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“MORE THAN TANGENTIAL”: WHEN DOES THE
PUBLIC HAVE A RIGHT TO ACCESS JUDICIAL
RECORDS?
Jordan Elias*
Public accountability requires open proceedings and
access to documents filed with the courts. The strong
policy favoring access to judicial records creates a
presumption against sealing documents without a
compelling reason.
The Ninth Circuit Court of Appeals recently held that
this presumption of access arises when a proceeding
relates “more than tangentially” to the merits. This is a
low standard under which many types of motions qualify
for the compelling reasons test.
With too much litigation occurring in secret, courts can
use the “more than tangential” standard proactively to
keep electronic case dockets available to citizens.
I NTRODUCTION
In Center for Auto Safety v. Chrysler Group, LLC , the Ninth
Circuit held that, absent compelling reasons to seal, courts must
ensure public access to evidence submitted with a motion “more
than tangentially related to the merits” of the case.^1 Because issues
litigated to a decision usually relate more than tangentially to the
merits of a case, this holding creates presumptive access to nearly
everything filed with a court.
- (^) J.D., Stanford Law School, 2003; B.A. magna cum laude , Yale College, 1998.
The views and research in this Article are my own. (^1) Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th Cir.
2016), cert. denied , 137 S. Ct. 38 (2016).
368 JOURNAL OF LAW AND POLICY
The Ninth Circuit stressed that a proceeding relates more than
tangentially to the merits when it may affect the parties’ substantive
rights.^2 That is true of most non-discovery motions for the simple
reason that parties have less reason to fund or file a motion if it is
unlikely to advance a claim or defense.
Since 2016 the rule of Center for Auto Safety has taken hold,
been cited in hundreds of cases, and resulted in more liberal use of
the “compelling reasons” standard.^3 Before Center for Auto Safety ,
courts within the Ninth Circuit were divided on whether a motion to
certify a class carried the presumption of access.^4 But courts
applying the “more than tangentially related” rule have consistently
held that the public has a right to access the record at class
certification.^5 As a result, the compelling reasons test applies—
rather than the “good cause” standard of Federal Rule of Civil
Procedure 26, which is more lenient in permitting sealing.
(^2) See id. at 1098–1101 (reviewing case law and concluding that the
presumption of public access to judicial records applies if a decision on the underlying motion or proceeding could adjudicate the litigants’ substantive rights). (^3) Courts have broadly applied the “compelling reasons” test after Center for
Auto Safety. See, e.g. , United States v. Kinetic Concepts, Inc., No. CV 08-6403- GHK (AGRx), 2016 WL 11673226, at *4 (C.D. Cal. Apr. 27, 2016) (denying request to seal initial pleadings). See generally discussion infra Part II. (^4) Compare, e.g. , Nygren v. Hewlett-Packard Co., C07-05793 JW (HRL),
2010 WL 2107434, at *1–3 (N.D. Cal. May 25, 2010) (applying Rule 26 standard to class certification motion), and Pecover v. Elec. Arts, Inc., No. C 08- VRW, 2010 WL 8742757, at *25–26 (N.D. Cal. Dec. 21, 2010) (same), with Labrador v. Seattle Mortg. Co., No. 08-2270 SC, 2010 WL 3448523, at *2 (N.D. Cal. Sept. 1, 2010) (applying compelling reasons standard). (^5) See Adtrader, Inc. v. Google LLC, No. 17-CV-07082-BLF, 2020 WL
6387381, at *2 (N.D. Cal. Feb. 24, 2020) (“This Court follows numerous other district courts within the Ninth Circuit in concluding that the compelling reasons standard applies to motions to seal documents relating to class certification.”); Fitzhenry-Russell v. Dr. Pepper Snapple Grp., Inc., 326 F.R.D. 592, 617 (N.D. Cal. 2018) (because a class certification motion is “more than tangentially related to the merits of the case,” the compelling reasons standard applies); Moussouris v. Microsoft Corp., No. 15-CV-1483 JLR, 2018 WL 1159251, at *2–4 (W.D. Wash. Feb. 16, 2018) (applying the compelling reasons standard to a class certification motion under Center for Auto Safety ), report & rec. adopted , 2018 WL 1157997 (W.D. Wash. Mar. 1, 2018); Baker v. SeaWorld Entm’t, Inc., No. 14CV2129-MMA (AGS), 2017 WL 5029612, at *2–3 (S.D. Cal. Nov. 3, 2017).
