The opinion of the court was delivered by: Joe Billy McDade United States District Judge
Before the Court is Defendant, Mitsubishi Motor Manufacturing of America, Inc.'s ("MMNA") Motion for Leave to File Under Seal its Motion for Summary Judgment and supporting exhibits [Doc. #80]; and Plaintiff, Larry Little's ("Little") Motion to Allow Use of Designated Material Without Redaction or Other Protective Measures [Doc. #76]. For the reasons that follow, MMNA's motion will be granted in part and denied in part; while, Little's motion will be denied.
In support of its Motion for Leave to File Under Seal, MMNA directs this Court to the Protective Order issued by Magistrate Judge Byron G. Cudmore in the instant case on September 23, 2004 [Doc. #21], and later amended by Text Order on September 22, 2005. See [Doc. #63]. In issuing the Protective Order in question, Judge Cudmore pointed out that "[t]he Court [was] tak[ing] into account the desires of the parties to permit discovery in this case to proceed unimpeded to the fullest extent consistent with the applicable discovery rules, while avoiding unnecessary disputes over the confidential nature of information provided in response to discovery requests." [Doc. #21, pg. 2]. With this purpose in mind, Judge Cudmore concluded that a protectable interest existed in "MMNA's internal procedures and employee records," making it "confidential information" not subject to public disclosure. See [Doc. #21, pg. 2].
MMNA, however, now intends to rely on the same information that it has requested the Court to deem "confidential" in support of its motion for summary judgment. In doing so, MMNA seeks leave of court to file under seal its entire motion along with numerous attached exhibits. This, however, the Court cannot permit.
Rule 26(c) of the Federal Rules of Civil Procedure authorizes a district court upon a showing of "good cause" to enter an order to protect a party or nonparty from coercive discovery that may lead to "annoyance, embarrassment, oppression, or undue burden or expense, including . . . that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way." Fed. R. Civ. P. 26(c)(7). "Although the Rule contains no specific reference to privacy or to other rights or interests that may be implicated," the Supreme Court has held that "such matters are implicit in the broad purpose and language of the Rule." Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 n21 (7th Cir. 1984).
However, "the concerns that underlie Rule 26(c) --- namely protection from involuntary disclosure by a party or person 'from whom discovery is sought'" --- are of no implication here. In re Cont'l Illinois Sec. Litig., 732 F.2d 1302, 1310 (7th Cir. 1984) (emphasis added). "[T]his is not a case in which the recipient of protected discovery material introduced it into evidence;" rather, the so-called "confidential information" contained in MMNA's motion for summary judgment and attached exhibits is being "voluntarily offered into evidence by a party whose possession of the information in no way depended on use of court process." Id. at 1311-12 (emphasis in original). Thus, MMNA cannot simply rely on the Protective Order alone to justify filling under seal its entire motion for summary judgment; this in essence would be like MMNA asking this Court to protect it from itself.
Furthermore, while recognizing that blanket protective orders are invalid, the Seventh Circuit in Citizens First Nat'l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 946 (7th Cir. 1999), nevertheless concluded that a court need not determine "good cause" on a "document-by-document basis" as long as the parties are acting in "good faith" in deciding which parts of the record should be deemed confidential. Id. at 945-46. In reaching this conclusion, the Seventh Circuit reasoned that requiring a court to make multiple "good cause" determinations during pretrial discovery "might impose an excessive burden on the district judge or magistrate judge[,]" especially in cases were there are thousands of documents to be reviewed. Id. at 946.
But, just because information or a document has been deemed provisionally confidential to simplify discovery does not necessarily mean that it will be deemed confidential forever. See Baxter Int'l, Inc. v. Abbott Labs., 297 F.3d 544, 547 (7th Cir. 2002); Union Oil Co. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000). "Rule 26(c) protective orders control discovery of materials, not introduction of material into evidence." In re Cont'l Illinois Sec. Litig., 732 F.2d at 1310. As a result, the ordinary showing of "good cause" which is adequate to protect discovery material from public disclosure cannot alone justify protecting such material after relied upon by the parties to advance their arguments and claims in court. See Poliquin v. Garden Way, 989 F.2d 527, 533 (1st Cir. 1993).
Therefore, if MMNA believed that the Protective Order in question would allow it to file under seal all information or documents previously designated "confidential" by the parties during pretrial discovery, even after introduced into evidence in a dispositive motion for summary judgment, that belief was misguided. See In re Cont'l Illinois Sec. Litig., 732 F.2d at 1311. Although the Protective Order does instruct the parties to "take whatever steps are necessary to eliminate or minimize the risk of public disclosure" to "confidential information" submitted to the Court, see [Doc. #21, pg. 11], it does not grant the parties an automatic right to have all such material in support of a motion for summary judgment filed under seal. In fact, the Seventh Circuit has previously held that protective orders that purport to seal documents beyond the pretrial discovery phase are indeed invalid. See Citizens First Nat'l Bank, 178 F.3d at 945 (citing Seattle Times Co., 467 U.S. at 36-37 (holding that Rule 26(c) protective orders should be "limited to the context of pretrial civil discovery")).
Nevertheless, the Protective Order issued by Judge Cudmore clearly states that "[t]he Court may, at a later date in its discretion, order certain information filed by the parties under seal to be made public and part of the judicial record." [Doc. #21, pgs. 2-3]. Therefore, to the extent that the Protective Order can in anyway be construed to allow the parties to file under seal all information previously designated confidential, this Court invokes its discretionary power to order that certain of the so-called "confidential information" be made public and part of the judicial record as discussed below.
This is because unlike mere discovery materials, there is a "long-recognized presumption in favor of public access to judicial records . . . ." In re Cont'l Illinois Sec. Litig., 732 F.2d at 1308 (reiterating that the public's right of access to judicial records is of a constitutional magnitude and is fundamental to a democratic state); see also Citizens First Nat'l Bank, 178 F.3d at 945 (explaining that "there is no tradition of public access to discovery materials"). As the Seventh Circuit has recently reiterated:
What happens in the federal courts is presumptively open to public scrutiny. Judges deliberate in private but issue public decisions after public arguments based on public records. The political branches of government claim legitimacy by election, judges by reason. Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat and requires rigorous justification.
Hicklin Eng'g, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006). Therefore, "[s]ecrecy is fine at the discovery stage, before the material enters the judicial record[;]" but, once discovery material (whether previously deemed confidential or not) is filed with the court and becomes the basis of judicial action, it is normally a matter of public concern to be placed in the public record and subject to public scrutiny. See Baxter Int'l, Inc., 297 F.3d at 545-46; Union Oil Co., 220 F.3d at 568.
This is not to say, however, that the presumption of public access to judicial records is absolute. See Jessup v. Luther, 277 F.3d 926, 928 (7th Cir. 2002). But, "very few categories of documents are kept confidential once their bearing on the merits of a suit has been revealed." Baxter Int'l, 297 F.3d at 545-46. This, the Seventh Circuit has made clear by "insist[ing] that litigation be conducted in public to the maximum extent consistent with respecting trade ...