[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 28, 2001
No. 00-15133 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 98-00069-CV-2
CHICAGO TRIBUNE COMPANY,
THE WASHINGTON POST COMPANY,
CBS BROADCASTING, INC.,
LOS ANGELES TIME COMMUNICATIONS, LLC,
d.b.a. Los Angeles Times,
Intervenors-Plaintiffs-Appellees,
versus
BRIDGESTONE/FIRESTONE, INC.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(August 28, 2001)
Before BLACK, RONEY and COX, Circuit Judges.
PER CURIAM:
This is an appeal of the district court’s order unsealing documents previously
filed pursuant to a protective order entered by stipulation of the parties. See FED. R.
CIV. P. 26(c)(7). We vacate and remand with instructions for the district court to
determine whether “good cause” exists for maintaining the documents under seal.
I. BACKGROUND
Daniel Van Etten, an eighteen-year old football player from West Virginia
University, died as a result of injuries sustained in a roll-over automobile accident.
In April of 1998, his parents filed suit in the Southern District of Georgia, claiming
that Bridgestone/Firestone, Inc.’s negligent design and manufacture of the tires on
Daniel’s Ford Explorer were the proximate cause of his death.1 At the beginning of
the litigation, in what has become commonplace in the federal courts, the parties
stipulated to a protective order allowing each other to designate particular documents
as confidential and subject to protection under Federal Rule of Civil Procedure
26(c)(7). See FED. R. CIV. P. 26(c)(7). This method replaces the need to litigate the claim
to protection document by document, and postpones the necessary showing of “good
cause” required for entry of a protective order until the confidential designation is
challenged. See In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir.
1
The Van Etten’s suit also named the Ford Motor Company as a defendant.
Neither Ford nor the Van Ettens are parties to this appeal.
2
1987) (discussing operation and efficacy of umbrella protective orders). As the
district court noted, this allowed Bridgestone/Firestone, Inc. (Firestone) to temporarily
enjoy the protection of Rule 26(c), making Firestone’s documents presumptively
confidential until challenged.2
Consistent with local rule, documents produced pursuant to discovery requests
were not filed with the court. See S.D. GA. LR. 26.6. The protective order required
the parties filing confidential material with the court in connection with a pleading or
motion to place the documents in a sealed, marked envelope. The documents were to
be used only for preparation and conduct of the action, and only counsel, their
paralegals and technical consultants, as well as the court and its staff, were privy to
the content of any confidential document. Of the nearly three hundred documents
filed in the action, fifteen were placed under seal.
Following discovery, Firestone moved for summary judgment. The district
court denied the motion, and shortly thereafter the parties settled. In accordance with
the terms of the protective order, the confidential documents remained sealed.
2
See MANUAL FOR COMPLEX LITIGATION (Third) § 21.432 (1995) (noting that
“[u]mbrella orders provide that all assertedly confidential material disclosed . . . is presumptively
protected unless challenged. The orders are made without a particularized showing to support
the claim for protection, but such a showing must be made whenever a claim under an order is
challenged.”).
3
In the months following settlement, media scrutiny of tire tread separation
accidents intensified, and members of the media, now appellees3 (collectively, “the
Press”), sought leave to intervene4 for the purpose of unsealing Firestone’s documents.
Firestone agreed to unseal some of the material, but objected to disclosure of nine
documents and ten pages excerpted from legal briefs, claiming that these particular
items contain trade secrets.5 In support of this claim, Firestone appended a privilege
3
Appellees are: the Chicago Tribune Company; the Washington Post Company;
CBS Broadcasting, Inc.; and Los Angeles Times Communications, L.L.C.
4
The Florida Attorney General also filed motions to intervene and to unseal the
records, but the district court ultimately dismissed these motions as moot. See Van Etten v.
Bridgestone/Firestone, Inc., 117 F. Supp.2d 1375, 1384 (S.D. Ga. 2000). The Florida Attorney
General is not a party to this appeal.
5
The following is a list of the documents which remain sealed and are the subject
of this appeal. Parenthetical references reflect district court docket numbers.
