Third Circuit Offers Reminder that Pansy Does Not Govern Sealing of Documents

The Third Circuit has clarified the standard for sealing documents filed with a court, emphasizing in In re Avandia that litigants who wish to prevent public access to such documents face a more exacting standard than litigants pursuing a protective order under Fed. R. Civ. P. 26.

In connection with its motion for summary judgment as to consumer protection claims filed by two health plans, GlaxoSmithKline (GSK) filed certain documents under seal and sought to maintain the confidentiality of those documents after the plans appealed the District Court’s order granting summary judgment to GSK. The District Court granted GSK’s sealing motions in significant part, and the plans appealed.

The Third Circuit held that, in ordering the documents to remain sealed, the District Court incorrectly applied the standard, articulated in Pansy v. Stroudsburg, for preserving the confidentiality of discovery materials under Rule 26. In so doing, the Third Circuit opined, the District Court failed to recognize the “strong presumption” of public access that applies to documents filed on the court’s public docket.

The Third Circuit held that the District Court should have applied the more exacting common-law right-of-access standard to the motions for continued confidentiality. That standard “begins with a thumb on the scale in favor of openness” and requires the party seeking to seal court records to show that disclosure will work a clearly defined and serious injury. A court analyzing a motion to seal documents filed on a public docket must articulate “compelling, countervailing interests to be protected,” make specific findings as to the effects of disclosure, and specifically delineate the injury to be prevented. To that end, the Third Circuit held, a court must conduct a document-by-document review, which the District Court failed to do.

Importantly, the Third Circuit explained why the Pansy factors do not displace the common-law right-of-access standard and “are not sufficiently robust for assessing the public’s right to access judicial records.” Although the Pansy factors may provide useful guidance for courts, the Third Circuit observed, some of them “are incompatible” with the law concerning the common-law right of public access. For example, while the Pansy factors weigh whether disclosure will cause embarrassment, concern for a company’s image or reputational injury is not sufficient to rebut the presumption of public access. Furthermore, although the Pansy factors assess whether the information is sought for a legitimate purpose, the motive of the party seeking access to court records is irrelevant under the common-law right of public access.

The Third Circuit’s decision in In re Avandia highlights how important it is for litigants to assess in the first instance whether it is absolutely necessary to include sensitive information in documents to be filed on the docket. Such information should be included in publicly filed documents only if it is essential to the arguments being made. If such information must be included, litigants should assure themselves, pre-filing, that they can articulate a compelling interest and a clearly defined and serious injury that are sufficient to rebut the presumption of public access.

Jason R. Halpin, an Associate in the Gibbons Commercial & Criminal Litigation Department, authored this post.
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