concurring.
I concur in the result because I believe that the district court lacked justification to lift the protective order. As the majority correctly explains, the district court erroneously applied a presumption of public access under Rule 26(c) to the unfiled discovery documents exchanged in this case. Such a presumption is no longer tenable in light of the 2000 amendment to Rule 5(d), which provided that discovery documents should not be filed with the court until used in a judicial proceeding. Op. at 1075-76. So where, as here, the parties have agreed to a confidentiality order covering unfiled discovery materials which, for good cause, was judicially approved, a district court should honor that order absent some showing of abuse or other extraordinary circumstances. To require any less of a showing would undermine the parties’ reliance on protective orders, which are essential to a fair, efficient discovery process. See SEC v. TheStreet.com, 273 F.3d 222, 229-30 (2d Cir.2001). The district court relied on the public’s significant interest in monitoring police misconduct as the basis for lifting the protective order. In my view, this generalized public interest in allegations of police misconduct, while not insignificant, is, standing alone, not sufficiently compelling to conclude that the parties’ stipulated confidentiality order lacks good cause under Rule 26(c). But Kalven presented nothing more so he clearly failed to make a sufficient showing to undo the protective order. (Nor do the aldermen evidence that they could do any better in that regard.) For that reason, I would reverse the district court’s decision to lift the protective order.
So, I would arrive at the same place as the majority opinion but by going to the merits of the decision to alter the protective order rather than barring the petition for lack of standing. I don’t mean to put the cart before the horse by addressing the merits of Kalven’s claim without considering the foundational question of standing. The majority opinion provides a thoughtful analysis of the complex interplay between Article III standing, permissive intervention under Rule 24(b), and third-party challenges to protective orders. Nevertheless, I respectfully suggest that, although it is a very close call, Kalven had sufficient standing to bring his brink-of-dismissal challenge to the protective order in this case.
Courts have recognized that third parties can challenge a protective order under Rule 26(c) for good cause, even where the order covers non-judicial records that fall outside of the public’s common law right of access. See Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 787-88 (1st Cir.1988) (public interest group had standing to demand good cause under Rule 26(c) to maintain a protective order covering discovery materials); In re Alexander Grant & Co. Litigation, 820 F.2d 352, 354-56 (11th Cir.1987) (per curiam) (journalists had standing to bring a Rule 26(c) challenge to a protective order even though they had no First Amendment right of access to the discovery documents). As we explained in Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 898 (7th Cir.1994), the press has standing to challenge a protective order for abuse or impropriety. A third party may claim that a litigant is exploiting a court’s confidentiality order to insulate embarrassing doc*1081uments that present no “good cause” for secrecy within the meaning of Rule 26(c). Id.; cf. Citizens First Nat’l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 944-46 (7th Cir.1999) (concluding that a protective order allowing the parties to designate virtually any discovery materials as confidential, even those introduced into the judicial record, was overbroad).
After a very thorough review of these and other cases, the majority explains that courts in the past have failed to carefully distinguish between the public’s rights of access to judicial records and to unfiled discovery materials, and that Rule 26(c)’s “good cause” requirement does not support any “presumption” of public access to the latter. Op. at 1073, 1075-76. That is true, and because the information sought here has never been filed with the court, this matter calls for an even more stringent review of standing than the host of cases involving court-filed documents. But I respectfully suggest that it does not follow that a third-party intervenor necessarily lacks standing to bring a Rule 26(c) challenge to a protective order covering unfiled discovery documents. Although unfiled discovery does not fall within the public’s presumptive right of access, the public still “has an interest in what goes on at all stages of a judicial proceeding.” Citizens First Nat’l Bank, 178 F.3d at 945. As noted, third-party Rule 26(c) claims may prevent litigants from abusing a court-approved confidentiality order to seal whatever they want. See Grove Fresh, 24 F.3d at 898. Other circumstances (not present here) could arise where a third party shows such an “extraordinary circumstance or compelling need” for unfiled discovery documents that a district court should modify an order protecting those documents. TheStreet.com, 273 F.3d at 229. Kalven’s request came so late in the life of this case and is so lacking in merit that it is tempting to simply join in the majority’s well-reasoned and persuasive standing conclusion. However, I hesitate to do so because I fear that a determination that Kalven lacks standing might be read as a categorical bar to third parties who would seek unfiled discovery materials that are subject to protective orders. While circumstances in which such requests might be granted ought to be exceedingly rare, I think Kalven presented just enough to the district court to get in the door to argue his position.
There is no way to know whether the settlement in this case was reached between the parties before or after Kalven filed his intervention request. But we do know that his petition reached the court prior to the issuance of the order of dismissal, albeit only slightly. And we do know that his assertion of status as a journalist conducting research on a matter of public interest such as police brutality is genuine. We also know that the unfiled discovery documents subject to the protective order are concerned with allegations of police misconduct. As such, I think Kalven’s petition contained just enough to demonstrate his standing to file it. But the substance of his request came nowhere close to mustering enough weight to justify altering the protective order upon which the parties had relied in fulfilling their discovery obligations.