C. Discovery materials

In Seattle Times Company v. Rhinehart, 467 U.S. 20, 33 (1984), the Supreme Court ruled that “pretrial depositions and interrogatories are not public components of a civil trial. Such proceedings were not open to the public at common law, and, in general, they are conducted in private as a matter of modern practice.”

Though that case dealt with the ability of a party to release information obtained in discovery, other courts have cited it in approving protective orders keeping discovery material confidential under Rule 26(c) of the Federal Rules of Civil Procedure if a party can show “good cause” – for example, protecting a trade secret or other confidential information. See, e.g., In re Alexander Grant & Co. Litig., 820 F.2d 352, 355 (11th Cir. 1987) (newspaper “possess[ed] no First Amendment rights to the protected information which override the provisions of Fed. R. Civ. P. 26(c)” because “[t]he discovery process, as a ‘matter of legislative grace,’ is a statutorily created forum not traditionally open to the public”) (quoting Rhinehart).

However, the Sixth Circuit Court of Appeals has held that a protective order was invalid where it barred public entities from sharing opioid data with the public and press that the public entities had received from the federal government through discovery. In re Nat’l Prescription Opiate Litig., 927 F.3d 919 (6th Cir. 2019).

Once discovery documents are filed in court, the analysis changes. Thus, in Leucadia, v. Applied Extrusion Technologies, the Third Circuit found that “there is a presumptive right to public access to all material filed in connection with nondiscovery pretrial motions, whether these motions are case dispositive or not, but no such right as to discovery motions and their supporting documents.” 998 F.2d 157, 165 (3rd Cir. 1993). And in Joy v. North, the Second Circuit agreed, noting that “[a]n adjudication is a formal act of government, the basis of which should, absent exceptional circumstances, be subject to public scrutiny. . . . Indeed, any other rule might well create serious constitutional issues.” 692 F.2d 880, 893 (2nd Cir. 1982)

The Tenth Circuit has followed the United States Supreme Court holding that found that “pre-trial depositions and interrogatories are not public components of a civil trial.” Oklahoma Hosp. Ass’n v. Oklahoma Publ’g Co., 748 F.2d 1421, 1425 (10th Cir. 1984) (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 31 (1984)) (internal quotation marks omitted). Further, the Tenth Circuit has agreed with the U.S. Supreme Court’s reasoning for this holding, and has found that such pre-trial proceedings are not available to the public “because ‘[m]uch of the information that surfaces during pre-trial discovery may be unrelated or only tangentially related, to the underlying cause of action.’” Id. (quoting Seattle Times, 467 U.S. at 31).

Although the Eleventh Circuit does not recognize a common law right of access to discovery materials that have not been filed with the court or have been filed in connection with discovery motions, it does recognize a right of access to such materials if they are filed with pretrial motions "that require judicial resolution of the merits." Comm’r, Ala. Dep’t of Corr. v. Advance Local Media, LLC, 918 F.3d 1161, 1167 (11th Cir. 2019) (citing Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312 (11th Cir. 2001)).

The court in Chicago Tribune, held that there is no common-law right of access to discovery material when it is filed in connection with a discovery motion (as opposed to a motion that could resolve the merits of the case). 263 F.3d at 1311; see also F.T.C. v. AbbVie Prods. LLC, 713 F.3d 54, 64 (11th Cir 2013) ("The holding in Chicago Tribune established a bright-line rule exempting discovery materials from the common-law right of access.").

In fact, where unfiled discovery materials are concerned, the press’ constitutional right of access “is limited by Rule 26(c) of the Federal Rules of Civil Procedure,” which permits courts to issue protective orders upon a finding of “good cause.” McCarthy v. Barnett Bank, 876 F.2d 89, 91 (11th Cir. 1989). In order to access unfiled discovery material that has been covered by a protective order, the journalist seeking the information must seek to modify the protective order to permit its disclosure, and a party in the case who holds the information must be willing to disclose it. Id.

The First Circuit distinguishes between access rights to discovery under federal rules (public access is permitted absent a showing of good cause) and access rights to discovery (or, more accurately, the lack thereof) under the common law or First Amendment.  Public Citizen, 858 F.2d at 788; United States v. Kravetz, 706 F.3d 47, 55 (1st Cir. 2013) (“[T]he public has no common law or constitutional right of access to materials that are gained through civil discovery but neither introduced as evidence at trial nor submitted to the court as documentation in support of motions or trial papers”).

Under Rule 26(c) the public has a presumptive right of access to discovery materials unless good cause for confidentiality is shown.  Pub. Citizen v. Liggett Grp., Inc., 858 F.2d 775, 789 (1st Cir. 1988).  The First Circuit quoted with approval the following language from a Second Circuit decision:

A plain reading of the language of Rule 26(c) demonstrates that the party seeking a protective order has the burden of showing that good cause exists for issuance of that order. It is equally apparent that the obverse also is true, i.e., if good cause is not shown, the discovery materials in question should not receive judicial protection and therefore would be open to the public for inspection. . . . Any other conclusion effectively would negate the good cause requirement of rule 26(c): Unless the public has a presumptive right of access to discovery materials, the party seeking to protect the materials would have no need for a judicial order since the public would not be allowed to examine the materials in any event.

Pub. Citizen, 858 F.2d at 789 (quoting In re "Agent Orange" Product Liability Litig., 821 F.2d 139, 145-46 (2d Cir. 1987)).  “Rule 26(c)’s good cause requirement means that, ‘as a general proposition, pretrial discovery must take place in the public unless compelling reasons exist for denying the public access to the proceedings.’”  Pub. Citizen, 858 F.2d at 789.

The First Circuit has concluded that “no right of access attaches to civil discovery motions themselves or materials filed with them.”  United States v. Kravetz, 706 F.3d 47, 55 (1st Cir. 2013); see also Anderson v. Cryovac, Inc., 805 F.2d 1, 11-13 (1st Cir. 1986) (“There is no tradition of public access to discovery, and requiring a trial court to scrutinize carefully public claims of access would be incongruous with the goals of the discovery process. In view of these conclusions, we decline to extend to materials used only in discovery the common law presumption that the public may inspect judicial records.”).

Like pre-trial documents (discussed below), discovery documents enjoy the same protection as general court records in so far as they are also deemed to be "judicial documents."  Where discovery documents fall outside this definition, however, closure still requires that a litigant establish good cause for sealing.  Fournier v. Erickson, 242 F. Supp. 2d 318, 342 (S.D.N.Y. 2003), is instructive.  In Fournier, the Southern District of New York vacated a stipulated protective order, in which the parties provided for the designation of material produced during discovery as protected material to be filed under seal.  Id. at 340.  This Court first noted that, once a protective order is issued, a party seeking to modify the protective order must show its improvidence or some extraordinary circumstance or compelling need."  Id. at 341 (citing Geller v. Branic Int'l Realty Corp., 212 F.3d 734, 738 (2d Cir. 2000)).  However, the protective order at issue improperly allowed the parties to designate material as confidential without judicial review:

The Stipulated Protective Order not only asked the Court to defer to the parties' judgment on confidentiality but it also allowed for unilateral designation of an exhibit as protected material, and it did not list specific documents, or delineate the kinds of documents contemplated for protection.