370 JOURNAL OF LAW AND POLICY
the other side that can lead a party to redact heavily. The attorney or
paralegal doing the sealing work wants no part of trouble and has
every reason to avoid provoking accusations from opposing
counsel.^9 Reinforcing a “when in doubt, redact” mentality is the
understanding that a sealing dispute could distract or divert the
party’s focus in the case and drain resources beyond the sealing
work itself. This reflexive accommodation of sealing among parties
warrants an equally firm judicial counteraction.
Voicing recent concern over “displacing the high bar for sealing
orders with the low bar for protective orders,” the Fifth Circuit
sounded the alarm that “increasingly, courts are sealing documents
in run-of-the-mill cases where the parties simply prefer to keep
things under wraps.”^10 For nearly ten years Bill Cosby was able to
keep the public from learning of his deposition testimony that he
drugged women with quaaludes to take advantage of them.^11 It took
a decade as well for key information learned in discovery about the
failing tires at issue in the Bridgestone/Firestone/Ford litigation to
come to light.^12 The public now has a need for all manner of
evidence ranging from trading records showing market
manipulation^13 to public health records reflecting pandemic
(^9) See, e.g. , Matt Stoller, When Google’s Fancy Lawyers Screw Up and
Jeopardize Sheryl Sandberg, at $1500/Hour , BIG (Apr. 10, 2021), https://mattstoller.substack.com/p/when-googles-fancy-lawyers-screw (alluding to professed outrage by parties who act as though “revealing public information about big business is some sort of scandal”). (^10) Le v. Exeter Fin. Corp., 990 F.3d 410, 417, 421 (5th Cir. 2021). (^11) See Graham Bowley & Ravi Somaiya, Bill Cosby Admission About
Quaaludes Offers Accusers Vindication , N.Y. TIMES (July 7, 2015), https://www.nytimes.com/2015/07/08/business/bill-cosby-said-in-2005-he- obtained-drugs-to-give-to-women.html?ref=topics. (^12) See Dustin B. Benham, Dirty Secrets: The First Amendment in Protective-
Order Litigation , 35 CARDOZO L. REV. 1781, 1785–86 (2014). (^13) See, e.g. , United States v. Walsh, 723 F.3d 802, 808 (7th Cir. 2013)
(government used trading records to calculate loss from defendants’ investment fraud in foreign currency exchange market).
MORE THAN TANGENTIAL 371
response measures,^14 from tax records^15 to product safety
information^16 and the list continues. Yet cases often drag on or settle
before trial, forever shielding relevant evidence from the public.^17
In response to these conditions, courts can use the “more than
tangential” rule proactively, as through orders to show cause, if the
litigants merely assume the secrecy of records will be maintained.
Companies’ awareness that their records may be disclosed promotes
compliance; yet open proceedings can only be achieved when the
courts insist on them.
