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finding the public's right of access is presumed paramount and that documents should be sealed "only on the basis of articulable facts known to the court, not on the basis of unsupported hypothesis or conjecture."
Summary of this case from Nordike v. Verizon Bus., Inc.Opinion
Case No. 03-2450-JWL-DJW
February 17, 2004
MEMORANDUM AND ORDER
The parties have submitted an Agreed Protective Order for the Court's consideration. Notably, the proposed order contains a provision directing the Clerk of the Court to hold all materials "submitted and marked with the confidentiality notation in the sealed envelope, and to make the same available only as authorized by the court." In other words, the proposed order permits the parties to file under seal any document they choose to designate as confidential. For the reasons set forth below, the proposed Agreed Protective Order is rejected and the parties are granted leave to submit a revised agreed protective order consistent with this Memorandum and Order.
The decision whether to enter a protective order lies within the sound discretion of the court. Federal Rule of Civil Procedure 26(c) provides that the court, upon a showing of good cause, "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." The Scheduling Order entered in this case provides that all "jointly proposed protective orders shall include . . . a concise but sufficiently specific recitation of the particular facts in this case that would provide the court with an adequate basis upon which to make the required finding of good cause pursuant to Fed.R.Civ.P. 26(c)."
Thomas v. IBM, 48 F.3d 478, 482 (10th Cir. 1995).
Doc. 8, ¶ II.k.
Upon review of the parties' proposed Agreed Protective Order, the Court finds that the parties have shown good cause to keep the referenced discovery materials confidential between the parties. Notwithstanding the parties' demonstration of good cause for keeping disco very materials confidential, the Court finds that the parties have failed to establish a public or private harm sufficient to overcome the public's right of access to judicial records for filing these confidential materials under seal.
Federal courts recognize a common-law right of access to judicial records. This right derives from the public's interest "in understanding disputes that are presented to a public forum for resolution" and is intended to "assur[e] that the courts are fairly run and judges are honest." This public right of access, however, is not absolute. Federal district courts have supervisory control over their own records and files; therefore, the decision whether to allow access to those records is left to the court's sound discretion. In exercising that discretion, the court must consider the relevant facts and circumstances of the case and balance the public's right of access, which is presumed paramount, with the parties' interests in sealing the record or a portion thereof. Documents should be sealed only on the basis of articulable facts known to the court, not on the basis of unsupported hypothesis or conjecture.
Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-99 (1978); Crystal Grower's Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir. 1980); Stapp v. Overnite Transp. Co., No. 96-2320-GTV, 1998 WL 229538, at *1 (D. Kan. Apr. 10, 1998).
Crystal Grower's Corp., 616 F.2d at 461.
Stapp, 1998 WL 229538, at *1.
Id.
Id. (citing Nixon, 435 U.S. at 597-99; United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985); In re Knight Publ'g Co., 743 F.2d 231, 234-35(4th Cir. 1984); Crystal Grower's Corp., 616 F.2d at 461.).
Stapp, 1998 WL 229538, at *1.
In keeping with the paramount right of public access, this court requires a party to move for permission to file a particular document under seal and to demonstrate a public or private harm sufficient to justify the sealing of the document. The fact that the parties agree to a protective order which provides for the filing of confidential materials under seal does not dispense with the requirement that the parties establish a public or private harm sufficient to overcome the public's right of access to judicial records.
An additional concern supports the Court's rejection of blanket "filing under seal" provisions in protective orders. Under the Court's current electronic case filing system, documents filed under seal must be filed conventionally, i.e., in paper form, rather than electronically. D. Kan. 5.4.6. Such paper filings impose a significant administrative burden on the Clerk's Office.
In this case, the parties' proposed Agreed Protective Order does not provide the Court with sufficient information for the Court to ascertain what confidential documents may be filed under seal. Even if the Court were able to determine what documents might be filed under seal, the parties have alleged no public or private harm sufficient to overcome the public's right of access to judicial records. The Court, therefore, must reject the Agreed Protective Order provision directing the Clerk of the Court to hold all materials "submitted and marked with the confidentiality notation in the sealed envelope, and to make the same available only as authorized by the court."
Based onthe parties' failure to establish a public or private harm sufficient to overcome the public's right of access to judicial records for the "filing under seal" provision of their proposed Agreed Protective Order, the Court will reject, without prejudice, the parties' proposed Agreed Protective Order. The parties may submit revised agreed protective order that does not contain the objectionable blanket provision for the filing of confidential documents under seal.
IT IS THEREFORE ORDERED THAT the parties' proposed Agreed Protective Order is rejected and the parties are hereby granted leave to submit a revised, agreed protective order consistent with this order.
IT IS SO ORDERED.