Corporate litigants often request to file data, documents, and even entire cases under seal. Some judges routinely acquiesce to these requests if the other side doesn’t object, while other judges set a high bar for sealing a case, asserting a philosophy that the courts should be open to public view, absent a compelling reason to protect information. A 2009 study by the Federal Judicial Center found that district courts and individual judges were vastly inconsistent in granting requests for seals. Indeed, the law grants a great deal of discretion to judges in assessing requests to seal, allowing them to apply their own philosophical biases.
A recent decision from the United States Court of Appeals for the Sixth Circuit brings guidance to both litigants and judges and takes a conservative view of the need to seal cases. Shane Grp., Inc. v. Blue Cross Blue Shield, 825 F.3d 299 (Sixth Cir. 2016), sets a high bar for sealing documents. In addition, it suggests that corporate litigants, especially in class actions and consumer cases, must craft compelling arguments to win a court’s approval for requests to seal. Shane Group highlights the practical challenges of effectively litigating a case while properly maintaining the confidentiality of sensitive financial data, trade secrets, and personal information. Shane Group raises important questions and offers guidance for all counsel who must protect sensitive information from unwanted public disclosure in court filings.
Recent court decisions – such as the Sixth Circuit’s Shane Group opinion – and legal publications have a placed a renewed emphasis on the topic of filing under seal. This article continues that discussion by compiling the practical lessons of Shane Group and offering concrete guidance for corporate litigants who handle confidential or sensitive documents.
Download the full version, “Association of Corporate Counsel</em>: Federal Courts Bring Renewed Scrutiny to Requests to Seal Documents“.
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