What a delight to read the Fifth Circuit Court of Appeals‘ recent opinion in Bin Hoa Le v. Exeter Financing Corp., 20-10377 (5th Cir. March 5, 2021). A copy of the opinion is available HERE. After affirming the district court’s summary judgment decision, Fifth Circuit Judge Don Willett goes on to address the fact that nearly 75% of the district court’s summary judgment record was “troublingly sealed from the public.” The opinion goes on to address the Constitutional imperative of ensuring that court records be available to the public in all but the most exceptional circumstances (such as, for example, “protecting trade secrets or the identities of confidential informants”). The opinion explains why the public’s access to judicial records is sacred to our democracy and to the legitimacy of our court system. The opinion also explains that, because the parties to litigation are not sufficiently incentivized to safeguard the public interest, “the judge is the public interest’s principal champion. And when the parties are mutually interested in secrecy, the judge is the only champion.”
The opinion also criticizes the all-too-common practice of conflating the extremely strict standard applicable to sealing documents with the more lenient lenient standard of designating a document as confidential for discovery purposes. Crucially, a “protective order” applicable to discovery must not be treated as a “sealing order” when filing court papers. When this happens, “there is no sealing analysis — no reasons given, no authorities cited, no document-by-document inquiry . . . no grappling with public and private interests, no consideration of less drastic alternatives . . . no assurance that the extent of sealing was congruent to the need.”
In writing blog entries, I sometimes try to quote the most important passage in an opinion. But I cannot do that today, because almost every passage of this important opinion is notable and quotable and important. I urge you to read the opinion and — for the sake of our democracy — ask yourself whether you’ve been too lenient in permitting documents to be filed under seal. I surely am guilty as charged. Too often, I don’t object when a corporate defendant files a document under seal. I just “go with the flow,” believing that putting up a fight will upset the judge by making him/her do unnecessary work. But, as Judge Willett explains, it is the judge’s job to ensure the transparency of judicial proceedings. And it is our job to alert the judge when corporate defendants seek to improperly file documents under seal. -PW