Center for Auto Safety v. Chrysler Group, LLC , 809 F.3d 1092 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE CENTER FOR AUTO SAFETY, No. 15-55084
Intervenor-Appellant,
D.C. No.
v. 2:13-cv-08080-
DDP-VBK
CHRYSLER GROUP, LLC,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
October 20, 2015—Pasadena, California
Filed January 11, 2016
Before: Sandra S. Ikuta and John B. Owens, Circuit Judges
and William K. Sessions,* District Judge.
Opinion by Judge Owens;
Concurrence by Judge Sessions
Dissent by Judge Ikuta
*
The Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
2 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP
SUMMARY**
Sealed Documents
The panel vacated the district court’s order denying The
Center for Auto Safety’s motions to intervene and unseal
documents filed to support and oppose a motion for
preliminary injunction in a putative class action between
Chrysler Group, LLC and certain named plaintiffs, and
remanded for further proceedings.
A party seeking to seal a judicial record bears the burden
of overcoming a strong presumption in favor of access to
court records by showing “compelling reasons,” and the court
must then balance the compelling interests of the public and
the party seeking to keep the judicial record secret. Under an
exception for sealed materials attached to a discovery motion
unrelated to the merits of a case, a party seeking to seal the
record need only satisfy a less exacting “good cause”
standard. When deciding what test to apply to a motion to
unseal a particular court filing – the presumptive “compelling
reasons” standard or the “good cause” exception – the court
has often deployed the terms “dispositive” and “non-
dispositive.”
The panel presumed that the instant motion for
preliminary injunction was technically nondispositive. The
panel held that public access to filed motions and their
attachments did not depend on whether the motion was
technically “dispositive;” but rather, public access turned on
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 3
whether the motion was more than tangentially related to the
merits of the case. The panel concluded that plaintiffs’
motion for preliminary injunction was more than tangentially
related to the merits. The panel remanded for the district
court to consider the documents under the compelling reasons
standard.
Concurring, District Judge Sessions wrote separately to
express his belief that reversal was warranted even under the
binary approach endorsed by the dissent because the
preliminary injunction at issue was literally “dispositive” of
plaintiffs’ request that Chrysler issue notice to its customers.
Judge Ikuta dissented because she believed that the
majority opinion overruled circuit precedent and vitiated Fed.
R. Civ. P. 26(c). Judge Ikuta would employ the “binary
approach” which holds that the public’s presumed right of
access applied to sealed discovery documents attached to a
dispositive motion, but did not apply to sealed discovery
documents attached to a nondispositive motion.
COUNSEL
Jennifer D. Bennett (argued) and Leslie A. Bailey, Public
Justice PC, Oakland, California, for Intervenor-Appellant.
Thomas H. Dupree, Jr. (argued) and Sarah G. Boyce, Gibson,
Dunn & Crutcher LLP, Washington, D.C.; Kathy A.
Wisniewski, John W. Rogers, and Stephen A. D’Aunoy,
Thompson Coburn LLP, St. Louis, Missouri; Rowena Santos,
Thompson Coburn LLP, Los Angeles, California, for
Defendant-Appellee.
4 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP
OPINION
OWENS, Circuit Judge:
The Center for Auto Safety (CAS) appeals from the
district court’s order denying CAS’s motions to intervene and
unseal documents filed in a putative class action lawsuit
between Chrysler Group, LLC (Chrysler) and certain named
plaintiffs. Because the district court applied the incorrect
standard when evaluating the motion to unseal these
documents, we vacate and remand for further proceedings.
I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
In 2013, plaintiffs filed a putative class action alleging
defects in a part found in certain Chrysler vehicles.1 As part
of the discovery process, the parties entered into a stipulated
protective order. The protective order permitted each party
to designate certain documents as “confidential,” and required
any party that later wished to attach a “confidential”
document to a court pleading to apply to do so under seal.