(^14) See Westinghouse Elec. Corp. v. Newman & Holtzinger, 46 Cal. Rptr. 2d
151, 160 (Ct. App. 1995) (“Because the judicial process is frequently the avenue by which the public and regulatory agencies learn of significant health and safety hazards, blocking this avenue may prove detrimental to the public well-being.”). (^15) See, e.g. , AmerGen Energy Co., LLC by & through Exelon Generation
Co., LLC v. United States, 115 Fed. Cl. 132, 142–43 (2014) (refusing to redact or seal tax returns and related correspondence in suit involving tax treatment of nuclear plant transactions); In re Rahr Malting Co., 632 N.W.2d 572, 574– (Minn. 2001) (denying petition that challenged tax court’s unsealing of financial data of company whose CEO “stated only in conclusory terms that disclosure of the data would be ‘devastating’ and affect the ‘survivability’ of the company” by enabling customers to reduce its profits and competitors to undercut its pricing). (^16) See, e.g. , Naramore v. Daimler Trucks N. Am., LLC, No. 1:18-CV-
(LAG), 2019 WL 6037716, at *1–2 (M.D. Ga. Apr. 3, 2019) (denying request to strike provision in protective order allowing vehicle-related information obtained in discovery to be shared with the National Highway Traffic Safety Administration and other potential plaintiffs). (^17) See Hon. Craig Smith et al., Finding a Balance Between Securing
Confidentiality and Preserving Court Transparency: A Re-Visit of Rule 76a and Its Application to Unfiled Discovery , 69 S.M.U. L. REV. 309, 311–13 (2016) (stating that “broad protective orders and silent settlement agreements keep ‘confidential’ information out of public view, despite the fact that this information may have a substantial effect on the public’s interest in health or safety. The risk of disclosing harmful information to the public is the economic incentive to keep it a secret.”); Anne E. Ralph, Narrative-Erasing Procedure , 18 N EV. L.J. 573, 607 (2018) (noting “significant losses and costs” to the public from “the ever- increasing rates of settlement”); Benjamin Sunshine & Víctor Abel Pereyra, Access-to-Justice v. Efficiency: An Empirical Study of Settlement Rates After Twombly & Iqbal , 2015 U. I LL. L. REV. 357, 387, 398 (2015) (finding that “[s]ettlements in federal civil cases occurred at a higher rate in the post- Iqbal era [after May 2009] as compared to the pre- Twombly era [before May 2007]” and that “most settlement terms are kept secret”). Also limiting access to records, the government can be slow in processing FOIA requests for information.
MORE THAN TANGENTIAL 373
constitutional issue and enforce the common law right since
“common law... can of course go beyond constitutional
prescriptions.”^22
There is a “strong presumption in favor of public access
reflecting a first principle that the people have the right to know
what is done in their courts.”^23 The public “has a right to every
man’s evidence,” except for privileged materials, and privileges are
narrowly construed^24 because they impede what the Supreme Court
called “the search for truth.”^25 Correspondingly, the presumption of
access “should apply to any motion related to a matter which the
public has a right to know about and evaluate.”^26 But this
(^22) In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1340
(D.C. Cir. 1985). (^23) In re Providian Credit Card Cases, 116 Cal. Rptr. 2d 833, 847 (Ct. App.
- (quoting In re Shortridge, 99 Cal. 526, 530 (1893)); accord Mosallem v. Berenson, 76 A.D.3d 345, 348 (N.Y. App. Div. 2010) (“Under New York law, there is a broad presumption that the public is entitled to access to judicial proceedings and court records.”). (^24) Pierce Cnty., Wash. v. Guillen, 537 U.S. 129, 145 (2003) (reversing a
decision that “conflict[ed] with our rule that, when possible, privileges should be construed narrowly.”); MC CORMICK ON EVIDENCE § 72 (3d ed. 1984) (pointing out that the effect of privileges—“the most familiar are the rule protecting against self-incrimination and those shielding the confidentiality of communications between husband and wife, attorney and client, and physician and patient”—is “clearly inhibitive; rather than facilitating the illumination of truth, they shut out the light.”). (^25) United States v. Nixon, 418 U.S. 683, 709–10 (1974). Courts “generally
do not condition enforcement of this right on a proprietary interest in the document or upon a need for it as evidence in a lawsuit.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). Hence, the media have standing to assert the right of access to court records and proceedings. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n.25 (1982) (stating that “representatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.’”) (citation omitted); In re Associated Press, 162 F.3d 503, 508 (7th Cir. 1998) (holding that “the [p]ress ought to have been able to intervene in order to present arguments against limitations on the constitutional or common law right of access.”). (^26) Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1100 (9th Cir.
- (citing Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 164 (3d Cir. 1993) (alteration and quotation marks omitted)).
374 JOURNAL OF LAW AND POLICY
presumption “generally only extends to documents that have been
filed with the court.”^27
Presumptive access to the courts “promotes the public’s
understanding of the judicial process and of significant public
events,”^28 furnishing a needed check on rulings.^29 Justice Holmes,
highlighting the “vast importance” of open records, expounded that
“it is of the highest moment that those who administer justice should
always act under the sense of public responsibility, and that every
citizen should be able to satisfy himself with his own eyes as to the
mode in which a public duty is performed.”^30 Put rhetorically,
“[h]ow can the public know that courts are deciding cases fairly and
impartially if it doesn’t know what is being decided?”^31
Judicial “records often provide important, sometimes the only,
bases or explanations for a court’s decision.”^32 Open proceedings in
(^27) Star Tribune v. Minnesota Twins P’ship, 659 N.W.2d 287, 296 (Minn. Ct.
