Secrecy by consent: The use and limits of confidentiality in the pursuit of settlement

Notre Dame Law Review

Volumn 74, Issue 2, 1999, Pages 283-402

  Doré, Laurie Kratky ^a  

^a DRAKE UNIVERSITY   (United States)

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EID: 0033483320     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (496)

1. See MANUAL FOR COMPLEX LITIGATION §§ 21.431-432 (3d ed. 1995) (discussing benefits and standard terms of early umbrella protective orders in cases involving voluminous discovery).
2. See Nault's Auto. Sales, Inc. v. American Honda Motor Co., 148 F.R.D. 25, 43 (D.N.H. 1993) (noting the "growing tendency" of parties to stipulate to the sealing of "documents produced during the discovery process as well as pleadings and exhibits filed with the court").
3. Professor David Luban has criticized the secrecy of many settlements, noting: The sticking point with settlements is not truth but openness. Parties consummate settlements out of public view. The facts on which they are based remain unknown, their responsiveness to third parties who they may affect is at best dubious, and the goods they created are privatized and not public. Settlements are opaque. David Luban, Settlements and the Erosion of the Public Realm, 83 GEO. L.J. 2619, 2648-50 (1995).
4. While the United States Supreme Court recently restricted the use of stipulated vacatur by federal appellate courts, the practice still subsists in some state courts, most notably California. Compare United States Bancorp Mortgage Co. v. Bonner Mall NOTRE DAME LAW REVIEW [VOL. 74:2 Partnership, 513 U.S. 18, 25 (1994) (criticizing stipulated vacatur) with Neary v. Regents of Univ. of Calif., 834 P.2d 119, 121 (Cal. 1992) (creating "strong presumption" in favor of vacatur on consent). For an extensive discussion of stipulated vacatur in state and federal courts, see generally Judith Resnik, Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century, 41 UCLA L. REV. 1471 (1994).
5. See generally Margaret Meriwether Cordray, Settlement Agreements and the Supreme Court, 48 HASTINGS L.J. 9 (1996) (extolling the institutional benefits of private settlement).
6. While litigation confidentiality is as (if not more) pressing an issue in state courts today, see infra Part II.C.2 (describing federal and state sunshine laws), this Article focuses primarily upon secrecy orders in the federal courts. Given that a majority of states have adopted the Federal Rules of Civil Procedure, however, this federal focus can nevertheless instruct the broader confidentiality debate. See Stephen C. Yeazell, The Misunderstood Consequences of Modern Civil Process, 1994 Wis. L. REV. 631, 632 n.1 (noting that over 35 states have adopted the Federal Rules of Civil Procedure for their trial courts). Further, although precedent concerning public access to pretrial criminal proceedings informs the access debate in the civil context, this Article focuses exclusively on access issues as they arise in the settlement of civil litigation. See infra note 155 and accompanying text (distinguishing between access issues in criminal and civil proceedings).
7. See infra Part I.A (reviewing moves from trial to litigation and from adjudication to settlement).
8. Resnik, supra note 4, at 1527 (describing one vision of the courts as "instruments" and "guardians" of the public with an interest in adjudication beyond dispute resolution). For a discussion of the systemic debates concerning the appropriate role of the civil justice system, the traditional primacy of party autonomy, and the institutional value of settlement, see infra Part I.B.
9. Henry J. Reske, Secrecy Orders at Issue, A.B.A. J., Aug. 1994, at 32, 33 (quoting Abner Mikva and contending that court secrecy poses a "serious problem for the health and safety of our population"). See also James L. Gilbert et al., The Price of Silence, TRIAL, June 1994, at 17 (maintaining that "[d]eadly secrets lie sealed on the shelves of courtrooms across America"); Sen. Herbert Kohl, Testimony before Senate Judiciary Committee on Courts and Administrative Practice, F.D.C.H., 1994 WL 230123, at *1 (April 20, 1994) [hereinafter Kohl Testimony] (proposing federal sunshine legislation that would remedy the perceived "cover-up" involving the prevalent "use of secrecy agreements in litigation to shield critical information about health and safety from the public").
10. Henry J. Reske, Secrecy Orders at Issue, A.B.A. J., Aug. 1994, at 32, 33 (quoting Abner Mikva and contending that court secrecy poses a "serious problem for the health and safety of our population"). See also James L. Gilbert et al., The Price of Silence, TRIAL, June 1994, at 17 (maintaining that "[d]eadly secrets lie sealed on the shelves of courtrooms across America"); Sen. Herbert Kohl, Testimony before Senate Judiciary Committee on Courts and Administrative Practice, F.D.C.H., 1994 WL 230123, at *1 (April 20, 1994) [hereinafter Kohl Testimony] (proposing federal sunshine legislation that would remedy the perceived "cover-up" involving the prevalent "use of secrecy agreements in litigation to shield critical information about health and safety from the public").
11. See Samuel R. Gross & Kent D. Syverud, Don't Try: Civil Jury Verdicts in a System Geared to Settlement, 44 UCLA L. REV. 1, 63 (1996) (arguing that the very few "extreme and unrepresentative cases" that do go to jury trial "distort public perception of the administration of civil justice").
12. See Yeazell, supra note 6, at 631, 633 ("Only 4.3% of the filed civil cases [in 1990] resulted in trials, a proportional decline of almost four-fifths from the pre-Rules world."); see also Marc Galanter & Mia Cahill, "Most Cases Settle": Judicial Promotion and Regulation of Settlements, 46 STAN. L. REV. 1339, 1342 (1994) ("[I]n the federal courts, the portion of cases that terminated in trials dropped from 11 percent in 1961 to 4 percent in 1991."). Recent studies suggest that the national trial rate is significantly lower, with a mere two percent of civil filings in both state and federal courts actually proceeding to trial. See Gross & Syverud, supra note 10, at 2, 63 & n.2 (citing a study by Professor Theodore Eisenberg for the National Center for State Courts).
13. See David M. Trubek et al., The Costs of Ordinary Litigation, 31 UCLA L. REV. 72, 91 tbl. 3. (1983).
14. Yeazell, supra note 6, at 639.
15. Id. at 633, 674. See also Marc Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (And Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L. REV. 4, 45 (1983) (concluding that "the trial is no longer the center of gravity of common law litigation").
16. Id. at 633, 674. See also Marc Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (And Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L. REV. 4, 45 (1983) (concluding that "the trial is no longer the center of gravity of common law litigation").
17. See Yeazell, supra note 6, at 674 (attributing decline in adjudication to emphasis on pretrial process).
18. See id. at 636 (stating that in 1990, trial constituted only 11% of adjudicated dispositions).
19. Galanter & Cahill, supra note 11, at 1340. See also Gross & Syverud, supra note 10, at 2 (noting that "[o]f the hundreds of thousands of civil lawsuits that are filed each year in America, the great majority are settled").
20. See Yeazell, supra note 6, at 638 (noting that "pretrial activity that does not result in dispositive adjudication is producing fewer abandoned cases and twice as many settlements as was the case fifty years ago").
21. See Gross & Syverud, supra note 10, at 3-5 (explaining the American legal system's preference for settlement with structural reasons such as "scarcity of judges and abundance of lawyers, adversarial fact-finding, [and] trial by jury").
22. See Resnik, supra note 4, at 1477 (discussing the "myriad of contemporary developments that promote, as a matter of public policy, the settlement of disputes and the diminution of the role of formal adjudication").
23. FED. R. CIV. P. 1. See also Civil Justice Reform Act of 1990, 28 U.S.C. § 471 (1995) (giving the "just, speedy, and inexpensive resolution of civil disputes" as one purpose of civil justice expense and delay plans).
24. FED. R. CIV. P. 16(a)(5).
25. FED. R. CIV. P. 16 advisory committee's note to 1983 amendment (reasoning that settlement "obviously eases crowded dockets and results in savings to the litigants and the judicial system"). Rule 16 was recently amended to reinforce the court's authority, even over party objection, "to make appropriate orders designed . . . to facilitate [pretrial] settlement." FED. R. CIV. P. 16(c) advisory committee's note to 1993 amendment. The 1993 amendments now authorize trial courts to direct party representatives with settlement authority to appear or to be available by telephone during the pretrial conference to discuss possible settlement of the case. In addition, if authorized by statute or local rule, courts can now utilize alternative dispute resolution procedures such as mini-trials, summary jury trials, mediation, neutral evaluation, and nonbinding arbitration. See FED. R. CIV. P. 16(c), 16(c)(9), and FED. R. CIV. P. 16(c) advisory committee's note to 1993 amendment.
26. FED. R. CIV. P. 26(f).
27. Marek v. Chesny, 473 U.S. 1, 5 (1985). The public policy favoring the compromise of disputes explains why Federal Rule of Civil Procedure 68 renders unaccepted offers of judgment inadmissible except in a proceeding to determine costs. See FED. R. EVID. 408 advisory committee's notes.
28. FED. R. APP. P. 33. This Rule was completely revised in 1994 to, among other things, acknowledge settlement as a potential tool to "aid in the disposition of the proceedings." Id. See also FED. R. APP. P. 33 advisory committee's note to 1994 amendment. To that end, Rule 33 now requires that attorneys come to the appellate settlement conference only after consulting with their clients and obtaining "as much authority as feasible to settle the case." Id.
29. To promote "the public policy favoring the compromise and settlement of disputes," Federal Rule of Evidence 408 renders evidence of a settlement or an offer to settle inadmissible to prove either the validity or the amount of a disputed claim. FED. R. EVID. 408 advisory committee's note. See also Wayne D. Brazil, Protecting the Confidentiality of Settlement Negotiations, 39 HASTINGS L.J. 955, 957, 999 (1988) (cautioning that while Rule 408 "clearly reflects a significant federal policy in favor of promoting settlement by encouraging freedom of communication," it does not create a privilege and thus does not necessarily protect against the discovery or admissibility of settlement materials in all cases).
30. Civil Justice Reform Act of 1990, 28 U.S.C. §§ 471-82 (1995). Although it does not explicitly direct federal courts to actively promote private settlement, the Act accomplishes that objective implicitly by directing federal district courts to implement plans for reducing expense and delay in civil lawsuits. Id. § 471. In formulating such plans, district courts should consider and may include provisions that explore "the parties' receptivity to, and the propriety of, settlement," id. § 473(a)(3)(A), that authorize referral to alternative dispute resolution or neutral evaluation programs, id. §§ 473(a)(6), 473(b)(6), and that require that representatives "with authority to bind [the parties] in settlement discussions" be present or available at settlement conferences. Id. § 473(b)(5). Congress continues to favor settlement. The Alternative Dispute Resolution Act of 1988, H.R. 3528, 105th Cong. (1988), recently approved by the House Judiciary Committee, would require federal district courts to authorize the use of alternative dispute resolution in all civil cases and to implement their own alternative dispute resolution programs. See Bill Would Require Federal Courts To Devise Procedures for ADR Use, 66 U.S.L.W. 2584 (1998).
31. In Evans v. Jeff D., 475 U.S. 717, 732-38 (1986), for example, the United States Supreme Court relied upon the public policy favoring settlement when it construed the Civil Rights Attorney's Fees Awards Act of 1976 to permit settlement of civil rights claims conditioned upon the waiver of attorney fees. To hold otherwise, according to the Court, might impede the settlement of civil rights claims, "thereby forcing more cases to trial, unnecessarily burdening the judicial system, and disserving civil rights litigants." Id. at 736-37. See also Marek, 473 U.S. at 10 (construing Federal Rule of Civil Procedure 68 to promote both settlement and civil rights). Professor Cordray, however, criticizes a recent trilogy of Supreme Court cases for giving insufficient, if any, consideration to the important federal policy favoring settlement. See Cordray, supra note 5.
32. See Daisy Hurst Floyd, Can the Judge Do That? - The Need for A Clearer Judicial Role in Settlement, 26 ARIZ. ST. L.J. 45, 57 (1994) (noting that courts may issue orders designed to encourage or facilitate settlement, even if not specifically authorized by Rule 16, pursuant to their "inherent authority to control litigation before them").
33. See Stephen Bundy, The Policy in Favor of Settlement in an Adversary System, 44 HASTINGS L.J. 1, 3-4 (1992) (tying expanded judicial promotion of settlement to Civil Justice Reform Act and Rule 16); Cordray, supra note 5, at 40-41 (asserting that "procedural rules and reforms . . . have encouraged judges to become increasingly active in trying to broker settlements between parties"); Floyd, supra note 30, at 51 (attributing increasingly active role of judges in settlement to "growing concern over litigation delay and expense"); Galanter & Cahill, supra note 11, at 1340-41 (noting that the Civil Justice Reform Act "encourages district courts to include active judicial promotion of settlement in their arsenal of techniques for expediting litigation"). But see Susan P. Koniak & George M. Cohen, Under Cloak of Settlement, 82 VA. L. REV. 1051, 1122-23 (1996) (attributing "[c]ourts' strong disposition toward settlements" to judicial self-interest in avoiding uninteresting cases and in clearing crowded dockets).
34. See Stephen Bundy, The Policy in Favor of Settlement in an Adversary System, 44 HASTINGS L.J. 1, 3-4 (1992) (tying expanded judicial promotion of settlement to Civil Justice Reform Act and Rule 16); Cordray, supra note 5, at 40-41 (asserting that "procedural rules and reforms . . . have encouraged judges to become increasingly active in trying to broker settlements between parties"); Floyd, supra note 30, at 51 (attributing increasingly active role of judges in settlement to "growing concern over litigation delay and expense"); Galanter & Cahill, supra note 11, at 1340-41 (noting that the Civil Justice Reform Act "encourages district courts to include active judicial promotion of settlement in their arsenal of techniques for expediting litigation"). But see Susan P. Koniak & George M. Cohen, Under Cloak of Settlement, 82 VA. L. REV. 1051, 1122-23 (1996) (attributing "[c]ourts' strong disposition toward settlements" to judicial self-interest in avoiding uninteresting cases and in clearing crowded dockets).
35. Compare Luban, supra note 3, and Galanter & Cahill, supra note 11 (both questioning the current understanding of the value of settlement), with Carrie Menkel-Meadow, Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense of Settlement (In Some Cases), 83 GEO. L.J. 2663 (1995), and Cordray, supra note 5 (both extolling the systemic value of settlement in certain cases).
36. See generally Floyd, supra note 30, at 50 (proposing judicial education and the revision of Rule 16 and the Code of Judicial Conduct "to prevent misuse of case management techniques with regard to settlement and to give judges clearer guidance regarding their role in settlement"); Galanter & Cahill, supra note 11, at 1364-70 (questioning whether judicial intervention increases the incidence or quality of settlement or judicial productivity); Carrie Menkel-Meadow, For and Against Settlement: Uses and Abuses of the Mandatory Settlement Conference, 33 UCLA L. REV. 485 (1985) (discussing pros and cons of mandatory settlement conferences); Leroy J. Tornquist, The Active Judge in Pretrial Settlement: Inherent Authority Gone Awry, 25 WILLAMETTE L. REV. 743 (1989) (examining the costs and benefits of active judicial involvement in pretrial settlement).
37. See generally Floyd, supra note 30, at 50 (proposing judicial education and the revision of Rule 16 and the Code of Judicial Conduct "to prevent misuse of case management techniques with regard to settlement and to give judges clearer guidance regarding their role in settlement"); Galanter & Cahill, supra note 11, at 1364-70 (questioning whether judicial intervention increases the incidence or quality of settlement or judicial productivity); Carrie Menkel-Meadow, For and Against Settlement: Uses and Abuses of the Mandatory Settlement Conference, 33 UCLA L. REV. 485 (1985) (discussing pros and cons of mandatory settlement conferences); Leroy J. Tornquist, The Active Judge in Pretrial Settlement: Inherent Authority Gone Awry, 25 WILLAMETTE L. REV. 743 (1989) (examining the costs and benefits of active judicial involvement in pretrial settlement).
38. See, e.g., Menkel-Meadow, supra note 32, at 2669 (making "a case for settlement by arguing that there are philosophical, as well as instrumental, democratic, ethical, and human justifications for settlements (at least in some cases)").
39. See Gross & Syverud, supra note 10, at 4.
40. See id. at 3-4 (noting that "[a]dversary fact-finding is . . . expensive, unpredictable . . . and, given the scarcity of judges, slow"); Cordray, supra note 5, at 36-37 (contending that settlement can obviate "the debilitating effects of uncertainty and exposure to risk that exist while a dispute remains unresolved, and the toll taken by the aggravation and distress that so often plague a party as a lawsuit grinds its way through the court system").
41. As explained by Professor Menkel-Meadow: "[U]ntil litigation is permitted to recognize the ambiguities and contradictions in modern life by developing a broader 'remedial imagination,' settlement offers the opportunity to craft solutions that do not compromise, but offer greater expression of the variety of remedial possibilities in a postmodern world." Menkel-Meadow, supra note 32, at 2674-75. See also Cordray, supra note 5, at 37 (arguing that settlements allow the parties greater flexibility to consider non-legally cognizable facts and to craft more creative and responsive solutions); Menkel-Meadow, supra note 33, at 504-05 (suggesting that settlement offers "substantive justice that may be more responsive to the parties' needs than adjudication").
42. Galanter & Cahill, supra note 11, at 1339.
43. Owen M. Fiss, Against Settlement, 93 YALE L.J. 1073, 1075 (1984). Because consent is often coerced and dependent upon party resources, Fiss finds settlement a "highly problematic technique for streamlining dockets" that is "at odds with a conception of justice." Id. at 1075-76.
44. See Galanter & Cahill, supra note 11, at 1350-87. Professor Galanter also faults the "hidden costs" of settlement, such as the depletion of precedent. Id. at 1364.
45. See id. at 1379-80 (examining the impact of settlement upon nonparties and doubting that settlement can produce comparable public goods to those produced by adjudication); Luban, supra note 3, at 2621-42 (making an "instrumentalist" argument premised upon the "public goods" created by adjudication). Professor Menkel-Meadow characterizes such criticisms as "litigation romanticism." Menkel-Meadow, supra note 32, at 2669.
46. See Luban, supra note 3, at 2622-23.
47. See id. at 2623-24, 2641. According to Luban, adjudication enhances the advocacy skills of trial judges, as well as lawyers. See id.
48. See id. at 2625.
49. See id. By this, Luban refers to "the courts' claim as an authoritative resolver of controversies" which is weakened when litigants "turn elsewhere" and resolve their dispute through private bargaining or other extra-judicial processes. Id.
50. Id. at 2626. Adjudication avoids this pitfall, according to Luban, because of its judicial oversight and the public nature of a trial. See id.
51. See id. at 2647 (predicting that "settlement [will] inevitably . . . become more salient in the universe of litigation"). Luban further admits that too much adjudication can create its own "public bads." See id. at 2642-47.
52. See Galanter & Cahill, supra note 11, at 1388 (stating that the "task for policy is not promoting settlements or discouraging them, but regulating them" to ensure their quality); Luban, supra note 3, at 2647 (refraining the issue as "how can matters be arranged to preserve the values promoted by adjudication as best they can be preserved?").
53. Menkel-Meadow, supra note 32, at 2664-65. As iterated by Professor Luban: "We cannot really be against settlements; nor can we really be against settlements that vastly outnumber adjudications. But we can be against the wrong settlements." Luban, supra note 3, at 2662.
54. Luban, supra note 3, at 2620 (asking whether there is "a jurisprudence of settlements waiting to be developed"); Menkel-Meadow, supra note 32, at 2696 (acknowledging need to develop and debate this new "jurisprudence of settlement").
55. Luban, supra note 3, at 2626-42. Professor Luban distinguishes the two as follows: Proponents of the problem-solving conception desire the minimum amount of adjudication necessary to create bargaining-shadows and adjudicatory authority. Proponents of the public-life conception, on the other hand, desire the maximum amount of adjudication consistent with respect for the parties, who may be reluctant to go to trial. Id. at 2642.
56. See Cordray, supra note 5, at 47 n.161 (describing the core purpose and "primary function" of the judicial system as helping parties to resolve their dispute); Richard L. Marcus, The Discovery Confidentiality Controversy, U. ILL. L. REV. 457, 469-70 (1991) [hereinafter Marcus, Discovery Confidentiality] (arguing that the primary role of a court, unlike other "organs of government," is to resolve disputes and "decide cases according to the substantive law," rather than to "give expression to 'public values'"); Richard L. Marcus, Myth and Reality in Protective Order Litigation, 69 CORNELL L. REV. 1, 16 (1983) [hereinafter Marcus, Myth and Reality] (criticizing assumption that courts play a role in resolving "major social issues"); Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 HARV. L. REV. 427, 431-32 (1991) (contending that the court's "primary mission" of resolving disputes among litigants should not be diverted by the collateral effect of information dissemination).
57. See Cordray, supra note 5, at 47 n.161 (describing the core purpose and "primary function" of the judicial system as helping parties to resolve their dispute); Richard L. Marcus, The Discovery Confidentiality Controversy, U. ILL. L. REV. 457, 469-70 (1991) [hereinafter Marcus, Discovery Confidentiality] (arguing that the primary role of a court, unlike other "organs of government," is to resolve disputes and "decide cases according to the substantive law," rather than to "give expression to 'public values'"); Richard L. Marcus, Myth and Reality in Protective Order Litigation, 69 CORNELL L. REV. 1, 16 (1983) [hereinafter Marcus, Myth and Reality] (criticizing assumption that courts play a role in resolving "major social issues"); Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 HARV. L. REV. 427, 431-32 (1991) (contending that the court's "primary mission" of resolving disputes among litigants should not be diverted by the collateral effect of information dissemination).
58. See Cordray, supra note 5, at 47 n.161 (describing the core purpose and "primary function" of the judicial system as helping parties to resolve their dispute); Richard L. Marcus, The Discovery Confidentiality Controversy, U. ILL. L. REV. 457, 469-70 (1991) [hereinafter Marcus, Discovery Confidentiality] (arguing that the primary role of a court, unlike other "organs of government," is to resolve disputes and "decide cases according to the substantive law," rather than to "give expression to 'public values'"); Richard L. Marcus, Myth and Reality in Protective Order Litigation, 69 CORNELL L. REV. 1, 16 (1983) [hereinafter Marcus, Myth and Reality] (criticizing assumption that courts play a role in resolving "major social issues"); Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 HARV. L. REV. 427, 431-32 (1991) (contending that the court's "primary mission" of resolving disputes among litigants should not be diverted by the collateral effect of information dissemination).
59. See Koniak & Cohen, supra note 31, at 1127-28 (suggesting that "traditional paradigm of judging is that of a neutral arbiter, rather than partisan or protector"); Luban, supra note 3, at 2638 (describing problem-solving conception as one that regards "adjudication as a social service that the state provides disputing parties to keep the peace"); Menkel-Meadow, supra note 32, at 2680 (characterizing one vision of courts as "public service for private dispute resolution").
60. In arguing against settlement, Professor Owen Fiss laments the decline of adjudication, whose purpose is not "to maximize the ends of private parties, nor simply to secure the peace, but to explicate and give force to the values embodied in authoritative texts such as the Constitution and statutes to interpret those values and to bring reality into accord with them." Fiss, supra note 39, at 1085. Fiss contrasts adjudication with settlement, which "trivializ[es] the remedial dimensions of a lawsuit, and . . . reduc[es] the social function of the lawsuit to one of resolving private disputes." Id. See also Luban, supra note 3, at 2638 (arguing that "there is nothing wrong with using [litigants'] resort to the courts as an occasion for improving [or refining] the law").
61. See Jack B. Weinstein, Ethical Dilemmas in Mass Tort Litigation, 88 Nw. U. L. REV. 469, 513 (1994) (asserting that the "public, which created and funds our judicial institutions, depends upon those institutions to protect it").
62. Resnik, supra note 4, at 1527 (suggesting that stipulated vacatur runs counter to this perception of the law).
63. Marcus, Discovery Confidentiality, supra note 52, at 478-79 (stating that affording access to materials based upon the public's interest diverges from basic dispute resolution role of courts); Miller, supra, note 52, at 432 (suggesting that the presumption of public access promotes goals unrelated to litigation before the court).
64. Marcus, Discovery Confidentiality, supra note 52, at 478-79 (stating that affording access to materials based upon the public's interest diverges from basic dispute resolution role of courts); Miller, supra, note 52, at 432 (suggesting that the presumption of public access promotes goals unrelated to litigation before the court).
65. Marcus, Discovery Confidentiality, supra note 52, at 469.
66. This underlying friction is reflected in the titles to several recent law review articles. See Menkel-Meadow, supra note 32, at 2680 (asking "[t]o whom does a dispute belong when it enters the legal system? Whose 'property' is a particular dispute, and who should decide how it should be treated?"); Resnik, supra note 4, at 1472 (identifying ownership query as one of the "central problems of fin-de-siecle procedure").
67. See Gross & Syverud, supra note 10, at 4 (contending that the "special importance of settlement" manifests a "single cultural value: the preference for private ordering over public control").
68. See Luban, supra note 3, at 2626 (exploring "contemporary American antipathy to government" and to "constraints on private conduct").
69. Professor Stephen Yeazell notes that after the enactment and subsequent amendments of the Federal Rules of Civil Procedure, "lawyers operated further from any judicial scrutiny than they had a century earlier, and when judicial scrutiny came, it was likely to be by a trial judge, most of whose decisions would effectively escape appellate review." Yeazell, supra note 6, at 647-48. See also Gross & Syverud, supra note 10, at 48 (describing an American legal system where "[p]retrial negotiation and much of pretrial litigation go on in private with no judicial oversight at all"). For a discussion of the importance of party autonomy in the current discovery regime, see infra Part IV.C.2.
70. See Cordray, supra note 5, at 43 (rejecting "party-centered" view of settlement as "simplistic"); Menkel-Meadow, supra note 32, at 2696 (recognizing the need to reassess the traditional "party-initiated and party-controlled legal system" in light of potential nonparty interests).
71. Resnik, supra note 4, at 1539. See also id. at 1491 (contending that stipulated vacatur enhances party autonomy).
72. Professor Carrie Menkel-Meadow suggests that party consent may supply a "democratic justification for settlement": For those who regard our legal system as a public service for private dispute resolution, or as a "democratic and participatory" party initiated system, the dispute and its resolution remain the property of the parties and can be removed from the system in any way, as long as the parties consent. Menkel-Meadow, supra note 32, at 2696, 2680. But see Galanter & Cahill, supra note 11, at 1359 (hesitating to equate party choice of settlement "with an informed affirmation of the quality of the selected process").
73. Resnik, supra note 4, at 1472-74, 1486, 1528.
74. In addition to prodding the judicial promotion of settlement (see supra notes 22-23 and accompanying text), Rule 16 also encourages judges to establish "early and continuing control so that the case will not be protracted because of lack of management." FED. R. CIV. P. 16(a)(2). See also FED. R. CIV. P. 16(b) (requiring entry of scheduling order). A similar motive underlies the Congressional mandate to establish expense and delay reduction plans. See Civil Justice Reform Act of 1990, 28 U.S.C. § 471 (1990) (intending that plans "improve litigation management"); id. § 472(a)(2) (aiming plans at establishing "early and ongoing control of the pretrial process through the involvement of a judicial officer").
75. See Resnik, supra note 4, at 1486; see also Roger H. Transgrud, Mass Trials in Mass Tort Cases: A Dissent, U. ILL. L. REV. 69, 74 (1989) (arguing that aggregation techniques in "substantial tort cases" derogate the "right to control personally the suit whereby a badly injured person seeks redress from the alleged tortfeasor").
76. See Resnik, supra note 4, at 1486; see also Roger H. Transgrud, Mass Trials in Mass Tort Cases: A Dissent, U. ILL. L. REV. 69, 74 (1989) (arguing that aggregation techniques in "substantial tort cases" derogate the "right to control personally the suit whereby a badly injured person seeks redress from the alleged tortfeasor").
77. Professor Luban thus finds: There is nothing wrong with using [the parties'] resort to the courts as an occasion for improving the law. Parties still get their dispute adjudicated, as at least one of them requested. At the same time, however, the litigants serve as nerve endings registering the aches and pains of the body politic, which the court attempts to treat by refining the law. Using litigants as stimuli for refining the law is a legitimate public interest in the literal sense of the term: the public is interested in learning the practical implications of past political choices and the values they embody. The law is a self-portrait of our politics, and adjudication is at once the interpretation and the refinement of the portrait. Luban, supra note 3, at 2635, 2638. But see Menkel-Meadow, supra note 32, at 2680, 2683 (noting and criticizing the view that "a case, once filed, becomes the property of the polity," and that parties waive their "right . . . to privatize their disputes" by their resort to the courts).
78. Galanter & Cahill, supra note 11, at 1351. See also id. at 1380 (discussing "public goods" produced by adjudication).
79. As expressed by Professor Marc Galanter: In assessing the quality of different instances or rival modes of dispute processing, we should shift our focus from the results among the parties (and the forum) to consider the effects a given process has on others - for example, parties in other cases, individuals in similar situations who have not brought suit or been sued, parties who will be affected by the patterns of activity of those in the plaintiff and defendant classes, and parties who have a professional interest as potential participants in such disputes (such as other lawyers, psychologists, social workers, and police officers). Id. at 1379.
80. See Menkel-Meadow, supra note 32, at 2696 (acknowledging that nonparty interests should be raised and accounted for if parties do not exclusively own the dispute); Resnik, supra note 4, at 1525 (exploring tension between the litigants' right to buy and sell the risk of their lawsuit and the "social investments in the production of adjudication and often unspecified third party interests in the decisions thus produced").