In 2014, plaintiffs moved for a preliminary injunction to
require Chrysler to notify the proposed class of the alleged
risks its vehicles presented. Plaintiffs and Chrysler attached
“confidential” discovery documents to their memoranda
supporting and opposing the motion. Consistent with the
stipulated protective order, both parties applied to the district
court to file the documents under seal, and the district court
1
We express no opinion on the merits of the underlying lawsuit,
including whether the part in question was defective.
CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 5
granted the motions. The district court eventually denied the
motion for preliminary injunction.
Shortly before the district court denied plaintiffs’ motion
for preliminary injunction, CAS filed motions to intervene
and unseal the “confidential” documents filed to support and
oppose the motion for preliminary injunction. CAS argued
that only “compelling reasons” could justify keeping these
documents under seal, while Chrysler contended that it need
only show “good cause” to keep them from the public’s view.
The district court reviewed the relevant Ninth Circuit case
law and other district courts’ attempts to apply it to a motion
for preliminary injunction. While ordinarily a party must
show “compelling reasons” to keep a court document under
seal, Kamakana v. City & County of Honolulu, 447 F.3d
1172, 1178 (9th Cir. 2006), the district court relied on
language in our cases which provides that when a party is
attempting to keep records attached to a “non-dispositive”
motion under seal, it need only show “good cause,” id. at
1180. While recognizing that “[t]here is little clarity as to
what, exactly, constitutes a ‘dispositive’ motion,” and that our
circuit has not articulated the difference between a dispositive
and nondispositive motion,2 the district court decided to
2
District courts have understandably struggled with our use of the term
“dispositive” in these circumstances. Many courts have applied the
compelling reasons standard to motions for preliminary injunctions or
temporary restraining orders. See United Tactical Sys., LLC v. Real
Action Paintball, Inc., 2015 WL 295584, at *2 (N.D. Cal. Jan. 21, 2015);
Gamez v. Gonzalez, 2013 WL 127648, at *2 (E.D. Cal. Jan 9, 2013);
Melaluca Inc. v. Bartholomew, 2012 WL 5931690, at *2 (D. Idaho Nov.
27, 2012); FTC v. AMG Servs., Inc., 2012 WL 3562027, at *2 (D. Nev.
Aug 15, 2012); Apple, Inc. v. Samsung Elecs. Co., 2012 WL 2936432, at
*3 (N.D. Cal. July 18, 2012); Selling Source, LLC v. Red Rivers Ventures,
6 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP
read “dispositive” to mean that unless the motion could
literally lead to the “final determination on some issue,” a
party need show only good cause to keep attached documents
under seal. That was especially true in this case, the district
court believed, as the motion for preliminary injunction here
sought “notice of potential problems . . . to thousands of
purchasers,” and “was not a motion to temporarily grant the
relief ultimately sought in [the] underlying suit.”
Accordingly, the district court found that the motion for
preliminary injunction here was nondispositive, applied the
good cause standard to the documents filed under seal, and
concluded that good cause existed to keep them from the
public’s view.3
LLC, 2011 WL 1630338, at *4–5 (D. Nev. Apr. 29, 2011); B2B CFO
Partners, LLC v. Kaufman, 2010 WL 2104257, at *1 (D. Ariz. May 25,
2010); Dish Network LLC v. Sonicview USA, Inc., 2009 WL 2224596, at
*6 (S.D. Cal. July 23, 2009); Yountville Investors, LLC v. Bank of Am.,
2009 WL 411089, at *2 (W.D. Wash. Feb. 17, 2009).
Others, like the district court here, Velasco v. Chrysler Grp., LLC,
2014 WL 7404590, at *6 (C.D. Cal. Dec. 30, 2014), have applied the good
cause standard. See Hanginout, Inc. v. Google, Inc., 2014 WL 1234499,
at *1 (S.D. Cal. Mar. 24, 2014); In re Nat’l Sec. Telecomm. Records Litig.,
2007 WL 549854, at *3–4 (N.D. Cal. Feb. 20, 2007); Reilly v. MediaNews
Grp. Inc., 2007 WL 196682, at *1–2 (N.D. Cal. Jan. 24, 2007).
