Argued September 10, 2013
Appeal from the United States District Court for the Southern District of Illinois. No. 10-cv-188-JPG -- J. Phil Gilbert, Judge.
For City of Gillespie, Illinois, City of Greenville, Illinois, Village of Coulterville, Illinois, Village of Evansville, Illinois, Village of Farina, Illinois, Plaintiffs: Stephen M. Tillery, Attorney, Korein Tillery, St. Louis, MO.
For Syngenta Crop Protection, Llc, Syngenta AG, Defendants - Appellees: Christopher Macneil Murphy, Attorney, Michael A. Pope, Attorney, Mcdermott, Will & Emery, Chicago, IL.
For Environmental Law And Policy Center, Prairie Rivers Network, Intervenors - Appellants: Howard A. Learner, Attorney, Environmental Law & Policy Center, Chicago, IL.
Before WOOD, Chief Judge, and EASTERBROOK and HAMILTON, Circuit Judges.
Easterbrook, Circuit Judge.
The herbicide atrazine is banned in the European Union but widely used in this nation. The EPA has decided that it is safe; some environmentalists deem it unsafe. Various Midwestern municipalities and water boards charged with filtering public drinking supplies brought this suit against Syngenta, the corporate family that manufactures and distributes the chemical. Those claims were settled. The merits are now irrelevant, but during discovery Syngenta produced many documents. Two environmental groups intervened to assert that the public is entitled to see them.
The intervenors want the court to disclose exhibits filed with plaintiffs' response to Syngenta's motion to dismiss. Many contain internal emails and business deliberations that Syngenta wants to keep private. In a flawed attempt to comply with a protective order shielding discovery materials, plaintiffs had filed the response and its exhibits under seal. But the protective order did not apply to materials filed in connection with a dispositive motion. Pointing to this limitation, the district court eventually unsealed 123 of the exhibits, preserving the seal on 242 that are either legitimately confidential or had not been cited in plaintiffs' papers. (Perhaps the court should have unsealed everything, given the protective order's limited scope, but the intervenors have forfeited such an argument by not raising it.)
The district judge asked plaintiffs why they had filed, but not relied on or even cited, documents that had been produced in discovery under the protective order. Plaintiffs did not offer an explanation. The judge then elected to ignore the uncited documents, announcing that he would " not consult them in making [his] rulings" . City of Greenville v. Syngenta Crop Protection, Inc., (S.D. Ill. July 21, 2011). See Northwestern National Insurance Co. v. Baltes, 15 F.3d 660, 662-63 (7th Cir. 1994). Having decided not to read these documents, the judge observed that they could not have affected his decision and held that they need not be disclosed to the public, because they " can shed no light on the functioning of the Court and the basis for its decisions" . Contending that this approach undermines the presumption of public access to judicial records, intervenors want us to order the uncited documents unsealed.
Discovery material can be shielded from the public eye. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). Once filed with the court, however, " [d]ocuments that affect the disposition of federal litigation are presumptively open to public view ... unless a statute, rule, or privilege justifies confidentiality." In re Specht, 622 F.3d 697, 701 (7th Cir. 2010). This transparency " enable[s] interested members of the public ... to know who's using the courts, to understand judicial decisions, and to monitor the judiciary's performance of its duties." Goesel v. Boley International (H.K.) Ltd., 738 F.3d 831, 833 (7th Cir. 2013) (chambers opinion) (collecting citations). In short, litigants who enjoy publicly subsidized dispute resolution should expect public oversight. See Union Oil Co. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000).
Tension between secrecy of discovery and disclosure of the record is inevitable; parties are tempted to use the latter to undermine the former. To resolve this tension, we have limited the presumption of public access to materials that affect judicial decisions. District court judges need not release every document that has " crept into the record" . Goesel, 738 F.3d at 833. That would eviscerate Seattle Times. Requiring judges to vet every document in the record to determine whether it is covered by a privilege or some other basis of confidentiality would needlessly increase the district courts' workload. The ...