A new decision by the Fourth Circuit underscores the public's first amendment right to know what happens in the course of a lawsuit in federal court. It's also a reminder that secret papers that you so confidently filed under seal may not stay that way.

The Case

Since 2008, the Consumer Product Safety Commission has published an online database of "reports of harm". The reports aim to alert consumers to dangerous products.

The CPSC gave notice to the maker of a product of the Commission's intent to disclose a report "that attributes the death of an infant to a product manufactured and sold by Company Doe." Company Doe v. Public Citizen, No. 12-2209, slip op. at 3 (4th Cir. Apr. 16, 2014). Company Doe — not its real name — filed suit in the District of Maryland to enjoin the CPSC from doing what it intended. The district court — "regrettably" in the phrasing of the main Fourth Circuit opinion as well as of the concurring judge — chose not only to grant the injunction but also to put under seal (and therefore keep from the public) just about everything relating to the case, starting with the plaintiff product maker's name.

The Ruling

The court spent 61 pages explaining how the district court went wrong. A few quotes capture the panel's unhappiness with their colleague's extreme measures to protect Company Doe:

• "[I]t would be anomalous to conclude that the First Amendment right of access [to court records] applies to materials that formed the basis of the district court's decision ruling on a summary judgment motion but not the court's opinion itself." Id. at 42.
• "[T]here is a more repugnant aspect to depriving the public and press access to docket sheets: No one can challenge closure of a document or proceeding that is itself a secret." Id. at 44.
• "A corporation very well may desire that the allegations lodged against it in the course of litigation be kept from public view to protect its corporate image, but the First Amendment right of access does not yield to such an interest." Id. at 46.
• "[W]e find no credible evidence to support Company Doe's fear that disclosure of the challenged report of harm and the facts of this case would subject it to reputational or economic injury, particularly in light of the fact that the district corut's entry of judgment in favor of Company Doe vindicated the company and its product." Id. at 48.
• "We are not blind to the fact that a corporation's image or reputation may diminish by being embroiled in litigation against the government over the safety of one of its products. That is the nature of public litigation." Id. at 50.
• The first amendment right to petition the government "does not provide for a right to petition the courts in secret." Id. at 51.
• "But the public right of access under the First Amendment and common law is not conditioned upon whether a litigant wins or loses." Id.at 55.
• "We therefore hold that, when a party seeks to litigate under a pseudonym, a district court has an independent obligation to ensure that extraordinary circumstances support such a request by balancing the the party's stated interest in anonymity against the public's interest in openness and any prejudice that anonymity would pose to the opposing party." Id.at 58.

The panel reversed the district court's ruling and remanded the case with instructions to unseal the record in its entirety.

 What It Means

Company Doe serves as a reminder that the first amendment and the common law both require open public access to the contents of courts' files. It also makes clear that the requirement applies to everything from the court's docket sheet to the parties' pleadings, motions, and supporting exhibits as well as to the court's orders and opinions.

Those of us who handle lawsuits don't often think about the presumption of openness. Judges routinely sign protective orders that allow the opposite — the filing of papers under seal and sometimes even without a description of what they consist of or the relief they seek. But if push comes to shove you'll have to justify the secrecy. Company Doe found that out the hard way.