(1) Exhibits G, H, I, and J attached to the Van Ettens’ motion to compel discovery,
filed October 19, 1998 (42,50,53);
(2) Pages 4 and 5 of the Van Ettens’ motion to compel discovery, filed May 3, 1999
(110), as well as pages 1 and 2 of the Van Ettens’ motion to compel discovery,
filed August 18, 1999 (224);
(3) The March 31, 1999 and April 1, 1999 depositions of David Eugene Kalamajka,
Firestone’s in-house expert and Kaizen (or “continuous improvements”)
supervisor, as well exhibits 1, 2, 4 and 5 to those depositions, submitted by the
Van Ettens’ in support of their response to Firestone’s motion for summary
judgment;
(4) Pages 2 and 5 of the Van Ettens’ response to Firestone’s motion for summary
judgment on the issues of punitive damages and seat belt safety, filed on June 2,
1999 (149); and
(5) Page 14, pages 17-19, and attached exhibit number 14 of the Van Ettens’ response
to Firestone’s motion for summary judgment on the issue of tire
defect/negligence, filed on June 2, 1999 (156,156B).
(R30-319-2; R31-325).
4
log and the affidavit of John Goudie, the Senior Product Engineer in Firestone’s
Product Analysis Department.
The district court granted the Press’s motion to intervene as well as its
consolidated motion to unseal the remaining documents, determining that the Goudie
affidavit was too general and conclusory to carry Firestone’s burden of showing “that
the closure of the records filed with this Court is necessitated by a compelling interest
and that the closure is narrowly tailored to that compelling interest.” (R.31-326-16).
Accordingly, the district court ordered the documents unsealed, but, granting in part
Firestone’s motion to stay disclosure pending appeal, delayed the unsealing. We
granted Firestone’s emergency motion for a stay pending Firestone’s appeal.
II. ISSUE ON APPEAL
The only issue in this appeal is whether the district court abused its discretion
by granting the Press’s motion to open Firestone’s sealed documents.
III. STANDARD OF REVIEW
We review a district court’s denial of a protective order for an abuse of
discretion. McCarthy v. Barnett Bank of Polk County, 876 F.2d 89, 91 (11th Cir.
1989). A district court abuses its discretion if it applies an incorrect legal standard,
follows improper procedures in making the determination, or makes findings of fact
5
that are clearly erroneous. Mincey v. Head, 206 F.3d 1106, 1137 n.69 (11th Cir.
2000).
IV. DISCUSSION
Firestone’s main contention is that the district court applied the wrong standard
when it required Firestone to show that sealing the documents is necessitated by a
compelling governmental interest and is narrowly tailored to that interest. Firestone
argues for application of Rule 26's “good cause” standard, which balances the asserted
right of access against the other party’s interest in keeping the information
confidential. See In re Alexander Grant & Co., 820 F.2d at 355-56.
The Press argues that two sources supply a right of access to Firestone’s
documents, both requiring application of the standard used by the district court. The
Press first relies on the common-law right to inspect and copy judicial records, a right
grounded in the democratic process, as “[t]he operations of the courts and the judicial
conduct of judges are matters of utmost public concern.” Landmark Comm. v.
Virginia, 435 U.S. 829, 839, 98 S. Ct. 1535, 1541 (1978). The Press argues that in
cases concerning health and safety or where there is a particularly strong public
interest in court records, the common-law right of access is measured by the
compelling interest standard. See Wilson v. Am. Motors Corp., 759 F.2d 1568, 1571
(11th Cir. 1985); Brown v. Adv. Eng’g, Inc., 960 F.2d 1013, 1015-16 (11th Cir. 1992).
6
Additionally, the Press contends that there is a First Amendment right of access
to court records and documents in civil cases. The Press cites Newman v. Graddick,
696 F.2d 796, 809 (11th Cir. 1983) for the proposition that the compelling interest
standard applies to civil as well as criminal proceedings. Accordingly, the Press
argues that whether the right of access is grounded in the common-law or the
Constitution, the compelling interest standard applies.
