The chill of blanket orders

After long legal battles, the news media unravel blanket confidentiality orders in two federal circuits.

From the Summer 2006 issue of The News Media & The Law, page 30.

By Susan Burgess

When Jim Dooley of The Honolulu Advertiser learned that a 10-year veteran of the Honolulu Police Department’s elite Criminal Intelligence Unit had sued the department alleging corruption and misconduct, he wanted to get copies of the court filings as quickly as possible.

At U.S. District Court in Honolulu, however, he learned that all the documents in Kenneth Kamakana’s case against the city were under seal, including the parties’ motions to decide the case without a trial. Several months after Kamakana sued in the fall of 2000, the parties agreed to a protective order to keep all the case filings secret.

It took a four-year battle before documents in the case were released.

“It becomes more time consuming, costly, and difficult to unseal documents that have already been sealed [because] the parties and court review line-by-line all the documents filed under a stipulated protective order,” said Jeffrey Portnoy, an attorney for the Advertiser.

Parties who agree to these types of protective orders — sometimes called “umbrella,” “blanket,” or “omnibus” protective orders — typically do so to ease pre-trial preparation with reassurances that sensitive information will not be publicly released.

Kamakana v. Honolulu is one of two recent cases in which the news media challenged blanket secrecy agreements in federal appeals courts and won. In the other case, Lugosch v. Pyramid Co. of Onondaga, minority partners in a business accused the controlling partner of racketeering and fraud, among other violations. The Post-Standard in Syracuse, N.Y., succeeded in stopping a blanket protective order in that case.

Media attorneys in both cases say trying to intervene in a case as early as possible is the best method for stopping such secrecy orders.

Ninth Circuit

In Kamakana, the parties’ confidentiality agreement shrouded some case filings in complete secrecy, sealing court files that would ordinarily be open, such as the parties’ requests to dismiss the case without trial. By the time the Advertiser decided it wanted documents in the case in the fall of 2002, the parties had already spent two years filing their court documents under seal, which meant getting access to any of them would be difficult.

U.S. Magistrate Judge Leslie E. Kobayashi of Honolulu granted the Advertiser‘s motion to intervene in the case, to modify the protective order and to unseal the judicial record. She asked the parties to submit all the materials they wanted to keep sealed to a special discovery master to determine whether “good cause” existed to keep them sealed.

Rule 26(c) of the Federal Rules of Civil Procedure requires parties to show “good cause” for sealing court filings, but the parties in Kamakana had never had to demonstrate “good cause” to the court because they agreed to a protective order.

Kobayashi rejected a February 2003 report from the special master listing general categories of documents to remain sealed and redactions to be made, ordering instead a list of specific documents to remain sealed. The special master’s subsequent report categorized each document as sealed, unsealed or unsealed with redactions based on good cause, and Kobayashi adopted it.

The city immediately filed a motion to reconsider and, together with the Honolulu Advertiser, met with the special master to reconsider various documents. The special master filed another report, which Kobayashi adopted in May 2003, noting that a change in law required that for sealing documents attached to a motion seeking to end a case, parties must show more than just “good cause” by demonstrating “compelling reasons” for sealing.

She ordered almost all of the 121 documents attached to such dispositive motions to be unsealed by February 2004 after conducting an “exhausting if not exhaustive” review process and determining that neither the city nor the government had shown compelling reasons for keeping them secret.

The U.S. Court of Appeals in San Francisco (9th Cir.) granted a stay of the order while the city appealed Kobayashi’s decision.

The appeals court — which governs federal courts in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Oregon and Washington — upheld Kobayashi’s order to open the court records in May 2006, rejecting arguments that the material should be protected under the secrecy agreement.

“These orders often contain provisions that purport to put the entire litigation under lock and key without regard to the actual requirements of Rule 26(c),” Judge M. Margaret McKeown wrote for the unanimous three-judge panel.

A higher standard exists for motions seeking to end a case because the resolution of a dispute “is at the heart of the interest in ensuring the public’s understanding of the judicial process and of significant public events,” McKeown wrote, quoting an earlier decision by a different panel on the federal appeals court.

While the litigation lasted years and cost tens of thousands of dollars in legal fees, it landed a significant victory for the media, reaffirming Ninth Circuit case law on the burden parties face to keep court files secret.

“In this case, a police officer alleged significant misconduct on the part of the Honolulu Police Department and it was totally secret and a lot of money was paid to settle the case,” Portnoy said. “Once these documents are revealed people can draw their own conclusions about whether there are issues they should be concerned about and what to do about them.”