App. 2003) (citing State ex rel. Mitsubishi Heavy Indus. Am., Inc. v. Cir. Ct., 605 N.W.2d 868, 874 (Wis. 2000)); see Bond v. Utreras, 585 F.3d 1061, 1075 (7th Cir. 2009) (“The rights of the public kick in when material produced during discovery is filed with the court.”). (^28) Ctr. for Auto Safety , 809 F.3d at 1096 (quoting Valley Broad. Co. v. U.S.
Dist. Court—D. Nev., 798 F.2d 1289, 1294 (9th Cir. 1986)). (^29) Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1178 (6th
Cir. 1983); see also United States v. Sealed Search Warrants, 868 F.3d 385, 395 (5th Cir. 2017). (^30) Cowley v. Pulsifer, 137 Mass. 392, 394 (1884). Serving several purposes,
“open judicial processes... protect against judicial, prosecutorial, and police abuse; provide a means for citizens to obtain information about the criminal justice system and the performance of public officials; and safeguard the integrity of the courts.” Gannett Co. v. DePasquale, 443 U.S. 368, 448 (1979) (Brennan, J., concurring in part and dissenting in part). Similarly, the Sixth Amendment guarantees a criminal defendant a public trial so “that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.” Waller v. Georgia, 467 U.S. 39, 46 (1984) (citations omitted). (^31) BP Exploration & Prod., Inc. v. Claimant ID 100246928, 920 F.3d 209,
210 (5th Cir. 2019) (citation omitted); see also Le v. Exeter Fin. Corp., 990 F.3d 410, 417 (5th Cir. 2021) (“[A]ccessibility enhances legitimacy, the assurance that things are on the level.”). (^32) Oliner v. Kontrabecki, 745 F.3d 1024, 1025 (9th Cir. 2014) (citation
omitted).
376 JOURNAL OF LAW AND POLICY
place, and manner restrictions on courtroom attendance and
behavior.^38
Courts apply the strong presumption of access using a
compelling reasons test by which material on file must be made
public absent a compelling reason that overcomes the public’s
traditional right of access.^39 Under this standard, the “‘strong
presumption in favor of access’ is the starting point” and “sharply
tips the balance in favor of production”^40 —a point that case
participants too often overlook in filing or maintaining under seal
documents designated as confidential for discovery purposes.^41 To
overcome the common law presumption, the sealing proponent must
demonstrate a compelling reason to protect each record.^42
B. The Presumption’s Strength: How Important the
Dispute? How Impactful the Decision? How Central
the Material?
The public interest in accessing judicial records expands and
contracts according to the circumstances.^43 Courts ask three
questions overall to gauge the strength of this right: (1) how
(^38) See Richmond Newspapers , 448 U.S. at 581 n.18; Illinois v. Allen, 397
U.S. 337, 343 (1970). (^39) See Foltz v. State Farm Mutual Auto. Ins. Co. 331 F.3d 1122, 1135 (9th
Cir. 2003); Wash. Post v. Robinson, 935 F.2d 282, 287 (D.C. Cir. 1991). (^40) Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178, 1180 (9th
Cir. 2006) (quoting Foltz , 331 F.3d at 1135); see also Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995). (^41) See Seth Katsuya Endo, Contracting for Confidential Discovery , 53 U.C.
D AVIS L. REV. 1249, 1288 (2020) (detailing an empirical study of ninety-five stipulated protective orders entered in federal court that revealed a “common mistake of law... wherein the standard for filing materials under seal is conflated with that for keeping unfiled discovery confidential”); Le v. Exeter Fin. Corp., 990 F.3d 410, 420 (5th Cir. 2021) (noting that “[t]his conflation error—equating the standard for keeping unfiled discovery confidential with the standard for placing filed materials under seal—is a common one and one that over-privileges secrecy and devalues transparency”). (^42) Foltz , 331 F.3d at 1135–36 (quoting Rushford v. New Yorker Mag., 846
F.2d 249, 252 (4th Cir. 1988)). Some of these compelling reasons are mentioned below, in Part I.D. (^43) See United States v. Amodeo, 71 F.3d 1044, 1049–50 (2d Cir. 1995)
(describing this “continuum”).