Because the parties’ arguments concern three different bases for disclosure of
the sealed documents, it is necessary for us to limn the bounds of the common-law
right of access, the constitutional right of access, and Federal Rule of Civil Procedure
26(c). We consider first the constitutional right of access.
A. Constitutional Right of Access
The media and general public’s First Amendment right of access to criminal
trial proceedings has been firmly established since the Supreme Court’s opinion in
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814 (1980). See
Globe Newspaper Co. v. Superior Court of County of Norfolk, 457 U.S. 596, 603, 102
S. Ct. 2613, 2618 (1982). For a court to exclude the press and public from a criminal
proceeding, “it must be shown that the denial is necessitated by a compelling
governmental interest, and is narrowly tailored to serve that interest.” Id. at 607, 102
S. Ct. at 2620.
7
The constitutional right of access has a more limited application in the civil
context than it does in the criminal. Newman, 696 F.2d at 800-01. Nonetheless, this
court has extended the scope of the constitutional right of access to include civil
actions pertaining to the release or incarceration of prisoners and their confinement.
Id. at 801. Materials merely gathered as a result of the civil discovery process,
however, do not fall within the scope of the constitutional right of access’s compelling
interest standard.6 In re Alexander Grant & Co., 820 F.2d at 355.
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. (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
6
As the Supreme Court has noted, “[discovery materials and proceedings] are not
public components of a civil trial. Such proceedings were not open to the public at common law,
and, in general, they are conducted in private as a matter of modern practice. Much of the
information that surfaces during pretrial discovery may be unrelated, or only tangentially related,
to the underlying cause of action. Therefore, restraints placed on discovered, but not yet
admitted, information are not a restriction on a traditionally public source of information.”
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 104 S. Ct. 2199, 2207-08. (1984) (citations
omitted); see also Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the
Courts, 105 HARV. L. REV. 427, 487 (1991) (describing access to information produced by
litigation as secondary benefit of, and necessarily subservient to, the judicial system’s central
concern of resolving disputes between litigants).
8
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.
The district court required Firestone to meet a compelling interest standard. To
the extent this was predicated on a constitutional right of access, it was error. All of
the documents were produced during the discovery phase of the litigation, and the
protective order did not restrict the dissemination of information gained from other
sources. See Seattle Times, 467 U.S. at 37, 104 S. Ct. at 2210. As we later discuss
more fully, the adequacy of Firestone’s good cause showing remains to be determined
upon remand; because the Rule 26 standard is identical, the resolution of that issue
will necessarily decide the Press’s constitutional right of access claim.
B. Common-Law Right of Access
The 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. See Richmond Newspapers, 448 U.S. at 564-74, 100 S. Ct. at 2821-26
(providing panegyric on the value of openness). Beyond establishing a general
presumption that criminal and civil actions should be conducted publicly, the
common-law right of access includes the right to inspect and copy public records and
documents. Nixon v. Warner Comm., Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 1312
9
(1978). The right to inspect and copy is not absolute, however, id., and a judge’s
exercise of discretion in deciding whether to release judicial records should be
informed by a “sensitive appreciation of the circumstances that led to . . . [the]
production [of the particular document in question].” Id. at 598, 602-03, 98 S. Ct. at
1312, 1314-15. Not unlike the Rule 26 standard, the common-law right of access
requires a balancing of competing interests. See Newman, 696 F.2d at 803.
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.7 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. McCarthy, 876 F.2d at 91.
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
7
See, e.g., United States v. Amodeo, 71 F.3d 1044, 1048-49 (2nd Cir. 1995)
(describing continuum defining weight of presumption of access with regard to report filed with
the court); Leucadia v. Applied Extrusion Techs., Inc., 998 F.2d 157, 165 (3d Cir. 1993)
(refusing to grant access to material filed with discovery motions); Poliquin v. Garden Way, Inc.,
989 F.2d 527, 532-33 (1st Cir. 1993) (allowing access to documents and testimony introduced at
trial); Littlejohn v. BIC Corp., 851 F.2d 673, 678-680 (3d Cir. 1988) (granting access to evidence
introduced at trial).