The dissent argues that our decision is unfair to Chrysler, as Chrysler
should have been able to “confidently rely on the district court’s protective
order” to shield these documents from public scrutiny. Dissent at 33. The
sharp disagreement in our district courts about the application of our
precedent to motions for preliminary injunction suggests that the result
here is neither unfair nor unexpected.
3
Because we are vacating the order denying the motion to unseal the
documents and remanding this case so the district court can apply the
“compelling reasons” standard, we also vacate the district court’s order
CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 7
II. STANDARD OF REVIEW
We review a district court’s decision to unseal court
records for an abuse of discretion. Blum v. Merrill Lynch
Pierce Fenner & Smith, Inc., 712 F.3d 1349, 1352 (9th Cir.
2013). Where “the district court’s decision turns on a legal
question, however, its underlying legal determination is
subject to de novo review.” San Jose Mercury News, Inc. v.
U.S. Dist. Court—N.D. Cal. (San Jose), 187 F.3d 1096, 1100
(9th Cir. 1999).
“We have jurisdiction because an order denying a motion
to unseal or seal documents is appealable either as a final
order under 28 U.S.C. § 1291 or as a collateral order.” Oliner
v. Kontrabecki, 745 F.3d 1024, 1025 (9th Cir. 2014) (internal
quotation marks and citation omitted).
III. ANALYSIS
A. Standard to File Documents Under Seal
“It is clear that the courts of this country recognize a
general right to inspect and copy public records and
documents, including judicial records and documents.”
Nixon v. Warner Commnc’ns Inc., 435 U.S. 589, 597 (1978).
Following the Supreme Court’s lead, “we start with a strong
presumption in favor of access to court records.” Foltz v.
State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir.
2003). The presumption of access is “based on the need for
federal courts, although independent—indeed, particularly
because they are independent—to have a measure of
denying the motion to intervene, and remand this question to the district
court to examine anew.
8 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP
accountability and for the public to have confidence in the
administration of justice.” United States v. Amodeo (Amodeo
II), 71 F.3d 1044, 1048 (2d Cir. 1995); see also Valley Broad.
Co. v. U.S. Dist. Court—D. Nev., 798 F.2d 1289, 1294 (9th
Cir. 1986) (explaining that the presumption of public access
“promot[es] the public’s understanding of the judicial process
and of significant public events”).
Accordingly, “[a] party seeking to seal a judicial record
then bears the burden of overcoming this strong presumption
by meeting the ‘compelling reasons’ standard.” Kamakana,
447 F.3d at 1178. Under this stringent standard, a court may
seal records only when it finds “a compelling reason and
articulate[s] the factual basis for its ruling, without relying on
hypothesis or conjecture.” Id. at 1179. The court must then
“conscientiously balance[] the competing interests of the
public and the party who seeks to keep certain judicial
records secret.” Id. (quoting Foltz, 331 F.3d at 1135)
(alteration in original) (internal quotation marks omitted).
What constitutes a “compelling reason” is “best left to the
sound discretion of the trial court.” Nixon, 435 U.S. at 599.
Examples include when a court record might be used to
“gratify private spite or promote public scandal,” to circulate
“libelous” statements, or “as sources of business information
that might harm a litigant’s competitive standing.” Id. at
598–99.
Despite this strong preference for public access, we have
“carved out an exception,” Foltz, 331 F.3d at 1135, for sealed
materials attached to a discovery motion unrelated to the
merits of a case, see Phillips ex rel. Estates of Byrd v. Gen.
Motors Corp., 307 F.3d 1206, 1213–14 (9th Cir. 2002).