MORE THAN TANGENTIAL 377
important is the dispute; (2) what is the likely impact of the decision;
and (3) how central is the material to the case and its disposition?^44
First, the importance of the case naturally modifies the public
interest in accessing the records.^45 Courts have declared that
“litigation with millions at stake, ought to be litigated openly”^46 and
that the need for access may be “particularly compelling” in class
actions where a segment of the public belongs to the class.^47 Civil
litigation “often exposes the need for governmental action or
correction.”^48 Thus, a Texas law requires consideration of “any
probable adverse effect that sealing will have upon the general
public health or safety.”^49
Second, in the Ninth Circuit’s approach, the public’s right of
access principally hinges on the likelihood of harm from the
underlying decision to a party’s position ( i.e. , prejudice).^50 Under
Rule 26(c), evidence may be developed free from public inspection
(^44) See infra notes 45–58. (^45) See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 788 (3d Cir. 1994)
(recognizing that when a case “involves issues or parties of a public nature, and involves matters of legitimate public concern, that should be a factor weighing against entering or maintaining an order of confidentiality”); cf. Jeffrey W. Sheehan, Confidences Worth Keeping: Rebalancing Legitimate Interests in Litigants’ Private Information in an Era of Open-Access Courts , 21 V AND. J. ENT. & TECH. L. 905, 909 (2019) (“Courts remain public institutions even when the public takes little or no interest in a particular case.”). (^46) In re High Sulfur Content Gasoline Prods. Liab. Litig., 517 F.3d 220, 230
(5th Cir. 2008). (^47) In re Cendant Corp., 260 F.3d 183, 193 (3d Cir. 2001); see also Jenkins v.
United Gas Corp., 400 F.2d 28, 32–33 (5th Cir. 1968). (^48) Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 258 (7th Cir. 1975),
cert. denied , 427 U.S. 912 (1976). (^49) TEX. R. CIV. P. 76a(1)(a)(2); see also Westinghouse Elec. Corp. v.
Newman & Holtzinger, 46 Cal. Rptr. 2d 151, 160 (Ct. App. 1995) (“Because the judicial process is frequently the avenue by which the public and regulatory agencies learn of significant health and safety hazards, blocking this avenue may prove detrimental to the public well-being.”). In re Roman Catholic Archbishop of Portland, 661 F.3d 417, 426–27 (9th Cir. 2011) (reversing decision to publicly release personnel file of 85-year-old priest who had retired, but affirming decision to release allegations of child abuse against another priest, still active, given strong public interest in disclosure). (^50) See United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995);
Anderson v. Cryovac, Inc., 805 F.2d 1, 13 (1st Cir. 1986).
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Third, given the public’s strong interest in understanding the
grounds for judicial decisions, its right of access strengthens to the
degree the evidence touches on central issues or subject matter,
which is more likely when the underlying motion does the same.
Thus the access right becomes “particularly strong where the
[evidentiary] materials at issue play a substantial role in determining
a party’s substantive rights.”^55 In one recent case, the court denied
Ford’s request to seal its engineer’s comments criticizing the
performance and reliability of allegedly defective car software.^56
The court wrote that “[s]uch criticism may be a kind of ‘analysis’
but that does not convert it into confidential information entitled to
be sealed. Even if it did, the public obviously has a strong interest in
these materials because they relate directly to the merits.”^57 In
another case, the court declined to seal information because it was
“necessary to understand plaintiffs’ theory of liability.”^58
C. When Does the Presumption Apply? Center for Auto
Safety Distills an Expansive Rule
The “more than tangential” rule installs a liberal policy favoring
more open dockets considering that any number of litigation stages
or motions can relate more than tangentially to the merits of a claim
or defense. Dispositive motions necessarily satisfy this test, but a
motion need not be dispositive to concern the merits more than
tangentially; the open-records presumption arises by virtue of a
motion’s probable significance in disposing of the matter or in
affecting a party’s rights or obligations. This is a very low standard,
and there was very little law on this subject just fifty years ago.
In its 1978 Nixon II opinion, the Supreme Court found the law
of public access undeveloped, concluding it was “difficult to distill
from the relatively few judicial decisions a comprehensive
definition of what is referred to as the common-law right of access
(^55) United States v. Vazquez, 31 F. Supp. 2d 85, 87 (D. Conn. 1998). (^56) In re MyFord Touch Consumer Litig., No. 13-cv-03072-EMC (N.D. Cal.