10
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.” Wilson, 759 F.2d at
1571 (citation omitted); see also Brown, 960 F.2d at 1015-16. This heightened
scrutiny is necessitated by the fact that entire civil cases otherwise open to the public
are erased as if they never occurred. An example of this unusual circumstance is
provided by Wilson, where the entire record, including “pleadings, docket entries,
orders, affidavits . . . depositions . . . and transcripts or court reporter’s notes of
hearings or trial proceedings,” were all sealed by the court following settlement
without regard to the fact that the trial had been an open public proceeding and the
trial transcript had been part of the public record. Wilson, 759 F.2d at 1569, 1571.
Wilson and the similar case of Brown v. Advantage Engineering, Inc., 960 F.2d
1013 (11th Cir. 1992) outline the narrow circumstances within which heightened
scrutiny is the appropriate measure for the common-law right of access.8 Because the
facts of this case are easily distinguishable from Wilson and Brown, the district court’s
8
It has been suggested that the holdings of Wilson v. Am. Motors Corp., 759 F.2d
1568, 1571 (11th Cir. 1985) and Brown v. Adv. Eng’g, Inc., 960 F.2d 1013, 1015-16 (11th Cir.
1992) are inconsistent with prior precedent. See In re Four Search Warrants, 945 F. Supp. 1563,
1566-67 n.4 (N.D. Ga. 1996) (discussing inconsistencies between and Wilson and Newman v.
Graddick, 696 F.2d 796, 809 (11th Cir. 1983)). Because we determine that Wilson and Brown
are inapplicable to this case, we do not reach this issue.
11
application of the compelling interest standard, to the extent that it was predicated on
the heightened scrutiny line of common-law right of access cases, was error. The
common-law right of access standard as it applies to particular documents requires the
court to balance the competing interests of the parties. See Newman, 696 F.2d at 803.
We turn now to an examination of the documents at issue, and the context of the
proceeding in which they were submitted to the court.
The Firestone documents were produced during discovery, but all of them were
also filed with the court, under seal, in connection with pre-trial motions. Some of the
documents were submitted to support motions to compel discovery; others were
submitted to support summary judgment motions.9 Significantly, all the documents
were submitted under seal, and all were submitted by the Van Ettens: Firestone did
not submit the documents for judicial consideration.
The Press contends, and the district court agreed, that because the documents
were filed with the court they are judicial records and therefore subject to the
common-law right of access. Such an approach does not distinguish between material
filed with discovery motions and material filed in connection with more substantive
motions.10 We think a more refined approach is called for, one that accounts both for
9
See supra note 5.
10
We note that absent a contrary court order or local rule, the default rule under the
Federal Rules of Civil Procedure is that discovery materials must be filed with the district court.
12
the tradition favoring access, as well as the unique function discovery serves in
modern proceedings. See Leucadia v. Applied Extrusion Techs., Inc., 998 F.2d 157,
164-65 (3d Cir. 1993). 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.11 This means that the Firestone documents
filed in connection with motions to compel discovery are not subject to the common-
law right of access.
Additionally, where a party has sought the protection of Rule 26, the fact that
sealed material is subsequently submitted in connection with a substantive motion
does not mean that the confidentiality imposed by Rule 26 is automatically forgone.
Before disclosure is appropriate, a court must first conduct the common-law right of
See FED. R. CIV. P. 5(d). The prospect of all discovery material being presumptively subject to
the right of access would likely lead to an increased resistance to discovery requests. See United
States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986).
11
Accord United States v. Amodeo, 71 F.3d 1044, 1048-49 (2nd Cir. 1995)
(measuring weight of presumption of access by “role of material at issue in the exercise of
Article III judicial power”); Rushford v. New Yorker Magazine, 846 F.2d 249, 252 (4th Cir.
