From Judge Irene Berger’s decision yesterday in Lomangino v. Polaris Industries Inc. (S.D. W. Va.), which strikes me as quite correct:
Documents attached to a motion for summary judgment are subject to the First Amendment [right of access to court records] standard, even if the documents were “the subject of a pretrial discovery protective order.” … [D]iscovery is “ordinarily conducted in private,” while dispositive motions can “serve[ ] as a substitute for trial[“] ….. Thus, … access can be restricted only if there is a compelling countervailing interest. Any such restriction must be narrowly tailored….
The bulk of the material that the Defendants seek to seal consists of expert reports and discovery documents that were subject to a protective order based on asserted proprietary business interests. Protection of trade secrets may, in some circumstances, be sufficient to justify sealing documents. However, the party seeking to restrict access bears the burden of demonstrating specific reasons sufficient to overcome the public right of access.
The Defendants offer only a bare assertion that these documents contain confidential and proprietary information, including trade secrets. They do not identify specific information that constitutes trade secrets or proprietary business information, and they do not detail the harm that would result from public access to that information.
The documents the Defendants seek to seal are central to this litigation and the dispositive motions at issue. Sealing the expert reports and other material in their entirety would leave anyone reviewing the motions, and any opinion resolving the motions, without the ability to discern core information and evidence.
Although the Court is currently unaware of any substantial public interest in this case, public access is designed not only to allow the press and the public to follow high-profile cases, but also to permit ongoing and future access. Law students or legal scholars review case files for law review articles, attorneys review past cases when similar litigation arises, and litigation may be a source of information for policy-makers considering, for example, safety regulations or for journalists reporting more broadly on either the courts or the subject matter of particular litigation.
Thus, even absent a third party intervening to oppose the motion to seal or to request access, the Court cannot seal material protected by the First Amendment right of access without making the finding, with specific support, that some compelling countervailing interest warrants protecting the information at issue and that a less drastic alternative, such as redaction, is unworkable. Upon review of the materials, the Court does not find that they are so saturated with obviously confidential information that sealing is appropriate.