Mar. 2, 2018), ECF No. 400. (^57) Id. Moreover, the court added, “Ford cannot stake out a litigation position
that the software was not defective and then seek to conceal records where its employees, engineers, and executives expressed the contrary view.” Id. (^58) Maldonado v. Apple, Inc., 333 F.R.D. 175, 194 (N.D. Cal. 2019).
380 JOURNAL OF LAW AND POLICY
or to identify all the factors to be weighed in determining whether
access is appropriate.”^59 In 1980, the journalist Nat Hentoff posited
that the Supreme Court’s public-access precedents might
“eventually lead to a much broader definition of access.”^60 And
indeed, since then this doctrine has developed in the direction of
openness.
Two early 1980s cases from the Second Circuit applied the
common-law presumption of access. In the Abscam case later
portrayed in the movie “American Hustler,” the court permitted
television networks to copy and televise videotapes entered into
evidence at a criminal trial, stating that only “the most extraordinary
circumstances [would] justify restrictions on the opportunity of
those not physically in attendance at the courtroom to see and hear
the evidence... .”^61 Next, in a stockholder derivative suit, the court
unsealed a report by a bank’s special litigation committee revealing
its internal operations.^62 The report, the court explained, was “no
longer a private document. It is part of a court record. Since it is the
basis for the adjudication, only the most compelling reasons can
justify the total foreclosure of public and professional scrutiny.”^63
The doctrine concerning open records then went through a
period of sustained development. In 1984, the Sixth Circuit ruled
that tobacco companies could not keep secret FTC documents
disclosing the true tar and nicotine levels of cigarettes. “Simply
showing that the information would harm the company’s reputation
is not sufficient,” the court held.^64 The Third and Seventh Circuits
soon agreed that the presumption of access applies in civil as well
as criminal cases.^65 In 1987, the First Circuit concluded the
presumption applies to documents filed on a docket “in the course
(^59) Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598–99 (1978). (^60) N AT H ENTOFF , THE F IRST F REEDOM: THE TUMULTUOUS H ISTORY OF F REE
S PEECH IN A MERICA 240 (1980). (^61) In re Application of Nat’l Broad. Co., 635 F.2d 945, 947, 952 (2d Cir.
1980). (^62) Joy v. North, 692 F.2d 880 (2d Cir. 1982). (^63) Id. at 894. (^64) Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179–
(6th Cir. 1983). (^65) See Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1061, 1070–71 (3d
Cir. 1984); Matter of Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984).
382 JOURNAL OF LAW AND POLICY
rights and serves as a substitute for trial.”^72 In 2006, the court made
clear in its Kamakana decision that “ dispositive pleadings and
attachments” give rise to the presumption.^73 Then in 2012, the court
indicated that “dispositive” should be interpreted constructively
rather than technically, holding that a Daubert motion carried the
presumption despite being technically non-dispositive.^74 In Center
for Auto Safety , a divided Ninth Circuit panel further held that the
presumption also arises if the underlying motion or proceeding
relates “more than tangentially” to the merits of a claim or defense.^75
The documents at issue in Center for Auto Safety had been
submitted on the plaintiffs’ unsuccessful motion for a preliminary
injunction that would have required Chrysler to warn vehicle owners
and lessees of alleged safety risks from certain electrical systems.^76
The court’s analysis filled a gap in the Eleventh Circuit’s “refined
approach” under which “material filed with discovery motions is not
subject to the common-law right of access, whereas discovery
material filed in connection with pretrial motions that require
judicial resolution of the merits is subject to the common-law
right.”^77 That standard leaves unaddressed the status of non-
discovery, non-dispositive pretrial motions. Such motions, the Ninth
Circuit held in Center for Auto Safety , carry the public-access right
if they relate “more than tangentially” to the merits.^78
The court held that the “old tradition” of open proceedings
requires the public be given presumptive access when the matter
bears on the parties’ substantive rights or obligations even where it
is not dispositive of their dispute.^79 The court picked up on the
(^72) Foltz , 331 F.3d at 1135–36 (quoting Rushford , 846 F.2d at 252). (^73) Kamakana , 447 F.3d at 1180 (emphasis added). (^74) Midland , 686 F.3d at 1119–20. (^75) Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th Cir.