1988) (noting that summary judgment adjudicates substantive rights and serves as a substitute
for trial, and granting access to documents submitted with motion for summary judgment); In re
Cont’l Illinois Sec. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984) (concluding that where
corporation introduced copy of report of special litigation committee in derivative action in
connection with motion to terminate claims, access should be granted); Joy v. North, 692 F.2d
880, 893 (2d Cir. 1982) (holding that submission of materials in connection with motion for
summary judgment precludes assertion of attorney-client privilege or work product immunity).
13
access balancing test. Because in this context the common-law right of access, like
the constitutional right, requires the court to balance the respective interests of the
parties, the Press’s common-law right to the Firestone documents filed in connection
with the motion for summary judgment may be resolved by the Rule 26 good cause
balancing test. We turn next to a discussion of Rule 26.
C. Federal Rule of Civil Procedure 26(c)
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. Proctor &
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.
Since the confidential designation was not challenged until the Press intervened,
Firestone’s Response to Intervenors’ Motion to Unseal is the document that must
establish good cause for continued protection under Rule 26. (R.29-311-passim).
Although the district court discusses the adequacy of Firestone’s Response in the
14
order unsealing Firestone’s documents, we do not find a determination by the district
court that the request for a protective order was not supported by good cause.12
Because this conclusion is necessary to a resolution of the matter, we must remand to
the district court for a determination of whether good cause exists for a protective
order under Rule 26.
The first question that must be addressed on remand is whether Firestone’s
presumptively confidential documents do in fact contain trade secrets. Firestone
argues that the sealed documents meet all of the commonly accepted criteria that
define this category. These criteria require that Firestone must have consistently
treated the information as closely guarded secrets, that the information represents
substantial value to Firestone, that it would be valuable to Firestone’s competitors, and
that it derives its value by virtue of the effort of its creation and lack of
12
The district court’s analysis focused instead on whether denial of access was
narrowly tailored to a compelling governmental interest. See Van Etten v.
Bridgestone/Firestone, Inc., 117 F. Supp.2d 1375, 1381 (S.D. Ga. 2000). The only discussion of
Rule 26(c) appears in the district court’s alternate holding: “[e]ven assuming that the sealed
material could be classified as trade secrets, concerns of public health and safety trump any right
to shield such material from public scrutiny.” Id. at 1384 n.4. Given the context within which
this statement was made – the application of the compelling interest standard – we do not read
this to be an application of the good cause standard.
15
dissemination.13 Firestone argues that the Goudie affidavit and privilege log
established each of these criteria.
We recognize that in its analysis the district court regarded Firestone’s
Response to Intervenors’ Motion to Unseal, as well as the accompanying affidavit, as
too conclusory to meet Firestone’s burden. See Van Etten v. Bridgestone/Firestone,
Inc., 117 F. Supp.2d. 1375, 1382-83 (S.D. Ga. 2000). We also recognize that the
district court’s subsidiary findings of fact are entitled to deference. Anderson v. City
of Bessemer, 470 U.S. 564, 574, 105 S. Ct. 1504, 1511-12 (1985). But this particular
determination was made in conjunction with the application of what we now
determine was an erroneous legal standard. Additionally, the court did not explain its
conclusion. Because findings of fact made by a district court need to be sufficiently
detailed to permit meaningful appellate review, the district court should revisit the
trade secret issue in the context of the good cause determination, examining the sealed
13
See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001, 104 S. Ct. 2862, 2872
(1984) (noting that Restatement of Torts defines a trade secret as “any formula, pattern, device
or compilation of information which is used in one's business, and which gives him an
opportunity to obtain an advantage over competitors who do not know or use it”) (citing
RESTATEMENT (FIRST) OF TORTS § 757 cmt. b); UNIF. TRADE SECRETS ACT § 1(4), 14 U.L.A.
438 (1985) (defining “trade secret” as “information, including a formula, pattern, compilation,
program, device, method, technique, or process, that: (i) derives independent economic value,
actual or potential, from not being generally known to, and not being readily ascertainable by
proper means by, other persons who can obtain economic value from its disclosure or use, and
(ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy”).
