A U.S. appeals court judge told me a few years ago that private contracts between businesses should call for settling disputes through bench trials rather than by arbitration.

But neither the judge nor I thought to mention a factor that may matter more than the relative quality of justice in courts versus private arbitration. As a recent 2-1 ruling by the Ninth Circuit just reminded us, federal courts strongly favor public access to case records — even if the records include deeply embarrassing documents that a party produced in discovery.

Class case over defect

The dispute arose in a class action case against Chrysler for a defect — in its Totally Integrated Power Module-7 — that sometimes caused cars not to start and to stall. After receiving from Chrysler internal documents relating to the defect, class plaintiffs moved for a preliminary injunction that would require Chrysler to inform people who drove cars with the defective TIPM-7 about the safety concerns.

The district court allowed the plaintiffs and Chrysler to file the internal documents under seal, finding “good cause” for the secrecy.

But as a result of the redactions, the plaintiffs’ brief looks in places like a tantalizing Swiss cheese. For instance:


The court heard argument on the motion for preliminary injunction but denied it without prejudice.

That did not please the non-party Center for Auto Safety. It moved the district court to allow it to intervene for the purpose of seeking to unseal the internal documents. CAS cited the importance of open courts generally and the public’s first amendment right to know what goes on in public courts.

The district court did permit CAS to intervene. But it rejected the motion to unseal without prejudice.

CAS’s appeal

CAS appealed the ruling to the Ninth Circuit, which proved a receptive audience. The panel ruled 2-1 that the district court had used the wrong test for deciding whether to seal (or unseal) documents in the context of a preliminary injunction application.

True, the panel conceded, Ninth Circuit precedent authorized district courts to put sensitive documents under seal on a showing of nothing more than “good cause” unless the parties filed them in connection with a “dispositive” motion. But:

The focus in all of our cases is on whether the motion at issue is more than tangentially related to the underlying cause of action. . . . It is true that nondispositive motions are sometimes not related, or only tangentially related, to the merits of a case, as in Phillips [ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1213–14 (9th Cir. 2002)]. But plenty of technically nondaccispositive motions—including routine motions in limine—are strongly correlative to the merits of a case.

The Center for Auto Safety v. Chrysler Group, LLC, No. 15-55084, sip op. at 12 (9th Cir. Jan. 11, 2016).

The majority’s “more than tangentially related to the underlying cause of action” test disgruntled the dissenter. Circuit Judge Sandra Ikuta accused the majority of “invent[ing] a new rule, namely that a party cannot keep records under seal if they are attached to any motion that is “more than tangentially related to the merits of a case,” Maj. op. at 17, unless the party can meet the “stringent standard” of showing that compelling reasons support secrecy, Maj. op. at 8.” Id. at 23 (Ikuta, J., dissenting). “Because this decision overrules circuit precedent and vitiates Rule 26(c) of the Federal Rules of Civil Procedure,” she wrote, “I strongly dissent.” Id.


The Ninth Circuit’s ruling in Center for Auto Safety loosens the test for sealing and unsealing documents that parties may produce in discovery. (Although we don’t know what the Chrysler memos, emails, and presentation said, we may safely assume that they paint an unflattering picture of Chrysler’s car-making prowess.) You must show a “compelling need” to place or maintain one of your documents under seal if you or your opponent files something that relates “more than tangentially to the merits”.

By making public disclosure of internal documents more likely, Center for Auto Safety renders lawsuits even less attractive than private arbitration as a means for resolving disputes. As the Third Circuit noted:

Confidentiality is a natural outgrowth of the status of arbitrations as private alternatives to government-sponsored proceedings. Indeed, we would be surprised to find that private arbitrations—taking place before private arbitrators in private venues—had historically been accessible to the public.

Delaware Coalition for Open Government, LLC v. Strine, 733 F.3d 510,518 (3d Cir. 2013).

I end up thinking that parties shouldn’t have the ability to keep damaging documents secret in arbitration, at least to the extent the parties use them to contest the merits. The same presumption of openness should apply there as it does in court. That seems especially true in consumer and employment cases, in which a large imbalance exists in resources and bargaining power.

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Photo of Barry Barnett Barry Barnett

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck…

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck Redden).

Barnett is a Fellow in the American College of Trial Lawyers, and Lawdragon has named him one of the top 500 lawyers in the United States three years in a row. Best Lawyers in America has honored him as “Lawyer of the Year” for Bet-the-Company Litigation (2019 and 2017) and Patent Litigation (2020) in Houston. Based in Texas and New York, Barnett has tried complex business disputes across the United States.

Barnett’s background, training, and experience make him indispensable to his clients. The small-town son of a Texas roughneck and grandson of a Texas sharecropper, Barnett “developed an unusual common sense about people, their motivations, and their dilemmas,” according to former client Michael Lewis.

Barnett has been historically recognized for his effectiveness and judgment. His peers chose him, for example, to the American College of Trial Lawyers and American Law Institute. His decades of trial and appellate work representing both plaintiffs and defendants have made him a master strategist and nimble tactician in complex disputes.

Barnett focuses on enforcement of antitrust laws, the “Magna Carta of free enterprise,” in Supreme Court Justice Thurgood Marshall’s memorable phrase. “Barry is one of the nation’s outstanding antitrust lawyers,” according to Joseph Goldberg, a member of the Private Antitrust Enforcement Hall of Fame. Named among Texas’s top ten antitrust lawyers of 2023, Business Today calls Barnett a “trailblazer” among the “distinguished legal minds” who “dedicate their skill and expertise to the maintenance of healthy competition in various sectors” of the Lone Star State’s booming economy. Barnett is also adept in energy and intellectual property matters and has battled for clients against a Who’s Who list of corporate behemoths, including Abbott Labs, Alcoa, Apple, AT&T, BlackBerry, Broadcom, Comcast, Dow, JPMorgan Chase, Samsung, and Visa.