Under this exception, a party need only satisfy the less
exacting “good cause” standard. Foltz, 331 F.3d at 1135.
CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 9
The “good cause” language comes from Rule 26(c)(1), which
governs the issuance of protective orders in the discovery
process: “The court may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense . . . .” Fed. R. Civ.
P. 26(c). “Applying a strong presumption of access to
documents a court has already decided should be shielded
from the public would surely undermine, and possibly
eviscerate, the broad power of the district court to fashion
protective orders,” and thereby undermine Rule 26(c).
Phillips, 307 F.3d at 1213; see also Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 33 (1984) (explaining that discovery
is largely “conducted in private as a matter of modern
practice,” so the public is not presumed to have a right of
access to it); Anderson v. Cryovac, Inc., 805 F.2d 1, 13 (1st
Cir. 1986) (“There is no tradition of public access to
discovery, and requiring a trial court to scrutinize carefully
public claims of access would be incongruous with the goals
of the discovery process.”).
When deciding what test to apply to a motion to unseal a
particular court filing—the presumptive “compelling reasons”
standard or the “good cause” exception—we have sometimes
deployed the terms “dispositive” and “non-dispositive.” For
example, in Phillips, the Los Angeles Times moved to unseal
confidential settlement information that General Motors
produced in discovery under a protective order and was
subsequently attached to a discovery sanctions motion.
307 F.3d at 1208–10. The district court granted the motion
to unseal. Id. at 1208–09. In reversing that decision, we
stressed the special role that protective orders play, that
“[m]uch of the information that surfaces during pretrial
discovery may be unrelated, or only tangentially related, to
the underlying cause of action,” and reasoned that it made
10 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP
“little sense to render the district court’s protective order
useless simply because the plaintiffs attached a sealed
discovery document to a nondispositive sanctions motion
filed with the court.” Id. at 1212–13 (quoting in part Seattle
Times Co., 467 U.S. at 33); see also Kamakana, 447 F.3d at
1179–80 (explaining that the sealed records in Phillips were
“not directly relevant to the merits of the case”). Applying
the good cause standard from Rule 26(c) as an exception for
discovery-related motions makes sense, as the private
interests of litigants are “the only weights on the scale.”
Kamakana, 447 F.3d at 1180.
In Foltz, we again discussed “dispositive” and
“nondispositive” motions. We recognized that “[t]here are
good reasons to distinguish between dispositive and
nondispositive motions,” as while discovery-related motions
are often unrelated to the merits of a case, “[t]he same cannot
be said for materials attached to a summary judgment motion
because ‘summary judgment adjudicates substantive rights
and serves as a substitute for trial.’” 331 F.3d at 1135–36
(quoting Rushford v. New Yorker Magazine, 846 F.2d 249,
252 (4th Cir. 1988)). Accordingly, we applied the
“compelling reasons” standard to documents attached to a
motion for summary judgment. Id.; see also Kamakana,
447 F.3d at 1178–80 (reviewing Phillips and Foltz).
Like the district court, Chrysler urges us to read our case
law to limit the “compelling reasons” test to only those cases
in which the motion at issue is literally dispositive, meaning
that it “bring[s] about a final determination.” Black’s Law
Dictionary 540 (10th ed. 2014). This would include motions
to dismiss, for summary judgment, and judgment on the
pleadings, but would not include other motions that go to the
heart of a case, such as a motion for preliminary injunction or
CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 11
a motion in limine. In other words, the public would not be
presumed to have regular access to much (if not most) of the
litigation in federal court, as that litigation rarely falls into the
narrow category of “dispositive.”
Although the apparent simplicity of the district court’s
binary approach is appealing, we do not read our case law to
support such a limited reading of public access.4 Most
litigation in a case is not literally “dispositive,” but
nevertheless involves important issues and information to
which our case law demands the public should have access.