81. While the broad systemic debates appear largely confined to the legal academy, the issue of litigation secrecy is of great pragmatic concern to the many practicing lawyers and judges who routinely confront confidentiality issues. Not surprisingly, then, practitioners are often the most vocal participants in the confidentiality debate. See, e.g., Gilbert et al., supra note 9; Michael McCauley, Proposed Rule Changes Threaten to Increase Court Secrecy, NAT'L B. ASS'N MAG., Feb. 1996, at 31; William E. Shull, Opposing Counsel - Protective Orders, 18 A.B.A. SEC. LITIG. NEWS 3, 11 (1993); Sharon Sobczak, To Seal or Not to Seal? In Search of Standards, 60 DEF. COUNS. J. 406 (1993); Chilton Davis Varner & M. Graham Loomis, Surviving Settlement: Ethical Problems and Strategic Risks Associated with Settlement of Litigation, 20 A.B.A. SEC. LITIG. NEWS 3 (1995).
82. While the broad systemic debates appear largely confined to the legal academy, the issue of litigation secrecy is of great pragmatic concern to the many practicing lawyers and judges who routinely confront confidentiality issues. Not surprisingly, then, practitioners are often the most vocal participants in the confidentiality debate. See, e.g., Gilbert et al., supra note 9; Michael McCauley, Proposed Rule Changes Threaten to Increase Court Secrecy, NAT'L B. ASS'N MAG., Feb. 1996, at 31; William E. Shull, Opposing Counsel - Protective Orders, 18 A.B.A. SEC. LITIG. NEWS 3, 11 (1993); Sharon Sobczak, To Seal or Not to Seal? In Search of Standards, 60 DEF. COUNS. J. 406 (1993); Chilton Davis Varner & M. Graham Loomis, Surviving Settlement: Ethical Problems and Strategic Risks Associated with Settlement of Litigation, 20 A.B.A. SEC. LITIG. NEWS 3 (1995).
83. While the broad systemic debates appear largely confined to the legal academy, the issue of litigation secrecy is of great pragmatic concern to the many practicing lawyers and judges who routinely confront confidentiality issues. Not surprisingly, then, practitioners are often the most vocal participants in the confidentiality debate. See, e.g., Gilbert et al., supra note 9; Michael McCauley, Proposed Rule Changes Threaten to Increase Court Secrecy, NAT'L B. ASS'N MAG., Feb. 1996, at 31; William E. Shull, Opposing Counsel - Protective Orders, 18 A.B.A. SEC. LITIG. NEWS 3, 11 (1993); Sharon Sobczak, To Seal or Not to Seal? In Search of Standards, 60 DEF. COUNS. J. 406 (1993); Chilton Davis Varner & M. Graham Loomis, Surviving Settlement: Ethical Problems and Strategic Risks Associated with Settlement of Litigation, 20 A.B.A. SEC. LITIG. NEWS 3 (1995).
84. While the broad systemic debates appear largely confined to the legal academy, the issue of litigation secrecy is of great pragmatic concern to the many practicing lawyers and judges who routinely confront confidentiality issues. Not surprisingly, then, practitioners are often the most vocal participants in the confidentiality debate. See, e.g., Gilbert et al., supra note 9; Michael McCauley, Proposed Rule Changes Threaten to Increase Court Secrecy, NAT'L B. ASS'N MAG., Feb. 1996, at 31; William E. Shull, Opposing Counsel - Protective Orders, 18 A.B.A. SEC. LITIG. NEWS 3, 11 (1993); Sharon Sobczak, To Seal or Not to Seal? In Search of Standards, 60 DEF. COUNS. J. 406 (1993); Chilton Davis Varner & M. Graham Loomis, Surviving Settlement: Ethical Problems and Strategic Risks Associated with Settlement of Litigation, 20 A.B.A. SEC. LITIG. NEWS 3 (1995).
85. While the broad systemic debates appear largely confined to the legal academy, the issue of litigation secrecy is of great pragmatic concern to the many practicing lawyers and judges who routinely confront confidentiality issues. Not surprisingly, then, practitioners are often the most vocal participants in the confidentiality debate. See, e.g., Gilbert et al., supra note 9; Michael McCauley, Proposed Rule Changes Threaten to Increase Court Secrecy, NAT'L B. ASS'N MAG., Feb. 1996, at 31; William E. Shull, Opposing Counsel - Protective Orders, 18 A.B.A. SEC. LITIG. NEWS 3, 11 (1993); Sharon Sobczak, To Seal or Not to Seal? In Search of Standards, 60 DEF. COUNS. J. 406 (1993); Chilton Davis Varner & M. Graham Loomis, Surviving Settlement: Ethical Problems and Strategic Risks Associated with Settlement of Litigation, 20 A.B.A. SEC. LITIG. NEWS 3 (1995).
86. Although I ultimately propose an approach that varies with each of these differing uses of confidentiality, many who enter the confidentiality fray fail to distinguish between these various functions - often lumping all under the generic rubric of "secrecy" or "confidentiality" orders. See infra Part III.A.
87. See supra note 9.
88. One can taste the flavor of these arguments by reviewing the Senate testimony concerning the failed Sunshine in Litigation Act of 1994. See Court Secrecy, Its Impact on Public Health and Safety, and the Sunshine in Litigation Act: Hearings on S. 1404 Before the Senate Judiciary Subcommittee on Courts and Administrative Practice, 103d Cong. (1994) [hereinafter Hearing Testimony]; see also Edward Felsenthal, Secret Accords in Civil Cases Are Under Fire, WALL ST. J., June 26, 1996, at B1-2 (reporting on secret side arrangements in settlements involving the Exxon Valdez oil spill, the drug Prozac, and the Ford Bronco II); see , e.g., Kohl Testimony, supra note 9; 1994 WL 230112 (Abner Mikva) [hereinafter Mikva Testimony]; 1994 WL 230087 (Prof. Charles Clausen); 1994 WL 230346 (Sybil Niden).
89. Miller, supra note 52, at 480. Professor Miller further argues that these reformers exaggerate the extent of the problems, which he contends can be adequately dealt with through conscientious use of existing procedural rules. See id. at 428; see also Marcus, Discovery Confidentiality, supra note 52, at 464 (finding "hard data . . . generally lacking" to support broad assertions regarding "supposed cover-ups of hazards"); Richard J. Vangelisti, Proposed Amendment to Federal Rule of Civil Procedure 26(c) Concerning Protective Orders: A Critical Analysis of What It Means and How It Operates, 48 BAYLOR L. REV. 163, 175-76 (1996) (asserting that empirical data does not support the claim that secrecy orders suppress information vital to public health and safety).
90. Miller, supra note 52, at 480. Professor Miller further argues that these reformers exaggerate the extent of the problems, which he contends can be adequately dealt with through conscientious use of existing procedural rules. See id. at 428; see also Marcus, Discovery Confidentiality, supra note 52, at 464 (finding "hard data . . . generally lacking" to support broad assertions regarding "supposed cover-ups of hazards"); Richard J. Vangelisti, Proposed Amendment to Federal Rule of Civil Procedure 26(c) Concerning Protective Orders: A Critical Analysis of What It Means and How It Operates, 48 BAYLOR L. REV. 163, 175-76 (1996) (asserting that empirical data does not support the claim that secrecy orders suppress information vital to public health and safety).
91. See Arthur R. Miller, Effective Rulemaking Damaged By Politics, N.L.J., May 1, 1995, at A21-22 (reporting that protective orders are "predominately" requested in civil rights and contracts actions); see also infra note 82.
92. See Elizabeth C. Wiggins & Melissa J. Percherski, Federal Judicial Center, Protective Order Activity in Three Federal Judicial Districts - Interim Report to the Advisory Committee on Civil Rules (Oct. 14, 1994) [hereinafter FJC Study]. The FJC Study examined protective order activity in 300 cases from the District of Columbia federal district court for the three-year period from 1990-1992; 293 cases from the Eastern District of Michigan for the two-year period from 1991-1992; and 310 cases from the Eastern District of Pennsylvania from 1991-1992. Id. at 1-4.
93. See id. at 4.
94. Protective order activity varied from five percent in the Eastern Districts of Michigan and Pennsylvania to between eight and ten percent in the District of Columbia. See id. at 3.
95. See id. at 9. The FJC Study classified cases as either contract, property, civil rights, labor, or personal injury. According to the Study, products liability cases accounted for only a small minority of protective orders issued. Instead, a large percentage of protective orders were entered in civil rights cases to protect personal information concerning both parties and nonparties. See Letter from Judge Patrick E. Higginbotham, Chair of Advisory Committee on Civil Rules to (Standing) Committee on Rules of Practice and Procedure (June 2, 1995) [hereinafter Higginbotham Letter] (criticizing "broad gauged hostility toward protective orders" and its focus upon prod-uct liability claims); Civil Rules Advisory Committee Draft Minutes, at 9-10 (Apr. 20, 1995) [hereinafter Apr. 20, 1995 Advisory Comm. Minutes] ("Civil rights cases are the single most common category of cases involving protective orders, protecting against general access to highly personal information that may relate to nonparties as well as parties.").
96. The FJC Study reports that approximately 40% of all resolved motions for protective orders were granted in whole or in part. See FJC Study, supra note 79, at 6.
97. The FJC Study covered a limited three-year time period and an extremely small sample of judicial districts. See FJC Study supra note 79. One might further question the choice of the Eastern District of Pennsylvania as representative of protective order activity in the 93 other federal judicial districts. As discussed below, the Third Circuit Court of Appeals, of which the Eastern District of Pennsylvania is a part, leads a movement to circumscribe judicial discretion to enter all types of secrecy orders. See infra Part II.C.3. Finally, trend lines may have improved or worsened in the years following the periods studied and completion of the study.
98. One might expect federal courts to more frequently issue protective orders in civil rights cases, which fall within their federal question jurisdiction, than in product liability or other personal injury cases, which might not qualify for federal diversity jurisdiction.
99. See FJC Study, supra note 79, at 1-2 (noting possible future empirical study on sealed court records and sealed settlement agreements). But see Judicial Conference of the United States, Minutes of the Advisory Committee on Federal Rules of Civil Procedure, at 22-23 (Apr. 28, 1994) (1994 WL 809916) [hereinafter Apr. 28, 1994 Advisory Comm. Minutes] (tabling possible procedural rule concerning sealing orders because time had not yet come for further study).
100. See Marcus, Discovery Confidentiality, supra note 52, at 476 (acknowledging that "epochal shifts in litigation" may "at some point" justify increased public access to historically closed pretrial proceedings).
101. See generally id.; Marcus, Myth and Reality, supra note 52; Miller, supra note 52.
102. See generally id.; Marcus, Myth and Reality, supra note 52; Miller, supra note 52.
103. See generally id.; Marcus, Myth and Reality, supra note 52; Miller, supra note 52.
104. See also infra Parts II.C.2-3 (discussing legislative and judicial sunshine reform). See generally Gilbert et al., supra note 9; Luban, supra note 3.
105. See Marcus, Discovery Confidentiality, supra note 52, at 487 (arguing that discovery protective orders serve the purposes of Rule 1); see also infra Part IV.B.1.b.iii (discussing benefits of stipulated protective orders).
106. Confidentiality proponents virtually all assume that confidentiality is critical to the settlement of many lawsuits. See Marcus, Discovery Confidentiality, supra note 52, at 484-85 (arguing that presumption of public access would impede settlement); Miller, supra note 52, at 429 (contending that confidentiality is "not only acceptable, but essential" to discovery and settlement of lawsuits); see also Luban, supra note 3, at 2656 (admitting that some settlements will collapse without confidentiality); Weinstein, supra note 55, at 510-11 (noting that many mass tort cases would not settle without secrecy agreement).
107. See Marcus, Discovery Confidentiality, supra note 52, at 484 (asserting that restrictions on protective orders will "foment . . . opposition to broad discovery"); Shull, supra note 73, at 11 (contending that confidentiality encourages settlement in "high visibility cases, particularly where liability is slim or nonexistent"); Varner & Loomis, supra note 73, at 3 (arguing that both plaintiffs and defendants may be reluctant to establish settlement benchmark).
108. Many public access advocates doubt whether restricting confidentiality would have any effect upon the frequency or amount of settlement. See Laleh Ispahani, Note, The Soul of Discretion: The Use and Abuse of Confidential Settlements, 7 GEO. J. LEGAL ETHICS 111, 119 (1992) (contending that settlements will occur without confidentiality because they mutually benefit parties); Barry C. Schneider, Sealing of Records and Other Secrecy Problems, C949 ALI-ABA 95, 111 (Aug. 1994) (predicting "that the prospect of the settlement being made public is less significant to the parties than the cost of trial and exposure of all that will be revealed in a public trial"); see also Pansy v. Borough of Stroudsburg, 23 F.3d 772, 788 (3d Cir. 1994) (positing that settlements will occur regardless of whether confidentiality can be promised).
109. Many public access advocates doubt whether restricting confidentiality would have any effect upon the frequency or amount of settlement. See Laleh Ispahani, Note, The Soul of Discretion: The Use and Abuse of Confidential Settlements, 7 GEO. J. LEGAL ETHICS 111, 119 (1992) (contending that settlements will occur without confidentiality because they mutually benefit parties); Barry C. Schneider, Sealing of Records and Other Secrecy Problems, C949 ALI-ABA 95, 111 (Aug. 1994) (predicting "that the prospect of the settlement being made public is less significant to the parties than the cost of trial and exposure of all that will be revealed in a public trial"); see also Pansy v. Borough of Stroudsburg, 23 F.3d 772, 788 (3d Cir. 1994) (positing that settlements will occur regardless of whether confidentiality can be promised).
110. Professor Luban, for example, strongly criticizes the secrecy that currently surrounds many settlements. He advocates legislative or judicial sunshine regimes as "an important step toward allowing settlements to fulfill at least some of the public values of adjudication." Luban, supra note 3, at 2659; see also infra Parts II.C.2-3 (discussing sunshine reforms). According to Luban, public debate constitutes one benefit of adjudication that would be furthered by increased public access to settlements. See Luban, supra note 3, at 2653; see also supra notes 41-45 and accompanying text (discussing the other "public goods" that Luban believes adjudication creates).
111. See Luban, supra note 3, at 2653 (discussing the "other-litigants argument" which supports making discovery "available for other litigants to avoid unnecessary multiplication of expense"); Shull, supra note 73, at 3, 9 (noting that restricting secrecy orders fosters consistency in discovery responses and avoids the waste of time and resources associated with relitigation of issues); see also infra Part IV.D.2 (examining discovery sharing as reason for modifying stipulated protective orders).
112. In addition to questioning whether secrecy orders actually jeopardize public health and safety, see Miller, supra note 52, at 477 (contending that only a "minuscule" number of protective orders impact public health and safety), confidentiality proponents also dispute whether courts are the appropriate government institution to disseminate information or warnings concerning public hazards such as product defects. Professor Marcus, for example, contends that product safety is already subject to extensive regulatory scrutiny by agencies far better equipped than the courts to make such determinations. See Marcus, Discovery Confidentiality, supra note 52, at 481-82.
113. See Marcus, Discovery Confidentiality, supra note 52, at 470 (arguing that information dissemination is a collateral effect of litigation that should not be permitted to interfere with the primary role of courts); Miller, supra note 52, at 431 (asserting that "public access to information produced in litigation has always been a secondary benefit - a side effect - of civil adjudication"); see also supra notes 51-53 and accompanying text (discussing problem-solving conception of the justice system).
114. See CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE: CIVIL 2d § 2042 (1994 & Supp. 1996) (criticizing sunshine efforts as misperceiving "function and the role of courts"); see also Marcus, Discovery Confidentiality, supra note 52, at 478 (affording access based upon public interest in materials diverges from basic dispute-resolving purpose of the courts); Miller, supra note 52, at 431-32 (contending that efforts to restrict judicial discretion promote goals unrelated to the litigation before the court and undermine its "primary goal"); Shull, supra note 73, at 11 (asserting that court should not function as advocate by funneling information to plaintiffs' counsel).
115. See CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE: CIVIL 2d § 2042 (1994 & Supp. 1996) (criticizing sunshine efforts as misperceiving "function and the role of courts"); see also Marcus, Discovery Confidentiality, supra note 52, at 478 (affording access based upon public interest in materials diverges from basic dispute-resolving purpose of the courts); Miller, supra note 52, at 431-32 (contending that efforts to restrict judicial discretion promote goals unrelated to the litigation before the court and undermine its "primary goal"); Shull, supra note 73, at 11 (asserting that court should not function as advocate by funneling information to plaintiffs' counsel).
116. See Apr. 28, 1994 Advisory Comm. Minutes, supra note 86, at 5 (noting that litigation might be brought "to foster generation of new disputes not to resolve old ones"); id. at 1 (recording view that current drive for increased access is motivated by a "desire for publicity," not a need to inform or protect the public); Marcus, Discovery Confidentiality, supra note 52, at 485-86 (suggesting that increased access enhances incentive to undertake discover)' for non-litigation purposes); Miller, supra note 52, at 483-84 (noting that facilitating the modification or vacatur of protective orders will increase the incentive to file suit in order to exploit discovery or to force a settlement); Shull, supra note 73, at 11 (arguing that access perpetuates the litigation explosion by facilitating the filing and prosecution of other litigation); Vangelisti, supra note 77, at 178-79 (characterizing anti-secrecy reform as an effort to facilitate other litigation, protect the public, or force a settlement).
117. See, e.g., Weinstein, supra note 55, at 513 ("The public, which created and funds our judicial institutions, depends upon those institutions to protect it."); Mikva Testimony, supra note 76, at 3 (arguing that courts do not exclusively serve the litigants given the "heavy expenditure of public funds and resources on the courts").
118. Although proposed sunshine regimes often focus upon products liability, toxic tort, personal injury, or other cases that arguably impact public health and safety, see infra Part II.C.2, a public life conception might also restrict secrecy in other suits that affect even broader public interests. See infra Part IV.D.2.d for a discussion of the public interest considerations that might guide a decision whether to modify or vacate a protective order.
119. See Kohl Testimony, supra note 9 (contending that "public interest receives far too little consideration in cases affecting public health and safety"); Ispahani, supra note 93, at 127 (finding that "courts appear to grant seals perfunctorily, as a matter of course" at the parties' request in order to facilitate settlement); Shull, supra note 73, at 3, 9 (arguing that courts give no consideration to policy in granting stipulated protective orders).
120. See Dorothy J. Clarke, Court Secrecy and the Food and Drug Administration: A Regulatory Alternative to Restricting Secrecy Orders in Product Liability Litigation Involving FDA-Regulaled Products, 49 FOOD & DRUG L.J. 109, 117-18 (1994) (identifying arguments in favor of restricting secrecy orders). But see Weinstein, supra note 55, at 512-16 (acknowledging that increased public access in mass tort suits might discourage a defendant from recording the dangers of a product or activity, thereby increasing danger to society).
121. See Menkel-Meadow, supra note 32, at 2680, 2690; see also Marcus, Myth and Reality, supra note 52, at 44 (advocating settlement confidentiality orders as a "form of party autonomy that is critical to the reliability of such orders"); Resnik, supra note 4, at 1491, 1539 (suggesting that stipulated vacatur "enhances the autonomy of litigants on both sides of a dispute" and "installs preferences of the parties as the best measure of fairness available").
122. See Menkel-Meadow, supra note 32, at 2680, 2690; see also Marcus, Myth and Reality, supra note 52, at 44 (advocating settlement confidentiality orders as a "form of party autonomy that is critical to the reliability of such orders"); Resnik, supra note 4, at 1491, 1539 (suggesting that stipulated vacatur "enhances the autonomy of litigants on both sides of a dispute" and "installs preferences of the parties as the best measure of fairness available").
123. See Edward H. Cooper, Memorandum on Protective Orders, 1994 WL 23044 (F.D.C.H.) (April 20, 1994) [hereinafter Cooper Memo] (warning that sunshine legislation might encourage non-public means of dispute resolution or abandonment of litigation altogether); Marcus, Discovery Confidentiality, supra note 52, at 486 (suggesting that restrictions on protective orders may deter claimants from seeking court relief for fear of disclosure); Menkel-Meadow, supra note 32, at 2684 (fearing that parties who seek to "privatize their disputes will simply avoid the public courts completely").
124. See Edward H. Cooper, Memorandum on Protective Orders, 1994 WL 23044 (F.D.C.H.) (April 20, 1994) [hereinafter Cooper Memo] (warning that sunshine legislation might encourage non-public means of dispute resolution or abandonment of litigation altogether); Marcus, Discovery Confidentiality, supra note 52, at 486 (suggesting that restrictions on protective orders may deter claimants from seeking court relief for fear of disclosure); Menkel-Meadow, supra note 32, at 2684 (fearing that parties who seek to "privatize their disputes will simply avoid the public courts completely").
125. Party-borne court costs and filing fees do not begin to cover the overall costs of operating the civil justice system. See Thomas E. Baker, A View to the Future of Judicial Federalism; "Neither Out Far Nor in Deep", 45 CASE W. RES. L. REV. 705, 731 (1995) (noting the describing "free-rider problem" caused by discrepancy between revenues generated by current filing fees and the "cost of running a typical trial court [which] is estimated at between $400 and $600 an hour, upwards of $5000 a day").
126. See Clarke, supra note 103, at 118-19 (restricting secrecy orders arguably furthers public debate and confidence in the judicial system); Marcus, Discovery Confidentiality, supra note 52, at 470 (examining the argument that increased access improves public's opportunity to observe the functioning of the courts). For a discussion of the rationales that support public access to judicial proceedings, see infra Part III.D.
127. Although beyond the scope of this Article, sunshine reform could also arguably be accomplished through more stringent ethical prohibitions on a laser's ability to enter into secrecy agreements. See Attorneys Face Legal, Ethical Dilemma in Battles Between Privacy and Access: Protective Orders, BNA's 50 State Survey (BNA) No. 47, at 46-48 (Nov. 1992) [hereinafter BNA Survey] (reporting on proposed ethical amendments that would restrict attorney's ability to confidentially settle cases involving public health and safety); Ispahani, supra note 93, at 112, 128-30 (arguing that plaintiffs' lawyers are better
128. See Richard A. Rosen & Karen Steinberg Kennedy, New Developments in State Protective Order Legislation and Procedural Rules, C915 ALI-ABA 315, 320-21 (Winter 1994) (concluding that it is "certainly better . . . to leave the resolution of these delicate issues to the discretion of the court on a case by case basis").
129. Professor Arthur Miller, for example, ardently opposes any attempt to restrict existing judicial discretion to issue or modify protective orders governing discovery. See Miller, supra note 52, at 435-36, 467, 476. See infra Parts IV.A-B for a discussion of existing protective order practice under Federal Rule of Civil Procedure 26(c).
130. See infra Part V (discussing the sealing of judicial records).
131. See infra Part VI (discussing secrecy in settlement).
132. See, e.g., Poliquin v. Garden Way, Inc., 989 F.2d 527, 532 (1st Cir. 1993) (stating that courts need "wide latitude" and "broad discretion" regarding when and what confidentiality protection is needed and should be afforded "great deference . . . framing and administering" secrecy orders); see also Concerning Protective Orders in Federal Litigation Before the Senate Judiciary Subcommittee on Courts and Administrative Practice, 1994 WL 230134, at *5 (1994) (Statement of Patrick E. Higgin-botham, U.S. Judge for the Fifth Circuit Court of Appeals) [hereinafter Higginbotham Testimony] (noting the "infinite degrees" of interests to be balanced in issuing a protective order); Miller, supra note 52, at 435-36 (describing existing law as affording courts the flexibility and discretion to balance competing interests).
133. In introducing one of the many proposed, but never enacted, federal sunshine bills, for example, Senator Herbert Kohl rejected judicial reform of Federal Rule of Civil Procedure 26(c), arguing that it would perpetuate a status quo that fails to adequately consider the public interest in cases affecting public health and safety. See Kohl Testimony, supra note 9; see also Marianne Lavelle, Hearings Reveal Deep Divisions Over the Issue of Court Secrecy, N.L.J., May, 2, 1994, at A12 (quoting Judge Mikva's view that "policy issues here should be decided by policy makers, not by appointed judges"); Larry Smith, No More Court Secrecy on Dangerous Products, HOUSTON CHRON., Mar. 13, 1992, at B15 (stating that courts are "ill-equipped" to balance the benefit of open information against the harm to corporations).
134. In introducing one of the many proposed, but never enacted, federal sunshine bills, for example, Senator Herbert Kohl rejected judicial reform of Federal Rule of Civil Procedure 26(c), arguing that it would perpetuate a status quo that fails to adequately consider the public interest in cases affecting public health and safety. See Kohl Testimony, supra note 9; see also Marianne Lavelle, Hearings Reveal Deep Divisions Over the Issue of Court Secrecy, N.L.J., May, 2, 1994, at A12 (quoting Judge Mikva's view that "policy issues here should be decided by policy makers, not by appointed judges"); Larry Smith, No More Court Secrecy on Dangerous Products, HOUSTON CHRON., Mar. 13, 1992, at B15 (stating that courts are "ill-equipped" to balance the benefit of open information against the harm to corporations).
135. Citing a court's natural desire to clear its dockets, as well as its reluctance to undercut a plaintiffs optimal recovery, Professor Luban argues that "[j]udges are unlikely to exercise their discretion to scuttle a settlement in the name of the publicity principle." Luban, supra note 3, at 2658; see also Weinstein, supra note 55, at 517 (suggesting that neutral ombudsman determine secrecy issues given courts' conflict of interest in clearing their dockets).
136. See generally Miller, supra note 52, at 430 n.7 (noting that in 1990-1991, protective order legislation was proposed in 30 states and rejected in 25); Rosen & Kennedy, supra note 109, at 317-19 (describing "movement to restrict and channel judicial discretion" as being a subject of activity in "virtually every state"); Study Finds Web of Conflicts, Activity in Protective Order Issue, 7 BNA's CORP. COUNS. WEEKLY (BNA), Dec. 2, 1992, at 1 (surveying protective order activity in 50 states).
137. Attempts to legislate federal sunshine reform have failed at two levels, both in Congress and with the drafters of the Federal Rules of Civil Procedure. Congressional Proposals. Senator Herbert Kohl unsuccessfully introduced three substantially identical versions of a Federal Sunshine in Litigation Act [the "Act"] in 1993, 1994, and 1995. See S. 1404, 103d Cong. (1993); 140 Cong. Rec. 7719, (103d Cong. Amend. 1930 to S. 687) (1994); S. 374, 104th Cong. (1995). The Act sought to limit a federal district court's discretion to enter a Rule 26 (c) discovery protective order "or an order restricting access to court records in a civil case." S. 374, 104th Cong. § 2 (1995). Before issuing such an order, a district court would need to make "particularized findings of fact" that disclosure of information "relevant to the protection of public health or safety" would not be impeded or that a "specific and substantial interest" in the confidentiality of the particular information "clearly outweighed" the public interest in disclosure. The party seeking confidentiality bore the burden of persuasion, and the protective order could be "no broader than necessary to protect the privacy interest asserted." Id. at § 2. Finally, the Act voided any agreement that would have prohibited or restricted the parties to a federal lawsuit from disclosing relevant information "to any Federal or State agency with authority to enforce laws regulating an activity relating to such information." Id. The Act, which faced strong opposition from many federal judges, the Advisory Committee on Civil Rules, senators, academics, and practitioners, died in the Senate. Objectors argued that, among other things, the Act attempted to circumvent and transform the federal rulemaking process from a transsubstantive and neutral activity that considered the federal rules as a coordinated whole to a political exercise fueled by special interest groups that sought piecemeal reforms myopically aimed at protective orders in particular categories of cases. Opponents further asserted that Senator Kohl's legislation misperceived the function of the civil judiciary and unduly restricted necessary judicial discretion. See generally Hearing Testimony, supra note 76; 140 Cong. Rec. S13041-044, (daily ed. Sept. 21, 1994) (statement of Senator Charles Grassley); 140 Cong. Rec. S7685-98, (daily ed. June 27, 1994); see also Vangelisti, supra note 77, at 171-73 (critiquing alleged circumvention of the rulemaking process). Rules Proposals. The efforts to statutorily amend Federal Rule of Civil Procedure 26(c) prompted the Judicial Conference of the United States to undertake its own study of discovery protective orders. Proposed amendments were first published for public comment in 1993 and, in March of 1995, the Advisory Committee on Civil Rules submitted a modified amendment of Rule 26(c) to the Judicial Conference. See Judicial Conference of the United States, Minutes of the Advisory Committee on Civil Rules, 1994 WL 880348, at *5 (Oct. 20, 1994) [hereinafter Oct. 20, 1994 Jud. Conf. Minutes], In order to accommodate the "delicate balance of privacy and public interests" surrounding protective orders and to codify what the Advisory Committee perceived as existing practice, the proposed rule permitted the parties to stipulate to discovery protective orders. At the same time, the proposal recognized a court's continuing authority to modify or vacate its protective orders and established procedures and standards allowing nonparty intervention. The proposal to permit a district court to issue a protective order "for good cause shown or on stipulation of the parties" proved extremely controversial before the Judicial Conference, which ultimately voted to delete the amendment's explicit approval of stipulated protective orders and to send the proposed rule back to the Advisory Committee for further study and public comment. See Linda Greenhouse, Judicial Conference Rejects More Secrecy in Civil Court, N.Y. TIMES, Mar. 15, 1995, at B9; see also infra notes 232-43 and accompanying text (further discussing amendment controversy). The Advisory Committee, however, believed that deletion of the stipulation language would upset the "closely laced and interrelated set of interest reconciliations" represented by the proposed rule, and, in April of 1995, submitted the amendment unchanged for public comment. Higginbotham Letter, supra note 82, at 95. After the period for public comment expired in March of 1996, the Advisory Committee tabled further consideration of Rule 26 (c) pending a comprehensive review of the general scope of discovery. See Report of the Advisory Committee on Civil Rules to Standing Committee on Rules of Practice and Procedure (May 17, 1996).
