Public access doctrine

Public access doctrine establishes a right of the public to access documents and proceedings of criminal and civil court cases. The doctrine has its origin in the common law but is strengthened by the First Amendment.

There are several justifications for public access doctrine:

• enhance public confidence in the judiciary.
• allow the public learn about matters affecting them, such as crime.
• courts are part of government and decisions made by the public about government are better when they are informed.

Several decisions have urged courts to require discovery to take place without confidential agreements. See, e.g., Wilk v. American Med. Ass'n, 635 F.2d 1295, 1299 (7th Cir. 1980) (holding that pretrial discovery should take place in public view, without confidentiality, unless there are strong reasons to limit access by the public to the information); Westchester Radiological Ass'n v. Blue Cross/Blue Shield of Greater N.Y., Inc., 138 F.R.D. 33, 36 (S.D.N.Y. 1991) (holding that discovery "should be publicly available whenever possible," unless a good cause is shown for confidentiality); Omega Homes, Inc. v. Citicorp Acceptance Co., 656 F. Supp. 393, 403 (W.D. Va. 1987) (stating that discovery "should be available to the public" unless it falls within one of the limitations of Fed. R. Civ. P. Rule 26(c)).

Fed. R. Civ. P. 26(c)

The Federal Rules of Civil Procedure establish that a protective order may be granted only "for good cause" as follows:

(c) Protective Orders.

(1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending--or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(A) forbidding the disclosure or discovery;

(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;

(C) prescribing a discovery method other than the one selected by the party seeking discovery;

(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;

(E) designating the persons who may be present while the discovery is conducted;

(F) requiring that a deposition be sealed and opened only on court order;

(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and

(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.

See also

• COMMENT: Taming Technology in the Context of The Public Access Doctrine: New Jersey's Amended Rule 1:38, 41 Seton Hall L. Rev. 1071 (2011)
• SECRECY BY CONSENT: THE USE AND LIMITS OF CONFIDENTIALITY IN THE PURSUIT OF SETTLEMENT, 74 Notre Dame L. Rev. 283 (1999).