Id. at 341. The Court pointed out the problem with such an order:

[E]ach party could circumvent the "good cause" standard for protection and simultaneously shift the burden to his adversary to unseal a document while benefitting from the more rigorous "extraordinary circumstances" standard that would apply merely by unilaterally designating any given document as protected.  Id.  As a result, the protective order was vacated, and the parties were instructed to "correct this state of affairs [in future motion practice] by specifically identifying each document at issue and making arguments specifically pertaining to each one."  Id. at n. 6; see also Savitt v. Vacco, No. 95-CV-1842(RSP/DRH), 1996 WL 663888, at *5 (N.D.N.Y. Nov. 8, 1996) (declining to issue a broad protective order and instead ordering defendants to submit "specific suggestions as to each document or notation which they believe should be placed under seal.").

The Second Circuit has recognized that documents “such as those passed between the parties in discovery often play no role in the performance of Article III functions and so the presumption of access to these records is low.” Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 142 (2d Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 1044, 1047 (2d Cir. 1995)).

In Seattle Times Company v. Rhinehart, 467 U.S. 20, 33 (1984), the Supreme Court ruled that unfiled discovery materials, including “pretrial depositions and interrogatories[,] are not public components of a civil trial. Such proceedings were not open to the public at common law, and, in general, they are conducted in private as a matter of modern practice.”

Once discovery documents are filed in court, the analysis changes.  The Third Circuit ruled in Leucadia, Inc. v. Applied Extrusion Technologies that “there is a presumptive right to public access to all material filed in connection with nondiscovery pretrial motions, whether these motions are case dispositive or not.”  998 F.2d 157, 165 (3d Cir. 1993). However, the court held that there is “no such right [of access] as to discovery motions and their supporting documents.”  Id.

For discovery materials not filed with the Court, the Third Circuit has approved of protective orders prohibiting the parties from disclosing the materials, upon a showing of good cause. See Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994).  The court in Pansy set forth the following non-exhaustive list of factors a court should consider when deciding if “good cause” exists:  (1) whether disclosure will violate any privacy interests; (2) whether the information is being sought for a legitimate purpose; (3) whether disclosure will cause a party embarrassment; (4) whether the information is important to public health and safety; (5) whether sharing of information among litigants will promote fairness and efficiency; (6) whether the party benefiting from the confidentiality order is a public entity or official; (7) whether the issues involved are important to the public; and (8) whether a confidentiality order will promote settlement of the suit.  Id. at 787–88.  The burden of justifying the confidentiality of each and every document sought to be covered by a protective order remains on the party seeking the order. Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1122 (3d Cir. 1986).

A right of access does not attach to discovery materials exchanged between parties. However, a First Amendment right of access attaches to discovery materials that are submitted in connection with a dispositive motion. See Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252 (4th Cir. 1988).  In Virginia Department of State Police v. Washington Post, 386 F.3d 567 (4th Cir. 2004), the district court assumed that the public had a First Amendment right of access to discovery records that were filed in connection with pretrial discovery motions, including a motion to quash, a motion to compel and a motion to lift protective orders.  On appeal, the Fourth Circuit noted that it was “not at all convinced that this is a correct assumption” and remanded for further consideration of the source of the right of access, as well as the sufficiency of the claimed reason for sealing.  On remand, the district court held that the discovery materials were subject to a common law, but not a First Amendment, right of access that was partially overcome to protect the integrity of an ongoing investigation. See Washington v. Bruraker, No. 3:02-cv-00106, 2015 WL 6673177 (W.D. Va. Mar. 29, 2015).

In the absence of a definitive decision from the Fourth Circuit, district courts have reached different conclusions about the source of the right of access to discovery materials. Compare id. (common law) and Burnett v. Ford Motor Co., No. 3:13-cv-14207, 2015 WL 4137847, *1 n.1 (S.D.W. Va. July 8, 2015) (applying good cause standard) with Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 121 (D. Md. 2009) (“Although the Fourth Circuit thus has not explicitly held that a First Amendment right of access exists with regard to non-dispositive civil motions and hearings, the precedent strongly favors that view, with the higher burden for sealing.”).  Some district courts in the Fourth Circuit have even suggested that no right of access attaches to discovery materials filed in connection with discovery motions, on the theory that discovery motions are merely procedural and do not affect substantive rights. See Sky Angel U.S., LLC v. Discovery Commc'ns, LLC, 28 F. Supp. 3d 465, 489 n.8 (D. Md. 2014); United States v. Johnson, No. 12-cv-1349, 2014 WL 12787211, *3 (M.D.N.C. Feb. 10, 2014). But see Washington, 2015 WL 6673177 at *4-8.  Such a conclusion is at odds with In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283 (4th Cir. 2013), in which the Fourth Circuit held that a document is a judicial record if it adjudicates substantive rights or “plays a role in the adjudicative process.”

There is little specific to the Fifth Circuit with respect to discovery materials in civil cases.

The Sixth Circuit has drawn a line between discovery materials and documents filed with the court, explaining that “‘[s]ecrecy is fine at the discovery stage before the material enters the judicial record,’” but that secrecy is much more stringently examined once documents are filed with the court.  Shane Grp. Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016) (quoting Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002).  But even at the discovery stage, “good cause” must be found by the court to justify preventing the disclosure of discovery.  In re Nat’l Prescription Opiate Litig., 2019 U.S. App. LEXIS, at *23 (6th Cir. 2019).

When evaluating “good cause” that would bar release of discovery materials, courts must “balance the interests in favor of disclosure against the interest in favor of nondisclosure.”  Id.  While there is not the same strong presumption in favor of disclosure that is applicable to questions on sealing court records, the burden is still on the party seeking to restrict access.  Id. at *20, 26 n.8.

In 2019, the Sixth Circuit found that a district court abused its discretion in prophylactically barring 1,300 public entities from disclosing the contents of a DEA opioid database they received during discovery.  Id. at *13, *23.  The court weighed the alleged risks to the businesses whose information were contained in the database and the asserted risk to the DEA’s criminal investigations (many of the alleged risks were vague and far from particularized) against the “insight” access to the database “will provide into the opioid epidemic” if the database was publicly accessible.  Id. at *40.

The Sixth Circuit also found that access to discovery was warranted in  Krause v. Rhodes, 671 F.2d 212 (6th Cir. 1982), where the court addressed public access to discovery materials in the civil suits stemming from the May 4, 1970, Kent State shootings, but only after the trials had been completed.  The discovery in that case “was to be open, broad and far-reaching,” but not necessarily open to the public.  Id. at 214.  The district court even went so far as to permit the parties to have access to related grand jury testimony transcripts during discovery.  Id.