138. Attempts to legislate federal sunshine reform have failed at two levels, both in Congress and with the drafters of the Federal Rules of Civil Procedure. Congressional Proposals. Senator Herbert Kohl unsuccessfully introduced three substantially identical versions of a Federal Sunshine in Litigation Act [the "Act"] in 1993, 1994, and 1995. See S. 1404, 103d Cong. (1993); 140 Cong. Rec. 7719, (103d Cong. Amend. 1930 to S. 687) (1994); S. 374, 104th Cong. (1995). The Act sought to limit a federal district court's discretion to enter a Rule 26 (c) discovery protective order "or an order restricting access to court records in a civil case." S. 374, 104th Cong. § 2 (1995). Before issuing such an order, a district court would need to make "particularized findings of fact" that disclosure of information "relevant to the protection of public health or safety" would not be impeded or that a "specific and substantial interest" in the confidentiality of the particular information "clearly outweighed" the public interest in disclosure. The party seeking confidentiality bore the burden of persuasion, and the protective order could be "no broader than necessary to protect the privacy interest asserted." Id. at § 2. Finally, the Act voided any agreement that would have prohibited or restricted the parties to a federal lawsuit from disclosing relevant information "to any Federal or State agency with authority to enforce laws regulating an activity relating to such information." Id. The Act, which faced strong opposition from many federal judges, the Advisory Committee on Civil Rules, senators, academics, and practitioners, died in the Senate. Objectors argued that, among other things, the Act attempted to circumvent and transform the federal rulemaking process from a transsubstantive and neutral activity that considered the federal rules as a coordinated whole to a political exercise fueled by special interest groups that sought piecemeal reforms myopically aimed at protective orders in particular categories of cases. Opponents further asserted that Senator Kohl's legislation misperceived the function of the civil judiciary and unduly restricted necessary judicial discretion. See generally Hearing Testimony, supra note 76; 140 Cong. Rec. S13041-044, (daily ed. Sept. 21, 1994) (statement of Senator Charles Grassley); 140 Cong. Rec. S7685-98, (daily ed. June 27, 1994); see also Vangelisti, supra note 77, at 171-73 (critiquing alleged circumvention of the rulemaking process). Rules Proposals. The efforts to statutorily amend Federal Rule of Civil Procedure 26(c) prompted the Judicial Conference of the United States to undertake its own study of discovery protective orders. Proposed amendments were first published for public comment in 1993 and, in March of 1995, the Advisory Committee on Civil Rules submitted a modified amendment of Rule 26(c) to the Judicial Conference. See Judicial Conference of the United States, Minutes of the Advisory Committee on Civil Rules, 1994 WL 880348, at *5 (Oct. 20, 1994) [hereinafter Oct. 20, 1994 Jud. Conf. Minutes], In order to accommodate the "delicate balance of privacy and public interests" surrounding protective orders and to codify what the Advisory Committee perceived as existing practice, the proposed rule permitted the parties to stipulate to discovery protective orders. At the same time, the proposal recognized a court's continuing authority to modify or vacate its protective orders and established procedures and standards allowing nonparty intervention. The proposal to permit a district court to issue a protective order "for good cause shown or on stipulation of the parties" proved extremely controversial before the Judicial Conference, which ultimately voted to delete the amendment's explicit approval of stipulated protective orders and to send the proposed rule back to the Advisory Committee for further study and public comment. See Linda Greenhouse, Judicial Conference Rejects More Secrecy in Civil Court, N.Y. TIMES, Mar. 15, 1995, at B9; see also infra notes 232-43 and accompanying text (further discussing amendment controversy). The Advisory Committee, however, believed that deletion of the stipulation language would upset the "closely laced and interrelated set of interest reconciliations" represented by the proposed rule, and, in April of 1995, submitted the amendment unchanged for public comment. Higginbotham Letter, supra note 82, at 95. After the period for public comment expired in March of 1996, the Advisory Committee tabled further consideration of Rule 26 (c) pending a comprehensive review of the general scope of discovery. See Report of the Advisory Committee on Civil Rules to Standing Committee on Rules of Practice and Procedure (May 17, 1996).
139. Texas and Florida were among the first states to enact relatively wide-ranging sunshine legislation - Texas, by rule of civil procedure, and Florida, by statute. See TEX. R. Civ. P. 76a; FLA. STAT. ANN. § 69.081 (West Supp. 1998). The Florida statute, which is almost as broad as the Texas rule, prohibits a court from entering any order or judgment that "has the purpose or effect of concealing a public hazard or any information concerning a public hazard," or "any information which may be useful to members of the public in protecting themselves from injury which may result from the public hazard." FLA. STAT. ANN. § 69.081(3). In addition, the Florida statute goes further than Texas by voiding, as against public policy, any settlement provision that conceals information concerning public hazards, id. §4, or any settlement of a claim with a government entity. Id. § 8(a). See also infra Part VI.A (discussing litigants' ability to privately contract for settlement confidentiality).
140. TEX. R. CIV. P. § 76a(2)(b)-(c). The presumption does not encompass references to monetary consideration in settlements, id. § (2)(b), "discovery in cases originally initiated to preserve bona fide trade secrets or other intangible property rights," id. § (2)(c), or documents filed in camera for the purpose of obtaining a discovery ruling, id. § (2)(a)(1).
141. Id. § 76a(1)(a)-(b).
142. Under the Texas rule, a court may not issue a secrecy order without a preceding motion, notice of a public hearing, and an open hearing in which any interested person has the right to intervene. See id. §§ (3) & (4). For a discussion of Texas Rule 76a and the debate surrounding its enactment, see generally Lloyd Doggett & Michael J. Mucchetti, Public Access to Public Courts: Discouraging Secrecy in the Public Interest, 69 TEX. L. REV. 643 (1990); Robert C. Nissen, Open Court Records in Products Liability Litigation Under Texas Rule 76a, 72 TEX. L. REV. 931 (1994); and Jennifer S. Sickler & Michael F. Heim, The Impact of Rule 76a: Trade Secrets Crash and Burn in Texas, 1 TEX. INTELL. PROP. L.J. 95 (1993).
143. Under the Texas rule, a court may not issue a secrecy order without a preceding motion, notice of a public hearing, and an open hearing in which any interested person has the right to intervene. See id. §§ (3) & (4). For a discussion of Texas Rule 76a and the debate surrounding its enactment, see generally Lloyd Doggett & Michael J. Mucchetti, Public Access to Public Courts: Discouraging Secrecy in the Public Interest, 69 TEX. L. REV. 643 (1990); Robert C. Nissen, Open Court Records in Products Liability Litigation Under Texas Rule 76a, 72 TEX. L. REV. 931 (1994); and Jennifer S. Sickler & Michael F. Heim, The Impact of Rule 76a: Trade Secrets Crash and Burn in Texas, 1 TEX. INTELL. PROP. L.J. 95 (1993).
144. Under the Texas rule, a court may not issue a secrecy order without a preceding motion, notice of a public hearing, and an open hearing in which any interested person has the right to intervene. See id. §§ (3) & (4). For a discussion of Texas Rule 76a and the debate surrounding its enactment, see generally Lloyd Doggett & Michael J. Mucchetti, Public Access to Public Courts: Discouraging Secrecy in the Public Interest, 69 TEX. L. REV. 643 (1990); Robert C. Nissen, Open Court Records in Products Liability Litigation Under Texas Rule 76a, 72 TEX. L. REV. 931 (1994); and Jennifer S. Sickler & Michael F. Heim, The Impact of Rule 76a: Trade Secrets Crash and Burn in Texas, 1 TEX. INTELL. PROP. L.J. 95 (1993).
145. See, e.g., DEL. SUPER. CT. R. 9(bb) (requiring a judicial determination that good cause exists for continued seal of court records); GA. SUPER. CT. R. 21.1 (establishing procedural and substantive requirements for sealing of judicial records); IDAHO CT. R. 32 (f) (requiring that courts make a factual finding "as to whether the interest in privacy or public disclosure predominates" before sealing judicial records in least restrictive fashion); IND. CODE ANN. § 5-14-3-5.5 (West 1989) (requiring specific balancing of interests, findings of fact and conclusions of law before sealing judicial public record); MICH. STAT. ANN. R. 8.105(D) (Law. Co-op. 1992) (limiting court's discretion to seal any "documents and records of any nature that are filed with the clerk"); N.Y. CT. R. § 216.1 (requiring written finding of good cause and consideration of public interest before sealing court records).
146. See N.C. GEN. STAT. § 132-1.3(b) (1995) (restricting agencies of government or its subdivisions from entering into confidential settlements without "overriding interest"); OR. REV. STAT. ANN. § 30.402 (Michie Supp. 1996) (prohibiting public body from entering into confidential settlement).
147. See ARK. CODE ANN. § 16-55-122 (Michie Supp. 1997) (voiding settlement agreements or provisions concealing environmental hazard); WASH. REV. CODE ANN. § 4.24.611 (West Supp. 1998) (restricting confidentiality provisions in a court order or private agreement that involves product liability or hazardous substance claims).
148. See VA. CODE ANN. § 8.01-420.01 (Michie 1992) (providing that protective orders issued in personal injury or wrongful death cases shall not prohibit sharing of discovery in similar or related matters). See also infra Part IV.D.2.C for a discussion of discovery sharing as a consideration in modifying or vacating a protective order.
149. Other than one unsuccessful challenge to the constitutionality of the Florida statute, there is a surprising paucity of caselaw surrounding even the relatively mature Florida and Texas statutes. See Clarke, supra note 103, at 121-22 (concluding that "the actual effect of reforms on the judicial system remains speculative" given the lack of controversial motions or appeals in states that have enacted sunshine reforms); Luban, supra note 3, at 2655 (characterizing criticisms of sunshine laws as mere conjecture without empirical study concerning their effect upon discovery).
150. 23 F.3d 772 (3d Cir. 1994).
151. Id. at 789.
152. Glenmede Trust Co. v. Thompson, 56 F.3d 476, 481 n.8 (3d Cir. 1995). See also id. at 483 n.11; Pansy, 23 F.3d at 788-89.
153. Pansy, 23 F.3d at 785-86. The Pansy court drew no distinction between protective orders governing discovery, sealing orders, and confidentiality orders concerning settlements, finding that they were all "functionally similar," that they shared "comparable features," and that they implicated "similar public policy concerns." Id. at 786. See infra Part III.A (criticizing generic treatment of secrecy orders).
154. Instead, the Pansy court required "a particularized showing of the need for confidentiality in reaching a settlement." Pansy, 23 F.3d at 788.
155. See id. at 786 ("We therefore . . . conclude that whether an order of confidentiality is granted at the discovery stage or any other stage of litigation, including settlement, good cause must be demonstrated to justify the order."); id. at 790 ("The appropriate approach in considering motions to modify confidentiality orders is to use the same balancing test that is used in determining whether to grant such orders in the first instance . . . .").
156. Glenmede Trust, 56 F.3d at 483; Pansy, 23 F.3d at 787-92. While the Third Circuit commits the "balancing of factors for and against access" to the trial court's discretion, it does not accord that determination "the narrow review reserved for discretionary decisions based on first-hand observations." Pansy, 23 F.3d at 781 (quoting Bank of Am. Nat'l Trust & Sav. Ass'n v. Hotel Rittenhouse Assoc., 800 F.2d 339, 344 (3d Cir. 1986)).
157. These public interest factors inquire whether the information is relevant to the public health and safety or is otherwise in the public interest, whether a government entity or public official is a party, whether the arguably confidential information would otherwise be subject to a freedom of information request, and whether public access would facilitate discovery sharing in other related cases. See Pansy, 23 F.3d at 787-92. Many of the private and public factors identified by the Pansy court will be discussed at length in connection with the modification of discovery protective orders. See infra Part IV.D.2.
158. See, e.g., St. Paul Fire & Marine Ins. Co. v. Gould Elec. Inc., No. 95-5203, 1996 WL 383307, at *1 (E.D. Pa. July 1, 1996) (rejecting stipulated protective order absent briefing on Pansy factors); Aetna Cas. &: Sur. Co. v. George Hyman Constr. Co., 155 F.R.D. 113, 115-16 (E.D. Pa. 1994) (refusing to enter stipulated protective order that permitted parties to self-select documents entitled to confidential protection); Horgan v. Independence Blue Cross, No. 93-CV-2528, 1994 WL 24662, at *2 (E.D. Pa. Jan. 24, 1994) (elevating parties' stipulation to confidentiality order would waste judicial resources and furnish a false sense of protection); Frupac Int'l Corp. v. M/V "Chucabuco", No. Civ. A. 92-2617, 1994 WL 269271, at *1-*2 (E.D. Pa. June 15, 1994) (refusing to endorse "generally worded non-case specific agreement worked out between the parties" because parties failed to provide court with sufficient information to conduct balancing test); Musicom Int'l, Inc. v. Serubo, 22 Media L. Rep. (BNA) 2507, No. Civ. A. 94-1920, 1994 WL 410818, at *2 (E.D. Pa. Aug. 5, 1994) (holding that "broad abdication of judicial authority as . . . contemplated by the parties is wholly inconsistent with the good cause standard"); see also Shanon P. Duffy, Rules Are Changed on Confidentiality; Spate of Federal Rulings Make Protective Orders Uncertain, LEGAL INTELLIGENCER, July 11, 1994, at 1 (reading Pansy "to disapprove the judicial rubber-stamping of stipulated protective orders" and noting "minor boomlet" in denials of such orders in the Eastern District of Pennsylvania).
159. Pansy, 23 F.3d at 777 n.1.
160. See, e.g., TEX. R. CIV. P. 76a(2). The Florida statute not only restricts the court's entry of any order that "has the purpose or effect of concealing a public hazard," but also voids any private agreement that might carry a similar effect. FLA. STAT. ANN. § 69.081 (3), (4) (West Supp. 1998). Similarly, the proposed Federal Sunshine in Litigation Act, while expressly aimed at discovery protective orders, also sought to limit a court's discretion to enter any "order restricting access to court records in a civil case." See supra note 117.
161. Professor Luban, for instance, regards the "underlying issues" as "very similar" concerning "sealed settlements with the blessing of a court, secret settlements without the blessing of a court, and predisposition gag orders." Luban, supra note 3, at 2650. See also Janice Toran, Secrecy Orders and Government Litigants: "A Northwest Passage Around the Freedom of Information Act"?, 27 GA. L. REV. 121, 124 n.21 (1992) (defining "secrecy order . . . to encompass all judicial orders that prevent document disclosure, including protective orders in discovery and orders sealing settlements").
162. Pansy, 23 F.3d at 786.
163. Id. (finding that protective and confidentiality orders are functionally similar, involve similar balancing, and require good cause).
164. The Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1995), functions as a disclosure statute aimed at curbing perceived excesses in executive branch secrecy. The FOIA mandates disclosure of certain "agency" records requested from a government "agency." Id. § 552(a)(3). The FOIA contains numerous exceptions, however, see id. § 552(b), and the federal courts are expressly exempted from its coverage, see id. § 551(1)(B). In particular, a federal agency may withhold otherwise disclosable information or documents that are the subject of a judicial secrecy order. See GTE Sylvania, Inc. v. Consumers Union of the United States, Inc., 445 U.S. 375, 377 (1980); see also infra Part IV.D.2.d (discussing how the government status of a party might impact the decision whether to grant or modify a protective order). See generally Toran, supra note 138, at 122, for an exploration of the "conflict between the government's perceived need for secrecy as a means of encouraging the voluntary submission of information and the public's undeniable interest in monitoring the health and safety activities of a government agency."
165. As discussed below, for example, a handful of courts have found that Federal Rule of Civil Procedure 5(d) provides a statutory right of public access to even unfiled discovery. See infra Part IV.C.1.
166. See supra note 117.
167. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the Supreme Court found the right to attend criminal trials implicit in the First Amendment guarantees of free speech, press, and peaceable assembly. Such guarantees, according to the Court, include the freedom to assemble, listen, and receive information and thus "prohibit government from limiting the stock of information from which members of the public may draw." Id. at 575-80. See also Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) [Press-Enterprise II] (excluding public access to preliminary hearing in murder case); Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) [Press-Enterprise I] (allowing access to jury selection in criminal trial); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) (excluding the press and the general public from trial involving sexual offenses against minors).
168. In Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), the Supreme Court addressed whether the public had a right to inspect and copy the Nixon tapes, which had been played in open court during the criminal trials of several Watergate defendants. The Court recognized a common law right of access to judicial records, but acknowledged the sharp controversy "over its scope and the circumstances warranting restrictions of it." Id. at 597. Although the paucity of precedent made it difficult to formulate any comprehensive definition of this common law right, the Court agreed that the access decision "is one best left to the sound discretion of the trial court . . . to be exercised in light of the relevant facts and circumstance of the particular case." Id. at 599. The Court thus upheld the trial court's refusal to publicly release copies of the tapes in its custody. See id. at 611. For a more complete discussion of the common law right of access as recently applied to the sealing of civil judicial records, see infra Part V.
169. Indeed, in Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 (1984), the Supreme Court upheld the constitutionality of a discovery protective order, ruling that "[a] litigant has no First Amendment right of access to information made available only for purposes of trying his suit." See infra Part IV (discussing Seattle Times and stipulated protective orders).
170. See infra note 352 and accompanying text (discussing right of public access to civil trials).
171. Neither a First Amendment nor a common law right of access is absolute. Instead, if a court finds a constitutional right of public access to judicial proceedings or records, any denial of access must be necessitated by a compelling government interest and be narrowly tailored to serve that interest. See Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988). In contrast, it is generally easier to overcome a common law right of public access with "reasons favoring secrecy." Mokhiber v. Davis, 537 A.2d 1100, 1108 (D.C. 1988); see also Nixon, 435 U.S. at 599. This ill-defined common law right generally attaches a presumption of public access to "judicial records" that can be overcome if "significant countervailing interests heavily outweigh the public interest in access." Rushford, 846 F.2d at 253; see also Brazil, supra note 27, at 1019 (describing common law right as a "controversial, ill-defined and unevenly supported doctrine, especially as it applies to civil litigation").
172. Rushford, 846 F.2d at 253.
173. See In re Policy Management Sys. Corp., Nos. 94-2254, 94-2341, 1995 WL 541623, at *3 (4th Cir. Sept. 13, 1995); Stone v. University of Md. Med. Sys. Corp., 855 F.2d 178, 180-81 (4th Cir. 1988).
174. In choosing to rest its decision concerning the sealing of filed materials on common law, rather than First Amendment considerations, the state court in Mokhiber argued that the "constitutionalization of the right to pretrial records could freeze the law in this area of only recent first amendment development beyond the reach of modification by either legislative act or court rule." Mokhiber, 537 A.2d at 1108. But see Wilson v. American Motors Corp., 759 F.2d 1568, 1570-71 (11th Cir. 1985) (assuming common law presumption, but applying more stringent First Amendment test).
175. See Press-Enterprise II, 478 U.S. 1, 8-9 (1986); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605-06 (1982).
176. See, e.g., Littlejohn v. BIC Corp., 851 F.2d 673, 678 (3d Cir. 1988) (examining common law right of public access to civil trial exhibits); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178-79 (6th Cir. 1983) (applying historical and functional prongs with respect to the sealing of civil records).
177. But see Eugene Cerruti, "Dancing in the Courthouse": The First Amendment Right of Access Opens a New Round, 29 U. RICH. L. REV. 237, 295-96 (1995) (proposing transformation of two-pronged test from one based on functional utility of access to "an instrument of court-based information").
178. In her concurring opinion in Globe Newspaper, for example, Justice O'Connor stressed the singularly important public concern with "the manner in which criminal trials are conducted" and cautioned against extending that decision outside the criminal context. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 611 (1982) (O'Connor, J., concurring). The court in Mokhiber similarly refused to transfer a First Amendment right of access to the civil pretrial arena, reasoning: [C]ivil litigation generally deals not with the coercive power of the state exercised against an individual in satisfaction of a wrong to the public-at-large, but, rather, concerns disputes between private parties. The parties have selected the civil courts as one of a number of acceptable dispute resolution mechanisms. The public interest in preliminary sparring between two parties protected by the adversary system is significantly different from the public interest in preliminary criminal proceedings. Mokhiber, 537 A.2d at 1108.
179. See Mokhiber, 537 A.2d. at 1108; see also Brown & Williamson Tobacco Corp., 710 F.2d at 1179 (finding the rationales supporting public access to criminal trials equally applicable to civil case involving the sealing of judicial records).
180. See Press-Enterprise II, 478 U.S. at 12-13.
181. Monitoring may be particularly important in federal court, where judges are appointed for life and impeachment is a rare and cumbersome occurrence. As noted by the Second Circuit in United States v. Amodeo: Federal courts exercise powers under Article III that impact upon virtually all citizens, but judges, once nominated and confirmed, serve for life unless impeached through a process that is politically and practically inconvenient to invoke. Although courts have a number of internal checks, such as appellate review by multi-judge tribunals, professional and public monitoring is an essential feature of democratic control. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995); see also Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 161 (3d Cir. 1993) (explaining that access to civil cases "diminishes the possibilities for injustice, incompetence, perjury, and fraud").
182. See Press-Enterprise II, 478 U.S. at 12-13.
183. The Supreme Court has identified the "community therapeutic value" or "community catharsis" achieved by public access to certain criminal proceedings: "When a shocking crime occurs, a community reaction of outrage and public protest often follows. Thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571 (1980). See also Press-Enterprise II, 478 U.S. at 12-13 (discussing the "community therapeutic value" of open criminal proceedings); Press-Enterprise I, 464 U.S. 501, 509 (1984) (asserting that "public proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct").
184. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604-06 (1982).
185. Richmond Newspapers, 448 U.S. at 572 (discussing "educative effect" of open criminal trials). The Supreme Court has held that the press has no greater right of access to judicial proceedings than the general public. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 609 (1978).
186. See Leucadia, Inc., 998 F.2d at 161 (suggesting that open civil proceedings provide "public with a more complete understanding of the judicial system").
187. See Globe Newspaper, 457 U.S. at 606.
188. See Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179 (6th Cir. 1983) ("Openness in the courtroom discourages perjury and may result in witnesses coming forward with new information regardless of the type of the proceedings.").
189. See, e.g., United States v. Amodeo, 71 F.3d 1044, 1052 (2d Cir. 1995) (expressing concern that public access to sealed progress reports would deter confidential informants from cooperating with the monitoring of a consent decree).
190. See Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 22-23 (2d Cir. 1984); Brown & Williamson Tobacco Corp., 710 F.2d at 1178; see also WRIGHT ET AL., supra note 98, § 2042 n.31 ("In general, there should be a constitutional right to attend civil trials just as there is to attend criminal trials.").
191. The push to enact sunshine legislation in the late 1980s and early 1990s generated a wealth of commentary concerning discovery confidentiality. See, e.g., Diane L. Bratvold, Note, Protective Orders and the Use of Discovery Materials Following Seattle Times, 71 MINN. L. REV. 171 (1986); Richard P. Campbell, The Protective Order in Products Liability Litigation: Safeguard or Misnomer?, 31 B.C. L. REV. 771 (1990); Katie Eccles, Note, The Agent Orange Case: A Flawed Interpretation of the Federal Rules of Civil Procedure Granting Pretrial Access to Discovery, 42 STAN. L. REV. 1577 (1990); Marcus, Discovery Confidentiality, supra note 52; Marcus, Myth and Reality, supra note 52; Miller, supra note 52; Alan B. Morrison, Protective Orders, Plaintiffs, Defendants and the Public Interest in Disclosure: Where Does the Balance Lie?, 24 U. RICH. L. REV. 109 (1989).
192. The push to enact sunshine legislation in the late 1980s and early 1990s generated a wealth of commentary concerning discovery confidentiality. See, e.g., Diane L. Bratvold, Note, Protective Orders and the Use of Discovery Materials Following Seattle Times, 71 MINN. L. REV. 171 (1986); Richard P. Campbell, The Protective Order in Products Liability Litigation: Safeguard or Misnomer?, 31 B.C. L. REV. 771 (1990); Katie Eccles, Note, The Agent Orange Case: A Flawed Interpretation of the Federal Rules of Civil Procedure Granting Pretrial Access to Discovery, 42 STAN. L. REV. 1577 (1990); Marcus, Discovery Confidentiality, supra note 52; Marcus, Myth and Reality, supra note 52; Miller, supra note 52; Alan B. Morrison, Protective Orders, Plaintiffs, Defendants and the Public Interest in Disclosure: Where Does the Balance Lie?, 24 U. RICH. L. REV. 109 (1989).
193. The push to enact sunshine legislation in the late 1980s and early 1990s generated a wealth of commentary concerning discovery confidentiality. See, e.g., Diane L. Bratvold, Note, Protective Orders and the Use of Discovery Materials Following Seattle Times, 71 MINN. L. REV. 171 (1986); Richard P. Campbell, The Protective Order in Products Liability Litigation: Safeguard or Misnomer?, 31 B.C. L. REV. 771 (1990); Katie Eccles, Note, The Agent Orange Case: A Flawed Interpretation of the Federal Rules of Civil Procedure Granting Pretrial Access to Discovery, 42 STAN. L. REV. 1577 (1990); Marcus, Discovery Confidentiality, supra note 52; Marcus, Myth and Reality, supra note 52; Miller, supra note 52; Alan B. Morrison, Protective Orders, Plaintiffs, Defendants and the Public Interest in Disclosure: Where Does the Balance Lie?, 24 U. RICH. L. REV. 109 (1989).
194. The push to enact sunshine legislation in the late 1980s and early 1990s generated a wealth of commentary concerning discovery confidentiality. See, e.g., Diane L. Bratvold, Note, Protective Orders and the Use of Discovery Materials Following Seattle Times, 71 MINN. L. REV. 171 (1986); Richard P. Campbell, The Protective Order in Products Liability Litigation: Safeguard or Misnomer?, 31 B.C. L. REV. 771 (1990); Katie Eccles, Note, The Agent Orange Case: A Flawed Interpretation of the Federal Rules of Civil Procedure Granting Pretrial Access to Discovery, 42 STAN. L. REV. 1577 (1990); Marcus, Discovery Confidentiality, supra note 52; Marcus, Myth and Reality, supra note 52; Miller, supra note 52; Alan B. Morrison, Protective Orders, Plaintiffs, Defendants and the Public Interest in Disclosure: Where Does the Balance Lie?, 24 U. RICH. L. REV. 109 (1989).
195. The push to enact sunshine legislation in the late 1980s and early 1990s generated a wealth of commentary concerning discovery confidentiality. See, e.g., Diane L. Bratvold, Note, Protective Orders and the Use of Discovery Materials Following Seattle Times, 71 MINN. L. REV. 171 (1986); Richard P. Campbell, The Protective Order in Products Liability Litigation: Safeguard or Misnomer?, 31 B.C. L. REV. 771 (1990); Katie Eccles, Note, The Agent Orange Case: A Flawed Interpretation of the Federal Rules of Civil Procedure Granting Pretrial Access to Discovery, 42 STAN. L. REV. 1577 (1990); Marcus, Discovery Confidentiality, supra note 52; Marcus, Myth and Reality, supra note 52; Miller, supra note 52; Alan B. Morrison, Protective Orders, Plaintiffs, Defendants and the Public Interest in Disclosure: Where Does the Balance Lie?, 24 U. RICH. L. REV. 109 (1989).
196. The push to enact sunshine legislation in the late 1980s and early 1990s generated a wealth of commentary concerning discovery confidentiality. See, e.g., Diane L. Bratvold, Note, Protective Orders and the Use of Discovery Materials Following Seattle Times, 71 MINN. L. REV. 171 (1986); Richard P. Campbell, The Protective Order in Products Liability Litigation: Safeguard or Misnomer?, 31 B.C. L. REV. 771 (1990); Katie Eccles, Note, The Agent Orange Case: A Flawed Interpretation of the Federal Rules of Civil Procedure Granting Pretrial Access to Discovery, 42 STAN. L. REV. 1577 (1990); Marcus, Discovery Confidentiality, supra note 52; Marcus, Myth and Reality, supra note 52; Miller, supra note 52; Alan B. Morrison, Protective Orders, Plaintiffs, Defendants and the Public Interest in Disclosure: Where Does the Balance Lie?, 24 U. RICH. L. REV. 109 (1989).
197. The push to enact sunshine legislation in the late 1980s and early 1990s generated a wealth of commentary concerning discovery confidentiality. See, e.g., Diane L. Bratvold, Note, Protective Orders and the Use of Discovery Materials Following Seattle Times, 71 MINN. L. REV. 171 (1986); Richard P. Campbell, The Protective Order in Products Liability Litigation: Safeguard or Misnomer?, 31 B.C. L. REV. 771 (1990); Katie Eccles, Note, The Agent Orange Case: A Flawed Interpretation of the Federal Rules of Civil Procedure Granting Pretrial Access to Discovery, 42 STAN. L. REV. 1577 (1990); Marcus, Discovery Confidentiality, supra note 52; Marcus, Myth and Reality, supra note 52; Miller, supra note 52; Alan B. Morrison, Protective Orders, Plaintiffs, Defendants and the Public Interest in Disclosure: Where Does the Balance Lie?, 24 U. RICH. L. REV. 109 (1989).
