In recent years, there has been a growing trend amongst litigants of protecting documents filed as part of the judicial record from public view by sealing them by agreement under a protective order.  However, a recent opinion out of the U.S. Court of Appeals for the Fifth Circuit criticizes this now-common practice.  Binh Hoa Le v. Exeter Fin. Corp., No. 20-10377, ––– F.3d –––, 2021 WL 838266 (5th Cir. March 5, 2021).

In Exeter, a former employee appealed the district court’s decision to grant summary judgment in favor of the defendant employer on the grounds that the district court improperly excluded certain evidence and erred in granting summary judgment.  After an initial explanation affirming the district court’s decision, the opinion states, “Having decided the substantive issues, we hasten to add a peripheral-yet-essential point: Judicial records are public records.  And public records, by definition, presume public access.”  Id. at *9.

The Court goes on to explain that, due to the parties’ agreed protective order that the district court entered in the case, “nearly three quarters of the record […] is hidden from public view, for no discernable reason other than both parties wanted it that way.  The public deserves better.”  Id. at *10.  According to the opinion, sealing judicial records for the sole reason that the parties themselves labeled them confidential is concerning because “it is easy to overlook” the court’s duty to protect public access to judicial proceedings and records when parties agree to file documents under seal.  Id. at *11.  “[T]he growing practice of parties agreeing to private discovery and presuming that whatever satisfies the lenient protective-order standard will [not] necessarily satisfy the stringent sealing-order standard[,]” and courts must still consider whether the substantive requirements for filing documents under seal have been met.  Id.

Although the Exeter opinion concedes that there are, at times, good reasons to file documents under seal, “such as protecting trade secrets or the identities of confidential informants[…,] most litigants have no incentive to protect the public’s right of access.”  Id. at *14 (internal citations omitted).

The Exeter opinion may signal a shift away from the era of sealing judicial records by agreement that has given some litigants greater comfort in participating in litigation.  Parties who do not want their documents and information publicly available should now, more than ever, seriously consider whether resolving conflicts through litigation in the courts, or through alternative dispute resolution or some other method out of the public eye, is preferable.