2016). (^76) Id. at 1095. (^77) Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312
(11th Cir. 2001) (emphasis added). (^78) Ctr. for Auto Safety , 809 F.3d at 1101. (^79) Id. at 1100–01. So too, in its Republic of Philippines decision ordering the
unsealing of documents related to bribery charges against Ferdinand Marcos, the Third Circuit rejected the claim that the principles “allowing public access to judicial proceedings and judicial records are inapplicable to material filed in
MORE THAN TANGENTIAL 383
Supreme Court’s statement in Seattle Times Company v. Rhinehart
that “[m]uch of the information that surfaces during pretrial
discovery may be unrelated, or only tangentially related, to the
underlying cause of action.”^80 The detritus here is released as
byproduct of civil discovery’s liberal scope.^81 The Ninth Circuit
adopted this phrase describing discovery matter when it ruled that
“public access will turn on whether the motion is more than
tangentially related to the merits of a case.”^82
Under Center for Auto Safety , the presumption of access to court
records is strongest on dispositive motions^83 —but not limited to
such motions because a motion may relate more than tangentially to
the merits even if it is not dispositive in any sense.^84 “Tangential”
means “peripheral” or only “slightly connected” to the subject at
hand.^85 The Ninth Circuit’s rule suggests, therefore, that the only
support of a non-dispositive motion.” Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 660 (3d Cir. 1991). Markman patent rulings, and exclusion of an expert’s damages theory, discussed below, are examples of decisions that affect the parties’ substantive rights without disposing of their dispute. See infra Parts II.A.i, II.D. (^80) Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984). (^81) Id. at 34–35 (noting “liberality of pretrial discovery permitted”); see
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (stating that “discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues.”); Hawkins v. AT & T, 812 F. App’x 215, 218 (5th Cir. 2020) (“Generally, the scope of discovery is broad and permits the discovery of ‘any nonprivileged matter that is relevant to any party’s claim or defense.’”) (citations omitted); F ED. R. CIV. P. 26(b)(1) advisory committee’s note to 2015 amendment (clarifying proportionality factors and that burden of responding to discovery “often... lies heavier on the party who has more information”). (^82) Ctr. for Auto Safety , 809 F.3d at 1101. (^83) See id. at 1098; Greater Miami Baseball Club Ltd. P’ship v. Selig, 955 F.
Supp. 37, 39 (S.D.N.Y. 1997); see also Zapp v. Zhenli Ye Gon, 746 F. Supp. 2d 145, 148 (D.D.C. 2010) (opining that the presumption is “strongest”— additionally or alternatively—“when the documents at issue are specifically referred to in a trial judge’s public decision”) (internal quotation marks, citation, and alterations omitted) (^84) See Ctr. for Auto Safety , 809 F.3d at 1099–1101. (^85) Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd_._ , 344 F.3d
1359, 1369 (Fed. Cir. 2003) (quoting THE A MERICAN H ERITAGE C OLLEGE D ICTIONARY 1385 (3d ed. 1997)) (defining “tangential” as “merely touching or slightly connected” or “only superficially relevant; divergent”); 2 THE N EW
MORE THAN TANGENTIAL 385
D. How Does the Presumption Apply?
Under the compelling reasons test, unless a record is of a type
traditionally kept secret,^90 the proponent of secrecy bears the burden
of showing that its disclosure “will work a clearly defined and
serious injury.”^91 The proponent must “articulate compelling
reasons supported by specific factual findings that outweigh the
general history of access and the public policies favoring
disclosure.”^92 If the proponent makes this particularized showing for
a certain item of evidence, the court balances that party’s interests
in keeping it secret against the public’s competing interests in
accessing it.^93 The court may seal an item by finding a compelling
reason based in fact and not “rely[ing] on hypothesis or
conjecture.”^94
Law-abiding companies should not fear application of this test.
Disclosure of past promotional ideas^95 or historical financial data^96
(^90) See Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir.