See generally, 26 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 5644 at 339-341 & nn.58-66 (2nd ed. 1994) (discussing issue of determining
substantive definition of trade secret in context of rejected Federal Rule of Evidence 508).
16
documents in conjunction with its review of Firestone’s response, the affidavit, and
the privilege log. See United States v. Wragge, 893 F.2d 1296, 1299 (11th Cir. 1990)
(noting that findings “must be sufficiently detailed to give an appellate court a clear
understanding of the analytical process by which ultimate findings were reached and
to assure us that the trial court took care in ascertaining the facts”) (alterations in
original) (citation omitted); see also supra note12 and accompanying text. Because
trade secret status is the only basis Firestone provides for nondisclosure, should the
district court conclude that Firestone’s documents do not fall within this category,
good cause does not support the protective order, and the documents may be
unsealed.14
Should the district court determine that these documents do in fact contain trade
secrets, the district court must balance Firestone’s interest in keeping the information
confidential against the Press’s contention that disclosure serves the public’s
legitimate interest in health and safety. See Farnsworth, 758 F.2d at 1547 (citations
14
The issue presented here is distinct from those situations where litigation interests
support disclosure of trade secrets. See, e.g., Centurion Indus., Inc. v. Warren Steurer and
Assoc., 665 F.2d 323, 326 (1981) (ordering disclosure of software trade secrets because relevant
and necessary to patent infringement action); Carter Prod., Inc. v. Eversharp, Inc., 360 F.2d 868,
872 (7th Cir. 1966) (ordering disclosure of third party’s secret processes for verification of
validity of patent grants); Gohler v. Wood, 162 F.R.D. 691, (D.C. Utah 1995) (granting motion to
compel production of trade secrets where relevant and necessary to prosecution of suit). See
also, Nixon v. Warner Comm., Inc., 435 U.S. 589, 598, 98 S. Ct. 1306, 1312 (1978) (noting that
“courts have refused to permit their files to serve as . . . sources of business information that
might harm a litigant’s competitive standing”).
17
omitted). In its order the district court stated that “[e]ven assuming that the sealed
material could be classified as trade secrets, concerns of public health and safety
trump any right to shield such material from public scrutiny.” (R.31-326-21). The
district court made no factual findings, however, that support the conclusion that the
public’s health and safety are sufficiently impacted by the information contained in
these specific documents to trump Firestone’s interest in keeping trade secret
information confidential.15 See generally Ruckelshaus v. Monsanto Co., 467 U.S. 986,
104 S. Ct. 2862 (1984) (discussing takings of proprietary trade secret information and
attendant Fifth Amendment implications). Because whether good cause exists for a
protective order is a factual matter to be decided by the nature and character of the
15
We also note that the district court did not discuss Firestone’s reliance on the
terms of the stipulated protective order. As we noted in United States v. Anderson, 799 F.2d
1438 (11th Cir. 1986), agreements to treat certain materials voluntarily produced during
discovery as confidential facilitate the discovery process: “[l]itigants should not be discouraged
from putting their discovery agreements in writing, and district judges should not be discouraged
from facilitating voluntary discovery.” 799 F.2d at 1441. This is particularly the case where the
party filing the presumptively confidential discovery material with the court is not the party
claiming confidentiality, but that party’s adversary, as is the case here. As the District of
Columbia Court of Appeals noted in Mokhiber v. Davis, 537 A.2d 1100 (D.C. App. 1988), “[b]y
submitting pleadings and motions to the court for decision, one enters the public arena of
courtroom proceedings and exposes oneself . . . to the risk . . . of public scrutiny.” 537 A.2d at
1111. The assumption is that one voluntarily foregoes confidentiality when one submits material
for dispute resolution in a judicial forum. There is no voluntariness, of course, where one’s
adversary submits the presumptively confidential material. On remand, the district court should
consider the fact that Firestone has exhibited behavior consistent with its claim of reliance in
connection with the good cause balancing test.