In post-trial orders, the district court required the return of many materials to their owners, including federal and state grand jury transcripts, so as to keep them from the public, but denied requests for similar treatment to various state governmental records, with the exception that the names of witnesses, interviewing officers, and third parties be redacted.  Id. at 216–17.  The district court based its ruling on the “First Amendment interests and the historic nature of the events portrayed in the materials concerned.”  Id. at 217.  The Sixth Circuit noted that the case involved “emanations from the First Amendment such as the public’s right to know and legitimate concern about the accurate recordation of important historical events,” but that there were legitimate privacy and governmental concerns.  Id.  The Sixth Circuit held that the district court did not abuse its discretion and its “orders were drafted with careful recognition of the competing interests, and … scrupulously followed the applicable law.”  Id. at 219.

Moreover, the Sixth Circuit has also said in the context of reviewing an access to discovery material issue that “[a]s a general proposition, pretrial discovery must take place in the public unless compelling reasons exist for denying the public access to the proceedings.”  Meyer Goldberg, Inc. v. Fisher Foods, 823 F.2d 159, (6th Cir. 1987) (quoting Am. Tel. & Tel. Co. Grady, 594 F.2d 594, 596 (7th Cir. 1978)).  In the Meyer Goldberg case, the court discussed the standard to be used when a non-party intervenes to modify a protective order:

Given that proceedings should normally take place in public, imposing a good cause requirement on the party seeking modification of a protective order is unwarranted. If access to protected fruits can be granted without harm to legitimate secrecy interests, or if no such interests exist, continued judicial protection cannot be justified. In that case, access should be granted even if the need for the protected materials is minimal. When that is not the case, the court should require the party seeking modification to show why the secrecy interests deserve less protection than they did when the order was granted. Even then, however, the movant should not be saddled with a burden more onerous than explaining why his need for the materials outweighs existing privacy concerns.

Id. at 163 (quoting In re “Agent Orange” Prod. Liab. Litig., 104 F.R.D. 559, 570 (E.D.N.Y. 1985).  In reviewing a request to modify a protective order, the abuse of discretion standard is applied.  Id. at 161.

But, in Courier-Journal v. Marshall, 828 F.2d 361 (6th Cir. 1987), the Sixth Circuit rejected a request from the media to compel access to “specified fruits of discovery” upon which a protective order limiting access had been entered.  Id. at 362.  The information sought by the media related to membership in the local Ku Klux Klan, which was reported to include many local law enforcement officers, but the material was “a marginal issue” in the underlying civil litigation.  Id. at 362, 367.  Relying upon Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), the court held that it must “consider whether the ‘practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression’ and whether ‘the limitation of First Amendment freedoms [is] no greater than necessary or essential to the protection of the particular governmental interest involved.”  Courier-Journal, 828 F.2d at 364 (quoting Seattle Times Co., 467 U.S. at 32).  In Courier Journal Co., the court saw the governmental interests as being the interest in permitting discovery by the litigants “to vindicate their rights” “while protecting individuals who may once have joined the Ku Klux Klan (but who have no discoverable connection with the [] case) from ostracism and retaliation based on past political associations.”  Id.  In contrast, the press’s interest was “to obtain and to publicize information of great public interest that is produced by the adjudicative process.”  Id. at 364.  The question was “whether [the protective orders] were ‘no greater than necessary or essential’ to permit the [civil litigants] to obtain the membership list without exposing the affiliation of those whose names appear on it.”  Id. at 364-65.  The Sixth Circuit rejected the media’s request and found that the district court had properly balanced “the very limited right of access the press has to presumptively nonpublic fruits of civil discovery against the rights of civil rights plaintiffs to obtain discovery of a Ku Klux Klan membership list over a claimed privilege based on [F]irst [A]mendment associational rights.”  Id. at 367.  The court also found that the challenged protective orders was “narrowly drawn” to achieve its purpose.  Id.

Finally, the Sixth Circuit has also explained “[t]he discovery rules themselves place no limits on what a party may do with materials obtained in discovery,” but that this right can be waived by, among other things, ‘consenting to a protective order.’”  Nat’l Polymer Prods. v. Borg-Warner Corp., 641 F.2dd 418. (6th Cir. 1981).  But, the court has also explained that “Seattle Times [v. Rhinehart] holds that parties to civil litigation do not have a right to disseminate information they have gained through participation in the discovery process.  That case, however, does not govern the situation where an independent news agency, having gained access to sealed documents, decides to publish them.”  P&G v. Bankers Trust Co., 78 F.3d 219, 225 (6th Cir. 1996).

There do not appear to be any Alabama cases that specifically address the right to access discovery material in a civil case. Discovery is generally not publicly available, however, unless and until it is filed with a court in connection with a motion, brief or other pleading. Like its federal counterpart, Alabama Rule of Civil Procedure 26(c) allows for protective orders keeping discovery material confidential if a party can show “good cause.” Ala. R. Civ. P. 26(c).

In the context of discovery, materials that are requested and obtained are not public until they are introduced as evidence or filed with the clerk of court.  See Lewis R. Pyle Mem. Hosp. v. Superior Court, 149 Ariz. 193, 197, 717 P.2d 872, 876 (1986).

The First Amendment presumption of openness does not “apply to discovery motions and records filed or lodged in connection with discovery motions or proceedings.” Mercury Interactive Corp. v. Klein, 158 Cal. App. 4th 60, 68, 70 Cal. Rptr. 3d 88 (2007). That Court explained that “[p]ublic access to a discovery document that is not considered or relied on by the court in adjudicating any substantive controversy does nothing” to promote the rationales for access to civil court records. Id. at 96; see also id. at 105 (finding no right of access to the exhibits attached to a civil complaint, “where they consisted of discovery material that was not admitted at trial or used as a basis of the court’s adjudication of a substantive matter”); In re Marriage of Candiotti, 34 Cal. App. 4th 718, 723, 40 Cal. Rptr. 2d 299 (1995) (sealing records obtained through discovery because there is “no First Amendment right of access to information made available only for purposes of trying a suit”); In re Marriage of Evilsizor & Sweeney, 237 Cal. App. 4th 1416, 1429, 189 Cal. Rptr. 3d 1 (2015) (reading Candiotti to allow dissemination of information obtained from independent sources while barring information obtained solely through discovery); In re Marriage of Tamir, 72 Cal. App. 5th 1068, 1090-1091, 288 Cal. Rptr. 3d 48 (2021) (reversing for trial court to determine whether records at issue were used at trial or as basis for adjudication); Overstock.com, Inc. v. Goldman Sachs Group, Inc., 231 Cal. App. 4th 471, 500, 180 Cal. Rptr. 3d 234 (2014) (“The public’s right of access to court records exists only” as to materials that are “relevant to the contentions advocated by the proffering party” and “does not extend to irrelevant materials submitted to the court out of laziness in reviewing and editing evidentiary submissions, or worse, out of a desire to overwhelm and harass an opponent”) (emphasis in original); see generally Appendix 1, Trial Court Records Manual, available at www.courts.ca.gov/documents/trial-court-records-manual.pdf (providing a complete list of court records designated confidential by statute or rule).