To only apply the compelling reasons test to the narrow
category of “dispositive motions” goes against the long held
interest “in ensuring the public’s understanding of the judicial
process and of significant public events.” Kamakana,
447 F.3d at 1179 (quoting Valley Broad. Co., 798 F.2d at
1295) (internal quotation marks omitted). Such a reading also
contradicts our precedent, which presumes that the
“‘compelling reasons’ standard applies to most judicial
records.” Pintos v. Pac. Creditors Ass’n, 605 F.3d 665,
677–78 (9th Cir. 2009) (emphasis added).
When using the words “dispositive” and “nondispositive,”
we do not believe our court intended for these descriptions to
morph into mechanical classifications. Rather, these
descriptive terms are indicative of when a certain test should
apply. For example, in Kamakana, we wrote that there is a
“good reason[]” why the public interest in accessing
nondispositive motions is not as strong as dispositive
motions: because nondispositive motions “are often
4
Moreover, as previously noted, district courts have sometimes
struggled with this binary approach, and therefore it is not as simple as it
first appears. See supra note 2.
12 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP
‘unrelated, or only tangentially related, to the underlying
cause of action.’” 447 F.3d at 1179 (emphasis added)
(quoting Seattle Times Co., 467 U.S. at 33). This statement
implicitly acknowledges that nondispositive motions are not
always unrelated to the underlying cause of action. The
nondispositive discovery motion in Phillips was unlikely to
be related to the merits, while the motions for summary
judgment in Foltz and Kamakana obviously were. Nothing
in Phillips (or any other case cited by Chrysler or the dissent)
contemplates that the right of public access would be limited
solely to literally dispositive motions, as none of those cases
address the situation in which a nondispositive motion may
be directly related to the merits of the case and where the
“good reason” identified for treating nondispositive motions
differently no longer applies.
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. See Phillips, 307 F.3d at 1212–13; Foltz, 331 F.3d
at 1134–36; Kamakana, 447 F.3d at 1179; Pintos, 605 F.3d
at 678; Oliner, 745 F.3d at 1026. It is true that nondispositive
motions are sometimes not related, or only tangentially
related, to the merits of a case, as in Phillips. But plenty of
technically nondispositive motions—including routine
motions in limine—are strongly correlative to the merits of a
case.5
Particularly relevant here, a motion for preliminary
injunction frequently requires the court to address the merits
5
For example, a motion in limine to admit statements in furtherance of
a conspiracy under Federal Rule of Evidence 801(d)(2)(E) will often spell
out the very conspiracy alleged in a civil RICO complaint. See Kaley v.
United States, 134 S. Ct. 1090, 1111–12 (2014) (Roberts, C.J., dissenting).
CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 13
of a case, which often includes the presentation of substantial
evidence. Stormans v. Selecky, 586 F.3d 1109, 1127 (9th Cir.
2009). A motion for preliminary injunction may even, as a
practical matter, determine the outcome of a case. See, e.g.,
Miller v. Rich, 845 F.2d 190, 191 (9th Cir. 1988) (explaining
how “in this case, the denial of the preliminary injunction
effectively decided the merits of the case” (citation omitted)).
In fact, because motions for preliminary injunctions are so
significant, they are one of the few categories of motions that
may be heard as interlocutory appeals. See id.; see also
28 U.S.C. § 1292. In certain circumstances, an appellate
court may even choose to decide the merits of the case on an
appeal from a motion for preliminary injunction as to the
applicable rule of law. Thornburgh v. Am. Coll. of
Obstetricians & Gynecologists, 476 U.S. 747, 756–57 (1986)
(overruled in part on other grounds by Planned Parenthood
of Se. Pa. v. Casey, 505 U.S. 833 (1992)); Gorbach v. Reno,
219 F.3d 1087, 1091 (9th Cir. 2000) (en banc). For the
purposes of this opinion, however, we assume that the instant
motion for preliminary injunction was technically
nondispositive.6
Under Chrysler’s view, the strong presumption of public
access does not apply to any of the prior examples, but it
would apply to a motion for summary judgment, which may
contain the exact same materials. A motion for discovery
sanctions that requests dismissal as a remedy would be
“dispositive” under Chrysler’s test, while the same motion
attaching the same documents—but seeking a remedy just shy
of dismissal—would be “nondispositive.” Neither our case
6
We do not decide whether a motion for preliminary injunction is
always “nondispositive.”