2006). (^91) Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 307
(6th Cir. 2016) (quoting In re Cendant Corp., 260 F.3d 183, 194 (3rd Cir. 2001)). (^92) Kamakana , 447 F.3d at 1178–79 (alternations, quotation marks, and
citations omitted). (^93) Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096–97 (9th
Cir. 2016). (^94) Id. (^95) See Marietta Corp. v. Fairhurst, 301 A.D.2d 734, 738 (N.Y. App. Div.
2003); SDT Indus., Inc. v. Leeper, 793 So. 2d 327, 332 (La. Ct. App. 2001). (^96) See Fox Sports Net North v. Minn. Twins P’ship, 319 F.3d 329, 336 (8th
Cir. 2003) (holding that “obsolete information cannot form the basis for a trade secret claim because the information has no economic value.”); Marsteller v. MD Helicopter Inc., No. CV-14-01788-PHX-DLR, 2018 WL 4679645, at *2 (D. Ariz. Sept. 28, 2018) (declining to seal “pricing, compensation, and contract information” based on “doubts about the concreteness of the harm [the defendant] claim[ed] would result from public disclosure... given the age of this information.”); F.T.C. v. DIRECTV, Inc., No. 15-CV-01129-HSG, 2017 WL 840379, at *2 (N.D. Cal. Mar. 3, 2017) (declining to seal historical pricing and financial data and rejecting assertions of competitive harm); Saint Alphonsus Med. Ctr.—Nampa, Inc. v. St. Luke’s Health Sys., Ltd., No. 12-CV-00560-BLW, 2014 WL 3101716, at *3 (D. Idaho July 3, 2014) (finding “no compelling reason” to seal evidence of a five-year-old business negotiation “[g]iven its age”), on reconsideration in part , 2015 WL 632311 (D. Idaho Feb. 13, 2015); Clark v.
386 JOURNAL OF LAW AND POLICY
is unlikely to cause competitive harm. And though the test is
stringent, compelling secrecy interests exist where disclosure will
reveal privileged information or trade secrets, jeopardize health or
other personally identifying information, threaten national security
or otherwise endanger lives, imperil an accused’s right to a fair trial,
intimidate a witness, or traumatize a juvenile crime victim.^97
But the likelihood of reputational harm from disclosure of court
records does not justify sealing them: “Indeed, common sense tells
us that the greater the motivation a corporation has to shield its
operations, the greater the public’s need to know.”^98 Hence despite
companies’ “natural desire” to shield embarrassing facts, complaints
of litigation-driven publicity, without more, are insufficient to
justify secrecy.^99 For example, in a RICO case involving “massive
contamination” from hazardous waste,^100 the defendant companies
opposed a motion to unseal the pleadings, claiming they would
Prudential Ins. Co. of Am., No. CIV. 08-6197-DRD, 2011 WL 1833355, at * (D.N.J. May 13, 2011) (gathering earlier cases supporting the “general rule” that “business information that is substantially out of date is unlikely to merit protection”). (^97) See NBC Subsidiary (KNBC-TV), Inc. v. Super. Ct., 980 P.2d 337, 368
n.46 (Cal. 1999); see also Hon. Lloyd Doggett & Michael Mucchetti, Public Access to Public Courts: Discouraging Secrecy in the Public Interest , 69 TEX. L. REV. 643, 669–77 (enumerating types of material that may merit sealing based on a compelling countervailing interest). (^98) Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1180 (6th
Cir. 1983); see Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006) (“The mere fact that the production of records may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records.”) (citing Foltz v. State Farm Mutual Auto. Ins. Co., 331 F.3d 1122, 1136 (9th Cir. 2003)); State v. Cottman Transmission Sys., Inc., 542 A.2d 859, 864 (Md. App. 1988) (“Possible harm to a corporate reputation does not serve to surmount the strong presumption in favor of public access to court proceedings and records. Injury to corporate or personal reputation is an inherent risk in almost every civil suit.”) (internal citation omitted). (^99) Kamakana , 447 F.3d at 1179; Brown & Williamson , 710 F.2d at 1180; see,
e.g. , Romero v. Drummond Co., Inc., 480 F.3d 1234, 1247 (11th Cir. 2007) (reversing a sealing order for failure to substantiate the finding that permitting access would further lawyers’ allegedly improper motives). (^100) Huntsman-Christensen Corp. v. Entrada Indus., Inc., 639 F. Supp. 733,
734 (D. Utah 1986).