However, California does not treat all discovery material as presumptively private. Code of Civil Procedure § 2025.570 provides that “unless the court issues an order to the contrary, a copy of the transcript of the deposition testimony … shall be made available by the deposition officer to any person requesting a copy, on payment of a reasonable charge set by the deposition officer.” It establishes the procedures for requesting access, including notice to the parties to afford them an opportunity to obtain a protective order. See also Board of Trustees of Calif. State Univ. v. Superior Court, 132 Cal. App. 4th 889, 901, 34 Cal. Rptr. 3d 82 (2005) (in light of the statute, “depositions are ordinarily not documents that the parties would reasonably envision would not be made available to persons or entities outside the litigation”); City of Los Angeles v. Superior Court, 41 Cal. App. 4th 1083, 1085-1086, 49 Cal. Rptr. 2d 35 (1996) (depositions in possession of City Attorney’s office were public records subject to disclosure under the California Public Records Act).

Any party seeking to prevent access to a transcript, or to preclude another party from releasing records disclosed in discovery, must show “good cause,” i.e., that the order is necessary to protect against “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” Cal. Code Civ. Proc. § 2025.420(b). The “burden is on the party seeking the protective order to show good cause for whatever order is sought.” Fairmont Ins. Co. v. Superior Court, 22 Cal. 4th 245, 255, 991 P.2d 156, 92 Cal. Rptr. 2d 70 (2000). “Courts frequently consider the public interest when determining whether good cause exists for a protective order.” Westinghouse Electric Corp. v. Newman & Holtzinger, P.C., 39 Cal. App. 4th 1194, 1208, 46 Cal. Rptr. 2d 151 (1995); see also Stadish v. Superior Court, 71 Cal. App. 4th 1130, 1145-1146, 84 Cal. Rptr. 2d 350 (1999) (setting aside protective order and directing trial court to consider public interest in evaluating whether party showed good cause). Disclosure will be ordered, even as to private records, if the public interest is sufficient. In re The Clergy Cases I, 188 Cal. App. 4th 1224, 116 Cal. Rptr. 3d 360 (2010) (ordering disclosure of psychiatric and other confidential records of priests accused of sexual abuse). “Good cause” must be shown with specificity as to each particular document. People v. Superior Court, 248 Cal. App. 2d 276, 281, 56 Cal. Rptr. 393 (1967). The Civil Discovery Act applies to California Public Records Act proceedings. City of Los Angeles v. Superior Court, 9 Cal. App. 5th 272, 214 Cal. Rptr. 3d 858 (2017).

In Bowlen v. District Court Adams County, 733 P.2d 1179 (Colo. 1987), the Colorado Supreme Court considered the proper standard for entering a protective order to prohibit public disclosure of discovery materials exchanged by the parties in cases of public interest.  Although the district court initially entered a protective order, after media representatives “were contacted,” the court concluded that the protective order should be rescinded, because the case involved a National Football League franchise, which was a “matter of public interest,” and “the burden of overcoming the ‘presumption of openness’ for civil trials had not been met” by the parties seeking to prevent public access. Id. at 1181.  The Colorado Supreme Court concluded that the district court abused its discretion by imposing “a standard that grants heightened first amendment rights to the public and the media when discovery proceedings involve a matter of public interest.”  Id. at 1181, 1183.  After discussing Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), the Colorado Supreme Court concluded that “[w]e need not decide the exact degree to which pretrial discovery proceedings are insulated or protected from public disclosure by the first amendment, because the [U.S. Supreme] Court concluded that the ‘good cause’ showing required” under Fed. R. Civ. P. 26(c), or its state analogs, “is sufficient to safeguard whatever rights the public or media possess.”  Id. at 1182.

The e-filing system used by Colorado state courts permits parties to electronically serve documents on other parties without filing them with the courts, including discovery materials (“e-service”).  The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) expressly applies to “all electronically filed (e-filed) or served (e-service) documents in accordance with the rules of the Supreme Court . . . .” (Section 4.00.)  In general, all “[i]nformation in the court record is accessible to the public,” and “court record” is broadly defined.  (Section 3.03(a); Section 4.10.)

Discovery materials are, for the most part, understood to be public so long as filed with a court; otherwise, they are not necessarily accessible.

If filed with the court, in both state and federal court, the First Amendment provides a strong presumption of public access to documents filed in civil cases “that directly affect an adjudication;” these are referred to as “judicial documents.”  United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995).  Records of that type may be sealed only if “specific, on the record findings are made demonstrating that [sealing] is essential to preserve higher values and is narrowly tailored to serve that interest,” provided that the “right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of the right to a fair trial.”  In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) (internal quotations and alterations omitted).

The Connecticut Appellate Court has explained that Conn. R. Super. Ct. §§ 11-20A(a),(b) “codifies the common-law presumption of public access to judicial documents,” which it defined as “any document filed that a court reasonably may rely on in support of its adjudicatory function, including discovery related motions and their associated exhibits.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 47–48, 970 A.2d 656, 683 (2009). As the Court explained,

Because of their impact on the judicial process, the public interest in judicial monitoring extends to such motions. The actions of the court during the pretrial period ultimately shape issues between the parties at trial or settlement, and the public surely has a vested interest in ensuring that those actions are carried out equitably, free from corruption or error.

Id. On this basis, the Appellate Court held that the only non-judicial documents in the Rosado case file—and thus, the only ones exempt from disclosure—were documents “not marked in support of any motion or other determination,” including “two deposition transcripts that were not filed in connection with any motion.” Id. at 51-52, 685.   

The courts have found no right of access to unfiled pretrial discovery materials. Tavoulareas v. Wash. Post, 724 F.2d 1010 (D.C. Cir. 1984) (finding the press and public have no First Amendment right of access to material submitted during pre-trial discovery in libel action and never used at trial); Anderson v. Ramsey, No. Civ.LA.04-56(GK/JMF), 2005 WL 475141, at *3 (D.D.C. Mar. 1, 2005) (no right of access to unfiled interrogatories and pretrial depositions).

A district court in the District of Columbia has distinguished between a right of public access to the “official judicial record” and a lack of access to the parties’ discovery conducted outside the court. Sibley v. Macaluso, 955 F. Supp. 2d 57, 67 (D.D.C. 2013), aff'd in part, No. 13-7128, 2014 WL 211219 (D.C. Cir. Jan. 9, 2014).  For example, in holding that a party was not entitled to access a judge’s personal trial calendar, the court in Sibley cited a D.C. Court of Appeals case finding a “right of public access applies to motions filed with the court concerning discovery, evidence submitted with such motions, and the court’s depositions,” but that a “presumptive right of public access does not apply to depositions, interrogations, or the documents obtained in discovery that are neither submitted as evidence at trial nor filed in connection with motions.” Id. at 66–67 n.9 (citing Mokhiber v. Davis, 537 A.2d 1100, 1109, 1111 (D.C.1988) (per curiam)).