198. See, e.g., Pansy v. Borough of Stroudsburg, 23 F.3d 772, 785-86 (3d Cir. 1994) (criticizing routine signature of confidentiality orders).
199. Although the current version of Federal Rule of Civil Procedure 5(d) continues the requirement that discovery be filed with the court, it permits individual districts to dispense with this requirement in order to avoid the expense associated with the filing and storing of often voluminous discovery that is rarely used after filing. See FED. R. CIV. P. 5(d) (permitting a court, on motion or on its own initiative, to "order that depositions . . . and interrogatories, requests for documents, requests for admission, and answers and responses thereto not be filed unless on order of the court or for use in the proceeding"); see also FED. R. CIV. P. 5(d) advisory committee's note to the 1980 amendments. Accordingly, most federal judicial districts have standing local rules that prohibit the filing of discovery unless ordered by the court. See, e.g., N.D. & S.D. Iowa L.R. 15(a) (providing that discovery materials may not be filed); Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 779 (1st Cir. 1988) (noting that standing local rule "actually reverses in part the filing presumption of Rule 5(d)"). But see infra notes 262-63 (discussing proposed amendment to Rule 5(d) that would invalidate such local rules and, instead, prohibit the filing of unused discovery unless otherwise ordered by the trial court). This section of the Article solely concerns such unfiled or unused discovery. A different analysis arguably applies once discovery materials are appended to a motion, considered by the court, or made the basis of judicial decision. See infra Part V (discussing confidentiality and judicial records).
200. Besides proposing to amend Federal Rule of Civil Procedure 5(d), the Advisory Committee on Civil Rules has proposed several amendments to the discovery Rules and the general scope of discovery. See infra note 172. Indeed, it was this possibility of systemic reform that motivated the Advisory Committee to table the proposed amendment of Federal Rule of Civil Procedure 26(c) governing protective orders. See Report of the Advisory Committee on Civil Rules, May 17, 1996 (holding proposed amendments to Rule 26 (c) "for further consideration as part of a new project to study the general scope of discovery . . . and the scope of document discovery"). The Advisory Committee's proposed amendments, however, have only recently been published for public comment and have not been considered or approved by the Standing Committee on Rules of Practice and Procedure, the Judicial Conference of the United States, or the Supreme Court. See Request for Comment to Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure and Evidence, (visited Sept. 29, 1998) 〈http://www.uscourts.gov/review.html〉 [hereinafter 1998 Preliminary Draft].
201. The current standards for discovery under the Federal Rules (and state rules patterned upon them) are exceedingly liberal: Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party . . . . The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. FED. R. CIV. P. 26(b)(1). See generally Miller, supra note 52, at 463-77 (advocating discovery protective orders as antidote to disclosure of trade secrets and confidential commercial information under broad scope of discovery). The recently proposed amendment of Rule 26(b)(1) would limit the scope of "lawyer-managed" discovery to non-privileged material that "is relevant to the claim or defense of any party" asserted in the pleadings. 1998 Preliminary Draft, supra note 171, at 40-41, 56. Upon good cause shown, however, the trial court could broaden discovery to "any information relevant to the subject matter involved in the action" - the presently governing standard. Id. at 40-41. The amendments would additionally clarify that inadmissible evidence, even if "reasonably calculated to lead to the discovery of admissible evidence," must be relevant in order to be discoverable. See id. at 42, 45-57. As previously discussed, these proposals to limit the scope of attorney-controlled discovery and more actively involve the court "in regulating the breadth of discovery," id. at 55, must still undergo an extensive review and approval process. See supra note 171.
202. See Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994); Public Citizen, 858 F.2d at 780; Oklahoma Hosp. Ass'n v. Oklahoma Publ'g Co., 748 F.2d 1421, 1424 (10th Cir. 1984). But see Marcus, Myth and Reality, supra note 52, at 54-55 (questioning assumption that parties can use unprotected discovery for any purpose).
203. FED. R. CIV. P. 26(c). Although Federal Rule of Civil Procedure 26(c) identifies eight kinds of protective orders that a district court might issue, see infra note 176, this list is non-exclusive and a court may utilize its wide discretion to order other appropriate discovery restrictions, See WRIGHT ET AL., supra note 98, § 2036, at 489.
204. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (noting that "trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery"). Of course, a protective order will not prevent a party from disclosing its own information or documents to others. Florida ex rel. Butterworth v. Jones Chem., Inc., 148 F.R.D. 282, 288 (M.D. Fla. 1993). Nor can it constitutionally prohibit the dissemination of information gained from nondiscovery sources. See Seattle Times, 467 U.S. at 37; see also infra note 212.
205. Three related provisions of Federal Rule of Civil Procedure 26(c) authorize protective orders that limit the use and dissemination of confidential information obtained through discovery. Rule 26(c) (5) permits the court to order "that discovery be conducted with no one present except persons designated by the court." Rule 26(c)(6), as construed, allows the sealing of depositions and other discovery responses. Finally, Rule 26(c)(7) authorizes a court to order that "a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way." See generally WRIGHT ET AL., supra note 98, §§ 2041-43. In addition to the powers invested by Rule 26(c), a court also possesses inherent authority to impose confidentiality over unfiled discovery materials. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 785 (3d Cir. 1994) (noting court's "inherent power to grant orders of confidentiality over materials not in the court file").
206. 467 U.S. 20 (1984).
207. Id. at 36.
208. Because truth is a defense to a defamation claim and because Rhinehart had alleged that the defamatory articles had adversely affected Foundation income, membership, and donations, such information satisfied the relevance standard of Federal Rule of Civil Procedure 26(b)(1). See supra note 172.
209. See Seattle Times, 467 U.S. at 27-28.
210. Id. at 34. Justice Powell, writing for the majority, noted that the discovery rules permitted "extensive intrusion" into the affairs of litigants and third parties, id. at 30, and thus provided litigants an opportunity to "obtain - incidentally or purposefully - information that is not only irrelevant but if publicly released could be damaging to reputation and privacy." Id. at 35.
211. Id. at 32.
212. Id. at 36.
213. Id. at 33.
214. Id. at 37. The Court noted that "[a] litigant has no First Amendment right of access to information made available only for purposes of trying his suit." Id. at 32.
215. Approximately one-half of all motions for protective orders examined in the FJC Study were contested. See FJC Study, supra note 79, at 4. Moreover, a significant percentage of protective orders were issued to protect personal information concerning individual parties and witnesses. Id. at 9.
216. The plaintiffs had argued that unprotected disclosure of the requested discovery would subject Foundation members to harassment and reprisals and would violate the privacy rights of individual members and donors. See Seattle Times, 467 U.S. at 25-27.
217. See MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432 (describing "document-by-document adjudication" as one of two alternatives for seeking protection of discovery materials).
218. See WRIGHT ET AL., supra note 98, § 2035, at 483-84 (describing good cause determination as "factual matter" requiring "particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements").
219. In Seattle Times, the Supreme Court recognized that while Federal Rule of Civil Procedure 26(c) "contains no specific reference to privacy or to other rights or interests that may be implicated, such matters are implicit in the broad purpose and language of the Rule." Seattle Times, 467 U.S. at 35 n.21. Commercial parties, who arguably have no such privacy rights, more commonly seek protection of "trade secret[s] or other confidential research, development, or commercial information" under Federal Rule of Civil Procedure 26(c)(7). FED. R. CIV. P. 26(c)(7).
220. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786-77 (3d Cir. 1994) (holding that good cause requires that party seeking protection must specifically demon-strate a "clearly defined and serious injury" and ultimately justify confidentiality of "each and every document"); Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 529 F. Supp. 866, 889 (E.D. Pa. 1981) (asserting that court must determine whether "disclosure [would] . . . cause a cognizable harm" based on particularized showing).
221. See FED. R. CIV. P. 26(c)(7). See generally Giles T. Cohen, Protective Orders, Property Interests and Prior Restraints: Can the Courts Prevent Media Nonparties from Publishing Court-Protected Discovery Materials?, 144 U. PA. L. REV. 2463, 2478-94 (1996) (discussing property interests in trade secrets and other commercially valuable information).
222. See Marcus, Discovery Confidentiality, supra note 52, at 488-93 (describing trade secrets as a nebulous concept governed by inherently ambiguous law that is subject to elastic definitions). Professor Marcus notes that commercial parties that are unable to claim trade secret status often "invoke something akin to privacy interests," id. at 492, when they "rely on the more general protection" of Rule 26 (c), id. at 491.
223. See Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986). The Third Circuit voiced the following rationale for this sentiment: Rule 26(c) protects parties from embarrassment as well as from disclosure of trade secrets . . . . [B]ecause release of information not intended by the writer to be for public consumption will almost always have some tendency to embarrass, an applicant for a protective order whose chief concern is embarrassment must demonstrate that the embarrassment will be particularly serious. As embarrassment is usually thought of as a nonmonetizable harm to individuals, it may be especially difficult for a business enterprise, whose primary measure of well-being is presumably monetizable, to argue for a protective order on this ground. Id.
224. See id.; see also Pansy, 23 F.3d at 787 (requiring that embarrassment be "particularly serious" to justify protective order); Allied Corp. v. Jim Walter Corp., Civ. A. Nos. 86-3086, 95-5530, 1996 WL 346980, at *3 (E.D. Pa. June 17, 1996) (rejecting claim of embarrassment that might "cast [a corporation] or its officers in a bad light"). But see Poliquin v. Garden Way, Inc., 989 F.2d 527, 533 n.2 (1st Cir. 1993) (suggesting that commercial embarrassment might justify protection of discovery so long as opposing party can obtain and use information if needed at trial).
225. See Allied Corp., 1996 WL 346980, at *6 (holding that corporation's "claimed injury is a 'difficult to quantify' detriment to its bottom line" that "does not constitute a precise enough showing of injury"); see also Miller, supra note 52, at 467-74 (warning that unprotected disclosure of unsubstantiated discovery could damage a business' reputation and profitability and harm entire product lines).
226. In some cases, a third party may seek to intervene in the proceedings to contest issuance of the protective order. See infra note 294 (discussing intervention for limited purpose of contesting protective order). The extent to which a district court should consider and balance the access interests of nonparties such as other litigants, the press, public interest groups, or the general public, remains a hotly debated topic, particularly in the context of stipulated protective orders. See infra Part IV.B (exploring debate concerning stipulated protective orders) and Part IV.D.2 (discussing modification factors). The district court generally possesses case-specific discretion whether to permit the intervention, to grant the third party a hearing, or to accept or reject these nonparty interests. See MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.43, at 65 (indicating that court should consider "not only rights and needs of the parties but also . . . the existing or potential interests of those not involved in the litigation"); Miller, supra note 52, at 435-36 (stating that existing law gives courts case-by-case discretion to accept or reject nonparty interests); see also McCarthy v. Barnett Bank, 876 F.2d 89, 91 (11th Cir. 1989) (holding that intervenors have no right to hearing).
227. In rare cases, a court may order "that the disclosure or discovery not be had." FED. R. CIV. P. 26(c)(1).
228. For a description of existing practice and procedure governing protective orders, see generally Miller, supra note 52, at 432-36; WRIGHT ET AL., supra note 98, §§ 2035-44.1.
229. Umbrella orders have become so common in cases involving large volumes of discovery that the Manual for Complex Litigation offers two sample confidentiality orders. See MANUAL FOR COMPLEX LITIGATION, supra note 1, § 41.36 (offering sample confidentiality orders and acknowledgment).
230. See id. § 21.43, at 65 (emphasizing need to address protective order issues early, preferably before discovery); see also infra Part IV.B.1.b.iii (discussing benefits of stipulated protective orders).
231. MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432, at 67. Some confusion exists regarding the terminology used to designate this type of protective order. The Manual for Complex Litigation uses the term "umbrella" order to describe this alternative, usually stipulated, method of protecting discovery materials. Id. § 24.432, at 67. Others refer to such an order as a "blanket" protective order. See Bayer AG & Miles, Inc. v. Barr Labs., Inc., 162 F.R.D. 456, 465-66 (S.D.N.Y. 1995) (blanket orders permit parties to designate confidential documents, subject to challenge by other party). True "blanket" orders, however, tentatively protect all discovery materials until otherwise ordered by the court. See Poliquin v. Garden Way, Inc., 989 F.2d 527, 532 (1st Cir. 1993) (describing various kinds of protective orders entered in civil cases). The Manual for Complex Litigation does not discuss blanket orders, which, to the extent used in litigation today, represent the exception, rather than the norm in protective order practice.
232. The sample orders provided by the Manual for Complex Litigation suggest two possible approaches to defining "confidential" materials. One approach appears to leave to each designating party the task of determining whether a document "contains information believed to be subject to protection under Fed. R. Civ. P. 26(c)." MANUAL FOR COMPLEX LITIGATION, supra note 1, § 41.36, at 453 (Form A Confidentiality Order). The other approach specifically enumerates in advance categories of information entitled to presumptive protection. Such categories, for instance, might include "documents containing trade secrets, special formulas, company security matters, customer lists, financial data, projected sales data, production data" and similar confidential commercial information. Documents not so described, and for which confidential status is subsequently sought, require individual application to the court. See id. § 41.36, at 459 (Form B
233. Stipulated protective orders arguably invite over-designation by ultra-cautious counsel afraid of producing sensitive business information. The Manual for Complex Litigation addresses that criticism by equating a confidential designation with a motion for protective order. Counsel certifies that designated material merits protection under Federal Rule of Civil Procedure 26(c) and may be sanctioned under Federal Rule of Civil Procedure 37(a)(4) for improper designations. See MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432, at 67 n.141; see also FED. R. CIV. P. 26(c) (applying sanctions provisions of Federal Rule of Civil Procedure 37 to the award of expenses incurred in relation to unsuccessful motions for protective order). The specter of sanctions thus should deter bad faith or overly broad designation. See Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1122 n.17 (3d Cir. 1986).
234. Umbrella orders will typically outline the procedures that the parties must follow in identifying, designating, and logging items subject to the order and in challenging particular confidentiality claims. See MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432, at 67-68.
235. The ultimate burden of justifying the confidentiality of challenged documents thus remains on the designating party. The requesting party shoulders only the burden of raising the confidentiality issue by contesting the designation of particular documents. See Cipollone, 785 F.2d at 1122 (placing "burden of proof. . . at all times on the movant" and shifting "only the burden of raising the issue with respect to certain documents"); Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 529 F. Supp. 866, 893 (E.D. Pa. 1981) (holding that stipulated protective order "does not shift the burden of proof, but requires that, upon objection, the party electing to classify information justify its action pursuant to the Federal Rules of Civil Procedure"); see also MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432, at 68 n.149 (relieving challenger of need to produce affidavit in order to contest confidentiality designation).
236. See Poliquin, 989 F.2d at 534 (noting that "design of the [protective] order is . . . largely within the trial court's discretion").
237. As noted by Judge Becker in Zenith Radio Corp., a court may well apply "a less rigorous standard to consent orders" like stipulated protective orders. Zenith Radio Corp., 529 F. Supp. at 889 n.40. For a discussion of a trial court's ability to enter a stipulated protective order without any independent determination of good cause, see infra Part IV.B.2.
238. The enforceability of certain contractual provisions might vary among the courts. See infra note 405 and accompanying text (discussing freedom to privately contract for settlement confidentiality). Moreover, as discussed below, some standard provisions might render the stipulated protective order more vulnerable to later modification. See infra Part IV.D.
239. The parties generally cannot agree to prohibit the disclosure of information mandated by court order or otherwise required by law. See MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432, at 69 n.157. For instance, a stipulated protective order could not validly prohibit the disclosure of information legally required to be filed with a regulatory agency. To help ensure the enforceability of a stipulated protective order, then, parties should expressly except such legally required disclosures. See, e.g., Pansy v. Borough of Stroudsburg, 23 F.3d 772, 791 (3d Cir. 1994) (recommending that protective order exclude material subject to disclosure under the Freedom of Information Act); see also infra Parts IV.D.2.d (discussing public interest as a factor in modification) and Part VI.B.3.d (examining confidential settlements that suppress relevant evidence).
240. The Manual for Complex Litigation reviews the possible universe of permissible recipients of confidential discovery: For example, counsel are ordinarily permitted to disclose such information to assistants in their offices and potential expert witnesses. On the other hand, disclosure to clients may be prohibited where, for example, the information has commercial value and the parties are competitors; alternatively, the order may (1) limit disclosure to named individuals not involved in the relevant corporate activity, (2) create a special class of highly confidential documents that only attorneys and non client experts may view, (3) require particularized record keeping of disclosures to client personnel, and (4) require individual undertakings by those receiving such information not to misuse it. MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432, at 68 n.146.
241. Any effort to judicially restrict disclosure of confidential materials obtained outside of the discovery process might violate the First Amendment's prohibition of prior restraints. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984) (upholding protective order that limits dissemination of information procured through discovery so long as it does not restrict disclosure of identical information "gained through means independent of the court's processes"); of. Grove Fresh Distribs., Inc. v. John Labatt, Ltd., 888 F. Supp. 1427, 1442 (N.D. Ill. 1995) (requiring judicial preclearance before disclosing information that was allegedly "independently available from a public source").
242. Under the sample confidentiality order in the Manual for Complex Litigation, if documents designated as confidential must be filed, "they shall be filed under seal and shall remain sealed while in the office of the clerk so long as they retain their status as stamped confidential documents." If such documents are introduced into evidence at trial or other hearing, advance notice must be given to the designating party, who may then move "for an order that the evidence be received in camera or under other conditions to prevent unnecessary disclosure." MANUAL FOR COMPLEX LITIGATION, supra note 1, § 41.36, at 455 (Form A, ¶¶ 5 & 7). For a discussion of how the filing of discovery might influence access issues and analysis, see infra Part V (assessing the sealing of judicial records).
243. The Manual for Complex Litigation offers both options in a sample order: Use. Persons obtaining access to stamped confidential documents under this order shall use the information only for preparation and trial of this litigation (including appeals and retrials), and shall not use such information for any other purpose, including business, governmental, commercial, administrative, or judicial proceedings. [For purposes of this paragraph, the term 'this litigation' includes other related litigation in which the producing person or company is a party.] MANUAL FOR COMPLEX LITIGATION, supra note 1, § 42.36, at 456 (Form A, ¶ 10). For a discussion of discovery sharing as a factor in the decision whether to issue or modify a confidentiality order, see infra Part IV.D.2.C.
244. As recognized by the First Circuit, "the lubricating effects of the protective order on pre-trial discovery would be lost if the order expired at the end of the case or were subject to ready alteration." Poliquin v. Garden Way, Inc., 989 F.2d 527, 535 (1st Cir. 1993).
245. Party intent notwithstanding, a court retains jurisdiction to modify its protective orders, even after termination of the litigation in which they are entered. Poliquin, 989 F.2d at 535 (recognizing "inherent power of the district court to relax or terminate" its protective orders, "even after judgment"); see also infra Part IV.D.2 (discussing court's power to modify protective orders). A stipulated order should explicitly recognize the court's ongoing modification authority in order to avoid undue reliance upon its current provisions. See infra Part IV.D.2.b (discussing party reliance as factor in modification decision).
246. See, e.g., MANUAL FOR COMPLEX LITIGATION, supra note 1, § 41.36, at 456 (Form A, ¶ 11) ("provisions of this order shall not terminate at the conclusion of these actions").
247. See, e.g., Culinary Foods, Inc. v. Raychem Corp., 151 F.R.D. 297, 307 (N.D. Ill. 1993). Such a damages provision aims to avoid subsequent litigation concerning the harm caused by the unauthorized disclosure. See Joseph A. Golden, Secrecy Clauses: A Negotiated Restraint on Free Speech, 73 MICH. B.J. 550 (1994) (recommending payment of settlement over time to monitor adherence to confidentiality restrictions). But see Alan E. Garfield, Promises of Silence: Contract Law and Freedom of Speech, 83 CORNELL L. REV. 261, 292 (1998) (contending that such liquidated damages clauses are unenforceable because they "would not be a reasonable estimate of the plaintiff's potential liability").
248. See, e.g., Culinary Foods, Inc. v. Raychem Corp., 151 F.R.D. 297, 307 (N.D. Ill. 1993). Such a damages provision aims to avoid subsequent litigation concerning the harm caused by the unauthorized disclosure. See Joseph A. Golden, Secrecy Clauses: A Negotiated Restraint on Free Speech, 73 MICH. B.J. 550 (1994) (recommending payment of settlement over time to monitor adherence to confidentiality restrictions). But see Alan E. Garfield, Promises of Silence: Contract Law and Freedom of Speech, 83 CORNELL L. REV. 261, 292 (1998) (contending that such liquidated damages clauses are unenforceable because they "would not be a reasonable estimate of the plaintiff's potential liability").
249. A court that lacks an independent basis for federal subject matter jurisdiction may lose enforcement jurisdiction after settlement of the lawsuit unless the stipulated protective order survives dismissal, is embodied in an order of dismissal, or the court expressly retains enforcement jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994); see also infra Part VLA (discussing conundrum faced by litigants who desire to enhance enforceability of confidential settlements).
250. Poliquin, 989 F.2d at 535 ("[I]t is common to provide . . . for post-trial protection including the return or destruction of protected material"). For a discussion of public access to confidential discovery after the settlement and dismissal of a lawsuit, including criticisms frequently leveled against such "return or destroy" provisions, see infra Part VI.B.1 and note 398.
251. See Poliquin, 989 F.2d at 535 (noting that umbrella protective orders foster "effective discovery with a minimum of disputes"); United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (noting that stipulated protective order "makes the discovery process in a particular case operate more efficiently"); In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987) (commenting upon the "tremendous saving of time effected" by stipulated protective orders); Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1122 n.18 (3d Cir. 1986) (stating that umbrella orders "encourage efficiency and allow litigation to proceed more quickly"); Standard Chlorine of Del., Inc. v. Sinibaldi, 821 F. Supp. 232, 256 (D. Del. 1992) (requiring parties to contest confidentiality on document-by-document basis is "extremely inefficient and burdensome to the [c]ourt").
252. See Cipollone, 785 F.2d at 1122 n.18 (suggesting that umbrella protective orders prevent the parties and the courts from "los[ing] the forest for the trees"); see also Marcus, Myth and Reality, supra note 52, at 15 (contending that confidentiality issues are not material to the merits of a case).
253. See In re Alexander Grant & Co. Litig., 820 F.2d at 356 (acknowledging that in complex cases "[b]usy courts are simply unable to hold hearings every time someone wants to obtain judicial review concerning the nature of a particular document"). Any restriction on the availability of stipulated protective orders thus arguably jeopardizes these benefits. See Higginbotham Testimony, supra note 113, at 3 (restricting protective orders would increase the burden and expense of discovery and impose significant burdens on court system); Marcus, Discovery Confidentiality, supra note 52, at 484-85 (contending that increased public access would "foment . . . opposition to broad discovery" and "disrupt cooperative exchange of information between the parties"); Miller, supra note 52, at 467, 483-84 (restricting protective orders or facilitating their modification or vacatur would "impose a superfluous and inordinate work burden on courts" and jeopardize cooperative discovery); Vangelisti, supra note 77, at 177-78 (restricting protective orders would tax judicial resources and halt discovery).
254. See Cipollone, 785 F.2d at 1122 n.18 (noting that extensive judicial involvement would deter "parties from themselves conducting discovery to a significant extent"); Videon Chevrolet, Inc. v. General Motors Corp., No. Civ. A. 91-4202, 1995 WL 395925, at *2 (E.D. Pa. June 28, 1995) (enforcing stipulated protective order "reinforces each party's ability to freely enter and control the content of such protective agreements"). For a discussion of the self-regulatory nature of the discovery process, see infra Part IV.C.2.
255. See Poliquin, 989 F.2d at 535 (describing the "lubricating effects" that stipulated protective orders have on pretrial discovery).
256. See United Nuclear Corp., 905 F.2d at 1427 (asserting that umbrella orders "may encourage disclosures that otherwise would be resisted").
257. See In re Alexander Grant & Co. Litig., 820 F.2d at 357 (noting that stipulated protective orders "encourage maximum participation in the discovery process"); Martindell v. International Tel. & Tel. Corp., 594 F.2d 291, 295 (2d Cir. 1978) (describing protective order as encouraging "full disclosure of all evidence that might conceivably be relevant").
258. See Marcus, Myth and Reality, supra note 52, at 21-23 (attributing risk of nondisclosure as one danger flowing from presumptive public access to discovery); Miller, supra note 52, at 467, 483-84 (predicting that sunshine reforms could potentially lead to denial of discovery altogether).
259. See Marcus, Discovery Confidentiality, supra note 52, at 501 (contending that plaintiff's ability to prepare a case "makes burdensome inquiry into confidentiality" unwarranted and unnecessary).
260. In In re Alexander Grant & Co. Litigation, for example, the Eleventh Circuit cited the efficiency benefits that result from and that justify issuance of stipulated umbrella orders in complex cases: We conclude that in complex litigation where document-by-document review of discovery materials would be unpracticable, and when the parties consent to an umbrella order restricting access to sensitive information in order to encourage maximum participation in the discovery process, conserve judicial resources and prevent the abuses of annoyance, oppression and embarrassment, a district court may find good cause and issue a protective order pursuant to Rule 26(c). In re Alexander Grant & Co. Litig., 820 F.2d at 357.
261. See, e.g., Pansy v. Borough of Stroudsburg, 23 F.3d 772, 788 (3d Cir. 1994) (holding that general interest in encouraging settlement will not constitute good cause); see also Marcus, Myth and Reality, supra note 52, at 18-21 (contending that presumptive access to discovery would threaten to eliminate stipulated protective orders).
262. See supra note 117 (discussing proposed amendment as part of failed federal sunshine reform).
263. See Apr. 20, 1995 Advisory Comm. Minutes, supra note 82, at 9-10 (stating that proposed rule "recognizes well-established current practice"); Higginbotham Letter, supra note 82, at 96 ("In the advisory committee's view, it is not the case that the language would change present practice."). In refusing to delete the "on stipulation" language after its rejection by the Judicial Conference, the Advisory Committee emphasized that a judge need not enter an agreed protective order and could "insist upon a showing of good cause beyond the stipulation." Higginbotham Letter, supra note 82, at 96. Some commentators argue that party agreement eliminates the need to show good cause, which standard thus applies only to contested protective orders. See Vangelisti, supra note 77, at 182 (arguing that good cause standard "does not impose an independent obligation . . . in the absence of a contest"). Others contend that while party agreement does not obviate the good cause standard, the parties can stipulate that good cause exists or that no countervailing third party or public interests apply to their discovery. See Videon Chevrolet, Inc. v. General Motors Corp., No. Civ. A. 91-4202, 1995 WL 395925, at *1 (E.D. Pa. June 28, 1995) (stating that by freely consenting to the protective order, "each party agreed that there was good cause present for the entry of the order"); see also Patrick S. Kim, Note, Third-Party Modification of Protective Orders Under Rule 26(c), 94 MICH. L. REV. 854, 854 n.4, 859 n.27 (1995) (arguing that parties' stipulation that "their privacy and property interests are strong enough to warrant [stipulated protective] order" is "functionally equivalent" to formal showing of good cause).
264. The advisory committee feared that any mandatory good cause requirement would necessitate "extensive satellite litigation" involving the balancing of public and private interests. Oct. 20, 1994 Jud. Conf. Minutes, supra note 117, at 7; see also Higginbotham Letter, supra note 82, at 96 (citing danger that court would need to convene public interest hearing before entering stipulated protective order); Marcus, Discovery Confidentiality, supra note 52, at 500-02 (advocating umbrella protective order that makes detailed judicial scrutiny unnecessary and unwarranted); Rosen & Kennedy, supra note 109, at 328 (predicting that distrust of stipulated protective orders may necessitate "mini-trials" at case threshold).
265. Marcus, Myth and Reality, supra note 52, at 20 (contending that strict scrutiny of access issues at stipulation stage would be "time-consuming" and "unworkable").
266. The district court in Westchester Radiological Ass'n v. Blue Cross/Blue Shield of Greater New York, Inc., enunciated this view of stipulated protective orders as temporary or interim dispensations of good cause: [T]he [p]rotective [o]rder can be viewed as providently granted, if it is interpreted as an order designed as a temporary measure, to facilitate discovery by protecting documents from immediate disclosure, without requiring a showing of good cause, but contemplating a subsequent lifting of the order in appropriate circumstances if the proponents of confidentiality fail to continue to show good cause for protection. Westchester Radiological Ass'n v. Blue Cross/Blue Shield of Greater N.Y., Inc., 138 F.R.D. 33, 37 (S.D.N.Y. 1991); see also Rosen & Kennedy, supra note 109, at 328 (suggesting interim protective order that would defer question of permanent protective order until trial on the merits).
267. The advisory committee considered the stipulation option an essential counterweight to the proposed expansion of the right to intervene and modify stipulated protective orders because of a "public interest" in the discovery. See Higginbotham Letter, supra note 82, at 96.
268. See supra note 229 and accompanying text. Moreover, even if a good cause determination is later required upon challenge, the requesting party bears the burden of contesting particular documents subject to the designation. See Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 529 F. Supp. 866, 893-94 (E.D. Pa. 1981) (shifting burden to party seeking "wholesale declassification" of documents subject to umbrella order).
