Judges drop proposal to ease protective orders for civil evidence

04/04/95

WASHINGTON, D.C.–The U.S. Judicial Conference in mid-March struck language from a proposed amendment to a federal civil procedure rule that would have allowed courts to seal civil documents at the request of all parties.

Federal Rule of Civil Procedure 26(c) is applied to protective orders in civil discovery, a process by which parties to a civil case may obtain evidence. Currently, the rule requires courts to find “good cause” before preventing disclosure of discovery materials to the parties or public.

The Conference’s Advisory Committee on the Civil Rules had recommended in mid-December that the Standing Committee on Rules of Practice and Procedure transmit the proposal to the Judicial Conference for approval. The proposal would have added a new clause to Rule 26(c) allowing courts to issue protective orders when all parties consented, regardless of whether good cause was shown.

The Standing Committee had solicited public comment in October 1993 on an earlier version of the proposal which did not alter the existing rule’s good cause requirement. The amendment also would allow non-parties to a civil action to ask the court to modify or dissolve protective orders, and would have required courts to consider the public interest in the information when entertaining such motions. The Reporters Committee for Freedom of the Press filed comments in mid-April 1994 supporting the amendment.

The Standing Committee approved the proposed amendment in mid-January. The language permitting sealing by consent was added at this stage and was not circulated for public comment.

The Reporters Committee, joined by the American Society of Newspaper Editors, the Newsletter Publishers Association and the Society of Professional Journalists, filed comments opposing the added language before the Judicial Conference’s mid-March meeting.

The media commenters asked the Conference to retain the good-cause requirement so that courts would weigh the public interest in disclosure before issuing protective orders. The comments also proposed that the Conference go further, forbidding courts from sealing discovery materials unless the protective order is narrowly tailored to serve a compelling interest, and no less restrictive alternatives are available.

The commenters observed that the U.S. Supreme Court and several Courts of Appeal have recognized a qualified common law right of access to judicial documents in civil cases. Several Courts of Appeals have also found a qualified First Amendment right of access to judicial documents in civil cases.

Hoping to expedite matters, the Standing Committee asked the Judicial Conference for immediate approval. Such approval would have let the Conference send the proposal to the Supreme Court. If the Supreme Court approved the proposal and Congress took no action, the Rule would have taken effect December 1, 1995.

The Conference, composed of 27 federal judges from all the federal circuits and headed by Chief Justice William Rehnquist, sets policy for the federal courts. The Conference’s closed voice vote returned the proposed amendment to the Standing Committee for further study in time for the Conference’s September meeting. (Fed. R. Civ. P. 26(c) (proposed amendment))

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.