14 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP
law nor the strong principles of public access to the courts
supports such incongruity.
Nor does the case law of other circuits, which rejects a
mechanistic rule to determine when the presumption of public
access applies. In the Second Circuit, for example, the
weight given to the presumption of access is “governed by the
role of the material at issue in the exercise of Article III
judicial power and the resultant value of such information to
those monitoring the federal courts.” Amodeo II, 71 F.3d at
1049. Documents submitted to the court exist on a
“continuum,” spanning those that play a role in “determining
litigants’ substantive rights,” which are afforded “strong
weight,” to those that play only a “negligible role in
performance of Article III duties . . . such as those passed
between the parties in discovery,” which lie “beyond the
presumption’s reach.” Id. at 1049–50. Similarly, in the First
Circuit, the public has a right of access to “materials on which
a court relies in determining the litigants’ substantive rights”
which are “distinguished from those that relate[ ] merely to
the judge’s role in management of the trial and therefore play
no role in the adjudication process.” United States v. Kravetz,
706 F.3d 47, 54 (1st Cir. 2013) (citations omitted) (alterations
in original).
The Third and Eleventh Circuits directly reject a literal
divide between dispositive and nondispositive motions.
According to the Third Circuit, “there is a presumptive right
of access to pretrial motions of a nondiscovery nature,
whether preliminary or dispositive, and the material filed in
connection therewith. . . . We see no reason to distinguish
between material submitted in connection with a motion for
summary judgment and material submitted in connection with
a motion for preliminary injunction . . . .” Leucadia, Inc. v.
CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 15
Applied Extrusion Tech., Inc., 998 F.2d 157, 164 (3d Cir.
1993). The rationale is that the presumption should apply to
any motion related to a “matter[] which the public has a right
to know about and evaluate.” Id. (alteration in original)
(citation omitted). Similarly, in the Eleventh Circuit, material
filed in connection with any “substantive pretrial motion,
unrelated to discovery, is subject to the common law right of
access,” “whether or not characterized as dispositive.”
Romero v. Drummond Co., 480 F.3d 1234, 1245–46 (11th
Cir. 2007) (citing Amodeo II, 71 F.3d at 1050).
Given that preliminary injunctions are “extraordinary and
drastic” remedies, Lopez v. Brewer, 680 F.3d 1068, 1072 (9th
Cir. 2012), they may certainly affect litigants’ “substantive
rights,” see Kravetz, 706 F.3d at 54, Amodeo II, 71 F.3d at
1049. They also invoke important “Article III” powers,
Amodeo II, 71 F.3d at 1049, so much so that magistrate
judges may not even rule upon them, 28 U.S.C.
§ 636(b)(1)(A). A bright line rule that does not afford a
presumption of access to a motion for preliminary injunction
because it is “nondispositive” conflicts with the Third and
Eleventh Circuits and is, at best, in tension with the First and
Second Circuits.
In re Midland National Life Insurance Company Annuity
Sales Practices Litigation, 686 F.3d 1115 (9th Cir. 2012),
illustrates that our circuit looks past the literal
dispositive/nondispositive label. In that case, an intervenor
moved to unseal documents attached to a Daubert motion.
Id. at 1118. The district court, like the district court here,
concluded that the documents should remain under seal
because “the Daubert motion was non-dispositive,” as it
“would not have been a determination on the merits of any
claim or defense.” Id. at 1119. We rejected the district
16 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP
court’s focus on whether the motion was literally
“dispositive”: “That the records are connected to a Daubert
motion does not, on its own, conclusively resolve the issue.”