Barnett commands a courtroom with calm and credibility and “is the perfect lawyer for bet the company litigation,” said Scott Regan, General Counsel of former client Whiting Petroleum. His performance before the Supreme Court in Comcast Corp. v. Behrend prompted the Court to withdraw the question on which it had granted review. The judge in a trial involving mobile phone technology called Barnett “one of the best” and that his opening statement the finest he had ever seen. Another trial judge told Barnett minutes after a jury returned a favorable verdict against the county’s biggest employer that he was one of the two best trial lawyers he’d ever come across—adding that the other one was dead.

A versatile trial lawyer, Barnett knows how to handle a case all the way from strategic pre-suit planning to affirmance on appeal. He’s tried cases to verdict and then briefed and argued them when they went before appellate courts, including the Second, Third, Fifth, and Tenth Circuits, the Supreme Court of Louisiana, and (in the case of Comcast Corp. v. Behrend) the Supreme Court of the United States.

Barnett is a sought-after public speaker, often serving on panels and talking about topics like the trials of antitrust class actions and techniques for streamlining complex litigation. He also comments on trends in commercial litigation and the implications of major rulings for outlets such as NPR, Reuters, Law360, Corporate Counsel, and The Dallas Morning News. He’s even appeared in a Frontline program about underfunding of state pensions, authored chapters on “Fee Arrangements” and “Techniques for Expediting and Streamlining Litigation” (the latter with Steve Susman) in the ABA’s definitive treatise on Business and Commercial Litigation in Federal Courts, 5th, and commented on How Antitrust Enforcers Might Think Like Plaintiffs’ Lawyers.

Clients and other hard graders have praised Barnett for his courtroom skills and legal acumen.

A client in a $100 million oil and gas case, which Barnett’s team won at trial and held on appeal, said Barnett and his team “presented a rare combination of strong legal intellect, common sense about right and wrong, and credibility in the courtroom.” David McCombs at Haynes and Boone said Barnett “has a natural presence that goes over well with juries and judges.”

Even former adversaries give Barnett high marks. Lead opposing counsel in a decade-long antitrust slugfest said “Barry is a highly skilled advocate. He understands what really matters in telling a narrative and does so in a very compelling manner.”

Barnett relishes opportunities to collaborate with all kinds of people. At the Center for American and International Law (CAIL), founded by a former prosecutor at Nuremberg in 1947 and headquartered in the Dallas area, he has served on the Executive Committee, co-chaired the committee that produced CAIL’s first-ever strategic plan, supported CAIL’s Institute for Law Enforcement Administration and other development efforts, and proposed formation of a new Institute for Social Justice Law. CAIL’s former President David Beck said “Barry is extremely bright” and is “very well prepared in every lawsuit or professional task he undertakes.”

Barnett is also a Trustee of the New-York Historical Society, a Sterling Fellow at Yale, a member of the Yale University Art Gallery’s Governing Board, a winner of the Class Award for his work on behalf of his college class, and a proud contributor to the Yellow Ribbon Program at Harvard Law. Barnett’s pro bono work includes leading the trial team representing people who are at greatest risk of severe illness and death as a result of being exposed to the novel coronavirus SARS-CoV-2 while being detained in the Dallas County jail—work for which he received the NGAN Legal Advocacy Fund RBG Award.

At Susman Godfrey, Barnett has served on the firm’s Executive Committee, Employment Committee, and ad hoc committees on partner compensation, succession of leadership, and revision of the firm’s partnership agreement. He also twice chaired the Practice Development Committee.

Barnett understands that clients face many pressures. Managing the stress is important, especially in matters that take years to resolve. He encourages clients to call him whenever they have a question or concern and to keep the inevitable ups and downs in perspective. He wants them to know that he will do his level best to help them achieve their goals. He also strives to foster trust and to make working with him a pleasure.

Cyrus “Skip” Marter, the General Counsel of Bonanza Creek in Denver and a former Susman Godfrey partner and client, said Barnett is “excellent about communicating with clients in a full and honest manner” and can “negotiate for his clients from a position of strength, because he is not afraid to take a case through a full trial on the merits.” Stacey Doré, the President of Hunt Utility Services and a former client, said that Barnett is “an excellent trial lawyer and the person you want to hire for your bet-the-company cases. He is client focused, responsive, and uniquely savvy about trial and settlement strategy.” A New York colleague said, “Barry is a joy to work with as co-counsel. He tackles complex procedural and factual hurdles capably, efficiently, and without drama.”

Barnett’s wide-ranging experience and calm, down-to-earth approach enable him to connect with clients, judges, jurors, witnesses, and even opposing counsel. He grew up in Nacogdoches, Texas. He co-captained his high school varsity football team as an All-East Texas middle linebacker while also serving as the Editor of Key Club’s Texas-Oklahoma District, won the Best Typist award, took the History Team to glory, and sang in the East Texas All Region Choir. As Dan Kelly of client Vistra Corp. put it, Barnett is “a great person to be around.”

Barnett is steady and loyal. He has practiced at Susman Godfrey his entire career. He and his wife Nancy live in Dallas and enjoy spending time in Houston and New York. Their daughter works for H-E-B in Houston, and their son is a Haynes and Boone transactions lawyer in Dallas.

As a member of Ivy League championship football teams in his junior and senior years at Yale and a parent of two Yalies, Barnett has no trouble choosing sides for “The Game” in November. And he knows how important fighting all the way to the end is. On his last play from scrimmage, in the waning minutes of The Game on Nov. 22, 1980, he recovered a Crimson fumble.

Yale won, 14-0.