However, one district court has permitted the media to attend a court-supervised third-party deposition. See Avirgan v. Hull, 118 F.R.D. 252 (D.D.C. 1987). In Avirgan, the court denied a protective order prohibiting attendance of press and public at the deposition because annoyance and harassment were insufficient to demonstrate good cause necessary to warrant such protective order. But see Kimberlin v. Quinlan, 145 F.R.D. 1, 1 (D.D.C. 1992) (denying a request by the media to attend a deposition). Further, depositions taken in antitrust litigation under the Publicity in Taking Evidence Act, 15 U.S.C. § 30, must be made available to the public and press. United States v. Microsoft Corp., 165 F.3d 952 (D.C. Cir. 1999) (statutory provision has not been superseded by Fed. R. Civ. P. 26(c), nor does it conflict with standard for granting protective order under that rule); New York v. Microsoft Corp., No. Civ.A.98–1233(CKK), 2002 WL 318565 (D.D.C. Jan. 28, 2002) (news organizations may intervene in other action for limited purpose of opposing defendant's motion to vacate orders requiring public depositions).

In Mokhiber v. Davis, 537 A.2d 1100 (D.C. 1988), the D.C. Court of Appeals held that the right of access, under either the First Amendment or the common law, attaches to discovery materials—such as depositions, interrogatories, and documents obtained in discovery—only when a party submits those materials as evidence at trial or files them in connection with a motion to the court. See also Aguirre v. Shapiro, 263 F.R.D. 26, 28 (D.D.C. 2009) (“[P]laintiff has no First Amendment right to discuss or share protected information he receives as a function of pretrial discovery . . . .”); cf. Hajjar-Nejad v. George Washington Univ., No. CIV.A. 10-626 CKK, 2013 WL 178729, at *6 (D.D.C. Jan. 16, 2013) (unsealing plaintiff’s deposition transcript so that future motions could be filed without need for seal or redactions).

By contrast, Mokhiber explains, “the presumptive public right of access does apply to motions filed with the court concerning discovery, to evidence submitted with such motions—including materials produced during discovery—and to the court’s dispositions, if any.” 537 A.2d at 1111. Similarly, the court held that the presumptive public right of access applies to other pre-trial motionsas well, even if they do not go to the merits of the underlying lawsuit. Id. at 1113. But see In re the Reporters Comm. for Freedom of the Press, 773 F.2d 1325 (D.C. Cir. 1985) (finding no First Amendment right of access, prior to entry of judgment in a civil lawsuit, to court records consisting of documents and depositions used in connection with summary judgment and trial proceedings, and finding that trial court did not exceed its discretion in delaying fifty days after judgment to determine whether the documents should be unsealed); Willingham v. Ashcroft, 355 F. Supp. 2d 390 (D.D.C. 2005) (sealing pendente lite pleadings and exhibits that disclosed allegations of misconduct against non-parties and ordering parties to re-file redacted versions of the same documents).

In Johnson v. Greater Southeast Community Hospital Corp., 951 F.2d 1268 (D.C. Cir. 1991), the D.C. Circuit ordered a district court to reconsider its decision to seal the entire record in a civil case (except plaintiff’s complaint), finding that a hospital’s interest in keeping the peer-review processes out of the public eye to be insufficient and instructing the district court to weigh the Hubbard principles on remand. Id. at 1277-78; see also United States v. USS Marine Servs., 905 F. Supp. 2d 121 (D.D.C. 2012) (applying Hubbard factors, unsealing case concerning compliance with administrative agency’s subpoena for contractor’s internal audit). The District Court for the District of Columbia has noted that the presumption in favor of public access to the record is “strongest when ‘the documents at issue [are] . . . specifically referred to in a trial judge’s public decision.’” Gilliard v. McWilliams, No. 16-2007 (RC), 2019 WL 3304707 at *2 (D.D.C. July 23, 2019) (citing Zapp v. Zhenli Ye Gon, 746 F. Supp. 2d 145, 148 (D.D.C. 2010) (quoting EEOC v. Nat’l Children’s Ctr., 98 F.3d 1406, 1409 (D.C. Cir. 1996)).

In In re Guantanamo Bay Detainee Litig., 630 F. Supp. 2d 1 (D.D.C. 2009), a D.C. federal district court held that the public has a limited First Amendment and common law right to access the unclassified factual returns filed in habeas corpus litigation brought by Guantanamo Bay detainees, and thus denied the government’s motion to seal completely all such returns. See also United States ex rel. Grover v. Related Cos., LP, 4 F. Supp. 3d 21, 30 (D.D.C. 2013) (unsealing dismissed False Claims Act complaint (citing Hubbard factors)); cf. Hamiduva v. Obama, No. CV 08-1221(CKK), 2015 WL 5176085, at *4 (D.D.C. Sept. 3, 2015) (weighing Hubbard factors, keeping Guantanamo Bay prisoner’s factual returns under seal).

There is no First Amendment right of access to pretrial discovery materials. See Miami Herald Publ’g Co. v. Gridley, 510 So. 2d 884, 885 (Fla. 1987). Conversely, there is no constitutional right to prevent access to discovery. See SCI Funeral Servs. of Fla., Inc. v. Light, 811 So. 2d 796, 798 (Fla. 2002). Trial courts have broad discretion under Florida Rule of Civil Procedure 1.280(c) to enter protective orders for good cause to limit the public disclosure of discovery. Id.

Generally, materials exchanged during discovery do not become public record unless and until those materials are filed with the court or entered into the record in some way. See, e.g., Lewis v. State, 958 So. 2d 1027 (Fla. 5th DCA 2007) (materials related to defendant’s prosecution, including depositions, are subject to disclosure after the case becomes final under Florida’s public records law); Miami Herald Publ’g Co. v. Gridley, 510 So. 2d 884 (Fla. 1987) (no right of access to unfiled transcripts of depositions in civil cases).

However, discovery motions filed with the court are a type of judicial record encompassed by Barron and Florida’s constitutional right of access to court records. See Barron, 531 So. 2d at 116 (detailed above in Section VI.A). Florida Rule of Judicial Administration 2.420 controls motions to seal this type of civil court record and specifies procedures.

Motions to seal court records will be denied (often without prejudice) if the proponent fails to address the sealing standards announced in Barron.  See e.g., Gulliver Schs., Inc. v. Snay, 137 So. 3d 1031 (Fla. 3d DCA 2013); BDO Seidman, LLP v. Banco Espirito Santo Int’l, Ltd., 201 So. 3d 1 (Fla. 3d DCA 2009).

In Bainter v. League of Women Voters of Fla., the Florida Supreme Court affirmed the trial court’s ruling that hundreds of pages of disputed documents be produced in discovery because the trade secret exemption did not apply. 150 So. 3d 1115, 1118-19 (Fla. 2014). In so ruling, it also required that the disputed documents and the hearing transcript be unsealed and made part of the public record.