269. Judge Gilbert S. Merritt, Chief Judge of the Sixth Circuit and Chairman of the Chief Executive Committee of the Judicial Conference that rejected the "on stipulation" language, criticized that proposal as "depart[ing] from the long-established practice of judges issuing protective orders only for 'good cause.'" Richard B. Schmitt, Judicial Conference Kills Proposal To Broaden Protective Order Use, WALL ST. J., Mar. 15, 1995, at B4.
270. See Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994).
271. See id. This duty is arguably analogous to that involved in a court's decision to enter a consent decree or approve a class action settlement. Professor Miller, for example, has characterized stipulated protective orders as presenting an "essentially non-adversarial situation" in which the court "must assume the duty of making an independent inquiry" akin to that made with respect to class action settlements. Miller, supra note 52, at 492 n.322. According to Miller, the issuance of protective orders must never be "routine, let alone automatic, even when . . . supported by all the parties." Instead, the judge, as "neutral arbitrator," rather than the parties, must determine what, whether, and to whom discovery must be disclosed in the interest of public health and safety. Id. at 491-93. But see Arthur R. Miller, Effective Rulemaking Damaged by Politics, N.L.J., May 1, 1995, at A21 (arguing that proposed amendment to Rule 26(c) "made no changes to the 'good cause' showing that must be made for issuing a protective order absent a stipulation").
272. See, e.g., Pansy v. Borough of Stroudsburg, 23 F.3d 772, 785-86 (3d Cir. 1994) (lamenting courts' routine entry of stipulated protective orders "without considering the propriety of such orders, or the countervailing public interests"); Leucadia, Inc. v. Applied Extrusion Tech., Inc., 998 F.2d 157, 165 (3d Cir. 1993) (relying "in first instance on the district courts to protect the legitimate public interest . . . from overly broad and unjustifiable protective orders agreed to by the parties for their self-interests"); St. Paul Fire & Marine Ins. Co. v. Gould Elec. Inc., Nos. Civ. A. 95-5203, 96-2890, 1996 WL 383307, at *1 (E.D. Pa. July 1, 1996) (rejecting stipulated protective order absent briefing on public and private balancing factors); Musicom Int'l, Inc. v. Serubo, 22 Media L. Rep. (BNA) 2507 (E.D. Pa. 1994) (refusing to issue stipulated protective order without considering Pansy factors).
273. See Jepson, Inc., 30 F.3d at 858-59 (criticizing trial court's failure to independently determine if discovery contained confidential information or if good cause existed for its protection); In re "Agent Orange" Prod. Liab. Litig., 821 F.2d 139, 147-48 (2d Cir. 1987) (suggesting that umbrella protective order would be improvidently granted if entered without a judicial determination of good cause).
274. See Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996) (criticizing stipulated protective orders that authorize the filing of documents under seal as judicial abdication of authority over discovery); Glenmede Trust Co. v. Thompson, 56 F.3d 476, 485 (3d Cir. 1995) (refusing to permit parties to control issuance of protective order); Aetna Cas. & Sur. Co. v. George Hyman Constr. Co., 155 F.R.D. 113, 116 (E.D. Pa. 1994) (seeking to avoid "judicial discretion yielding to private judgment" by refusing to enter stipulated protective order in dispute between private commercial parties); Musicom Int'l, Inc., 22 Media L. Rep. (BNA) at 2501 (characterizing entry of stipulated protective order without necessary balancing as "broad abdication of judicial authority" whereby "exercise of private judgment would be given force by the public sanction of contempt").
275. See Pansy, 23 F.3d at 755; Rosen v. Fidelity Fixed Income Trust, No. Civ. A. 95-2365, 1995 WL 684864, at *2 (E.D. Pa. Nov. 14, 1995) (both finding general interest of encouraging settlements insufficient to justify entry of agreed umbrella order).
276. See Rosen, 1995 WL 684864, at *2 (declining to enter stipulated umbrella order based upon "unsubstantiated allegation" that "discovery . . . is likely to involve the disclosure of confidential information, and that there is good cause for preserving the confidentiality of such information"); Frupac Int'l Corp. v. M/V "Chucabuco," No. Civ. A. 92-2617, 1994 WL 269271, at *1-*3 (E.D. Pa. June 15, 1994) (refusing to enter stipulated protective order based upon "generally worded, non-case specific agreement" with "virtually limitless standards").
277. In Frupac International, for example, the court required the parties to address specific information, rather than general categories of documents, in their stipulated protective order. See Frupac Int'l Corp., 1994 WL 269271, at *2; cf. Lepage's, Inc. v. 3M, No. Civ. A. 97-3983, 1997 WL 736866, at *1 (E.D. Pa. Nov. 19, 1997) (approving stipulated protective order containing specific and scheduled categories of protected information with supporting party declarations).
278. See Glenmede Trust Co., 56 F.3d at 484 (holding that general allegations of embarrassment or injury to reputation and client relationships are "insufficient to justify judicial endorsement of an umbrella confidentiality agreement"); Jepson, Inc., 30 F.3d at 859-60 (holding that proponent of protective order never made showing that information in deposition constituted a trade secret or confidential information); Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (noting that proponent of "overinclusive" blanket order never established, through "specific examples or articulated reasoning," any need to protect depositions); Rosen, 1995 WL 684864, at *1 (requiring that parties demonstrate "particularized showing of the need for confidentiality"); Frupac Int'l Corp., 1994 WL 269271, at *2 (requiring parties to establish the relevance of the materials, the need for their protection, and what general/specific interests in disclosure will be sacrificed by the order); Horgan v. Independence Blue Cross, No. Civ. A. 93-CV-2528, 1994 WL 24662, at *2 (E.D. Pa. Jan. 24, 1994) (refusing to sign stipulated protective order concerning information that was not "confidential" within the "narrow circumstances" authorized by Federal Rule of Civil Procedure 26(c) (7)).
279. See Frupac Int'l Corp., 1994 WL 269271, at *1-*2 (encouraging parties to enter confidentiality agreement, but refusing to endorse a stipulated protective order). This freedom of contract assumes, of course, that secrecy agreements are not illegal, violative of public policy, or otherwise unenforceable. See infra note 405 and accompanying text (discussing litigants' freedom to contract for confidentiality).
280. See City of Hartford v. Chase, 942 F.2d at 130, 138 (2d Cir. 1991) (Pratt, J., concurring) (arguing that courts should "carefully and skeptically" review stipulated protective orders in order to avoid converting private agreement into court order subject to enforcement by contempt); see also No Secrets, N.L.J., Mar. 27, 1995, at A20 (allowing parties to stipulate to protective order would curtail judge's discretion and prevent court from defending public health and safety "in contradiction to the wishes of the parties").
281. See supra Parts III.C-D (discussing Supreme Court's two-pronged test and the rationales supporting public access).
282. In Seattle Times, the Supreme Court reviewed both historical and modern practice to conclude that discovery does not occur in public and therefore does not constitute a "public component of a civil trial." Seattle Times v. Rhinehart, 467 U.S. 20, 33 (1984).
283. See Wyeth Lab. v. United States District Court of Kansas, 851 F.3d 321, 324 (10th Cir. 1988) (holding that court lacked authority to compel private parties to file discovery to create DTP public library), see also Marcus, Discovery Confidentiality, supra note 52, at 469, 478-84 (contending that discovery should not serve as source of information for general public or government agencies); Marcus, Myth and Reality, supra note 52, at 53 (rejecting information-gathering as legitimate purpose of discovery); Miller, supra note 52, at 487-89 (arguing that courts are inappropriate and underfunded institutions to function as "information clearinghouse[s]").
284. See Wyeth Lab. v. United States District Court of Kansas, 851 F.3d 321, 324 (10th Cir. 1988) (holding that court lacked authority to compel private parties to file discovery to create DTP public library), see also Marcus, Discovery Confidentiality, supra note 52, at 469, 478-84 (contending that discovery should not serve as source of information for general public or government agencies); Marcus, Myth and Reality, supra note 52, at 53 (rejecting information-gathering as legitimate purpose of discovery); Miller, supra note 52, at 487-89 (arguing that courts are inappropriate and underfunded institutions to function as "information clearinghouse[s]").
285. Seattle Times, 467 U.S. at 34-35; see also Marcus, Myth and Reality, supra note 52, at 15, 54-55 (asserting that discovery rules compel disclosure of information for use only in connection with the litigation and to assist in trial preparation).
286. Seattle Times, 467 U.S. at 34-35; see also Marcus, Myth and Reality, supra note 52, at 15, 54-55 (asserting that discovery rules compel disclosure of information for use only in connection with the litigation and to assist in trial preparation).
287. In Seattle Times, Justice Powell noted that the newspaper gained the information it sought to publish "only by virtue of the trial court's discovery processes," and only for the purpose of trying its lawsuit. Seattle Times, 467 U.S. at 32. The government thus had "a substantial interest" in preventing the various abuses "that can attend the coerced production of information" under its legislatively prescribed discovery rules. Id. at 35-36.
288. See Poliquin v. Garden Way, Inc., 989 F.2d 527, 533 (1st Cir. 1993) (describing discovery as "presumptively private phase of litigation"); United States v. Kentucky Utils. Co., 927 F.2d 252, 254 (6th Cir. 1991) (asserting that discovery documents "are t a part of the public court records and, absent discovery, would have remained private"); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252 (4th Cir. 1988) (contrasting summary judgment proceedings with privately conducted discovery); see also Higginbotham Testimony, supra note 113, at 3 (stressing importance of maintaining "essential litigation oriented and private role of discovery"); Kim, supra note 233, at 864-65 (asserting that "litigants have strong privacy interests in pretrial discovered materials" and "have right to expect that discovered information will not be disseminated"); Vangelisti, supra note 77, at 176-77 (distinguishing between private discovery and public records).
289. Professor Luban, for example, embraces this public conception, arguing that "[d]iscovery material is a public good which is 'purchased' by one litigant and should be made available for other litigants to avoid unnecessary multiplication of expense." Luban, supra note 3, at 2653. Luban similarly contends that discovery can achieve public goods by serving as a "public warning" and informing "public debate." Id. See also supra notes 41-45 and accompanying text (discussing public goods created by adjudication).
290. In Seattle Times, the Supreme Court found no First Amendment right of access to pretrial civil discovery subject to a protective order entered upon a showing of good cause. See Seattle Times, 467 U.S. at 37. While stipulated protective orders arguably obviate the good cause showing, the consensual restrictions on dissemination should waive any First Amendment concerns. But see Garfield, supra note 218, at 347-62 (exploring the possibility that some "contracts of silence" might violate the First Amendment). In addition, unfiled discovery is not a judicial record subject to any common law right of access. See McCarthy v. Barnett Bank, 876 F.2d 89, 91 (11th Cir. 1989). Thus, neither the First Amendment nor the common law grants any right of access to unfiled discovery materials. See Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 788 (1st Cir. 1988); In re Alexander Grant & Co. Litig., 820 F.2d 352, 353-54 (11th Cir. 1987).
291. In holding discovery presumptively open to public scrutiny absent a protective order, the Second Circuit, in In re "Agent Orange"Product Liability Litigation, found that Federal Rules of Civil Procedure 26(c) and 5(d) created a statutory access right. See In re "Agent Orange" Prod. Liab. Litig., 821 F.2d 139, 145 (2d Cir. 1987). The court there reasoned that unless a presumptive right of access existed, there would be no need for a movant under Rule 26(c) to demonstrate good cause. See id. at 145-46. Moreover, the court read Rule 5(d) to manifest a substantive policy decision to grant public access to discovery materials. See id. at 146-47. See supra note 170; infra notes 262-63 (discussing Rule 5(d)'s filing requirement); see also Public Citizen, 858 F.2d at 780-81, 789-90 (stating that while Rule 5(d) did not create any right of access, Rule 26(c) suggests that "pretrial discovery must take place in the public unless compelling reasons exist for denying the public access"); Tavoulareas v. Washington Post Co., 111 F.R.D. 653, 660 (D.D.C. 1986) (acknowledging that "Federal Rules create a statutory esumption in favor of open discovery"); Resnik, supra note 4, at 1494 n.85 ("As interpreted, both FRCP 26(c) and 5(d) make discovery available to third parties absent court orders, which should only preclude access upon a showing of 'good cause.'").
292. Indeed, it is this specter of public sanction that arguably motivates litigants to utilize formal discovery, rather than exchanging information outside of the system. See Luban, supra note 3, at 2654 n.140 (arguing that public ownership of even unfiled discovery materials "result[s] from invocation of public authority by litigants"). But see Marcus, Discovery Confidentiality, supra note 52, at 470-73 (rejecting argument that use of public resources makes discovery public).
293. See Wilk v. American Med. Ass'n, 635 F.2d 1295, 1299 (7th Cir. 1980) (presuming that pretrial discovery must take place in the public unless compelling reasons to deny public access exist); Westchester Radiological Ass'n v. Blue Cross/Blue Shield of Greater N.Y., Inc., 138 F.R.D. 33, 36 (S.D.N.Y. 1991) (stating that absent showing of good cause, discovery "should be publicly available whenever possible"); Omega Homes, Inc. v. Citicorp Acceptance Co., 656 F. Supp. 393, 403 (W.D. Va. 1987) (indicating that raw fruits of discovery "should be available to the public" except to the extent limited by Rule 26 (c)).
294. See supra note 170. The "collective wisdom reflected in so many local rules" prompted the Advisory Committee on Civil Rules to propose amending Federal Rule 5(d) so that it too would forbid, rather than merely excuse, the filing of discovery. If eventually approved, that amendment would obviate this source of public access and further buttress the traditionally private nature of discovery. See 1998 Preliminary Draft, supra note 171, at 15-16, 25-26.
295. See FED. R. CIV. P. 5(d) Advisory Committee's notes to 1980 amendment (recognizing that discovery "materials are sometimes of interest to those who may have no access to them except by a requirement of filing, such as members of a class, litigants similarly situated, or the public generally"). Even the proposed amendment of Fedal Rule of Civil Procedure 5(d) would permit the trial court to order the filing of discovery "to ensure public access to information of interest to the public." 1998 Preliminary Draft, supra note 171, at 161.
296. See Seattle Times v. Rhinehart, 467 U.S. 20, 33 n.19 (1984) (holding that, notwithstanding Rule 5(d), discovery is not a traditional source of public information); see also Kim, supra note 233, at 863 (contending that "Rule 5 'seeks to insure a full exchange of the written communications among the litigants' not to create a public access file for the general public").
297. See Banco Popular de Puerto Rico v. Greenblatt, 964 F.2d 1227, 1232-33 (1st Cir. 1992) (holding that nonparty cannot access discovery when none of the parties wish to share it); Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 780 (1st Cir. 1988) (recognizing that public has no right to access discovery held by private party litigants, who are free, but not required, to publicly release it); Oklahoma Hosp. Ass'n v. Oklahoma Publ'g Co., 748 F.2d 1421, 1425 (10th Cir. 1984) (holding that court cannot compel parties to stipulated protective order to publicly distribute unfiled discovery).
298. Professor Yeazell notes the self-regulating nature of discovery today: ]awyers skirmish without immediate judicial supervision . . . . [Discovery is a] cooperative venture among the adversaries, who, guided by the Rules, explore the facts. Lawyers conduct discovery without any but the slightest judicial supervision unless something goes wrong. So long as things remain in this state, discovery has virtually disappeared from the judicial arena. Yeazell, supra note 6, at 651 (citation omitted); see also Luban, supra note 3, at 2647-48 (describing discovery as "a contact sport with an absentee umpire"); Marcus, Discovery Confidentiality, supra note 52, at 468 ("In the great majority of civil cases, . . . information exchange . . . takes place out of the public eye and without involvement by the judge, who learns about the material disclosed only when it is presented to the court at trial or in a motion.").
299. Federal Rule of Civil Procedure 29, which permits modification of discovery procedures and limitations by written stipulation, was amended in 1993 to afford litigants greater opportunity "to agree on less expensive and time-consuming methods to obtain information" without prior court approval. FED. R. CIV. P. 29 Advisory Committee's note to 1993 amendments.
300. See FED. R. CIV. P. 26(f) (requiring early meeting of counsel in order to, among other things, "develop a proposed discovery plan").
301. The 1993 amendments to the discovery rules added a certificate of conference as a prerequisite to a motion for a protective order, see FED. R. CIV. P. 26(c), a motion to compel, see FED. R. Civ. P. 37(a)(2), and a motion for sanctions for failure to answer interrogatories or respond to requests for production, see FED. R. CIV. P. 37(d). See also Frupac Int'l Corp. v. M/V "Chucabuco," No. Civ. A. 92-2617, 1994 WL 269271, at *1 (E.D. Pa. June 15, 1994) (linking this amendment to "recent legal trend toward conserving judicial resources by allowing parties to resolve many discovery issues privately").
302. See Seattle Times v. Rhinehart, 467 U.S. 20, 31 (1984) (rejecting constitutional right to disseminate discovery as "unwarranted restriction on the duty and discretion of a trial court to oversee the discovery process"); Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996) (discussing district court's "responsibility to oversee the discovery process").
303. The Federal Rules vest broad discretion in the district court to control the methods, frequency, extent, and timing of discovery. See, e.g., FED. R. CIV. P. 16(b)(3)-(4), 16(c)(6), 26(b)(2), 26(c); see also Miller, supra note 52, at 447-50 (stating that discovery amendments recognize that "discovery regime cannot operate on a lf-executing basis" and therefore call for "increased judicial management and streamlining of discovery").
304. The Federal Rules authorize an extensive panoply of sanctions to combat discovery abuse. See, e.g., FED. R. CIV. P. 26 (g) (unjustifiable certification of discovery-responses and disclosures); FED. R. CIV. P. 30(d) (improper deposition conduct); FED. R. CIV. P. 37 (discovery sanctions generally); see also Miller, supra note 52, at 447-50 (describing evolution of discovery rules as "designed to impose stricter control over discovery and provide judicially applied remedies to curb abuse"). Indeed, the "almost universal" belief "that the cost of discovery disputes could be reduced by greater judicial involvement and that the earlier in the process that judges became involved, the better," underlies the recently proposed amendments to the discovery rules. 1998 Preliminary Draft, supra note 171, at 3. The Advisory Committee thus proposes to distinguish the scope of attorney-managed discovery from that of court-controlled discovery in order "to involve the court more actively in regulating the breadth of discovery in cases involving sweeping or contentious discovery." Id. at 55 (Proposed Committee Notes to FED. R. CIV. P. 26(b)(1)).
305. One can question how well increased access to discovery would perform even this function, given that neither the parties nor the court ever tests the reliability of the vast amount of information obtained in discovery.
306. See United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995) (holding that documents that pass between the parties in discovery "play no role in the performance of Article III functions" and thus lie beyond presumption of public access); West Virginia v. Moore, 902 F. Supp. 715, 717-18 (S.D. W. Va. 1995) (refusing to classify as judicial records unfiled depositions that were never used to determine litigants' substantive rights); Tavoulareas v. Washington Post Co., 111 F.R.D. 653, 660 (D.D.C. 1986) (rinding that disclosure of pretrial discovery would not serve purpose of presumption); see also Marcus, Discovery Confidentiality, supra note 52, at 458, 473-77, 478-84 (contending that neither the insights that access "might afford the public about the operation of the civil justice system" nor the public's interest in the subject matter of discovery justifies a shift from traditionally private view of discovery).
307. See April 28, 1994 Advisory Comm. Minutes, supra note 86, at 4 (suggesting that discovery aims to facilitate accurate decisions and resolve disputes).
308. As noted by the Second Circuit in Amodeo, "[T]he temptation to leave no stone unturned in the search for evidence material to a judicial proceeding turns up a vast amount of not only irrelevant but also unreliable material." Amodeo, 71 F.3d at 1048.
309. In Seattle Times, the Supreme Court partially based its "private" view of discovery on the broad relevance standard and the assumption that discovered information will be screened for admissibility at trial. Seattle Times v. Rhinehart, 467 U.S. 20, 33 (1984); see also infra Part V (discussing public access to filed discovery).
310. Parties settle cases for any number of reasons, many of which are unrelated or only peripherally related to their merits. For a discussion of public access to the litigants' settlement negotiations and agreements, see infra Part VI.
311. See infra Part IV.D.1 for a discussion of the extent to which a court can consider these values in assessing whether "good cause" supports issuance of a stipulated protective order.
312. See Seattle Times, 467 U.S. at 35 n.20 (noting substantial governmental interest in "protecting the integrity of the discovery process").
313. Courts possess wide discretion to punish litigants who violate the confidentiality restrictions of a stipulated protective order. They can hold the violating party in civil contempt and assess attorneys' fees and court costs. See, e.g., Grove Fresh Distrib., Inc., v. John Labatt, Ltd., 888 F. Supp. 1427, 1452 (N.D. Ill. 1995); Poliquin v. Garden Way, Inc., 154 F.R.D. 29, 30-32 (D. Me. 1994); Colaprico v. Sun Microsystems, Inc., Civ. No. 90-20610 SW, 1994 WL 514029, at *4 (N.D. Cal. Aug. 22, 1994); Kramer v. Boeing Co., 134 F.R.D. 256 (D. Minn. 1991). In some circumstances, the court may find the violator to be in criminal contempt and assess a fine payable to the government. See Grove Fresh, 888 F. Supp. at 1452; see also Cordray, supra note 5, at 62 (distinguishing between civil and criminal contempt). A court unwilling to hold a litigant in contempt of court may nevertheless censure a party for disclosing confidential information in breach of an umbrella order and without leave of court. See Chemical Bank v. Affiliated FM Ins. Co., 154 F.R.D. 91, 93 (S.D.N.Y. 1994). Finally, particularly egregious violations may even result in the dismissal of a claim. See Hi-Tek Bags, Ltd. v. Bobtron Int'l, Inc., 144 F.R.D. 379, 383 (C.D. Cal. 1992), rev'd on slip., 887 F. Supp. 230 (C.D. Cal. 1993); see also Garfield, supra note 218, at 289 (noting "that contractual remedies are somewhat ill-suited to remedy breaches of contracts of silence").
314. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 n.17 (E.D. Pa. 1994) (suggesting threshold showing to support entry of umbrella protective order).
315. Rosen v. Fidelity Fixed Income Trust, No. Civ. A. 95-2365, 1995 WL 684864, at *2 (E.D. Pa. Nov. 14, 1995). See also supra note 246 and accompanying text.
316. Many courts will require a specific violation of the clear terms of a stipulated protective order before they will hold a litigant in contempt. See, e.g., Grace v. Center for Auto. Safety, 72 F.3d 1236, 1241 (6th Cir. 1996) (reversing civil contempt for violation of ambiguous stipulated protective order); Washington Nat'1 Ins. Co. v. Jeffries & Co., Inc., No. 89 C 2216, 1992 WL 186057 (N.D. Ill. July 27, 1992) (refusing to hold attorney in contempt for violating ambiguous protective order that did not clearly define the term "confidential information").
317. See, e.g., Lepage's, Inc. v. 3M, No. Civ. A. 97-3983, 1997 WL 736866, at *1 (E.D. Pa. Nov. 19, 1997) (entering stipulated protective order based upon parties' declarations concerning specific and scheduled categories of protected information).
318. See Seattle Times v. Rhinehart, 467 U.S. 20, 35 n.21 (1984) (finding "privacy" and "other rights or interests" "implicit in the broad purpose and language" of Rule 26(c)); see also FED. R. CIV. P. 26(c) (setting forth non-exhaustive list of potential protective orders).
319. Federal Rule of Civil Procedure 26(c) merely provides a nonexhaustive list of the potential protective orders that a court may issue "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Thus, a court need not restrict corporate litigants to the unnecessarily narrow categories of "trade secret[s] or other confidential research, development, or commercial information" itemized in Rule 26(c)(7). Compare Marcus, Myth and Reality, supra note 52, at 10 n.45 (arguing that "parties may devise their own version of confidentiality" to govern materials that might not otherwise qualify for protection under Rule 26 (c)) with Horgan v. Independence Blue Cross, Civ. A. No. 93-CV-2528, 1994 WL 24662, at *2 (E.D. Pa. Jan. 24, 1994) (contending that "narrow circumstances" authorized by Rule 26(c)(7) furnish "predictable guideposts" for courts).
320. Some would argue that a concern with the efficient administration of justice is not cognizable under Federal Rule of Civil Procedure 26(c). See Cipollone v. Liggett Group, Inc., 822 F.2d 335, 342-43 (3d Cir. 1987) (noting that Rule 26(c) focuses on individual harm rather than efficient case management). Rule 26(c), however, expressly permits a court to protect a party or person from undue burden and expense. See FED. R. CIV. P. 26(c). Moreover, courts must construe all of the Rules of Civil Procedure, including Rule 26(c), "to secure the just, speedy and inexpensive determination of every action." FED. R. CIV. P. 1. See also United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (asserting that Rule 26(c) promotes the "overriding goal" of Federal Rule of Civil Procedure 1).
321. The order, for example, can temporally limit such a seal unless the party seeking continued protection can rebut the common law presumption of public access to judicial records. See infra Part V.
322. The Manual for Complex Litigation, for example, offers the court the option of defining "this litigation" to include "other related litigation in which the producing person or company is a party." MANUAL FOR COMPLEX LITIGATION, supra note 1, § 41.36, at 456 (¶ 10). See also supra note 214. A court might wish to explicitly include such a provision in the stipulated order to expressly put the parties on notice of the possibility that a court might order the sharing of their confidential discovery in related cases. See infra Part IV.D.2.c (discussing discovery sharing as a factor in the modification of stipulated protective orders).
323. See infra Part IV.D.2.b (discussing party reliance (or lack thereof) as a factor in a court's modification decision).
324. See MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432, at 69, 72 (describing stipulated protective order as always subject to modification or termination even after judgment or settlement); see also Poliquin v. Garden Way, Inc., 989 F.2d 527, 535 (1st Cir. 1993) (recognizing court's inherent power "to relax or terminate the order, even after judgment"); United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (noting court's power to modify even after dismissal of underlying suit). Although a court retains authority to modify its protective orders, it cannot expand them after dismissal to impose new, affirmative discovery obligations. See Poliquin, 989 F.2d at 532 n.1; United Nuclear Corp., 905 F.2d at 1428; Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 781 (1st Cir. 1988).
325. See generally Cohen, supra note 192 (discussing circumstances under which a protective order can bind nonparties).
326. Federal courts have reached a growing consensus that permissive intervention under Federal Rule of Civil Procedure 24(b) is the appropriate vehicle by which non-parties can move to modify or dissolve a protective order. See WRIGHT ET AL., supra note 98, § 2044.1 (indicating that a "considerable body of law" supports intervention for limited purpose of modifying protective order). Because intervention in such cases only aims to modify or dissolve a protective order and does not purport to adjudicate or re-litigate the underlying merits, many courts have relaxed the standing, timeliness, and commonality requirements otherwise applicable to permissive intervention. See, e.g., Pansy v. Borough of Stroudsburg, 23 F.3d 772, 778 (3d Cir. 1994); Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470, 472 (9th Cir. 1992); Public Citizen, 858 F.2d at 783-84.
327. In Poliquin, the First Circuit recognized the importance of this inherent authority, stating: "This retained power in the court to alter its own ongoing directives provides a safety valve for public interest concerns, changed circumstances or any other basis that may reasonably be offered for later adjustment." Poliquin, 989 F.2d at 535.
328. See Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 859 (7th Cir. 1994) (cautioning that stipulated protective orders should not be given binding effect and requiring court to balance affected interests at time motion to modify is made); Beckn Indus., Inc., 966 F.2d at 476 (holding that reliance upon stipulated blanket order could not, in itself, justify refusal to modify upon reasonable request for disclosure); Public Citizen, 858 F.2d at 790 (rinding blanket protective order "peculiarly subject to later modification").
329. See generally Omega Homes, Inc., v. Citicorp Acceptance Co., 656 F. Supp. 393, 403 (W.D. Va. 1987) (noting split in circuits regarding who bears burden of showing good cause for continued protection); Toran, supra note 138, at 153-54 & nn.167-75 (discussing inconsistency and confusion surrounding standards for modifying secrecy orders).
330. See, e.g., United States v. Kentucky Utils. Co., 927 F.2d 252, 255 (6th Cir. 1991) (holding that "outsider" reporter must demonstrate "extraordinary circumstances" and "compelling need" to justify vacatur of a stipulated dismissal order that required destruction of discovery documents); Martindell v. International Tel. & Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979) (holding that parties can rely upon protective order absent a showing of improvident issuance, extraordinary circumstances, or compelling need by third-party intervenor); Jochims v. Isuzu Motors, Ltd., 151 F.R.D. 338, 342-43 (S.D. Iowa 1993) (placing burden on party seeking to modify protective order to show intervening circumstances that had eliminated any prejudice or potential prejudice to original parties); Richard Wolf Med. Instruments Corp. v. Dory, 130 F.R.D. 389, 392 (N.D. Ill. 1990) (finding that parties seeking modification of stipulated protective order failed to make sufficient "extraordinary showing"). Even in these circuits, however, confusion exists concerning whether the "extraordinary circumstances" test applies in all cases of modification or is limited to cases where the government, with extensive investigative powers, intervenes. In Bayer AG & Miles, Inc., for example, a New York district court attempted to reconcile the diverging standards for modification within its own Second Circuit. Bayer AG & Miles, Inc., v. Barr Labs., Inc., 162 F.R.D. 456, 460-67 (S.D.N.Y. 1995). The court found that the standard for modification of a stipulated protective order varies depending on who is seeking to modify and for what reason. For instance, a nonparty governmental intervenor with substantial investigatory powers must demonstrate extraordinary circumstances and compelling need to warrant modification. See id. at 460-61. In contrast, when a nonparty seeks to modify a protective order and gain access to information in the public interest, the burden remains on the party seeking continued confidentiality. See id. at 460, 462. Finally, the court held that a party to a stipulated protective order cannot later renege on its agreement unless it can show good cause for modification. See id. at 466-67 n.16.
