Metropolitan News-Enterprise


Tuesday, May 14, 2002


Page 1


Ninth Circuit Restricts Public Access to Discovery Materials in Times Case


By KENNETH OFGANG, Staff Writer/Appellate Courts


The presumption in favor of public access to discovery materials does not extend to documents filed under seal with good cause and in accordance with a prior protective order, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel reversed a district judge’s order granting the Los Angeles Times access to information concerning settlements entered into by General Motors Corporation in suits concerning an alleged gas tank defect in the C/K pickup truck. The information had been filed under seal as part of discovery in a since-settled C/K lawsuit in the U.S. District Court for the District of Montana.

The appellate panel sent the case back to Judge Donald W. Molloy for reconsideration.

The newspaper’s attorney predicted it will prevail again in the lower court.

The plaintiffs in the Montana case entered into a stipulation early in the litigation for a “share” protective order, under which certain discoverable information could be shared with other litigants in similar cases but not with the public.

Later, the plaintiffs moved to compel GM to provide information concerning the amounts of prior settlements, claiming it was relevant to the issue of punitive damages. GM, which had entered into confidentiality agreements as part of earlier settlements involving the C/K, opposed the motion.

The magistrate judge ordered GM to disclose the total number of settlements, and the aggregate amount, subject to the “share” protective order. The plaintiffs, however, questioned whether the information produced by GM complied with the magistrate judge’s order and filed a motion for sanctions, attaching—under seal—a copy of what GM provided.

That motion was still pending when the case was settled. After a dismissal order was entered, the Times moved to intervene in order to obtain access to the sealed settlement information.

 Molloy ruled that the information was not subject to the earlier protective order and did not qualify for a new protective order. He also concluded that the Times had a common-law right of access, but did not rule on the newspaper’s claim that it had a right of access under the First Amendment.

Under Ninth Circuit precedent, Senior U.S. District Judge Rudi M. Brewster of the Southern District of California, sitting on the panel by designation, explained, there is a “strong presumption in favor of public access” to pretrial discovery and a requirement that good cause be shown for discovery materials to be sealed.

But when materials have been sealed pursuant to a protective order, Brewster reasoned, there has already been a showing of good cause for confidentiality and the presumption in favor of disclosure is reversed.

“Applying a strong presumption of access to documents a court has already decided should be shielded from the public would surely undermine, and possibly eviscerate, the broad power of the district court to fashion protective orders,” the judge wrote. “Although we understand the public policy reasons behind a presumption of access to judicial documents (judicial accountability, education about the judicial process etc.), it makes little sense to render a protective order useless simply because a party filed a document with the court like the underlying plaintiffs did in this case.”

In ordering disclosure, Brewster said, Molloy erred by not engaging in “good cause” analysis, apparently because he believed that only trade secrets or similar commercially valuable information can be protected. Rule 26 of the Federal Rules of Civil Procedure is broader than that, Brewster explained, giving trial courts discretion to protect other types of discovery materials.

He cited several examples of documents that have been held exempt from public disclosure, including materials that were subject to attorney-client privilege but inadvertently produced, medical and psychiatric records, materials related to grand jury proceedings, and documents referencing confidential settlement agreements.

On remand, Brewster explained, the district judge will have to determine whether good cause exists for maintaining secrecy, and if so, whether the Times can show sufficient countervailing interests to overcome the presumption of non-access. The district judge can also, if necessary, reach the First Amendment issue.

Senior Judge Arthur L. Alarcon and Judge Barry G. Silverman joined in the opinion.

Kelli L. Sager of Davis Wright Tremaine, who argued the case for the Times, said she expects the material to be unsealed eventually. “I don’t think the district judge is going to change his mind,” she told the METNEWS.

 The case is Phillips v. General Motors Corporation, 01-35126.


Copyright 2002, Metropolitan News Company