“scandalous” exception to public disclosure in § 107(b), the
priests had to show “not only that the materials are likely to
cause a reasonable person to alter his or her opinion of the
person who is the subject of the materials, but also that they
contain material that is either untrue, or potentially untrue and
either irrelevant or included in the record for improper pur-
poses.” Because this rule is based primarily on Gitto Global
and Neal, we begin with those cases.
In Gitto Global, a court-appointed examiner submitted,
under seal, an investigative report of fraud by the debtor cor-
poration and corporate officers. 422 F.3d at 5. In response,
certain officers claimed that the report was defamatory, and
invoked § 107(b) in order to keep the report under seal. Id.
After determining that § 107 abrogated the common law, and
did not merely trigger common law analysis of when the pub-
lic was entitled to public disclosure, Gitto Global concluded
that it was “left to the courts to determine the specific con-
tours of the exception” for defamatory material. (The parties
did not raise the “scandalous” materials exceptions.) Id. at 11.
In determining these contours, Gitto Global developed the
following test: “to implicate § 107(b)(2) in the context of
potentially untrue material, the information would also have
to be [(1)] irrelevant [or (2)] included for improper ends.” Id.
at 14.
IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP 17927
The Gitto Global court derived this test from a number of
different sources. It created the “potentially untrue” prong by
rejecting as unworkable a test adopted by the bankruptcy
court below, whereby the party seeking non-disclosure had to
prove the allegedly defamatory material was in fact untrue. Id.
at 11. Gitto Global adopted the “irrelevant” prong from bank-
ruptcy court decisions that had considered the relevance and
purpose of material in determining whether the § 107(b)
exception applies. Id. at 12-13 (citing In re Commodore
Corp., 70 B.R. 543 (Bankr. N.D. Ind. 1987); In re Cont’l Air-
lines, 150 B.R. 334 (D. Del. 1993)). Finally, it adopted the
“improper ends” prong from another bankruptcy case, In re
Phar-Mor, Inc., 191 B.R. 675, 678-80 (Bankr. N.D. Ohio
1995), which in turn had borrowed this test from Rule 12(f)
of the Federal Rules of Civil Procedure.9 As explained in
Gitto Global, because § 107(b) and Rule 12(f) draw from
common historical roots and premises, that is, the protection
of parties from the improper use of judicial filings to broad-
cast scandalous or defamatory material, § 107(b) is applicable
only when a filing is made for an improper purpose. 422 F.3d
at 11.
Although Gitto Global focused only on the “defamatory”
exception in § 107(b), Neal relied on it in defining the “scan-
dalous” exception. Thus, Neal held that to determine whether
the exception applies, a court should consider whether “ ‘a
reasonable person could alter their [sic] opinion’ ” of the per-
son moving for non-disclosure, 461 F.3d at 1054 (quoting In
re Phar-Mor, 191 B.R. at 679), and whether the statements
were “filed for an improper purpose, such as to gratify public
spite or promote public scandal,” id. (citing Nixon, 435 U.S.
at 598).
We are not persuaded by either case. Because we have con-
cluded that § 107 displaced the common law right of access
9
Rule 12(f) provides that “the court may strike from any pleading any
. . . redundant, immaterial, impertinent, or scandalous matter.”
17928 IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP
to judicial records, and agree that a party’s invocation of the
exception in § 107(b) does not trigger the common law analy-
sis, there is no basis for incorporating common law concepts
derived from Nixon (as Neal did) or the historical roots and
premises underlying equity rules (as in Gitto Global). Nor is
there anything in § 107 or its legislative history suggesting
that Congress intended to interpret the word “scandalous” in
§ 107(b) in the same manner as courts have interpreted “scan-
dalous” in Rule 12(f), or to adopt any special common law or
historical interpretation of the word.10
[15] Instead of relying on the interpretative aids adopted in
Gitto Global and Neal, we must apply our standard tools of
statutory analysis. And “[a]s with any statutory interpretation,
we start with the plain meaning of the statute’s text.” United
States v. Wright, 625 F.3d 583, 591 (9th Cir. 2010) (internal
quotation marks omitted). As the Supreme Court has
reminded us, “courts must presume that a legislature says in
a statute what it means and means in a statute what it says
there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54
(1992). The statute does not define “scandalous,” so we turn
to its ordinary, dictionary meaning. See Transwestern Pipe-
line Co. v. 17.19 Acres of Property Located in Maricopa
Cnty., 627 F.3d 1268, 1270 (9th Cir. 2010). The Oxford
English Dictionary defines “scandalous” as, among other
things, “bringing discredit on one’s class or position” or
“grossly disgraceful.” Oxford English Dictionary 575 (2d ed.