Discovery materials are matters of public record once filed with the court.  Ga. Gazette Pub’g Co. v. Ramsey, 248 Ga 528, 529 (1981).

The Illinois Supreme Court has held that discovery materials and motions are not subject to the right of access until filed with the court because discovery is conducted in private and is not open to the public. Skolnick v. Altheimer & Gray, 191 Ill.2d at 237, 730 N.E.2d at 19, 246 Ill. Dec. at 339; cf. Bond v. Kalven, No. 07-2651 (7th Cir. Nov. 10, 2009) (no right to discovery not filed with court); Dittrich v. Gibbs, No. 93 L 003, 2002 WL 32113762, at *3 (Ill. Cir. Ct. June 19, 2002) (pleadings and exhibits that were obtained in discovery and later filed in court should be disclosed unless there is a compelling interest to seal, and there is a compelling interest to redact the names and identifiers of victims whose names are not a matter of public disclosure from otherwise accessible materials). In 2004, an Illinois appellate court further explained the right of access to discovery materials and held that information gathered from sources outside of the discovery process during the course of a civil action and made available solely for the purposes of trying or settling a suit are not subject to the right of access. Bush v. Catholic Diocese of Peoria, 351 Ill. App. 3d 588, 592, 814 N.E.2d 135, 138, 286 Ill. Dec. 485, 488 (Ill. App. Ct. 3rd Dist. 2004) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 (1984)).

According to the Iowa Rules of Civil Procedure, discovery materials are not filed in the court unless the court orders otherwise. Iowa R. Civ. P. 1.502. Discovery materials include depositions, notice of depositions, interrogatories, requests for production of documents, requests for admission, or response, documents or things produced, or objections to discovery materials. Id. Since discovery materials are generally not filed in the court, they are not public records and the presumptive First Amendment right of access is not applicable. However, any discovery materials filed with the court are likely to be subject to access.

Kansas appellate courts have not had occasion to rule, on the basis of Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), that pretrial discovery documents are not open.  Even so, in Kansas courts, discovery documents are subject to a wide range of protections.  In a defamation case brought by a man against his former wife, a Court of Appeals judge observed that discovery documents include “confidential or otherwise sensitive material, such as medical records, tax and financial information, or proprietary trade or research data.”  Purdum v. Purdum, 48 Kan.App.2d 938, 746 (2013) (Hon. G. Gordon Atcheson, dissenting and citing K.S.A. 2012 Supp. 60-226(c)).  The Kansas Code of Civil Procedure, the judge said, “recognizes multiple ways of protecting that sort of documentary evidence through protective orders or other judicial control.”  Purdum, 48 Kan.App.2d at 746.

The accessibility of discovery documents has been addressed by federal courts in Kansas.  For example, in a dispute over free speech rights of police in Topeka, Kansas, a federal magistrate judge considered whether plaintiffs could release a defendant police chief’s deposition to the public.  The judge noted that, under a court rule, a deposition “‘shall not be filed with the clerk unless ordered by the court.’” Eaton v. Harsha, 2006 WL 3316792, at *2 (D. Kan. 2006).  The judge said “depositions (as well as other pre-trial discovery materials) are not public components of civil litigation until filed under court order or introduced into evidence,” but “such materials may be disseminated to third parties unless sealed by a valid protective order.”  Harsha, 2006 WL 3316792, at *2.  Once a protective order is issued, it “prohibits the party from disseminating information obtained through pre-trial discovery unless the information is ‘gained through means independent of the court’s processes.’” Harsha, 2006 WL 3316792, at *2.  (Related cases are Eaton v. Harsha, 2006 WL 963960 (D. Kan. 2006); Eaton v. Harsha, 2006 WL 3333791 (D. Kan. 2006), and Eaton v. Harsha, 505 F. Supp. 2d 948 (D. Kan. 2007).)

In 2000, in a Kansas federal district court, a dispute arose over whether a litigant should be allowed to publicize videotaped depositions.  The judge did not limit the plaintiff’s use of his own videotaped deposition but did limit his use of a defendant’s taped deposition.

The dispute began when a Kansas state court upheld an injunction that prevented a television broadcaster’s former employee and her husband from picketing or threatening to picket the broadcaster’s advertisers.  Drake v. Benedek Broad. Corp., 983 P.2d 274 (Kan. App. 1999).  The husband contested the outcome by claiming violation of his civil rights and filing suit in federal court against the broadcaster and others.  Drake v. Benedek Broad. Corp., 2000 WL 528059 (D. Kan. 2000).  When the plaintiff prepared to videotape a defendant’s deposition, the defendant submitted evidence indicating that the plaintiff planned to create and sell a documentary based on the litigation.

The judge then imposed conditions on the plaintiff’s videotaping of the defendant’s deposition, so that it would “be used solely for purposes of the lawsuit.”  Drake v. Benedek Broad. Corp., 2000 WL 156825, at *2 (D. Kan. 2000) (citing Paisley Park Enters., Inc. v. Uptown Prods., 54 F. Supp. 2d 347, 349–50 (S.D.N.Y. 1999), in which parties were ordered to select a neutral custodian to take possession of the original videotape and were prohibited from making copies).

When the plaintiff prepared to videotape his own deposition, the defendant asked the judge to limit use of the deposition to purposes related to the litigation.  The judge, however, denied the request, saying the plaintiff had “made it clear that he is not concerned with protecting any privacy interests he may have.”  Drake v. Benedek Broad. Corp., 2000 WL 274093, at *1 (D. Kan. 2000).

The U.S. Court of Appeals for the Tenth Circuit has recognized a litigant’s freedom to release discovery documents but also a judge’s prerogative to prevent third-party access to them.  The court ruled against a newspaper that sought access to discovery documents in a case that involved a hospital association and a state agency.  Citing Seattle Times Co. v. Rhinehart, the court said it “may be conceded that parties to litigation have a constitutionally protected right to disseminate information obtained by them through the discovery process absent a valid protective order.  However, the court said, it “does not follow that they can be compelled to disseminate such information” to the media or others.  Okla. Hosp. Ass’n v. Okla. Publ’g Co., 748 F.2d 1421, 1424 (10th Cir. 1984), cert. denied, 473 U.S. 905 (1985).

Such records, if possessed by the Clerk of Court, should be accessible through a Public Records request. However, if such records are in the possession or control of specified “prosecutive, investigative, and law enforcement agencies” and pertain “to pending criminal litigation or any criminal litigation which can be reasonably anticipated,” they are exempt from disclosure under the Public Records Act. See La. R.S. 44:3.

Autopsy reports are not public records. See La. R.S. 44:19(A) (“any medical record or personal medical history of a deceased person in the custody of a coroner shall be confidential and shall not be subject to examination, inspection, or copying”) Photographs or video in autopsy reports “shall be confidential, [and] are deemed not to be public records, La. R.S. 44:19(B), but they are subject to inspection, although not copying. See La. R.S. 44:19(D).

Pretrial motions and records filed with the court are open to the public.