18
information in question, this determination, supported by findings of fact, must be
conducted upon remand.
VI. CONCLUSION
Because the order unsealing Firestone’s records does not contain a Rule 26
good cause determination, we vacate the district court’s order unsealing the
documents and remand to the district court to consider this issue consistent with this
opinion.
The good cause determination will also resolve the Press’s constitutional right
of access claim, because in the context of presumptively confidential discovery
materials, the constitutional right of access standard is identical to the Rule 26 good
cause standard. McCarthy v. Barnett Bank of Polk County, 876 F.2d 89, 91 (11th Cir.
1989).
The Press’s common-law right of access does not extend to the sealed materials
submitted in connection with motions to compel discovery; and, as to the documents
submitted in connection with the motions for summary judgment, the Rule 26 good
cause determination will resolve the Press’s common-law right of access claim to
these materials, as the standards are the same.
VACATED AND REMANDED WITH INSTRUCTIONS.
19
BLACK, Circuit Judge, specially concurring:
I concur fully in the Court’s holding regarding the press’s rights under the
Constitution, the common law,1 and Fed. R. Civ. P. 26(c). I write separately to
express my concern about third parties—who have no cause of action before the
court—using the discovery process as a means to unearth documents to which they
otherwise would have no right to inspect and copy.
This Court has previously commented:
Discovery, whether civil or criminal, is essentially a private process
because the litigants and the courts assume that the sole purpose of
discovery is to assist trial preparation. That is why parties regularly
agree, and courts often order, that discovery information will remain
private.
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
1
I concur in the Court's holding with respect to the common-law right because the Court
does not address whether Wilson v. American Motors Corp., 759 F.2d 1568 (11th Cir. 1985), and
Brown v. Advantage Eng’g, Inc., 960 F.2d 1013 (11th Cir. 1992), conflict with prior precedent.
See Opinion at 10 n.8; Belo Broad. Corp. v. Clark, 654 F.2d 423, 432-34 (5th Cir. Unit A 1981);
Newman v. Graddick, 696 F.2d 796, 802-03 (11th Cir. 1983).
20
would voluntary discovery be chilled, but whatever discovery and court
encouragement that would take place would be oral, which is undesirable
to the extent that it creates misunderstanding and surprise for the litigants
and the trial judge.
United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986) (citation omitted)
(emphasis added). Simply stated, the purpose of discovery is to resolve legal disputes
between parties, not to provide newsworthy material.
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.2 See id. (listing four factors). We have
2
One factor is the "severity and the likelihood of the perceived harm." Alexander Grant,
820 F.2d at 356. A claim of trade secret privilege is an example of this factor. Where the parties
seek an umbrella order to protect trade secrets, the district court may need to examine the
documents to ascertain the likelihood of the perceived harm (that is, the likelihood that trade
secrets would be disclosed without an umbrella order).
21
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.3 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).4
In light of the strong interest in having unimpeded discovery, third parties may
be barred from accessing documents even when the documents are not protected by
a privilege (like the trade-secret privilege), as long as the umbrella order itself meets
the good cause requirement. See McCarthy, 876 F.2d at 91-92; Alexander Grant, 820
F.2d at 355-57. Here, however, the Court concludes that "trade secret status is the
only basis Firestone provides for nondisclosure . . . .” Opinion at 17. Therefore,
absent a showing that the challenged documents are trade secrets, "good cause does
not support the [umbrella] order, and the documents may be unsealed." Id. (footnote
omitted). In some future case, however, a party may argue that, although the
3
In this case, the litigation has ceased, and therefore the press is not disrupting an active
discovery proceeding. Nonetheless, the free flow of information will cease if parties resist
entering umbrella orders because they fear such orders could be subject to document-by-
document, post-judgment attacks.
4
See supra note 1.
22
individual documents fail to qualify as privileged material, they nonetheless should
be sealed because the umbrella order is necessary to facilitate the free flow of
information and thus satisfies the good cause requirement. Since the Court has
concluded that Firestone has not adequately preserved this argument, I concur in its
holding.
23