2001). Other dictionaries offer similar definitions. See, e.g.,
Webster’s New World College Dictionary 1279 (4th ed.
2005) (“offensive to a sense of decency or shocking to the
moral feelings of the community; shameful”). Under ordinary
usage, then, matter is “scandalous” if it disgraceful, offensive,
10
As one commentator has noted, § 107’s legislative history does “little
more than parrot the language of the statute.” William T. Bodoh &
Michelle M. Morgan, Protective Orders in the Bankruptcy Court: The
Congressional Mandate of Bankruptcy Code Section 107 and Its Constitu-
tional Implications, 24 Hastings Const. L.Q. 67, 76 n.47 (Fall 1996).
IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP 17929
shameful and the like. There is no requirement that the mate-
rial be either “untrue” or “potentially untrue” or that it be
irrelevant or included within a court filing for “an improper
end.” Because the statute is unambiguous, and does not
include the glosses provided by Gitto Global and Neal, our
interpretative inquiry is at an end. See Germain, 503 U.S. at
254 (“When the words of a statute are unambiguous, then . . .
judicial inquiry is complete.” (internal quotation marks omit-
ted)). We therefore hold that the party seeking non-disclosure
must establish only that the matter is scandalous as that word
is commonly understood.
[16] Under the common usage of the word, allegations that
a priest has sexually abused children are most assuredly
“scandalous” because they bring discredit onto the alleged
perpetrators. In light of the mandatory language of § 107(b),
the bankruptcy court erred in not granting Fathers M and D’s
motion to strike the punitive damage estimation memorandum
and its attachments.
C
[17] Fathers M and D also invoke Rule 26(c) and § 107(b)
in requesting redaction of identifying information contained
in the deposition transcripts and exhibits.11 Our ruling here
applies equally to the deposition transcripts, so that the names
of Fathers M and D should be redacted from the depositions
filed with the bankruptcy court, and Father D’s name (but not
Father M’s name) should be redacted from the depositions
that were not so filed.
IV
Rule 26(c) and § 107(b), as we have interpreted them,
11
Although Appellee Claimants contend that the priests have waived
this argument, we may reach this issue for the reasons explained above,
supra note 6.
17930 IN THE MATTER OF ROMAN CATHOLIC ARCHBISHOP
require courts to use care in determining when documents
containing sensitive information affecting a person’s privacy
interests can be made public over that person’s objections. A
court must implement the procedure for making such a deter-
mination even more carefully when the person objecting to
the disclosure was not a party to the proceeding and had lim-
ited notice (and, thus, little or no ability to negotiate privacy
issues or to challenge the damaging information). Although
the public’s right of access to documents produced in litiga-
tion is long established and has been given great weight from
the time of the equity courts in England, courts have likewise
given serious consideration to privacy interests of those
involved.
[18] In sum, we affirm the bankruptcy court’s ruling as to
the release of discovery documents disclosing Father M’s
name under Rule 26(c), because the public’s serious safety
concerns cannot be addressed if Father M’s name is redacted.
But because the record does not reflect the existence of any
similar significant public interest that requires the disclosure
of Father D’s name, we hold that Father D’s name must be
redacted from any discovery documents that are released.
Finally, because of the mandatory duty to keep scandalous
material confidential at the request of a party under § 107(b),
we reverse the court’s decision to release the punitive dam-
ages memorandum and attached documents.12
AFFIRMED in part and REVERSED in part.
12
Each party shall bear its own costs on appeal.