Fight early

The best tactic for reporters to convince a court that umbrella protective orders cannot be used to keep court filings secret is to attack them as early as possible in the litigation, according to both Portnoy and Michael Grygiel, an attorney for The Post-Standard in Syracuse.

“We advise our clients to monitor the docket sheet very closely — daily if possible,” Grygiel said. “As soon as a protective or confidentiality order is entered [journalists] should be aware of it and advise counsel right away.

“It’s easier to gain access to or challenge a protective order if that challenge is relatively close in time to when the order is entered,” he said. Otherwise, the more time that passes and the more documents that are filed under seal, the stronger the parties’ argument “that they have relied on a protective order in the conduct of the litigation and shouldn’t be penalized for doing so.”

Portnoy said, “it’s a lot easier for the media to argue in the abstract about the importance of public scrutiny than it is to fight about specific secret documents that the parties can use to make pointed arguments about why the information is confidential.”

And “obviously you’re dealing with the timeliness of information. If you get it right at the beginning, you don’t lose time to forcing the court to review previously sealed documents. The newsworthiness of the information contained in an ongoing civil lawsuit diminishes with time depending on circumstances of the lawsuit. If you’re ever going to do anything about it, you’ve got to do it right away.”

In any given case, particularly cases where information could embarrass a party, there is frequently overuse of document sealing. Neither party has a strong incentive to challenge such overuse so documents often remain sealed unless the press intervenes.

Grygiel said that in Lugosch, “there were literally millions of documents exchanged among the parties in discovery and our understanding was that every piece of paper produced in the case was designated confidential.”

Reporters should not count on courts to notice that the parties are improperly filing motions or attachments under seal.

“Courts are busy and don’t think about it,” Portnoy said. Judges “have too many things to do in contested matters. If it’s uncontested, very few courts will consider the public’s interest. They forget that it’s not just between the plaintiff and defendant. They don’t think about it. The media’s the police force in this and it’s a lot easier to prevent the crime before it happens than to undo it after it occurs.”

Second Circuit

The press won access to blanket protective orders in Lugosch in a precedent-setting decision in January by the U.S. Court of Appeals in Manhattan (2nd Cir.). Judge Robert A. Katzmann ruled for the first time in that circuit — which includes Connecticut, New York and Vermont — that there is a First Amendment and common law right of access to documents that parties file with their motions to end a case without trial, even those documents that do not affect the judge’s decision.

“Umbrella protective orders do serve to facilitate discovery in complex cases,” Katzmann wrote, quoting a 1984 federal court decision from the U.S. District Court in Los Angeles. “However, umbrella protection should not substantively expand the protection provided by Rule 26 [of the Federal Rules of Civil Procedure] or countenanced by the common law of access. To reverse the burden in this situation would be to impose a significant and perhaps overpowering impairment on the public access right.”

Under the tests laid out in Lugosch and Kamakana, media attorneys do not have a stronger case for helping reporters get pre-trial documents that are merely exchanged between parties. Rather, these cases clarify that parties cannot rely on umbrella protective orders to seal pre-trial documents once they are filed in court.

“Some courts have recognized the right of access to raw fruits of discovery that’s exchanged between parties and never entered into court, but the strength of access there is relatively weak,” said Grygiel.

“Once a document is submitted to a court for a determination that may effect the substantive rights of litigants, however, the status of the documents necessarily changes even when they are subject to a valid protective order entered in discovery,” he said. “At that point the public’s rights of access attach under both the First Amendment and common law and they necessarily take priority over a confidentiality or protective order agreed to by the parties. To hold otherwise would effectively give the parties to litigation the ability to contract away the public’s right of access and thereby promote litigation to be conducted under cloak of secrecy.”

Though the Lugosch litigation was costly and time-intensive, Post-Standard Deputy Executive Editor Tim Bunn recognizes the ramifications of the decision for future reporting. As recently as March, the U.S. District Court for the Eastern District of New York in Brooklyn relied on Lugosch to allow plaintiffs in Allen v. City of New York who are alleging false arrest to publicly file documents that the parties had previously agreed to keep confidential.

“I can’t emphasize enough how huge this decision is because now it’s a fight that won’t have to be fought again. It’s settled law,” Bunn said.

Portnoy agreed, saying that “in the Ninth Circuit, as a result of Kamakana, you’ll hope that every judge has it on his or her desk and won’t agree to a similar stipulated agreement without reviewing the documents and considering the findings.”