331. See Beckman Indus., Inc., 966 F.2d at 475 (rejecting extraordinary circumstances test when disclosure is necessary to meet the needs of other parties in pending litigaon); Public Citizen, 858 F.2d at 790 (rejecting extraordinary circumstances test (at least for non-governmental intervenors) and applying instead the good cause standard of Rule 26(c)); Wilk v. American Med. Ass'n, 635 F.2d 1295, 1299 (7th Cir. 1980) (requiring person who seeks continued protection to show tangible prejudice to substantive rights).
332. See cases cited supra note 296.
333. Indeed, a good deal of the confusion surrounding the appropriate modification burden can be attributed to the fact that most courts, in choosing a standard, fail to differentiate between discovery protective orders, sealing orders, and secrecy orders concerning settlements. See Toran, supra note 138, at 153 (noting that courts' choice of standard does not depend upon the type of secrecy order being modified).
334. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 790 (3d Cir. 1994) (concluding that even minimal need for protected materials justifies access absent significant harm to legitimate secrecy interest); Beckman Indus., Inc., 966 F.2d at 476 (holding that "reliance on a [stipulated] protective order . . . could not, without more, justify refusal to modify when there is a reasonable request for disclosure").
335. In Pansy, for example, the Third Circuit required that the party seeking modification articulate both a reason to modify the secrecy order and a need for the protected materials and that the party seeking continued closure demonstrate some harm to a secrecy interest. See Pansy, 23 F.3d at 790. The trial court must balance ese competing interests to determine whether good cause continues to support a secrecy order. Id. See also MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432, at 70 (suggesting that court consider "requesting party's need for the information" in the modification decision).
336. But see supra note 298 (discussing one court's decision to vary standards based upon who seeks modification).
337. See Apr. 28, 1994 Advisory Comm. Minutes, supra note 86, at 4 (noting that party may not recognize the public interest impact until the "fruits of discovery have been uncovered").
338. See Elm Energy & Recycling (U.K.) Ltd. v. Basic, No. 96 C 1220, 1996 WL 596456, at *16 (N.D. Ill. Oct. 9, 1996) (stating that nonparty may show good cause for modification easier than party); Bayer AG & Miles, Inc. v. Barr Labs., Inc., 162 F.R.D. 456, 464-67 (S.D.N.Y. 1995) (noting that party's prior consent to stipulated protective order weighs against modification, especially if need to modify was foreseeable); Davis v. Transamerica Commercial Fin. Corp., No. 93 C 5177, 1995 WL 534294, at *3 (N.D. 111. Sept. 5, 1995) (noting that stipulated protective order should be "accorded great weight" and should not be retroactively modified by plaintiff "absent exceptional circumstances"); Viskase Corp. v. W.R. Grace & Co., No. 90. C 7515, 1992 WL 13679, at *3-*4 (N.D. Ill. Jan. 24, 1992) (requiring that "plaintiff. . . make a substantial showing of good cause to relieve it of the burden of the agreed [protective [o]rder, particularly when the proposed modification relates to a matter within the parameters of reasonable foresight at the time of the parties' agreement"); Omega Homes, Inc. v. Citicorp Acceptance Co., 656 F. Supp. 393, 404 (W.D. Va. 1987) (refusing to endorse tactic of inducing broad discovery and then attempting to avoid agreed restrictions).
339. See Bayer AG & Miles, Inc., 162 F.R.D. at 464 (viewing stipulation as demonstrating parties' implicit acknowledgment of good cause); Omega Homes, Inc., 656 F. Supp. at 403-04 (denying plaintiffs request to modify stipulated protective order that manisted a "shared and explicit assumption that discovery was for the purpose of one case alone").
340. Judge Becker aptly voiced this sentiment in Zenith Radio Corp.: "plaintiffs cannot now attempt to undo what they have willingly wrought; having made their bed, they must sleep in it." Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 529 F. Supp. 866, 894 (E.D. Pa. 1981); see also Videon Chevrolet, Inc. v. General Motors Corp., 1995 WL 395925, No. Civ. A. 91-4202, at *3 (E.D. Pa. June 28, 1995) (placing a "higher burden" upon party to stipulated protective order to justify modification); Bayer AG & Miles, Inc., 162 F.R.D. at 466, 466 n.16 (denying modification because of party's failure to challenge specific designations); Viskose Corp., 1992 WL 13679, at *3 (refusing to consider "whether material [was] properly designated" because plaintiff never challenged its confidential designation).
341. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 789-90 (3d Cir. 1994) (describing split of authority concerning the weight to be accorded party reliance).
342. See Pansy, 23 F.3d at 790 n.26 (finding less party reliance with umbrella orders); Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (discounting party reliance on "overinclusive" blanket protective order); Chemical Bank v. Affiliated FM Ins. Co., 154 F.R.D. 91, 94 (S.D.N.Y. 1994) (doubting party reliance upon blanket stipulated protective order); see also WRIGHT ET AL., supra note 98, § 2044.1 (acknowledging that stipulated protective order constitutes a "less forceful basis for reliance").
343. In suggesting that a court consider party reliance, the Manual for Complex Litigation notes: If a party freely disclosed information without contest based on the premise that it would remain confidential, subsequent dissemination may be unfair and may, in the long run, reduce other litigants' confidence in protective orders, rendering them less useful as a tool for preventing discovery abuse and encouraging strenuous objections to discovery requests. MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432, at 70 n.159; see also Bayer AG & Miles, Inc., 162 F.R.D. at 467 (emphasizing need to send message that litigants can rely upon blanket stipulated protective
344. See WRIGHT ET AL., supra note 98, § 2044.1 (suggesting that courts focus on the reasonableness of reliance given that "litigants may lard the record with routine claims of reliance").
345. For instance, no reliance should attach to materials produced prior to entry of the stipulated protective order. See Cipollone v. Liggett Group, Inc., 822 F.2d 335, 345 (3d Cir. 1987) (finding no justifiable reliance concerning documents produced before entry of blanket protective order); Westchester Radiological Ass'n v. Blue Cross/Blue Shield of Greater N.Y., Inc., 138 F.R.D. 33, 37 (S.D.N.Y. 1991) (finding no party expectations concerning testimony or documents produced prior to confidentiality order).
346. See Marcus, Discovery Confidentiality, supra note 52, at 497-98 (proposing that party resisting modification demonstrate "actual reliance," rather than mere fact that material was produced).
347. id. at 498 (indicating that court's willingness to allow discovery sharing in collateral litigation defeats reasonable reliance); WRIGUT ET AL., supra note 98, § 2044.1, at n.33 (asserting that reliance is less reasonable if collateral litigation is pending or threatened); see also supra note 290 and accompanying text (discussing court's ability to craft protective order in anticipation of discovery sharing).
348. See Miller, supra note 52, at 500 (noting that disclosure of information to public entity may negate reliance).
349. See infra Part IV.D.2.d (examining public interest as a factor in modification decision).
350. See Marcus, Discovery Confidentiality, supra note 52, at 497-98 (advocating a presumption of reliance raised by "cooperative and open-handed behavior in discovery" that can be rebutted by the "showing of obstructive behavior"); WRIGUT ET AL., supra note 98, § 2044.1, at nn.28, 29, 33 (proposing that reasonable cooperation should create a presumption of reliance); see also Bayer AG & Miles, Inc. v. Barr Labs., Inc., 162 F.R.D. 456, 467 (S.D.N.Y. 1995) (considering fact that party produced over six million pages of documents with only limited objections to broad discovery requests in reliance on blanket stipulated protective order); Mirak v. McGhan Med. Corp., 142 F.R.D. 34, 40 (D. Mass. 1992) (noting that party "opened its doors to freewheeling document inspection . . . without reference to issue of relevancy, privilege, and/or admissibility").
351. Materials that might subject a party to mere commercial embarrassment or that do not qualify as a "trade secret or other confidential research, development, or commercial information," FED. R. CIV. P. 26(c)(7), then, are particularly vulnerable to modification requests. In contrast, reliance on a protective order would be particularly great with regard to the production of a trade secret or the testimony of a witness who fails to invoke an applicable Fifth Amendment privilege. See Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470, 475 (9th Cir. 1992).
352. See supra notes 214, 290 and accompanying text.
353. See Glenmede Trust Co. v. Thompson, 56 F.3d 476, 485 (3d Cir. 1995) (warning that courts should not act as a shield to potential claims); In Re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 696 (9th Cir. 1993) (describing purpose of stipulated protective order as ensuring the "[p]rivacy of proprietary information, not immunity from suit"); Elm Energy & Recycling (U.K.), Ltd. v. Basic, No. 96 C 1220, 1996 WL 596456, at *17-*18 (N.D. 111. Oct. 9, 1996) (holding that mere possibility of discovery sharing in other litigation does not demonstrate good cause under Rule 26(c)); Zapata v. IBP, Inc., 160 F.R.D. 625, 628-29 (D. Kan. 1995) (refusing to amend stipulated protective order to prohibit dissemination of non-confidential discovery to other litigants suing IBP).
354. See Marcus, Myth and Reality, supra note 52, at 41-46 (characterizing discovery sharing as "the most important justification for granting nonparties access to discovery information"); WRIGHT ET AL., supra note 98, § 2044.1, at n.25 (describing discovery sharing as "most forceful" ground for modification of protective order); REPORT OF FEDERAL COURTS STUDY COMMITTEE 1990, at 102 (indicating that courts should be prepared to prevent duplicative discovery in collateral litigation).
355. See United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427-28 (10th Cir. 1990) (crediting countervailing efficiency interest of "saving time and effort in the collateral case"); Kerasotes Mich. Theaters, Inc. v. National Amusements, Inc., 139 F.R.D. 102, 106 (E.D. Mich. 1991) (noting conflicting interests of expediting discovery in case before court and sharing discovery in related litigation).
356. See Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 896 (7th Cir. 1994) (holding that secrecy concerns could be accommodated by including consumer class within protective order's parameters); Beckman Indus., Inc., 966 F.2d at 475 (proposing to minimize fear of disclosure in other suits by subjecting intervenors to restrictions in stipulated protective order); United Nuclear Corp., 905 F.2d at 1427-28 (accommodating concern with disclosure to general public by subjecting collateral litigants to stipulated restrictions); Jochims v. Isuzu Motors, Ltd., 151 F.R.D. 338, 345 (S.D. Iowa 1993) (conditioning modification on submission to the court's continuing jurisdiction and to the terms of the order that limited dissemination of the protected discovery and required its return). The Manual for Complex Litigation suggests that a court can further minimize potential prejudice by crafting the modified order to circumscribe persons with access to the released information and by redacting confidential materials unnecessary to the collateral case. See MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432, at 70.
357. See, e.g., Grove Fresh Distribs., Inc., 24 F.3d at 896 (modifying protective order to permit consumer class action plaintiffs to obtain discovery in similar litigation against orange juice manufacturers); Beckman Indus., Inc., 966 F.2d at 476 (permitting access to deposition transcripts of employees of defendant insurance company concerning the drafting and interpretation of environmental impairment policies at issue in pending state litigation against insurer); United Nuclear Corp., 905 F.2d at 1427-28 (amending protective order in case settled three years earlier to permit use of discovery in collateral litigation); Wilk v. American Med. Ass'n, 635 F.2d 1295, 1296 (7th Cir. 1980) (modifying uncontested protective order to permit sharing of 100,000 documents and 100 depositions in similar litigation).
358. See Marcus, Myth and Reality, supra note 52, at 43 (suggesting "workable guidelines" for discovery sharing as opposed to "rule of automatic access"); Miller, supra note 52, at 497 (rejecting per se rule). But see Kim, supra note 233, at 866 (proposing per se rule that would always justify modification to permit discovery sharing among similarly situated litigants willing to submit to protective order).
359. See Grove Fresh Distribs., Inc., 24 F.3d at 896 (holding that efficiency concerns justify discovery sharing unless party opposing modification can demonstrate tangible prejudice to substantial rights that outweighs benefits of modification).
360. See Omega Homes, Inc. v. Citicorp Acceptance Co., 656 F. Supp. 393, 404 (W.D. Va. 1987) (refusing to allow plaintiff to renege on stipulated protective order when parties did not propose or anticipate discovery sharing either when they negotiated the order or when defendant disclosed information); see also Marcus, Discovery Confidentiality, supra note 52, at 497 (suggesting denial of access when "sharing idea only surfaces after disclosure has occurred").
361. In Poliquin, for example, the First Circuit rejected a request to modify a protective order in order to permit discovery sharing in collateral litigation. Poliquin v. Garden Way, Inc., 989 F.2d 527, 535 (1st Cir. 1993). The Court reasoned that while discovery sharing factors into modification, "[a]bsent an immediate threat to public health or safety, the first concern of the court is with the resolution of the case at hand." Id. Given the benefits of protective orders and the costs of impairing the discovery process, a court "retains broad discretion to protect discovery material, despite the burden of rediscovery imposed on future litigants in future cases." Id.
362. See Deus v. Allstate Ins. Co., 15 F.3d 506, 526 (5th Cir. 1994) (noting that collateral litigants could protect their interest in materials by filing discovery request in collateral lawsuit); Banco Popular de Puerto Rico v. Greenblatt, 964 F.2d 1227, 1232-33 (1st Cir. 1992) (noting that parties who do not wish to share discovery need not do so and that intervenor could seek information through its own discovery). Protective orders present thorny procedural issues when related litigation exists in several states and in both federal and state legal systems. Discovery sharing encompasses the situation where collateral litigants intervene in a related lawsuit in order to access discovery already produced pursuant to a stipulated protective order. Alternatively, collateral litigants can seek information covered by another court's protective order through independent discovery in their own lawsuit. See Kalinauskas v. Wong, 151 F.R.D. 363, 366 (D. Nev. 1993) (discussing two options). In the first instance, the court considering modification must determine the discoverability of the protected discovery in the collateral litigation. See infra notes 331-33 and accompanying text. Yet, the collateral court appears better situated to judge the relevance and need for the information in the related case. See United Nuclear Corp., 905 F.2d at 1428-29 (cautioning that questions of relevance or privilege must be addressed by collateral courts); Superior Oil Co. v. American Petrofina Co. of Tex., 785 F.2d 130 (5th Cir. 1986) (indicating that question of discoverability was one for court in collateral state proceeding). Conversely, in the case of independent discovery, the court must determine whether to recognize a protective order entered by court - a court which is arguably better positioned to evaluate the original justification for its order and the repercussions of changing it. See In re Grand Jury Subpoena, 945 F.2d 1221, 1225-26 (2d Cir. 1991) (noting that sealing court was "obviously best situated to evaluate the original need for the [stipulated protective] order and the ramifications of changing it"); Culinary Foods, Inc. v. Raychem Corp., 151 F.R.D. 297, 303 (N.B. Ill. 1993) (suggesting that defendant go to issuing court to enforce protective order or expand its protection); see also MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432, at 70 n.161 (proposing that issuing court should normally determine "the effect given the earlier protective order"). Both situations may require formal or informal communication between the different courts. See MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432, at 71 & n.164 (suggesting the possibility of "informal communication" between courts to accommodate competing interests). A comprehensive discussion of the inter-system and interstate ramifications of confidentiality orders exceeds the scope of this article. In drafting and issuing stipulated protective orders, however, courts should require that any party served with a discovery request to produce protected material in another proceeding provide notice thereof to the designating party. See, e.g., MANUAL FOR COMPLEX LITIGATION, supra note 1, § 41.36, at 455 (suggesting sample provision).
363. See Deus v. Allstate Ins. Co., 15 F.3d 506, 526 (5th Cir. 1994) (noting that collateral litigants could protect their interest in materials by filing discovery request in collateral lawsuit); Banco Popular de Puerto Rico v. Greenblatt, 964 F.2d 1227, 1232-33 (1st Cir. 1992) (noting that parties who do not wish to share discovery need not do so and that intervenor could seek information through its own discovery). Protective orders present thorny procedural issues when related litigation exists in several states and in both federal and state legal systems. Discovery sharing encompasses the situation where collateral litigants intervene in a related lawsuit in order to access discovery already produced pursuant to a stipulated protective order. Alternatively, collateral litigants can seek information covered by another court's protective order through independent discovery in their own lawsuit. See Kalinauskas v. Wong, 151 F.R.D. 363, 366 (D. Nev. 1993) (discussing two options). In the first instance, the court considering modification must determine the discoverability of the protected discovery in the collateral litigation. See infra notes 331-33 and accompanying text. Yet, the collateral court appears better situated to judge the relevance and need for the information in the related case. See United Nuclear Corp., 905 F.2d at 1428-29 (cautioning that questions of relevance or privilege must be addressed by collateral courts); Superior Oil Co. v. American Petrofina Co. of Tex., 785 F.2d 130 (5th Cir. 1986) (indicating that question of discoverability was one for court in collateral state proceeding). Conversely, in the case of independent discovery, the court must determine whether to recognize a protective order entered by court - a court which is arguably better positioned to evaluate the original justification for its order and the repercussions of changing it. See In re Grand Jury Subpoena, 945 F.2d 1221, 1225-26 (2d Cir. 1991) (noting that sealing court was "obviously best situated to evaluate the original need for the [stipulated protective] order and the ramifications of changing it"); Culinary Foods, Inc. v. Raychem Corp., 151 F.R.D. 297, 303 (N.B. Ill. 1993) (suggesting that defendant go to issuing court to enforce protective order or expand its protection); see also MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432, at 70 n.161 (proposing that issuing court should normally determine "the effect given the earlier protective order"). Both situations may require formal or informal communication between the different courts. See MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432, at 71 & n.164 (suggesting the possibility of "informal communication" between courts to accommodate competing interests). A comprehensive discussion of the inter-system and interstate ramifications of confidentiality orders exceeds the scope of this article. In drafting and issuing stipulated protective orders, however, courts should require that any party served with a discovery request to produce protected material in another proceeding provide notice thereof to the designating party. See, e.g., MANUAL FOR COMPLEX LITIGATION, supra note 1, § 41.36, at 455 (suggesting sample provision).
364. See Deus v. Allstate Ins. Co., 15 F.3d 506, 526 (5th Cir. 1994) (noting that collateral litigants could protect their interest in materials by filing discovery request in collateral lawsuit); Banco Popular de Puerto Rico v. Greenblatt, 964 F.2d 1227, 1232-33 (1st Cir. 1992) (noting that parties who do not wish to share discovery need not do so and that intervenor could seek information through its own discovery). Protective orders present thorny procedural issues when related litigation exists in several states and in both federal and state legal systems. Discovery sharing encompasses the situation where collateral litigants intervene in a related lawsuit in order to access discovery already produced pursuant to a stipulated protective order. Alternatively, collateral litigants can seek information covered by another court's protective order through independent discovery in their own lawsuit. See Kalinauskas v. Wong, 151 F.R.D. 363, 366 (D. Nev. 1993) (discussing two options). In the first instance, the court considering modification must determine the discoverability of the protected discovery in the collateral litigation. See infra notes 331-33 and accompanying text. Yet, the collateral court appears better situated to judge the relevance and need for the information in the related case. See United Nuclear Corp., 905 F.2d at 1428-29 (cautioning that questions of relevance or privilege must be addressed by collateral courts); Superior Oil Co. v. American Petrofina Co. of Tex., 785 F.2d 130 (5th Cir. 1986) (indicating that question of discoverability was one for court in collateral state proceeding). Conversely, in the case of independent discovery, the court must determine whether to recognize a protective order entered by court - a court which is arguably better positioned to evaluate the original justification for its order and the repercussions of changing it. See In re Grand Jury Subpoena, 945 F.2d 1221, 1225-26 (2d Cir. 1991) (noting that sealing court was "obviously best situated to evaluate the original need for the [stipulated protective] order and the ramifications of changing it"); Culinary Foods, Inc. v. Raychem Corp., 151 F.R.D. 297, 303 (N.B. Ill. 1993) (suggesting that defendant go to issuing court to enforce protective order or expand its protection); see also MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432, at 70 n.161 (proposing that issuing court should normally determine "the effect given the earlier protective order"). Both situations may require formal or informal communication between the different courts. See MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432, at 71 & n.164 (suggesting the possibility of "informal communication" between courts to accommodate competing interests). A comprehensive discussion of the inter-system and interstate ramifications of confidentiality orders exceeds the scope of this article. In drafting and issuing stipulated protective orders, however, courts should require that any party served with a discovery request to produce protected material in another proceeding provide notice thereof to the designating party. See, e.g., MANUAL FOR COMPLEX LITIGATION, supra note 1, § 41.36, at 455 (suggesting sample provision).
365. The Seventh Circuit regards this as the operative factor. In Wilk, that court held that "where an appropriate modification . . . can place private litigants in a position they would otherwise reach only after repetition of another's discovery, such modification can be denied only where it would tangibly prejudice the substantial rights of the party opposing modification." Wilk v. American Med. Ass'n, 635 F.2d 1295, 1299 (7th Cir. 1980); see also Videon Chevrolet, Inc. v. General Motors Corp., Civ. A. No. 91-4202, 1995 WL 395925, at *3 (E.D. Pa. June 28, 1995) (condoning discovery sharing when collateral litigation "would eventually exchange the same material").
366. See Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 860-61 (7th Cir. 1994) (permitting disclosure of depositions that were relevant and discoverable by ITC in collateral proceeding); Wilk, 635 F.2d at 1300 (indicating that no right of access exists concerning privileged or irrelevant information); see also MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432, at 70 n.160 (finding "little need to require redundant discovery proceedings" when collateral litigant "would be entitled to obtain [information] in the other litigation"); Marcus, Discovery Confidentiality, supra note 52, at 458, 493-98 (advocating discovery sharing when material is both relevant and properly discoverable in collateral litigation). Authorities diverge concerning who bears the burden concerning the discoverability of the protected materials in the collateral litigation. Compare Grove Fresh, 24 F.3d at 896 (stating that party opposing modification must demonstrate that intervenors are not entitled to discovery because of privilege or relevance) with Marcus, Myth and Reality, supra note 52, at 43-44 (contending that collateral litigant should demonstrate its right to obtain the materials in the collateral litigation).
367. See Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 860-61 (7th Cir. 1994) (permitting disclosure of depositions that were relevant and discoverable by ITC in collateral proceeding); Wilk, 635 F.2d at 1300 (indicating that no right of access exists concerning privileged or irrelevant information); see also MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432, at 70 n.160 (finding "little need to require redundant discovery proceedings" when collateral litigant "would be entitled to obtain [information] in the other litigation"); Marcus, Discovery Confidentiality, supra note 52, at 458, 493-98 (advocating discovery sharing when material is both relevant and properly discoverable in collateral litigation). Authorities diverge concerning who bears the burden concerning the discoverability of the protected materials in the collateral litigation. Compare Grove Fresh, 24 F.3d at 896 (stating that party opposing modification must demonstrate that intervenors are not entitled to discovery because of privilege or relevance) with Marcus, Myth and Reality, supra note 52, at 43-44 (contending that collateral litigant should demonstrate its right to obtain the materials in the collateral litigation).
368. See Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 860-61 (7th Cir. 1994) (permitting disclosure of depositions that were relevant and discoverable by ITC in collateral proceeding); Wilk, 635 F.2d at 1300 (indicating that no right of access exists concerning privileged or irrelevant information); see also MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432, at 70 n.160 (finding "little need to require redundant discovery proceedings" when collateral litigant "would be entitled to obtain [information] in the other litigation"); Marcus, Discovery Confidentiality, supra note 52, at 458, 493-98 (advocating discovery sharing when material is both relevant and properly discoverable in collateral litigation). Authorities diverge concerning who bears the burden concerning the discoverability of the protected materials in the collateral litigation. Compare Grove Fresh, 24 F.3d at 896 (stating that party opposing modification must demonstrate that intervenors are not entitled to discovery because of privilege or relevance) with Marcus, Myth and Reality, supra note 52, at 43-44 (contending that collateral litigant should demonstrate its right to obtain the materials in the collateral litigation).
369. Cases that derive from a single accident or event, for example, present a very strong case for discovery sharing. See Miller, supra note 52, at 498-99 (describing spectrum of relationships bearing upon modification); see also Videon Chevrolet, Inc., 1995 WL 395925, at *3 (evaluating whether complaints were "founded on virtually identical allegations"); WLIG-TV, Inc. v. Cablevision Sys. Corp., 879 F. Supp. 229, 235-36 (E.D.N.Y. 1994) (assessing whether a sufficient identity of parties and overlap of issues existed to justify modification of stipulated protective order to permit use of discovery in pending administrative action). But see Kerasotes Mich. Theaters, Inc. v. National Amusements, Inc., 139 F.R.D. 102, 106 (E.D. Mich. 1991) (adopting a very broad relevancy standard that does not require factual identity).
370. See Wilk, 635 F.2d at 1300 (stating that other litigant must be "bona fide" and not merely seek to use modification as a device to exploit discovery in original case); Jochims v. Isuzu Motors, Ltd., 151 F.R.D. 338, 343-44 (S.D. Iowa 1993) (evaluating relevance of documents and the intervenor's need for them in preparing related case for trial).
371. See MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432, at 71 & n.163 (suggesting greater possibility that information is sought for a "fishing expedition" or other improper purpose "when related litigation . . . [is] merely anticipated rather than pending"); Miller, supra note 52, at 499 (arguing that persons merely contemplating suit must demonstrate extraordinary need to justify modification).
372. See In re Upjohn Co. Antibiotic Cleocin Prod. Liab. Litig., 664 F.2d 114, 117 (6th Cir. 1981) (reminding courts to be sensitive to abuse of federal discovery process); Elm Energy & Recycling (U.K.), Ltd. v. Basic, No. 96 C 1220, 1996 WL 596456, at *7-*8 (N.D. 111. Oct. 9, 1996) (approving discovery sharing except when used as a sham to assist discovery in another forum or to circumvent discovery limits in a different court).
373. See Stack v. Gamill, 796 F.2d 65, 68 (5th Cir. 1986) (denying intervention to modify protective order when collateral litigants had already conducted substantial discovery and simply believed that some materials had not been produced in their own lawsuit); Videon Chevrolet, Inc., 1995 WL 395925, at *3 (requiring movant to demonstrate that sharing of discovery "will prevent repetitive and inefficient discovery"); MANUAL FOR COMPLEX LITIGATION, supra note 1, §21.432, at 71 (suggesting that court evaluate whether modification would save significant time and expense); see also Miller, supra note 52, at 497.
374. The Manual for Complex Litigation, for instance, directs courts to balance the "public interest served . . . by release" of the protected information in deciding whether to modify a protective order. MANUAL FOR COMPLEX LITIGATION, supra note 1, § 21.432, at 70.
375. Weighing the public interest in disclosure arguably clashes with the equally strong public interest in fair and efficient settlement of disputes, the traditional deference to party autonomy in discovery, and the problem-solving view of the judiciary. See supra Part I.B; see also Marcus, Discovery Confidentiality, supra note 52, at 469 (arguing that line between "public law" and "private law" litigation blurs in many cases); Menkel-Meadow, supra note 32, at 2667 n.24 (noting difficulty of identifying particular disputes worthy of public interest).
376. See Marcus, Myth and Reality, supra note 52, at 51 (arguing that public interest exception "does not apply to purely private activity that has generated great public interest"); Miller, supra note 52, at 467 (criticizing reform proposals as failing to distinguish between interests of curiosity or voyeurism and legitimate public concerns).
377. See Marcus, Discovery Confidentiality, supra note 52, at 480 (contending that many public interests are likely to already be subject to "public regulation and scrutiny by other branches of government").
378. A court must necessarily make some determination that a safety risk exists before deciding whether it must be publicly disclosed. See id. at 481-82 (questioning "ability of courts to discern whether discovery materials bear on public safety").
379. Obviously, not all confidential discovery in a products liability or environmental case poses a probable and significant risk to public health and safety. Given the presumptively private nature of discovery, a court should not cast too broad a net in ordering disclosure. Moreover, a court may be able to accommodate any legitimate public safety concerns by a careful crafting of the modified order.
380. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 785-86 (3d Cir. 1994) (indicating that public interest is "particularly legitimate and important" where one of the parties is a public entity or official).
381. See Toran, supra note 138, at 127 (contending that government's "very identity derives from the populace it serves" and thus makes it unique from the typical private litigant).
382. See, e.g., Wiggins v. Burge, 173 F.R.D. 226, 230 (N.D. Ill. 1997) (striking confidentiality designation of police internal investigation regarding allegations of police e; Savitt v. Vacco, No. 95-CV-1842 (RSP/DRH), 95-CV-1853 (RSP/DRH), 1996 WL 663888, at *8 (N.D.N.Y. Nov. 8, 1996) (requiring the filing of deposition of state attorney general in case challenging hiring practices in state attorney general's office); see also Marcus, Myth and Reality, supra note 52, at 50-53 (acknowledging that nonparty access to discovery might be justified in "very rare" case involving public interest in governmental acts).
