United States District Court, D. Arizona
IN RE Bard IVC Filters Products Liability Litigation,
ORDER
David
G. Campbell Senior United States District Judge.
Defendants
have filed a motion to enforce a protective order over
certain trial exhibits. Doc. 13126. The motion is fully
briefed (Docs. 13433, 13494), and oral argument has not been
requested. The Court will deny the motion.
I.
Background.
Early
in this case, the Court entered a stipulated protective order
treating certain information produced by the parties during
discovery as confidential pursuant to Federal Rule of Civil
Procedure 26(c)(1)(G). Doc. 269.[1] The protective order imposes
various limitations on the use of confidential information
produced pursuant to the order (id. ¶¶
12-20), but does not apply to the use of such information at
trial (id. ¶ 28).
Following
the Booker trial in May 2018, Defendants moved for an order
sealing certain exhibits that had been admitted into evidence
during the trial. Doc. 11010 at 2. The Court denied the
motion because Defendants had failed to satisfy the
compelling reasons standard for sealing judicial records,
see Kamakana v. City & Cty. of Honolulu, 447
F.3d 1172, 1178-79 (9th Cir. 2006), and had waived the right
to have the exhibits sealed. Doc. 11642. Because Defendants
obtained no order sealing the exhibits before they were
admitted into evidence at trial, the Court found the exhibits
to be part of the public record and no longer confidential or
subject to being sealed. Id. at 2 (citing
Phillips v. C. R. Bard, Inc., No.
3:12-cv-00344-RCJ-WGC, 2015 WL 3485039, at *2 (D. Nev. June
1, 2015) (finding waiver where Bard “made no motion to
seal the exhibits or testimony at the public trial”);
Littlejohn v. Bic Corp., 851 F.2d 673, 677-78 (3d
Cir. 1988) (“It is well established that the release of
information in open court ‘is a publication of that
information and, if no effort is made to limit its
disclosure, operates as a waiver of any rights a party had to
restrict its future use.'” (citation omitted));
Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd.,
No. CIV.A. 09-290, 2013 WL 1336204, at *5 (W.D. Pa. Mar. 29,
2013) (same)). The Court noted that this finding was
consistent with the provision in the protective order that
information deemed publicly available “includes
documents that have been . . . entered as an exhibit during
trial not under seal.” Id. (quoting Doc. 269
¶ 34).
Defendants
sought reconsideration, arguing that the protective order
remained in effect and precluded Plaintiffs from disclosing
to the public any exhibit admitted into evidence but not
openly disclosed during trial or made part of the Court's
electronic docket. Doc. 11766 at 5-6. The Court agreed that
Defendants had preserved their right to file a post-trial
motion to seal, but otherwise denied their request for
relief. Defendants failed to show that the Court erred in
finding a waiver of the right to seal trial exhibits.
Defendants also failed to identify specific exhibits that
were admitted into evidence but not published in open court.
Doc. 12069 at 3-4 & n.1.
Defendants
now identify 80 exhibits admitted into evidence in the Jones
and Hyde trials that they claim were not fully disclosed
during trial. Doc. 13126-1 at 9-11. Defendants contend that
the “unused” portions of these exhibits never
became publicly available and therefore remain confidential
and subject to the protective order. Doc. 13126 at 2.
Plaintiffs counter that the protective order has no
application because once an unredacted exhibit is admitted
into evidence at a public trial and not sealed, the entire
exhibit - regardless of which pages were actually displayed
or discussed in open court - becomes a judicial record to
which the public has a right of access. Doc. 13433 at 2-8.
II.
Discussion.
The
Court must answer several questions. First, are the exhibits
and portions of exhibits addressed in Defendants' motion
judicial records subject to the public's interest in
judicial proceedings? Second, are the exhibits subject to the
parties' stipulated protective order? Third, did
Defendants waive any right to have the documents sealed by
permitting them to be admitted into evidence? Fourth, if no
such waiver occurred, have Defendants shown compelling
reasons to seal the exhibits now?
A.
Exhibits Admitted into Evidence at Trial Are Judicial
Records.
“Historically,
courts have recognized a ‘general right to inspect and
copy public records and documents, including judicial records
and documents.'” Kamakana, 447 F.3d at
1178 (quoting Nixon v. Warner Commc'ns, Inc.,
435 U.S. 589, 597 & n. 7 (1978)). This common law right
is based in part on the strong “public interest in
understanding the judicial process.” Id. at
1178-79 (citations omitted). “[T]he resolution of a
dispute on the merits, whether by trial or summary judgment,
is at the heart of [this] interest[.]” Id. at
1179; see Nat'l Polymer Prods., Inc. v. Borg-Warner
Corp., 641 F.2d 418, 421-23 (6th Cir. 1981) (discussing
the line of Supreme Court cases emphasizing the importance of
public trials to our system of justice and recognizing the
right to publish information made part of the record in a
judicial proceeding); Siedle v. Putnam Inv., Inc.,
147 F.3d 7, 10 (1st Cir. 1998) (“Courts long have
recognized ‘that public monitoring of the judicial
system fosters the important values of quality, honesty and
respect for our legal system, ” and this
“recognition has given rise to a presumption that the
public has a common-law right of access to judicial
documents” (quoting Nixon, 435 U.S. at 597)).
“[W]hat
makes a document a judicial record and subjects it to the
common law right of access is the role it plays in the
adjudicatory process.” United States v. El-
Sayegh, 131 F.3d 158, 163 (D.C. Cir. 1997); see
Kamakana, 447 F.3d at 1179 (explaining that “the
public has less of a need for access to court records
attached only to non-dispositive motions because those
documents are often unrelated, or only tangentially related,
to the underlying cause of action”) (citations
omitted).[2] Case law clearly recognizes that
transcripts of court proceedings and exhibits presented in
open court constitute judicial records for purposes of the
public right of access.[3]
While
exhibits that are not openly displayed or discussed in court,
but are admitted into evidence, may “present a somewhat
closer question, ” Benedict v. Hankook Tire
Co., 323 F.Supp.3d 747, 760 & n.14 (E.D. Va. 2018),
courts have found that such exhibits become, “simply by
virtue of that event, ” judicial records subject to the
public right of access. Level 3 Commc'ns, LLC v.
Limelight Networks, Inc., 611 F.Supp.2d 572, 589 (E.D.
Va. 2009) (citing cases); see Certusview Techs., LLC v.
S&N Locating Servs., LLC, 198 F.Supp.3d 568, 588
n.12 (E.D. Va. 2016) (“[T]o the extent that the parties
. . . have entered such documents into evidence, the Court
considers the parties' arguments regarding the need for
such information to be sealed to have been waived.”);
Dees v. Cty. of San Diego, 302 F.Supp.3d 1168, 1173
n.1 (S.D. Cal. 2017) (denying post-trial motions to seal
because the information in the documents became part of the
public record when the exhibits were admitted into evidence
during trial).
Defendants
argue that the public has no interest in confidential
information contained in the trial exhibits because the
information has only minimal relevance to claims in the Jones
and Hyde trials. Doc. 13126 at 2, 7-8. But the Court's
orders admitting the exhibits into evidence have legal
significance. As one court has explained, the public right of
access to exhibits “sprang into existence upon their
being offered into evidence for the jury's consideration
at trial[.]” Level 3 Commc'ns, 611 F.Supp.
at 588; see Benedict, 323 F.Supp.3d at 760 &
n.14 (finding that “trial exhibits admitted into
evidence constitute judicial records, ” and noting ...