In Maine, discovery materials need not be filed with the court.  Any discovery materials filed with the court (for example as support for motions for summary judgment) become a matter of public record, unless otherwise ordered by the court. The public “has no common law or constitutional right of access to materials that are gained through civil discovery but neither introduced as evidence at trial nor submitted to the court as documentation in support of motions or trial papers.” Cole v. Maine, 2018 WL 276682, at *1 (D. Me.) (citing United States v. Kravetz, 706 F.3 47, 55 (1st Cir. 2013)).

The parties may move for a protective order regarding discovery to maintain as confidential discovery materials, including trade secrets, confidential research, and development and commercial information. M. R. Civ. P. 26(c). The available remedies include sealing a deposition, prohibiting or managing disclosure, and filing documents under seal. Id.  The standard for treating discovery as confidential is substantially more lenient than the standard for treating evidence filed with the court for merits decisions as confidential.  See Bailey v. Sears, Roebuck & Co., 651 A.2d 840, 843–44 (Me. 1994).

Under the Maryland Rules, all pleadings filed in connection with pretrial proceedings are presumptively open to public inspection. State v. Cottman Transmission Sys., Inc., 542 A.2d 859, 863 (Md. Ct. Spec. App. 1988) (right of access applies “to pre-trial proceedings and court records” (citation omitted); Md. Rule 16-902(c) (defining “Case Records”); Md. Rule 16-903(b) & (d) (once exhibits are filed or marked by the court, they are presumptively subject to inspection “notwithstanding that the record otherwise would not have been subject to inspection under the Rules”).

Following the U.S. Supreme Court’s decision in Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984), Massachusetts courts have not recognized a right of access to pre-trial discovery, “including deposition transcripts, exhibits, interrogatory responses and answers to document requests.” Harris-Lewis v. Mudge, 9 Mass. L. Rptr. 698 (Mass. Super. 1999); see also Unif. R. Impound. P., Rule 1 (Committee Notes: Discovery and Other Materials From a Non-Party); Anderson v. Cryovac, Inc., 805 F.2d 1, 13 (1st Cir. 1986) (there is no tradition of public access to discovery, and consequently there is no common law presumption of public access to discovery-related records); Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 362 (Mass. 1990) (remarking in dicta that there is no right of access to depositions); Cronin v. Strayer, 467 N.E.2d 143, 149 (Mass. 1984) (“The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders.”) (quoting Seattle Times Co., 467 U.S. at 36).

Massachusetts courts may, upon finding good cause, issue protective orders mandating that certain depositions be sealed or that “discovery be conducted with no one present except persons designated by the court” in order to protect a party from “annoyance, embarrassment, oppression, or undue burden or expense.” Mass. R. Civ. P. 26(c).

While there may be a right to filed discovery materials after a trial has commenced, there is no right of access to unfiled discovery materials or filed materials before the start of trial. See Booth Newspapers, Inc. v. Midland Circuit Judge, 145 Mich. App. 396, 377 N.W.2d 868 (Mich. Ct. App. 1985), appeal denied, 425 Mich. 854 (Mich. 1986), cert. denied, 479 U.S. 1031 (1987).

In the civil context, the Minnesota Supreme Court has declined to endorse any “presumption of privacy” for pretrial discovery materials, leaving any protection to the discretion of the district judge under the “good cause shown” standards of Minn. R. Civ. P. 26.03. In re GlaxoSmithKline, 732 N.W.2d 257, 272 n.11 (Minn. 2007). The Minnesota Supreme Court, in an earlier decision in the GlaxoSmithKline litigation, stated “that documents produced as discovery are not presumed to be public and that district courts have broad discretion to issue protective orders,” but that “district courts presiding over civil actions are directed to weigh ‘policies in favor of openness against the interests of the litigant in sealing the record.’” In re GlaxoSmithKline, 699 N.W.2d 749, 755 (Minn. 2005). These decisions supersede the narrower view of public rights of access to pretrial discovery materials not yet filed with the court, as expressed by the Minnesota Court of Appeals in Star Tribune v. Minnesota Twins Partnership, 659 N.W.2d 287, 295–97 (Minn. Ct. App. 2003) (holding that the public has a common law right to inspect and copy civil court records, but that “private documents generated during discovery that are not filed with the court are not considered ‘judicial records’”; also holding that documents submitted to the court in connection with a discovery motion are not subject to the constitutional presumption of access). Of course, absent a protective order issued for good cause shown, “nothing precludes a party from voluntarily disclosing discovery documents.” State ex rel. Humphrey v. Philip Morris Inc., 606 N.W.2d 676, 686 (Minn. Ct. App. 2000).

Discovery materials filed with the clerk of the court or disclosed in open court ought to be publicly available. There is no Nebraska law on public access to discovery materials not so filed or disclosed. Section 6-326(C) of the Nebraska Rules of Discovery permits the court to enter protective orders, including orders that allow parties not to disclose trade secrets, and that allow parties to file discovery materials under seal.

In Spadaro v. Univ. of N.M. Bd. of Regents, 1988-NMSC-064, ¶ 8, 107 N.M. 402, 404, 759 P.2d 189, 191, the New Mexico Supreme Court held that only discovery materials deemed public records are subject to discovery under the Inspection of Public Records Act. In this case the court found that as student complaints were not public records, they were therefore not subject to discovery. In order for the public to access discovery material in New Mexico, it is likely that the material will have to be introduced or utilized in open court during a criminal or civil proceeding. See State ex rel. Bingaman v. Brennan, 1982-NMSC-059, ¶ 14, 98 N.M. 109, 111, 645 P.2d 982, 984 (finding that under the Abuse of Privacy Act, recordings of court ordered wiretaps are not public records unless such recordings are played or utilized in open court in criminal or civil actions).

Documents obtained in discovery that are not filed with the court are generally not subject to a public right of access. N.Y. Ct. R. § 216.1(b).

In dictum in Collier v. Reese, 2009 OK 86, 222 P.3d 966, the court observed that orders limiting or prohibiting dissemination of information obtained in discovery were not the same classic prior restraint orders that required exacting constitutional scrutiny (citing Seattle Times Company v. Rhinehart, 467 U.S. 20, 33 (1984)). Local federal and state court rules generally provide that discovery materials are not to be filed with the court unless some specific matter needs to be brought to the attention of the court, e.g., discovery materials are attached to a motion for summary judgment. Thus, as a general rule, discovery materials are not going to be a “record” subject to the Oklahoma Open Records Act.  In addition, although patterned after Fed. R. Civ. P. 26(c), the Oklahoma statute on protective orders in civil discovery, Okla. Stat. tit. 12, § 3226(C), expressly allows (in subsection 7) a party to seek a protective order removing materials from the public record.  A party wishing to do so may identify the parties with pseudonyms in the petition (complaint) and apply to the court for an order removing the case, in whole or in part, from the public record.  The limits on the circumstances in which a party may invoke subsection 7 have not been tested in appellate decisions.