383. Freedom of information laws generally do not apply to the courts or to confidentiality orders issued in actions where the government is a party. See supra note 141 and accompanying text; see also Pansy, 23 F.3d at 791-92 (viewing accessibility of information under freedom of information laws as significant factor militating against entering or maintaining confidentiality order). See generally Toran, supra note 138, at 177, 181-82 (cautioning courts to consider impact of confidentiality orders upon present and future freedom of information requests).
384. For example, many courts will relax a protective order to further a law enforcement interest. See, e.g., Chemical Bank v. Affiliated FM Ins. Co., 154 F.R.D. 91, 93 (S.D.N.Y. 1994) (stating that legitimate law enforcement need for information out-weighs the need to avoid embarrassment); Westchester Radiological Ass'n v. Blue Cross/Blue Shield of Greater N.Y., Inc., 138 F.R.D. 33, 35 (S.D.N.Y. 1991) (modifying protective order to permit Blue Cross to disclose evidence of Medicaid fraud to federal government). Accordingly, many jurisdictions have adopted a per se rule that permits a grand jury subpoena to trump a civil protective order. See, e.g., In re Grand Jury Subpoena (Meserve & Hughes), 62 F.3d 1222 (9th Cir. 1995); In re Grand Jury Subpoena (Williams), 995 F.2d 1013 (11th Cir. 1993); In re Grand Jury Subpoena, 836 F.2d 1468 (4th Cir. 1988). But see In re Grand Jury Subpoena (Doe), 945 F.2d 1221 (2d Cir. 1991) (refusing to adopt per se rule).
385. See supra note 213 and accompanying text (discussing typical sealing provision in stipulated protective orders). Without such a requirement, a party could circumvent the confidentiality stipulation simply by attaching the protected discovery to a pleading or motion or by introducing it in a pretrial hearing. See, e.g., Davis v. Transamerica Commercial Fin. Corp., No. 93 C 5177, 1995 WL 534294, at *2 (N.D. Ill. Sept. 5, 1995) (refusing to permit a plaintiff to "undermine the entire confidentiality agreement" and effectively "undesignate" confidential documents by filing them as exhibits to a motion to enforce subpoena and then disseminating motion with attachments to prospective class members); Jochims v. Isuzu Motors, Ltd., 151 F.R.D. 338, 342 (S.D. Iowa 1993) (recognizing that "public good" of protective orders would be "substantially disserved" if confidentiality of documents could be stripped by their introduction in civil trial); Standard Chlorine of Del., Inc. v. Sinibaldi, 821 F. Supp. 232, 256 (D. Del. 1992) (noting that absence of sealing provision in umbrella order "would make the confidentiality stipulation worthless and hollow since confidential information discovered in this litigation then could be disclosed simply by including it in a 'pleading'" filed with court).
386. See infra Part VI.B.2.a (examining settlements conditioned upon the sealing of judicial records).
387. See Marcus, Discovery Confidentiality, supra note 52, at 477 & n.125 (recognizing that public access to discovery filed with pretrial motions raises "qualitatively different" and more difficult issues than access to unfiled discovery).
388. See Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1068 (3d Cir. 1984) (finding First Amendment right of public access to civil trials); Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 23 (2d Cir. 1984) (holding that First Amendment secures the public and press a right to access civil proceedings); In re Continental Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984) (applying policies supporting right to access criminal trials to civil cases); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177-81 (6th Cir. 1983) (vacating seal of records based upon common law and First Amendment right of public access to judicial proceedings); see also supra Part III.D (examining rationales underlying the right of public access).
389. As discussed below, the right of public access to judicial records, while bolstered by the admissibility of discovery, does not depend upon it. See infra note 369 and accompanying text.
390. See Littlejohn v. BIC Corp., 851 F.2d 673, 680 (3d Cir. 1988) (holding that BIG waived whatever right to confidentiality it had under a protective order when it failed to raise documents' confidentiality at the time they were introduced into evidence); National Polymer Prods., Inc. v. Borg-Warner Corp., 641 F.2d 418, 421-22 (6th Cir. 1981) (finding waiver of right to further restrict disclosure once discovery was released in open trial). But see Jochims, 151 F.R.D. at 341 n.6 (refusing to find that party waived confidential status of materials that were introduced as exhibits in open court at sparsely attended trial that would be difficult to replicate without transcript).
391. Poliquin v. Garden Way, Inc., 989 F.2d 527, 533 (1st Cir. 1993). In Poliquin, the distinction between presumptively private discovery governed by protective orders and the presumptively public trial affected by sealing orders convinced the First Circuit to vacate the sealing of an entire videotaped deposition and interrogatory answers admitted at trial. See id. at 534. The Manual for Complex Litigation suggests several methods by which parties can attempt to avoid the loss of confidentiality caused by the introduction of protected discovery at trial. The stipulated protective order can require that a party who plans to introduce confidential discovery into evidence at trial or a hearing notify the designating party in advance so that he can move for continued protection. See MANUAL FOR COMPLEX LITIGATION, supra note 1, § 41.36, at 455. Parties can also stipulate to "material nonconfidential facts to avoid the need to introduce confidential material into evidence." Id. § 21.432, at 72. Finally, parties can move under Federal Rule of Evidence 403 to bar the admission of confidential discovery, arguing that the undue prejudice from its disclosure outweighs its minimal relevance. See id.; see also in 989 F.2d at 534 (suggesting that, if necessary, trial court can utilize Federal Rule of Evidence 403 to exclude marginally relevant, sensitive information).
392. Miller v. Indiana Hosp., 16 F.3d 549, 551 (3d Cir. 1994) (describing "heavy burden" of articulating compelling countervailing interests sufficient to rebut "strong presumption" of openness); Brown v. Advantage Eng'g, Inc., 960 F.2d 1013, 1016 (11th Cir. 1992) ("Absent a showing of extraordinary circumstances set forth by the district court in the record . . . the court file must remain accessible to the public."); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988) (holding that common law right of access must be heavily outweighed by significant countervailing interests to justify sealing of judicial records); Anderson v. Cryovac, Inc., 805 F.2d 1, 11 (1st Cir. 1986) (holding that absent exceptional circumstances, materials important to a court's adjudication of a important substantive right must be open to public scrutiny); Picard Chem. Inc. Profit Sharing Plan v. Perrigo Co., 951 F. Supp. 679, 691 (W.D. Mich. 1996) (stating that "only the most compelling reasons [would] justify non-disclosure of judicial records"). The Eighth Circuit, while recognizing that a presumption of public access to judicial records exists, refuses to make it a "strong" one. Instead, that circuit leaves the decision whether to seal judicial records to the trial court's discretion after balancing the various competing interests. See Webster Groves Sch. Dist. v. Pulitzer Publ'g Co., 898 F.2d 1371, 1376 (8th Cir. 1990); Independent Sch. Dist. No. 283, St. Louis Park, Minnesota v. S.D., 948 F. Supp. 892, 898 (D. Minn. 1996); Jochims, 151 F.R.D. at 341-42. The Fifth Circuit may likewise accord the presumption less weight than most. See Belo Broad. Corp. v. Clark, 654 F.2d 423, 434 (5th Cir. Unit A Aug. 1981) (characterizing common law presumption as only "one of the interests" that a court must balance in sealing records).
393. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 782 (3d Cir. 1994). Thus, in the Third Circuit, "there 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." Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 164 (3d Cir. 1993). By the same token, if a document is not physically on file with the court, "it is not a 'judicial record.'" Pansy, 23 F.3d at 782. But see id. at 783 (acknowledging that a more "persuasive and perhaps desirable rule" would hinge judicial status of record "on the use the court has made of it rather than on whether it has found its way into the clerk's file").
394. In re Policy Management Sys. Corp., Nos. 94-2254, 94-2341, 1995 WL 541623, at *4 (4th Cir. Sept. 13, 1995).
395. In Amodeo, the Second Circuit explained the purpose of the access presumption as "based on the need for federal courts, although independent - indeed, particularly because they are independent - to have a measure of accountability and for the public to have confidence in the administration of justice." United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995); see also FTC v. Standard Fin. Management Corp., 830 F.2d 404, 412-13 (1st Cir. 1987) (characterizing common law presumption as "basic to the maintenance of a fair and open judicial system and to fulfilling the public's right to know"); Wilk v. American Med. Ass'n, 635 F.2d 1295, 1299 n.7 (7th Cir. 1980) (explaining that common law right checks judicial abuses).
396. See In re Policy Management Sys. Corp., 1995 WL 541623, at *4 (holding that a "document becomes a judicial document when a court uses it in determining litigants' substantive rights," and that "a document must play a relevant and useful role in the adjudication process in order for the common law right of public access to attach"); Amodeo, 44 F.3d at 145 (holding that "item filed must be relevant to the performance of the judicial function and useful in the judicial process in order for it to be designated ajudicial document"); Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 898 (7th Cir. 1994) (discussing press' right of access to "judicial decisions and the documents which comprise the bases of those decisions"); Standard Fin. Management Corp., 830 F.2d at 409 (ruling that "relevant documents which are submitted to, and accepted by, a court of competent jurisdiction in the course of adjudicatory proceedings, become documents to which the presumption of public access applies"); Anderson, 805 F.2d at 13 (limiting common law presumption to "materials on which a court relies in determining the litigants' substantive rights"); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1180-81 (6th Cir. 1983) g he public interest in "evidence and records . . . relied upon in reaching [judicial] decisions"); Wilk, 635 F.2d at 1299 n.7 (reasoning that common law right of access "should only extend to materials upon which a judicial decision is based").
397. In Rushford, the Fourth Circuit chastised the trial court for failing to make sufficient findings to justify sealing a summary judgment record, which included three documents protected by a discovery protective order. See Rushford, 846 F.2d at 254. While the protective order facilitated privately conducted discovery, summary judgment materials "lose their status of being raw fruits of discovery" because they aid the court in adjudicating substantive rights and thereby "substitute for a trial." Id. at 252; see also Joy v. North, 692 F.2d 880, 894 (2d Cir. 1982) (subjecting report of special litigation counsel filed in derivative lawsuit to right of public access because it formed the basis of the court's grant of summary judgment).
398. Anderson, 805 F.2d at 11-13. Such materials have not yet even been determined to be discoverable. See id.
399. See United States v. Wolfson, 55 F.3d 58, 59-61 (2d Cir. 1995) (refusing to unseal documents submitted for in camera inspection decades earlier and held not discoverable); Anderson, 805 F.2d at 11 (finding it "clear . . . that there is no right to public access to documents considered in civil discovery motions"). Even the Third Circuit, which uses a technical filing test, refuses to catalog discovery motions as judicial records subject to any presumptive right of access. See Leucadia 998 F.2d at 165; (declining to find a presumptive right of public access "to discovery motions and their supporting documents"); Allied Corp. v. Jim Walter Corp., Civ. A. Nos. 86-3086, 94-5530, 1996 WL 346980, at *4 (E.D. Pa. June 17, 1996) (acknowledging absence of any common law or First Amendment right of public access to "discovery motions filed with the court or to the raw fruits of discovery").
400. See Marcus, Discovery Confidentiality, supra note 52, at 477 n.115 (suggesting that discord surrounding judicial records "shows that there are genuine areas for disagreement concerning the access issues raised in civil litigation"); Miller, supra note 52, at 440 & n. 58 (conceding that stronger public access arguments surround dispositive motions, but describing existing case law as "in some disarray"); WRIGHT ET AL., supra note 98, § 2042, at nn.28-34 (stating that while merits resolutions strongly favor acit"cannot be said that courts have developed a clear test" concerning access to motions less central to the merits).
401. While courts unanimously classify materials relied upon by a court in granting summary judgment as judicial records, they disagree on the status of documents that support a denial of summary judgment. Compare In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1338 (D.C. Cir. 1985) (finding no presumptive right of access to materials submitted in connection with denied motion for summary judgment) with Republic of the Philippines v. Westinghouse Elec. Corp., 139 F.R.D. 50, 56 (D.N.J. 1991) (unsealing confidential discovery materials submitted in connection with denied summary judgment motion); see also Marcus, Myth and Reality, supra note 52, at 48-49 (suggesting that denial of summary judgment may not justify public access because it involves no decision on the merits).
402. The Fourth Circuit's split decision in In Re Policy Management Systems Corp. illustrates this confusion. See In Re Policy Management Sys. Corp., Nos. 94-2254, 94-2341, 1995 WL 541623 (4th Cir. Sept. 13, 1995). In that case, the Fourth Circuit examined the propriety of sealing confidential discovery produced under a stipulated protective order and submitted by a plaintiff in opposition to a Rule 12(b) (6) motion to dismiss. Notwithstanding the dispositive nature of the motion, which the district court had partially granted, the panel majority held that the "documents did not achieve the status of judicial documents" and that no First Amendment or common law presumption of access thus attached. Id. at *4. The majority noted that unlike a motion for summary judgment, which requires a court to examine the entire summary judgment record, "[a] motion to dismiss tests only the facial sufficiency of the complaint." Id. Because the district court did not, and indeed could not, consider or rely upon the discovery attachments in ruling on the dismissal motion, "the documents played no role in the court's adjudication of the motion" and thus retained their status as discovery materials. Id. In dissent, Judge Michael argued that "documents . . . filed in connection with a potentially dispositive motion" must carry a presumptive right of access or else the trial judge could act as "unchallengeable censor" of the public record. Id. at *6 (Michael, J., dissenting). Moreover, because a motion to dismiss "measure[s] the factual allegations in the complaint against the legal theory invoked," the court's decision thereon determines substantive rights and thus carries a "presumption of openness." Id.
403. In Methodist Hosps., Inc. v. Sullivan, the Seventh Circuit gave conflicting signals regarding the status of a brief containing confidential salary information that the defendants had filed in opposition to a motion for temporary restraining order. See Methodist Hosps., Inc. v. Sullivan, 91 F.3d 1026 (7th Cir. 1996). Because the defendants had agreed not to apply the disputed Medicaid reimbursement rules pending resolution on the merits, the trial court never ruled upon the injunctive request. The Seventh Circuit held that because the trial court had not relied upon the state's brief in deciding the TRO application, "[t]he principle that materials on which a judicial decision rests are presumptively in the public domain . . . [was] not in play." Id. at 1031. The Seventh Circuit nevertheless criticized the trial court's sealing of the entire brief, holding that only the irrelevant salary information should have been redacted. See id. at 1032.
404. But see Marcus, Discovery Confidentiality, supra note 52, at 477 & n.125 (suggesting that inquiry should focus on decision-making role of the court and whether a motion results in a decision on the merits); Marcus, Myth and Reality, supra note 52, at 49 (advocating for public access when discovery forms the "basis for decision on the merits").
405. But see Marcus, Discovery Confidentiality, supra note 52, at 477 & n.125 (suggesting that inquiry should focus on decision-making role of the court and whether a motion results in a decision on the merits); Marcus, Myth and Reality, supra note 52, at 49 (advocating for public access when discovery forms the "basis for decision on the merits").
406. As noted by the dissenting justice in In re Policy Management Systems Corp., in deciding to reject or ignore documents submitted in connection with a motion, a trial court nevertheless considers them: "[I]t is the public's function to evaluate the judge's performance and to determine whether the documents should have been used in deciding the motion." In re Policy Management Sys. Corp., 1995 WL 541623, at *6-*7 (Michael, J., dissenting); see also Republic of the Philippines v. Westinghouse Elec. Corp., 139 F.R.D. 50 at 58 (D.N.J. 1991) (holding that court's preliminary refusal to consider inadmissible summary judgment materials formed the basis of its denial of summary judgment and thus was subject to presumptive right of access); Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 529 F. Supp. 866, 899 (E.D. Pa. 1981) (asserting that even inadmissible materials submitted in connection with a motion for summary judgment are subject to right of access).
407. As explained by the Seventh Circuit in Grove Fresh, "a necessary corollary to the presumption is that once found to be appropriate, access should be immediate and contemporaneous. The newsworthiness of a particular story is often fleeting. To delay or postpone disclosure undermines the benefit of public scrutiny and may have the same result as complete suppression." Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994); see also Picard Chem. Inc. Profit Sharing Plan v. Perrigo Co., 951 F. Supp. 679, 691 (W.D. Mich. 1996) (suggesting that "policy underlying public access to judicial records would be furthered by immediate access to those records" the "moment" they become part of the judicial record); Republic of the Philippines, 139 F.R.D. at 60 (holding that right of access attaches when motion is pending and thus does not depend upon its outcome).
408. As noted by the Second Circuit in Amodeo, the determination of the litigants' substantive rights lies "at the heart of Article III" and the adjudicative process. United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995).
409. Id. Amodeo concerned reports periodically filed under seal by a court officer appointed under a RICO consent decree to investigate allegations of union corruption. The court officer was under no filing obligation and reportedly would not have filed the progress reports had she known they could be made public. Because the trial court reviewed the investigative reports to monitor the performance of the court officer under the consent decree, they were "relevant to the performance of the judicial function and useful in the judicial process." The Second Circuit thus did not hesitate in classifying the officer's reports as judicial records subject to a presumptive right of public access. See id. at 1045-46. That presumption was "weak," however, because the investigative reports bore "only a marginal relationship to the performance of Article III functions." Id. at 1051-52.
410. The presumption of access that attaches to judicial records simply increases the litigants' burden to justify closure. The fact that a document may not qualify as a judicial record, however, does not require that a court grant the litigants' request that it be sealed. Good cause must still support continued court-ordered protection. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994) (requiring that good cause support confidentiality order concerning unfiled settlement); see also supra Part IV (examining public access issues surrounding confidential discovery).
411. See Amodeo, 71 F.3d at 1049-50. According to the Second Circuit: Where testimony or documents play only a negligible role in the performance of Article III duties, the weight of the presumption is low and amounts to little more than a prediction of public access absent a countervailing reason. Documents that play no role in the performance of Article III funcsch as those passed between the parties in discovery, lie entirely beyond the presumption's reach. Id. at 1050.
412. Id. at 1050. The court in Amodeo indicated that tradition can inform this requisite exercise of judgment: "Where such documents are usually filed with the court and are generally available, the weight of the presumption is stronger than where filing with the court is unusual or is generally under seal." Id.
413. See supra note 148 and accompanying text. For example, in Doe v. Shapiro, an AIDS employment discrimination lawsuit, the district court granted a stipulated motion to seal the defendant's motion for summary judgment whose legal theory required disclosure of the details of the plaintiff's personal life. See Doe v. Shapiro, 852 F. Supp. 1256 (E.D. Pa. 1994). The court characterized the "narrowly tailored" request to seal the single motion as "reasonable" and "humane." Id. at 1258.
414. See Amodeo, 44 F.3d at 147-48 (placing burden on party seeking seal "to demonstrate that the interests favoring non-access outweigh those favoring access"); Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 166-67 (3d Cir. 1993) (requiring that party seeking to maintain secrecy make a document-by-document showing of current competitive harm).
415. Miller v. Indiana Hosp., 16 F.3d 549, 551 (3d Cir. 1994); see also FTC v. Standard Fin. Management Corp., 830 F.2d 404, 412 (1st Cir. 1987) (requiring a "compendium of chapter and verse" reciting cognizable, specific, and severe harm from disclosure); Department of Econ. Dev. v. Arthur Andersen & Co., 924 F. Supp. 449, .DN.Y. 1996) (rejecting "blanket claim[s]," "stereotyped or conclusory statements," and "unparticularized assertion[s]" regarding the need for confidentiality).
416. See Standard Fin. Management Corp., 830 F.2d at 412 (recognizing that in some cases, privacy rights of individuals and third parties can limit presumptive right); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1179-80 (6th Cir. 1983) (prohibiting courts from sealing judicial records, even pursuant to confidentiality agreement, unless "legitimate trade secrets" are involved); Republic of the Philippines v. Westinghouse Elec. Corp., 139 F.R.D. 50, 61-62 (D.N.J. 1991) (requiring that Westinghouse assert interest almost to the level of a trade secret to justify sealing). But see Leucadia, Inc., 998 F.2d at 166 (recognizing that trade secrets and other confidential business information may be shielded); Jochims v. Isuzu Motors, Ltd., 151 F.R.D. 338, 340 (S.D. Iowa 1993) (contending that the need to protect confidential business information relevant to competitive standing can override right of access).
417. See Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996) (holding that private litigants' interest in protecting their vanity or their commercial self-interest failed to justify the sealing of materials supporting motion to amend complaint); Brown & Williamson Tobacco Corp., 710 F.2d at 1179-80 (rejecting bald assertion of reputational harm); Republic of the Philippines, 139 F.R.D. at 61-62 (dismissing claims involving mere confidential business information or commercial embarrassment).
418. See Amodeo, 44 F.3d at 147 (holding that trial court erroneously delegated its authority to redact confidential information from judicial records).
419. See Procter & Gamble Co., 78 F.3d at 227 (noting that protective order cannot permit parties to control public access to court papers); Brown & Williamson Tobacco Corp., 710 F.2d at 1180 (cautioning that confidentiality agreement will not bind the court regarding the sealing of judicial records); Wilson v. American Motors Corp., 759 F.2d 1568, 1571 (11th Cir. 1985) (contending that interest in settlement did not permit parties to agree to seal public records); Greater Miami Baseball Club Ltd. Partnership v. Selig, 955 F. Supp. 37, 39-40 (S.D.N.Y. 1997) (refusing to accord parties' pre-deposition designation any weight given the lack of justifiable reliance that the deposition would remain sealed). But see Jochims, 151 F.R.D. at 342 (suggesting that court can balance harm to "efficient administration of justice" if "no assurance of continued protection for confidential business information" can be given).
420. See United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995).
421. See Miller v. Indiana Hosp., 16 F.3d 549, 551 (3d Cir. 1994). Courts thus probably still cannot justify sealing judicial records to prevent commercial embarrassment or to protect corporate vanity. See Siedle v. Putnam Invs., Inc., 147 F.3d 7, 10 (1st Cir. 1998); see also supra notes 192-96 and accompanying text.
422. The balancing of competing interests might additionally encompass the intended use of the information by the person seeking access. A court may exercise its supervisory authority over its own records to prevent them from becoming "a vehicle for improper purposes." Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978). Although the motive of the person seeking access to sealed records should not affect the records' status as "judicial," it should factor into whether competing interests override the presumptive right of public access. See Amodeo, 71 F.3d at 1050-51. For example, a court can seal judicial records sought only to fulfill a personal vendetta or to gain commercial, as opposed to litigation, advantage. See Nixon, 435 U.S. at 598 (indicating that person improperly used judicial records to gratify private spite, make libelous statements, or harm opponent's competitive standing); Amodeo, 71 F.3d at 1051 (suggesting that "how the person seeking access intends to use the information" bears upon the "nature and degree of injury" from its disclosure). Similarly, a court might decide to maintain a seal over stamped confidential discovery that an opposing party filed in bad faith to evade stipulated restrictions on disclosure. See supra note 349; see also In re Policy Management Sys. Corp., 1995 WL 541623, at *7 (4th Cir. 1995) (Michael, J., dissenting) (asserting that balancing test should encompass good or bad faith of person filing documents).
423. See supra notes 344-47 and accompanying text (discussing government status of litigant as factor in modification of stipulated protective order).
424. FTC v. Standard Fin. Management Corp., 830 F.2d 404, 410 (1st Cir. 1987).
425. See, e.g., Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1180-81 (6th Cir. 1983) (finding strong public health interest in suit alleging errors in program testing tar and nicotine levels in cigarettes).
426. See supra Part IV.D.2.d (examining public interest as a factor in modifying stipulated protective orders).
427. See, e.g., Brown v. Advantage Eng'g, Inc., 960 F.2d 1013, 1015 (11th Cir. 1992) (vacating seal of record to permit access by litigant in related pending case). For a discussion of the considerations relevant to a court's decision whether to modify a stipulated protective order to permit the sharing of discovery in related, pending litigation, see supra Part IV.D.2.a.
428. For a discussion of the difficulties that settling litigants might (and should) experience in convincing a court to seal an entire court file, see infra Part VI.B.2.d.
429. See Luban, supra note 3, at 2656 (recognizing that some settlements will collapse without confidentiality); Miller, supra note 52, at 429 (asserting that confidentiality is "not only acceptable, but essential" to settlement); Weinstein, supra note 55, at 510-11 (noting that many mass tort cases could not otherwise settle without secrecy agreement). But see Ispahani, supra note 93, at 119 (asserting that settlements will occur even without confidentiality because they benefit all parties); Schneider, supra note 93, at 111 (predicting that elimination of secret settlements will have no impact upon settlement frequency or amount).
430. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 788 (3d Cir. 1994) (noting that even if litigants cannot demonstrate good cause to support confidentiality order, they possess "option of agreeing privately to keep information concerning settlement confidential, and may enforce such an agreement in a separate contract action"); Westinghouse Elec. Corp. v. Newman & Holtzinger, P.C., 992 F.2d 932, 936-37 (9th Cir. 1993) (holding that protective order does not foreclose existence of separate and independent nondisclosure agreement that renders parties directly liable to each other for breach of its terms). But see Garfield, supra note 218, at 266 (recommending that courts refuse to enforce contracts of silence "when the public interest in access to the suppressed information outweighs a legitimate interest in enforcement").
431. Various exceptions to this general rule of judicial indifference to settlement do exist. For instance, a court must approve the settlement of class actions certified under Federal Rule of Civil Procedure 23. See FED. R. Civ. P. 23 (e). Similarly, actions "wherein a receiver has been appointed shall not be dismissed except by order of the court." FED. R. CIV. P. 66.
432. See supra Part I.B.1.a (discussing the push toward judicial promotion of settlement).
433. See supra Parts V (judicial records) and III.D (rationales supporting public access); see also Marcus, Discovery Confidentiality, supra note 52, at 505 n.285 (admitting that increased role of judiciary in promoting settlement "may one day provide a basis for allowing the public to observe judges at work on this effort"); Miller, supra note 52, at 485-86, 486 n.290 (refusing to rule out public access in cases involving "significant judicial participation in the [settlement] process").
434. In rarer cases, the litigants might come to terms concerning everything but settlement secrecy. In such instances, the parties might compromise their dispute without a confidentiality agreement, anticipating that one of them would request a confidentiality order from the court. A court, however, is unlikely to issue a secrecy order over one party's objection. See, e.g., Smith v. MCI Telecommunications Corp., Civ. A. No. 87-2110-EEO, 1993 WL 142006, at *3-*4 (D. Kan. Apr. 28, 1993) (rejecting contested request for sealing order as "prior restraint" upon public disclosure of settlement).
435. See, e.g., Banco Popular de Puerto Rico v. Greenblatt, 964 F.2d 1227, 1229 (1st Cir. 1992) (examining stipulated protective order embodied in agreed judgment); United States v. Kentucky Utils. Co., 927 F.2d 252, 253 & n.1 (6th Cir. 1991) (discussing stipulated dismissal that required destruction of unfiled discovery). Agreements to return or destroy discovery after settlement often draw criticism to the extent that they potentially facilitate destruction of evidence relevant to pending or future lawsuits. Ethical rules default to
436. See, e.g., Banco Popular de Puerto Rico v. Greenblatt, 964 F.2d 1227, 1229 (1st Cir. 1992) (examining stipulated protective order embodied in agreed judgment); United States v. Kentucky Utils. Co., 927 F.2d 252, 253 & n.1 (6th Cir. 1991) (discussing stipulated dismissal that required destruction of unfiled discovery). Agreements to return or destroy discovery after settlement often draw criticism to the extent that they potentially facilitate destruction of evidence relevant to pending or future lawsuits. Ethical rules default to state law on this issue by prohibiting lawyers qut;unlawfully" destroying (or counseling others to destroy) materials "that have potential evidentiary value." See Model Rules of Professional Conduct Rule 3.4(a). In a few states, a party who intentionally destroys evidence can be sued for the tort of "spoilation." See, e.g., Hazen v. Municipality of Anchorage, 718 P.2d 456 (Alaska 1986); Smith v. Superior Court, 151 Cal. App. 3d 491, 198 Cal. Rptr. 829 (1984). Otherwise, absent a court order, litigants have no obligation to preserve discovery documents after dismissal and expiration of any right to appeal. See Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 781 (1st Cir. 1988). This current state of affairs has prompted some to urge guidelines requiring the post-dismissal maintenance of discovery records. See MANUAL FOR COMPLEX LITIGATION, supra note 1, § 41.36, at 456 (proposing that producing party retain one copy of confidential materials before requesting their destruction); see also Doggett & Mucchetti, supra note 121, at 664 (suggesting that obligation to retain discovery should parallel guidelines for maintaining court records); Weinstein, supra note 55, at 519-20 (advocating court review of agreements requiring return of files to defendants). But see Apr. 20, 1995 Advisory Comm. Minutes, supra note 82, at 9-10; Oct. 20, 1994 Jud. Conf. Minutes, supra note 117, at 5 (tabling proposal to prohibit agreements to return or destroy unfiled discovery unless producing party retains materials and corresponding discovery requests for five years after discovery concludes); Marcus, Discovery Confidentiality, supra note 52, at 497 n.236 (characterizing provision requiring return and retention of discovery as "overkill").
437. See, e.g., Brown v. Advantage Eng'g, Inc., 960 F.2d 1013, 1014 (11th Cir. 1992) (noting that defendant "agreed to settle the case for an amount exceeding any of its previous settlement offers in exchange for [plaintiff's] agreement that the record be sealed"); City of Hartford v. Chase, 942 F.2d 130, 132 (2d Cir. 1991) (conditioning settlement of case on sealing of court file).
