From Judge Irene Berger’s decision yesterday Lomangino v. Polaris Industries Inc. (SDW Va.), which seems pretty accurate to me:
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 are “subject to a protective order of pretrial discovery.” … [D]Escovery is “generally conducted in person,” while deposition motions “may be served[ ] As an alternative to judgment[“] ….. Thus, … access can be limited only if there is a compelling countervailing interest. Any such limitation must be narrowly tailored….
Materials the defendants seek to seal include expert reports and discovery documents that are subject to a protective order based on claimed proprietary business interests. Trade secret protection may, in some circumstances, be sufficient to justify sealing documents. However, the party seeking to limit access bears the burden of showing sufficiently specific reasons to override the public’s right of access.
Defendants make 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 may result from public access to that information.
The documents the defendants seek to seal are central to this case and the dispositive motion at issue. Sealing expert reports and other materials in their entirety would prevent anyone reviewing the motion, and rendering any opinion resolving the motion, without the ability to understand the underlying facts and evidence.
Although the Court is not currently aware of any significant public interest in the case, public access is designed not only to allow the press and public to follow high-profile cases, but also to allow ongoing and future access. Law students or legal scholars review case files for law review articles, attorneys review past cases when similar cases occur, and cases can be a source of information for policy-makers, for example, on security regulations or for journalists reporting more broadly on courts or special Content of the case.
Thus, even absent the intervention of a third party to oppose the motion to seal or request access, courts may not seal material protected by First Amendment access without finding with specific support that some compelling countervailing interest warrants protecting the information. the problem And That a less drastic alternative, such as reduction, is ineffective. After reviewing the materials, the court does not find that they are so replete with clearly confidential information that sealing is appropriate.