'Oliner v. Kontrabecki': The 9th Circuit Reminds Parties Of The Potential Risks Of Filing Sensitive Documents Under Seal In Court

The recent decision of Oliner v. Kontrabecki, 745 F.3d 1024 (9th Cir. 2014) highlights the potential risks of filing sensitive documents under seal in court. In Oliner, the parties agreed to seal all documents related to the proceedings in order to avoid embarrassment, annoyance and a negative impact on the defendant's business endeavors. Nevertheless, the district court denied the parties' joint request to seal the record, and the 9th Circuit Court of Appeals affirmed.

Oliner shows that the final word on whether documents can be filed under seal or remain under seal rests with the courts, not the parties. It also underscores that the parties' sensitivities in wanting court-filed materials kept confidential and out of public view are not determinative in whether sealing requests will be granted or upheld. A careful evaluation therefore must be made concerning the relevant statutory or substantive law dealing with sealed documents before a decision is made to file confidential or sensitive information with a court.

Background Legal Principles

Courts expressly recognize the public's First Amendment and common law right of access to public documents, including judicial records. See, e.g., Oliner, 745 F.3d at 1025-26; Universal City Studios, Inc. v. Super. Ct., 110 Cal. App. 4th 1273, 1280 (2003). Notably, even non-parties may intervene to challenge the propriety of a sealing order, provided they satisfy constitutional standing requirements. Company Doe v. Public Citizen, 2014 WL 1465728, at *14 (4th Cir. Apr. 16, 2014). Given the strong presumption of public access, even parties' agreements to file documents under seal do not guarantee that a court will grant a request to seal. See Oliner, 745 F.3d 1024.

And, even if a request to seal is granted, a court may later order previously sealed documents to be unsealed. See, e.g., Company Doe, 2014 WL 1465728, at *23 (holding a district court sealing order violated the public right of access); see also In re Pradaxa (Diabigatran Etexilate) Products Liability Litigation, 2014 WL 321656, at *4 (S.D. Ill. Jan. 29, 2014) (ordering a German drug maker to de-designate 85 documents previously marked as confidential and ordering the court clerk to unseal the documents).

Similarly, courts may find that secret or confidential information becomes "stale" over time and thus rule that a previous confidential designation no longer applies. See Salomon Smith Barney, Inc. v. HBO & Co., 2001 WL 225040, at *2 (S.D.N.Y. Mar. 7, 2001) (although there may have been reasons to mark documents as confidential at the time they were generated, there was insufficient cause shown...