In a recent published opinion, the Eleventh Circuit Court of Appeals affirmed a district court’s decision to unseal unguarded, opinionated emails produced in discovery by a defendant entity involved in a change in the liver allocation policy authorized by the National Organ Transplant Act because the plaintiff hospitals had attached them to a brief in support of their motion for preliminary injunction, making them “judicial records…open to the public.” Callahan v United Network for Organ Sharing, 17 F. 4th 1356 (11th Cir. 11/17/21).
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Congress enacted the National Organ Transplant Act to ensure a uniform national policy regarding organ donations. This Act authorized a partnership between the federal government and private professionals involved in organ donation. For 35 years the United Network for Organ Sharing (“UNOS”) has overseen that partnership through a contract with the Department of Health and Human Services (“HHS”). UNOS works with the organ transplant community to generate policies that equitably allocate organs among potential recipients.Three years ago UNOS approved a new liver allocation policy that changed the geographic parameters which affected which patients receive donated organs. Because the new policy meant a shift in who would receive donated organs, some hospitals and patients who disliked the change sued UNOS and HHS, alleging violations of the Administrative Procedures Act and the due process clause of the Fifth Amendment. The plaintiffs sought a preliminary injunction based on the APA violations, which was denied by the district court and affirmed on interlocutory appeal. The Circuit remanded the case for development of the other claims. On remand, the district court ordered limited discovery and allowed the plaintiffs to file a supplemental brief in support of their request for injunctive relief.After delaying production of documents until ordered by the district court to do so, UNOS produced requested communications between its top-level personnel and outside policymakers. These documents included several “unguarded” emails expressing personal opinions about the relative merits of living in different regions of the United States. The plaintiffs attached these documents to their supplemental brief, asserting that they demonstrated “bad faith and improper behavior” in UNOS’s policymaking process and that they should be considered as proof the policy change was arbitrary, capricious and the result of a denial of due process. Pending its own review, the district court put the brief and attached document under provisional seal, blocking them from public review. After review, the district court still denied the preliminary injunction but found the documents were part of the court’s record and likely relevant to other issues in the case. In response to that finding, the plaintiffs moved to unseal the brief and documents, which was granted. UNOS appealed the unsealing order to the Court, which affirmed.
The Court first addressed whether it had jurisdiction to rule on an appeal of an interlocutory order and determined that it did under the collateral order doctrine. To qualify for this exception, the order must (1) conclusively decide the contested question, (2) resolve an important issue which was separate from a ruling on the merits, and (3) be effectively unreviewable on appeal from the final judgment. These criteria were met by the unsealing order, with the Court noting that once the records were unsealed as judicial records, they would immediately be in the electronic public domain and would never be private again; a later appeal would be ineffective, so the collateral order doctrine allowed immediate review.The Court’s decision on the merits of unsealing was founded on the Circuit’s long-standing and unwavering support of the common-law right of access to judicial proceedings. This access has been tempered to some extent with regard to discovery materials, when the materials are provided to the court in support of a discovery motion, rather than presented on the merits of an issue before the court. In the former setting the documents are not subject to the common-law right; in the latter they are, since they might inform the court’s ruling on a substantive motion. Here, the documents were presented in support of the preliminary injunction motion, making them part of the judicial record.The Court rejected arguments put forth by UNOS that since the documents did not support the ultimate denial of the motion, they were not essential to the dispositive ruling. Circuit precedent considers all documents filed in support of or opposition to a ruling part of the judicial record. Moreover, a party requesting the unsealing need not establish the court relied on the documents to resolve the argument. Once submitted by any party, for or against the motion, documents are part of the judicial record, subject to the right of public access.The Court recognized that the right to access was not absolute, with a court required to evaluate whether good cause existed to exclude documents from view. The Court reiterated a number of factors which weighed on the necessary balancing of competing interests, among them relative harm from disclosure or nondisclosure, the reliability of the information in the documents, whether trade secrets or proprietary information was involved, the availability of less onerous alternatives to sealing the documents, and whether the use of the documents was a bad faith tactic. Since the district court’s weighing of those factors was a discretionary ruling, the Court could only overrule it only if it was an abuse of discretion and it found no abuse here. It addressed UNOS’s arguments on the balancing test with a succinct statement: “But UNOS’s reasoning boils down to a desire to keep indiscreet communications out of the public eye, which is not enough to satisfy our standard for good cause.” The presumption of public access was not rebutted and the order to unseal was affirmed.
The open, public nature of our judicial proceedings is critical to bolster the public trust that all these proceedings are fairly conducted, that judicial officers are impartial, and that the developed rules of law are followed. The Eleventh Circuit’s published opinion reinforces how broadly the presumption that all parts of judicial records are open to view is construed. All courts should be vigilant in protecting the right to access, only filing documents under seal when the party requesting the sealing has shown legitimate good cause to protect documents from view. Here, the court itself had sealed the documents, pending its review, but the burden to maintain that sealing was on the party trying to hide them, UNOS, which was required to show good cause to unseat the presumption. Certainly, just embarrassment was insufficient.Often parties enter into pre-discovery protective stipulations (often ordered by the court) which allow parties to produce documents marked “privileged”, which presumptively – between the parties – means that if such documents are later filed with the court, the filing party must move the court to file them under seal. Obviously, such a stipulation was not used in this case. But even if a protective order was in place, the party seeking to keep such documents from the public view still has the burden of showing good cause to seal. Vigilant courts will not rubber-stamp the sealing request and advocates should be prepared to demonstrate why factors balance against public view.
This review was written by the Hon. Meredith Jury (U.S. Bankruptcy Judge, C.D., CA, ret.), a member of the ad hoc group. Thomson Reuters holds the copyright to these materials and has permitted the Insolvency Law Committee to reprint them. This material may not be further transmitted without the consent of Thomson Reuters.