438. See, e.g., Wendt v. Walden Univ., 69 Fair Empl. Prac. Cas. (BNA) 1542, No. CIV. 4-95-467, 1996 WL 84668 (D. Minn. Jan. 16, 1996) (addressing confidential settlements that prohibited former employees from disparaging University or disclosing any aspect of their confidential settlement); Kalinauskas v. Wong, 151 F.R.D. 363 (D. Nev. 1993) (assessing sealed confidential settlement that prohibited plaintiff from discussing any aspect of her employment with defendant).
439. For a discussion of the advantages of including a stipulated damages clause in a confidentiality agreement, see supra note 218. But see Garfield, supra note 218, at 292 (suggesting that court could impose "significant damage limitations for breaches of some contracts of silence" or refuse to enforce liquidated damages provisions).
440. Federal Rule of Civil Procedure 41 (a) (1) (ii) provides that "an action may be dismissed by the plaintiff without order of the court . . . by filing a stipulation of dismissal signed by all parties who have appeared in the action." FED. R. CIV. P. 41 (a) (1) (ii); see also Smith v. Phillips, 881 F.2d 902, 905 (10th Cir. 1989) (noting that Rule 41 (a) (1) (ii) anticipates that court will have "no role to play in settlement unless requested by the parties, or unless the settlement is embodied in a court order by agreement of the parties and the court"); Janus Films, Inc. v. Miller, 801 F.2d 578, 582 (2d Cir. 1986) (stating that normally court stands "'indifferent' to the terms the parties have agreed to" and "plays no role whatever" in their settlement).
441. See infra Part VI.B.2.c (discussing status of filed settlements as judicial records); see also Resnik, supra note 4, at 1495 (indicating that third party cannot access settlement that is not filed or approved by the court).
442. See Smith, 881 F.2d at 904-05 (holding that court lacked post-dismissal authority to order litigants to publicly disclose terms of settlement in "publicized case against public officials"); Daines v. Harrison, 838 F. Supp. 1406, 1409 (D. Colo. 1993) (refusing to deprive parties of right to unconditional dismissal by ordering disclosure of unfiled settlement).
443. The Florida sunshine statute, for example, declares that "[a]ny portion of an agreement or contract which has the purpose or effect of concealing" either a "public hazard" or a government settlement "is void, contrary to public policy, and may not be enforced." FLA. STAT. ANN. § 69.081 (4) & (8) (a) (West Supp. 1998); see also ARK. CODE ANN. § 16-55-122 (Supp. 1995) (voiding settlements that restrict disclosure concerning the "existence or harmfulness of an environmental hazard"); WASH. REV. CODE § 4.24.611 (Supp. 1996) (making private agreement settling or terminating a product liability or hazardous substance claim voidable by the court); Garfield, supra note 218, at 275, 332 (criticizing inadequacy of existing law regulating confidential settlements that keep important information from reaching the public and characterizing contract precedent concerning enforceability of such agreements as "sparse").
444. Indeed, the settlement agreement risks violating public policy unless it expressly excepts and excuses subsequent court-ordered or legally required disclosures. See Kalinauskas v. Wong, 151 F.R.D. 363, 367 (D. Nev. 1993) (holding that plaintiff was not subject to contractual penalties in settlement that expressly excepted court-ordered release of information). In addition, even a court order of confidentiality may not stave off later court-ordered disclosures. See supra note 330 and infra note 441 and accompanying text (discussing the enforcement of confidentiality orders in other courts).
445. As stated by the court in Mike v. Dymon, Inc.: "Confidentiality is generally not grounds to withhold information from discovery. Confidentiality does not equate to privilege. . . . That plaintiff may have a contractual legal obligation not to reveal confidential information . . . is not a valid objection to the requested discovery." Mike v. Dymon, Inc., Civ. No. 95-2405-EEO, 1996 WL 606362, at *3 (D. Kan. Oct. 17, 1996); see also Brazil, supra note 27, at 1026 (cautioning that private confidentiality agreements will not bind nonparties with respect to discovery or trial and might not be enforced by federal courts determined "to make sure that all the evidence that will help the jury ascertain the truth is accessible").
446. City of Hartford v. Chase, 942 F.2d 130, 137 (2d Cir. 1991) (Pratt, J., concurring).
447. Unless provided otherwise, a private agreement will not merge with a confidentiality order and generally "may be enforced without affecting the order or interfering with the court's enforcement of that order." Westinghouse Elec. Corp. v. Newman & Holtzinger, P.C., 992 F.2d 932, 937 (9th Cir. 1993). Violation of a confidentiality order may make the parties liable to the court for sanctions, while breach of the agreement makes the parties "directly liable to each other." Id. at 936-37.
448. In Kokkonen v. Guardian Life Insurance Co. of America, the Supreme Court indicated that if a court embodies a "settlement contract in its dismissal order (or, what has the same effect, retain[s] jurisdiction over the settlement contract)," "a breach of the agreement would be a violation of the order, and ancillary jurisdiction to enforce the agreement would therefore exist." Kokkonen v. Guardian Life Ins. Co. of Am., S.375, 381-82 (1994). "Absent such action, however, enforcement of the settlement agreement is for state courts, unless there is some independent basis for federal jurisdiction." Id. See generally Cordray, supra note 5 (discussing Kokkonen).
449. See Kokkonen, 511 U.S. at 378 (discussing enforcement of settlement agreement "through award of damages or decree of specific performance"); Pansy v. Borough of Stroudsburg, 23 F.3d 772, 788-89 (3d Cir. 1994) (noting that option of enforcing confidential settlement in separate contract action is "more arduous" than resorting to court's contempt powers); Smith v. Phillips, 881 F.2d 902, 905 (10th Cir. 1989) (holding that absent a confidentiality order, unauthorized disclosures must be remedied by individual contract action, rather than contempt of court). The Circuits split concerning whether a party can move under Federal Rule of Civil Procedure 60 (b) (6) to set aside an order of dismissal and reopen a dismissed case for breach of the settlement agreement that induced the dismissal. See Kokkonen, 511 U.S. at 378 (noting circuit split and distinguishing enforcement of settlement from "merely reopening the dismissed suit" because of breach of agreement); Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863 (1994) (holding that district court's vacatur of dismissal for breach of settlement agreement did not justify immediate appeal under collateral order doctrine); see also Cordray, supra note 5, at 50-61 (favoring reinstatement of suit for breach of settlement).
450. See Bank of Am. Nat'l Trust & Sav. Ass'n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986) (citing this as a reason why litigants may file their settlement and forgo a stipulated dismissal).
451. See infra Part VI.B.3.d (examining confidentiality orders that might suppress evidence) and supra notes 141 & 347 and accompanying text (discussing confidentiality orders as exception to freedom of information laws).
452. Although Federal Rule of Civil Procedure 41 (a) (1) (ii) does not permit a court to sua sponte condition the parties' stipulated dismissal, a court "is authorized to embody the settlement contract in its dismissal order (or, what has the same effect, retain icion over the settlement contract) if the parties agree." Kokkonen, 511 U.S. at 381-82.
453. See Kokkonen, 511 U.S. at 382 (placing decision whether to retain jurisdiction within the court's discretion); Arata v. Nu Skin Int'l, Inc., 96 F.3d 1265, 1268-69 (9th Cir. 1996) (holding that court is under no obligation to reserve jurisdiction in accordance with the parties' settlement and has discretion, even if it initially retains jurisdiction, to later terminate it); see also infra Part VI.B.3 (offering guidance concerning exercise of judicial discretion).
454. See supra Part IV.D.2 (discussing factors relevant to issuance or modification of stipulated protective orders).
455. See Miller, supra note 52, at 486 (asserting that if "effectiveness of the protective order cannot be relied upon, its capacity to motivate settlement will be compromised").
456. See supra Part V (examining the sealing of judicial records).
457. See Hagestad v. Tragesser, 49 F.3d 1430, 1434-35 (9th Cir. 1995) (reversing district court's seal of entire record pursuant to parties' compromise for failure to articulate supporting reasons); Miller v. Indiana Hosp., 16 F.3d 549, 551 (3d Cir. 1994) (describing burden on party seeking to seal entire record as especially heavy); Brown v. Advantage Eng'g, Inc., 960 F.2d 1013, 1016 (11th Cir. 1992) (finding it "immaterial" that sealing of entire record was "key negotiated element" of court-facilitated settlement); Crothers v. Pilgrim Mortgage Corp., No. 95 Civ. 4681 (SAS), 1997 WL 570583, at *6-*7 (S.D.N.Y. Sept. 11, 1997) (holding that interest in settlement did not justify sealing of court's file without particularized judicial review).
458. To facilitate appellate review of a decision to seal, a trial court should clearly articulate the countervailing considerations that override the presumption of access. See Hagestad, 49 F.3d at 1434 (insisting that court base decision to seal upon factually articulated and compelling reasons, not hypothesis and conjecture); United States v. Amodeo, 44 F.3d 141, 148 (2d Cir. 1995) (directing that any restriction on access to judicial records be supported by specific findings); Miller, 16 F.3d at 551 (requiring that court make specific findings, provide an opportunity for third parties to be heard, and articulate countervailing interests to be protected); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1176 (6th Cir. 1983) (requiring that courts articulate findings of fact and conclusions of law before sealing).
459. Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 898 (7th Cir. 1994); see also Doe v. Methacton Sch. Dist., 878 F. Supp. 40, 43 (E.D. Pa. 1995) (recommending that parties should move to seal specific documents rather than court's docket and entire record).
460. In Wilson v. American Motors Corp., for example, the defendant requested the sealing of the entire record pursuant to a court-facilitated settlement after the jury had rendered adverse findings via special interrogatories. Wilson v. American Motors Corp., 759 F.2d 1568, 1569 (11th Cir. 1985). The trial court granted the litigants' stipulated request to seal the record, but the Eleventh Circuit reversed. While the appellate court acknowledged the public interest in encouraging settlement, it rete defendant's "desire to prevent the use of [the] trial record in other proceedings," id. at 1571, and the defendant's "attempted suppression of a jury verdict" in order to evade collateral estoppel, as "contrary to the most basic principle of American jurisprudence" and thus an inadequate justification for sealing the record, id. at 1572 n.4.
461. Before sealing, a court should consider available alternatives, such as redaction of the confidential information, and fashion the least restrictive option. See Siedle v. Putnam Ins., Inc., 147 F.3d 7, 12 n.6 (1st Cir. 1998) (recommending that trial court institute sealing procedure whereby only privileged material would be redacted and sealed); Methodist Hosps., Inc. v. Sullivan, 91 F.3d 1026, 1032 (7th Cir. 1996) (instructing district court to redact confidential salary information from brief and to unseal remainder); In re Policy Management Sys. Corp., Civ. Nos. 94-2254, 94-2341, 1995 WL 541623, at *7, n. 4 (4th Cir. Sept. 13, 1995) (Michael, J., dissenting) (approving district court's redaction of trade secret and propriety information before it unsealed motion to dismiss); Methacton Sch. Dist., 878 F. Supp. at 42 (stating that court failed to take "the least restrictive course" when it sealed docket and entire record).
462. See supra notes 297-303 and accompanying text (discussing modification burden).
463. See, e.g., In re Cincinnati Enquirer, 94 F.3d 198 (6th Cir. 1996) (involving a newspaper's seeking a writ of mandamus against a district court in order to permit public access to summary jury trial in class action arising from prison riots); B.H. v. McDonald, 49 F.3d 294 (7th Cir. 1995) (public guardian challenges court's decision to hold nonpublic in-chambers conferences to discuss implementation of consent decree in suit brought by Illinois Department of Children and Family Services); United States v. Town of Moreau, 979 F. Supp. 129 (N.D.N.Y. 1997) (newspaper and reporter request access to settlement conferences and position papers in CERCLA lawsuit involving town water supply); Resolution Trust Corp. v. Hess, 859 F. Supp. 1411 (D. Utah 1994) (congressional committee seeks financial information submitted by defendants to RTC as part of settlement negotiations).
464. See Town of Moreau, 979 F. Supp. at 134 (noting that "it is not clear that the common law right of access is applicable to judicial proceedings although some hve suggested that it is"); see also supra Part III.B (discussing common law right of public access).
465. Galanter & Cahill, supra note 11, at 1390 (arguing that "courts do more than adjudicate" by presiding "over a cluster of dispute processes").
466. See In re Cincinnati Enquirer, 94 F.3d at 199 (equating summary jury trial to settlement proceedings which are "historically closed procedures"); Town of Moreau, 979 F. Supp. at 134 (noting that "[s]ettlement conferences are not now and have never been part of the public process of litigation").
467. See In re Cincinnati Enquirer, 94 F.3d at 199 (holding that summary jury trial "does not present any matter for adjudication by the court, but functions to facilitate settlement"); McDonald, 49 F.3d at 300 (noting that court will not be "adjudicating anyone's rights or enforcing any provision of the consent decree" in settlement conference).
468. Town of Moreau, 979 F. Supp. at 134-35.
469. As stated by the district court in United States v. Town of Moreau: [I]t cannot be said that discussions of compromise among parties to a lawsuit, even with a judge in attendance, play a large role in the exercise of Article III judicial power. The presumption of public access in the case of settlement conferences is therefore very low indeed, if not nonexistent. Town of Moreau, 979 F. Supp. at 135.
470. See McDonald, 49 F.3d at 301; Town of Moreau, 979 F. Supp. at 135. Confidential settlement negotiations are arguably even more crucial in cases of significant public interest where litigants may be reluctant to publicly state what may be no more than a bargaining position. See Town of Moreau, 979 F. Supp. at 135 (doubting whether public settlement conference in case of significant concern "would ever permit the type of give and take that would lead to an agreed resolution").
471. See Cincinnati Gas & Elec. Co. v. General Elec. Co., 854 F.2d 900, 904 (6th Cir. 1988) (stating that "public access would be detrimental to the effectiveness of the summary jury trial in facilitating settlement"); Town of Moreau, 979 F. Supp. at 136 (warning that public settlement conference "would be the death knell of settlement negotiations" in cases of vital public interest); Resolution Trust Corp. v. Hess, 859 F. Supp. 1411, 1412 (D. Utah 1994) (noting that access to settlement negotiations might "undermine the amicable resolution of disputes").
472. See McDonald, 49 F.3d at 301, 303 (Easterbrook, J., concurring) (asserting that "public has no right to follow the negotiators into the negotiation room," even when "judge himself plays the role of mediator"); Town of Moreau, 979 F. Supp. at 133-36 (indicating that good cause supported closed settlement conferences upon which further negotiations depended); Resolution Trust Corp., 859 F. Supp. at 1413 (justifying continued maintenance of confidentiality order with need to promote "judicially supervised settlement of litigation"); see also Resnik, supra note 4, at 1494 (finding no express public right of access to court-sponsored ADR).
473. In the Third Circuit, the mere filing of a settlement with the court automatically renders it a judicial record subject to a strong presumption of public access. See Bank of Am. Nat'l Trust & Sav. Ass'n v. Hotel Rittenhouse Assoc., 800 F.2d 339, 344-45 (3d Cir. 1986); cf. SEC v. Van Waeyenberghe, 990 F.2d 845, 848 n.4, 849 (5th Cir. 1993) (finding that settlement agreement becomes a judicial record once filed and submitted to court for approval, but refusing to assign any particular weight to resulting presumption).
474. The presumption of public access would be much stronger in cases where the litigants subsequently dispute the terms of their settlement and file it for judicial interpretation or enforcement. In such cases, the court does adjudicate the litigants' substantive contractual rights under the settlement. See Bank of Am. Nat'l Trust & Sav. Ass'n, 800 F.2d at 345 (holding hat litigants lose the confidentiality ordinarily accorded settlements when they "utilize the judicial process to interpret the settlement and to enforce it"). A similarly strong presumption would exist in cases where a settlement agreement plays "an integral role" in a court's summary judgment or other important pretrial rulings. See, e.g., Ex parte Knight Ridder, Inc., 982 F. Supp. 1080, 1082-83 (D.S.C. 1997).
475. A court might be more willing to seal a settlement agreement (or less willing to subsequently unseal it) if its own assurances of confidentiality induced the parties to file the settlement in the first place. See Bank of Am. Nat'l Trust & Sav. Ass'n, 800 F.2d at 347-48 (Garth, J., dissenting) (arguing for greater burden on party seeking to unseal settlement where sealing order induced parties to file settlement and parties acted in reliance on continued secrecy); Palmieri v. New York, 779 F.2d 861, 864-65 (2d Cir. 1985) (noting that magistrate's assurances of confidentiality induced parties to negotiate and later file their settlement).
476. A court, for instance, may appropriately refuse to seal a settlement agreement with the government or an agreement that implicates public health or safety or other matters of legitimate public concern. See, e.g., Town of Moreau, 979 F. Supp. at 136-37 (noting that "entirely different question" would be presented if litigants had requested court to seal final consent decree and related settlement documents); Arkwright Mut. Ins. Co. v. Garrett & West, Inc., 782 F. Supp. 376, 381 (N.D. Ill. 1991) (refusing to seal settlement because case involved disruption of phone service to thousands of citizens and was thus a matter of significant public interest); Society of Prof'l Journalists v. Briggs, 675 F. Supp. 1308, 1309-11 (D. Utah 1987) (holding that settlement agreement between ex-county assessor and state was a "public document" subject to state freedom of information laws and a constitutional right of access). But see In re Franklin Nat'l Bank Sec. Litig., 92 F.R.D. 468, 472 (E.D.N.Y. 1981) (notwithstanding "historical importance" of bank failure, tremendous savings of time and legal expenses justified sealing settlement). For a more extensive discussion of the various private and public interests that a court can consider in deciding whether to seal a filed settlement, see supra Part IV.D.2 (discussing factors relevant to issuance or modification of stipulated protective orders) and infra Part VI.B.3 (exploring judicial discretion and confidentiality orders).
477. If a document is never filed with the court or, after filing, is returned to the parties' possession, it will not constitute a judicial record subject to further court control. See Littlejohn v. BIC Corp., 851 F.2d 673, 681-83 (3d Cir. 1988) (holding that district court lacks authority to compel return of trial exhibits for inspection and copying by third parties after such exhibits have been returned to the parties or destroyed by the clerk); Wilson v. American Motors Corp., 759 F.2d 1568, 1571-72 (11th Cir. 1985) (noting that while only a compelling government interest can justify sealing a trial record, trial exhibits need not remain in court custody). But see Littlejohn, 851 F.2d at 688 (Scirica, J., dissenting) (arguing that trial exhibits returned to litigants after trial or settlement should remain public records as long as they are available from any source). Thus, if a settlement agreement is not filed with the court, it will not constitute a judicial record, even if the court retains jurisdiction to enforce it or reviews the agreement before issuing a confidentiality order. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 782 (3d Cir. 1994). But see TEX. R. CIV. P. 76a(2)(b) (designating certain settlement agreements "not filed of record" as "court records" that are presumptively open to the general public); Luban, supra note 3, at 2650 & n.140 (arguing that litigants should not be permitted to invoke public authority, but avoid public scrutiny, simply by failing to file their agreement).
478. This court exercises discretion initially with respect to the entry and terms of a confidentiality order, and later with respect to its potential modification or vacatur. Some commentators argue that this judicial discretion should be statutorily circumscribed given a trial court's self-interest in clearing its own calendar. See supra notes 114-15 and accompanying text.
479. Recently, in Baker v. General Motors Corp., the United States Supreme Court addressed whether a court in one state must give Full Faith and Credit to the confidentiality orders and injunctions entered by a court in another state. See Baker v. General Motors Corp., 118 S. Ct. 657 (1998). In that case, a Michigan court entered a stipulated injunction that barred a former employee of General Motors ("GM") from testifying against GM in other product liability cases. Plaintiffs in another product liability action against GM in Missouri subpoenaed the ex-employee's testimony, which GM argued was barred by the Michigan injunction. See id. at 660-63. While noting that the settlement agreement and injunction could prevent the settling employee from volunteering his testimony, the Supreme Court held that they could not bind persons not parties to the Michigan proceeding nor dictate the admissibility of the testimony to another court. See id. at 665-66. Thus, the Missouri court could te employee to testify without violating the Full Faith and Credit Clause. See id. at 660; see also infra Part VI.B.3.d (discussing settlements that suppress evidence).
480. See Grove Fresh Distrib., Inc. v. John Labatt, Ltd., 888 F. Supp. 1427, 1440-41 (N.D. 111. 1995) (comparing sealing order governing filed settlement to protective order concerning discovery); see also supra Part IV.A (discussing Seattle Times Co. v. Rhinehart).
481. In Pansy, the Third Circuit adopted such a standard, stating: Protective orders and orders of confidentiality are functionally similar, and require similar balancing between public and private concerns. We therefore . . . conclude that whether an order of confidentiality is granted at the discovery stage or any other stage of litigation, including settlement, good cause must be demonstrated to justify the order. Pansy, 23 F.3d. at 786.
482. See supra Part IV.D.2 (discussing factors).
483. See City of Hartford v. Chase, 942 F.2d 130, 136 (2d Cir. 1991) (recognizing court's larger role reviewing resolutions of suits affecting the public interest); see also supra Part IV.D.2.d (examining public interest considerations).
484. For a discussion of the intersection of confidentiality orders and freedom of information laws, see supra note 141 and accompanying text. Although a confidentiality order might insulate a settlement from statutorily-required disclosure, vacatur of such an order will not guarantee public access to an agreement that has never been filed with the court. Instead, it fees the public to seek disclosure via other legal avenues, including freedom of information-type laws. See Pansy, 23 F.3d at 784 (recognizing that newspaper was free to seek access through other legal channels without interference of court order); Daines v. Harrison, 838 F. Supp. 1406, 1409 (D. Colo. 1993) (indicating that newspapers must seek disclosure of unfiled settlement under Colorado Open Records Act).
485. See Pansy, 23 F.3d at 791-92 (asserting that even particularized need for confidentiality in reaching settlement will not "outweigh important values manifested by freedom of information laws"); Mullins v. City of Griffin, 886 F. Supp. 21, 22-23 (N.D. Ga. 1995) (vacating confidentiality order that prohibited discussion of settlement in sexual harassment suit against city, city manager, and chief of police); Daines, 838 F. Supp. at 1408-09 (stating that neither the desire to hide bad behavior nor the strong interest in promoting settlement will outweigh the "public's interest in seeing that public funds are utilized properly"). A court may be able to accommodate the various competing interests either by conditioning a confidentiality order to become inoperative if settlement information is later determined to be accessible under freedom of information laws or by limiting the scope of such an order to exclude legally-required disclosures. Pansy, 23 F.3d at 791.
486. See In re New York County Data Entry Worker Prod. Liab. Litig., 616 N.Y.S.2d 424, 426 (N.Y. Sup. Ct. 1994) (holding that defendants' need to obtain settlement agreements was "nothing more than trial strategy" and did not arise "out of materiality or necessity but, rather, desirability"). Although a confidentiality agreement may shield the contents of a settlement, it might not preclude disclosure of the existence of the compromise itself. See id. at 427 (asserting that witness' credibility can be tainted by "the mere fact that there was a settlement" between plaintiffs and settling co-defendants).
487. See id. at 428 (noting that "[m]any defendants would almost certainly proceed to trial rather than to broadcast to all potential plaintiffs how much they might be willing to pay").
488. In this respect, settlement facts would seem to merit greater protection than even the raw fruits of discovery, which, while generated by the litigation process, pre-date and exist independent of that process. See supra Part IV (discussing public access to unfiled discovery).
489. Just as the court in the settled case might find good cause to enter a confidentiality order concerning settlement terms, so might a court in a collateral lawsuit determine that good cause supports entry of a protective order that prevents discovery of the confidential contents by third parties. See Butta-Brinkman v. FCA Int'l, Ltd., 164 F.R.D. 475, 476-77 (N.D. Ill. 1995) (denying motion to compel production of confidential settlement agreement in other sexual harassment suits against defendants unless plaintiff could not otherwise obtain information); Kalinauskas v. Wong, 151 F.R.D. 363, 367 (D. Nev. 1993) (requiring a collateral litigant to "show a compelling need" to justify disclosure of specific terms of settlement). Even if such discovery is warranted, a collateral court can protect the continued confidentiality of settlement terms by conditioning discovery upon a confidentiality agreement or by issuing a protective order that prohibits further disclosure. See LaFarge Corp. v. Hartford Cas. Ins. Co., 61 F.3d 389, 400-01 (5th Cir. 1995) (noting a district court's order to condition Hartford's discovery of settlement amount and terms upon its confidentiality agreement); Wendt v. Walden Univ., Inc., 69 Fair Empl. Prac. Gas. (BNA) 1542, No. Civ. 4-95-467, 1996 WL 84668, at *3 (D. Minn. Jan. 16, 1996) (entering protective order that prohibited deposition attendees from divulging revealed confidences).
490. See Wendt, 1996 WL 84668, at *2 (finding requests for contents of settlement agreements "emphatically different" in scope from effort to discover underlying facts); Kalinauskas, 151 F.R.D. at 367 (distinguishing amount and conditions of settlement from factual information surrounding case); see also Menkel-Meadow, supra note 32, at 2685 (distinguishing "settlement facts" from adjudicative facts); Weinstein, supra note 55, at 517 (finding "much less public interest" in settlement terms and amounts than in evidence relevant to the merits); Yeazell, supra note 6, at 650 (comparing distinction to work product immunity that only prevents disclosure of information generated by litigation and that does not bar disclosure of underlying historical facts).
491. In these cases, "the parties' contractual confidentiality provision . . . impacts on the public interest, namely the ability of a non-party to the contract to pursue discovery in support of its case . . . ." Wendt, 1996 WL 84668, at *2. See also United States v. Alex Brown & Sons, Inc., 963 F. Supp. 235, 240 (S.D.N.Y. 1997) (noting that parties to consent decree may not "seal existing evidence that would ordinarily be accessible to other litigants"); In re Subpoena Duces Tecum Served on Bell Communications Research, Inc., No. MA-85, 1997 WL 10919, at *3 (S.D.N.Y. Jan. 13, 1997), mod. by No. MA-85, 1997 WL 16747 at *1 (S.D.N.Y. Jan. 17, 1997) (stating that confidentiality agreements cannot impede "the truth-seeking function of discovery in federal litigation").
492. Wendt, 1996 WL 84668, at *2. See also Kalinauskas, 151 F.R.D. at 365. In both Wendt and Kalinauskas, plaintiffs in sexual harassment and discrimination cases sought to depose former employees who had confidentially settled similar sexual discrimination claims against the defendant employers. The Kalinauskas settlement expressly prohibited the former employee from discussing any aspect of her employment with the defendant, other than the dates of her employment and her job title. See Kalinauskas, 151 F.R.D. at 365. The defendants in both cases moved to quash the depositions, arguing that the requested discovery would compel the former employees to breach their confidentiality agreement, which was a critical component of their settlements. The courts in both cases permitted the plaintiffs to depose the former employees concerning their employment with defendants, knowledge of sexual harassment, and other "factual information" surrounding their settled cases. See id. at 367; see also Wendt, 1996 WL 84668, at *2.
493. Kalinauskas, 151 F.R.D. at 365; see also Baker v. General Motors, 118 S. Ct. 657, 667 (1998) (noting that stipulated injunction could prevent party to settlement from volunteering his testimony); Wendt, 1996 WL 84668, at *2 (distinguishing case before court from one that involves "disputes between the parties to the contracts").
494. See Kalinauskas, 151 F.R.D. at 365-67 (refusing to enter protective order that would prevent deposition of party to confidential settlement); Grundberg v. Upjohn 40F.R.D. 459, 473 (D. Utah 1991) (vacating confidentiality order to avoid interfering with discovery in other pending cases); cf. Flynn v. Portland Gen. Elec. Corp., Civ. No. 4-88-0681, 1989 WL 112802, at *2 (D. Or. Sept. 28, 1989) (granting protective order concerning matters within scope of confidential settlement in case with "sufficiently distinguishable" facts).
495. As previously discussed, a stipulated protective order merely confines confidential discovery to the case in which it is generated and does not prevent independent discovery to obtain the equivalent information in collateral proceedings. See supra note 330 and accompanying text. In contrast, a confidentiality order that enjoins settling parties from discussing the underlying facts or merits of their controversy may impede even this right to independent discovery. The discovery sharing rationale for modifying a stipulated protective order thus affords even greater support for a decision either to vacate a confidentiality order or to deny its enforcement in another lawsuit. See supra Part IV.D.2.c (discussing discovery sharing as a rationale for modifying a stipulated protective order).
496. For example, a court's orders, decrees, judgments, and opinions that resolve the factual and legal merits of a case are the "quintessential" product of the adjudicative function. See EEOC v. National Children's Ctr., 98 F.3d 1406, 1409 (D.C. Cir. 1996) ("A court's decrees, its judgments, its orders, are the quintessential business of the public's institutions."). Because they carry an exceptionally strong presumption of public access, then, courts should carefully scrutinize settlements conditioned upon the sealing of consent decrees, see id. at 1410 (holding that trial court erred by sealing the consent decree); B.H. v. McDonald, 49 F.3d 294, 300 (7th Cir. 1995) (distinguishing consent decree from private settlements), or the stipulated vacatur of civil judgments. See United States Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994) (holding that only "exceptional circumstances" can justify vacatur of "civil judgments of subordinate courts in cases that are settled after appeal is filed or certiorari sought").