Oregon Rule of Civil Procedure 36C allows courts to limit the extent of disclosure required in discovery and to issue protective orders to protect parties from annoyance, embarrassment, oppression, undue burden or expense. ORCP 36C(1).

Private documents collected during discovery are not judicial records, and, therefore, the common law right of access does not attach to them. R.W. v. Hampe, 626 A.2d 1218, 1224 n.8 (Pa. Super. 1993); see also Kurtzman v. Hankin, 714 A.2d 450, 452-53 (Pa. Super. 1998) (“[T]here is no presumptive right to discovery material.”); Stenger, 554 A.2d at 958 (“access rights to litigation are at their nadir” during the discovery phase). However, once those discovery materials are filed with the court or used at trial, they are subject to the presumptive right of access. Commonwealth v. Long, 922 A.2d 892, 898 (Pa. 2007).

The Rhode Island Superior Court has held that “there is no public right of access to unfiled discovery that is not used in a judicial proceeding.”  Gaube v. Landmark Med. Ctr., 2013 WL 861529, at *1, 2013 R.I. Super. LEXIS 38, at *3 (R.I. Super. Ct. Feb. 25, 2013) (citing Dauray, 2013 WL 372647, at *11-14, 2013 R.I. Super. LEXIS 19, at *40-41).

In Dauray, the requestors sought documents produced in discovery and filed in the Superior Court, by filing a motion to vacate or modify a probate judge’s protective order pertaining thereto.  2013 WL 372647 at *1-2; 2013 R.I. Super. LEXIS 19, at *1-2.  Such order was entered in the probate court, before appeal to the Superior Court.  Id.  Citing federal law, the court recognized that court documents and judicial records are open to the public and cannot be withheld, but documents produced in discovery are not necessarily public simply because they were filed with the court.  Id. at *38-39 (citing Nixon, 435 U.S. 589; Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)).  The court ruled then that “documents that are filed with the court that reasonably may be relied upon in support of any part of the court’s adjudicatory function are judicial documents.”  Id. at *40-41.

While there is no South Carolina case law on point, courts across the country have held that unfiled discovery documents have not traditionally been open to the public, and therefore there is no First Amendment-based right of access.  When discovery documents are filed with the court, however, they become part of the court record and are presumed to be open for review.  Article I, § 9 of the South Carolina Constitution, providing that all courts shall be public, means that the public, and likewise the press, has a right of access to court proceedings subject to a balancing of interests with the parties involved. Ex parte Columbia Newspapers, Inc., 286 S.C. 116, 333 S.E.2d 337 (S.C. 1985).

Court records are open for public inspection under the South Carolina Freedom of Information Act (S.C. Code Ann. § 30-4-30). Public access to court records also is guaranteed by the open courts provision of South Carolina’s Code of Laws (S.C. Code Ann. § 14-3-410, § 14-5-10, § 14-8-240, and § 14-9-150).

For documents that have not been filed, courts must first determine whether those documents are “court records” for the purposes of Rule 76a, then must determine whether they should be sealed as described above.  See BP Prods. N.A. v. Houston Chronicle Publ’g Co., 263 S.W.3d 31, 34 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Gen. Tire v. Kepple, 970 S.W.2d 520, 523 (Tex. 1998)).  The burden is on the party claiming that documents are “court records” to prove so by a preponderance of the evidence.  See BP Prods., 263 S.W.3d at 34 (citing Eli Lilly & Co. v. Biffle, 868 S.W.2d 806, 808 (Tex. App.—Dallas 1993, no writ)).  Further, Rule 76a allows non-parties to intervene and claim that unfiled discovery is a “court record” before this threshold determination is made, though the Rule only requires a hearing on sealing if the court determines that the unfiled discovery is in fact a “court record.”  See Kepple, 970 S.W.2d at 525.

Discovery that is not filed with the court still qualifies as a “court record,” for purposes of a presumption of access under Rule 76a, if it concerns a matter with a potential adverse effect on public health and safety or the operation of government, excepting trade secrets or other intangible property rights.  See Tex. R. Civ. P. 76a(2)(c).  Similarly, unfiled settlement agreements, excluding reference to monetary consideration, are considered court records if they “seek to restrict disclosure of information concerning matters that have a probable adverse effect upon the general public health or safety, or the administration of public office, or the operation of government.”  Id. at 76a(2)(b).

The Utah Supreme Court has held that, once filed, pretrial discovery, including deposition transcripts, is “presumptively public.”  Carter v. Utah Power & Light Co., 800 P.2d 1095, 1098-1100 (Utah 1990).  But see Utah R. Civ. P. 26(f) (“Except as required by these rules or ordered by the court, a party must not file with the court a disclosure, a request for discovery, or a response to a request for discovery, but must file only the certificate of service stating that the disclosure, request for discovery or response has been served on the other parties and the date of service.”).  In addition, a Utah federal district court has ordered, under either the common law right of access or the constitutional right of access, public disclosure of a 24-second, pixelated video of a courtroom shooting submitted under seal as an exhibit to a summary judgment motion.  Angilau v. United States, No. 2:16-00992-JED, 2017 WL 5905536, at *5-12 & n.14 (D. Utah Nov. 29, 2017). Pretrial discovery materials filed under seal pursuant to a protective order, however, “are not traditional public records which are publicly accessible.”  Grundberg v. Upjohn Co., 140 F.R.D. 459, 466 (D. Utah 1991).

The Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[r]ecords produced or created in connection with discovery in a case in court, including a deposition, unless used by a party (i) at trial or (ii) in connection with a request for action by the court.”  Vt. Pub. Acc. Ct. Rec. Rule 6(b)(9); see also Herald Ass’n v. Judicial Conduct Bd., 149 Vt. 233, 239, 544 A.2d 596, 600 (Vt. 1988) (denying access to discovery material in the possession of, but not filed with, the Judicial Conduct Board).

Pursuant to V.R.C.P. 5(d), most discovery requests and responses are not filed unless they will be used in a proceeding and, in practice, most discovery records are not introduced into evidence in the case. “Because these records are not considered by the court in resolving contested issues in the case, and are now considered to be private rather than public, they are not subject to the general rule on disclosure of court records. However, any discovery that is used in the case will be open under this section.”  Reporter’s Notes, Vt. Pub. Acc. Ct. Rec. Rule 6.

The state constitution does not entitle the public to access discovery materials. Discovery materials may be sealed after a showing of “good cause,” which is less stringent than the Bone-Club/Ishikawa standard.  See Dreiling v. Jain, 151 Wn.2d 900, 909–10, 93 P.3d 861 (2004); Rufer v. Abbott Labs., 154 Wn.2d 530, 541 114 P.3d 1182 (2005).

While there is no West Virginia case law on point, the Fourth Circuit has recognized a presumptive right of access to civil discovery materials. Va. Dep’t of State Police v. Wash. Post, 386 F. 3d 567, 580 (2004) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 386 n. 15, 99 S. Ct. 2898, 61 L.Ed.2d 608 (1979)); see also “Access to criminal court records/discovery materials” above.