Id. As the motion, in effect, “pertain[ed] to central issues
bearing on defendant’s summary judgment motion,” we
treated that motion as dispositive. Id. We did not allow the
technically nondispositive nature of the Daubert motion to
cloud the reality that it was able to significantly affect the
disposition of the issues in the case. See also Oliner,
745 F.3d at 1025–26 (applying “compelling reasons” test to
motion to seal entire court record of an appeal from the
bankruptcy court, even though motion did not result in a final
determination on the merits).
Case law is also replete with examples of motions for
preliminary injunctions that reflect the need for the public
right of access—to “provide the public with a more complete
understanding of the judicial system and a better perception
of its fairness.” Leucadia, 998 F.2d at 161 (quoting Republic
of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653,
660 (3d Cir. 1991)). Motions for preliminary injunctions
have been utilized to: test the boundaries of equal protection;
police the separation of powers in times of domestic and
global instability; protect “one of our most valuable rights,”
the right to retain United States citizenship; and even
determine life or death.7 “People in an open society do not
7
Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 715 (9th Cir. 1997)
(vacating grant of motion for preliminary injunction and sustaining
constitutionality of California’s anti-affirmative action initiative,
Proposition 209); Monterey Mech. Co. v. Wilson, 125 F.3d 702, 714–15
(9th Cir. 1997) (holding, on appeal from motion for preliminary
injunction, that state program setting goals for ethnic and sex
characteristics of construction subcontractors violates the equal protection
clause); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584–85
CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 17
demand infallibility from their institutions” with respect to
such issues, “but it is difficult for them to accept what they
are prohibited from observing.” Richmond Newspapers, Inc.
v. Virginia, 448 U.S. 555, 572 (1980). In light of the strong
presumption, these impactful motions should not be
categorically shielded from the public right of access.
Consistent with our precedent, we make clear that public
access to filed motions and their attachments does not merely
depend on whether the motion is technically “dispositive.”8
Rather, public access will turn on whether the motion is more
than tangentially related to the merits of a case. While many
technically nondispositive motions will fail this test, some
will pass. Our reading of the public access cases is consistent
with our own case law, and more importantly, comports with
(1952) (making a “final determination of the constitutional validity of the
President’s order” on an appeal from a motion for preliminary injunction
restraining the Secretary of Commerce from seizing the nation’s steel
mills); Reno, 219 F.3d at 1091, 1098–99 (holding on appeal from a motion
for preliminary injunction that the INS may not revoke a person’s
citizenship administratively); Lopez, 680 F.3d at 1074, 1078 (allowing an
execution to proceed on appeal of denial of motion for preliminary
injunction over an Eighth Amendment challenge).
8
Our circuit already considers motions for preliminary injunctions
“dispositive” in the context of magistrate jurisdiction. A magistrate judge
may “hear and determine any pretrial matter pending before the court
except a motion for injunctive relief, for judgment on the pleadings, for
summary judgment, to dismiss or quash an indictment or information
made by the defendant, to suppress evidence in a criminal case, to dismiss
or to permit maintenance of a class action, to dismiss for failure to state a
claim upon which relief can be granted, and to involuntarily dismiss an
action.” 28 U.S.C. § 636(b)(1)(A) (emphasis added). Those “matters
listed in 28 U.S.C. § 636(b)(1)(A) are dispositive while, in general, other
matters are non-dispositive.” Flam v. Flam, 788 F.3d 1043, 1046 (9th Cir.
2015) (emphasis in original).
18 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP
the old tradition of ensuring public access which “antedates
the Constitution and . . . is now beyond dispute.” Leucadia,
998 F.2d at 161 (internal quotation marks and citation
omitted).
The dissent’s doomsday depiction of our opinion, in
which we purportedly “eviscerate[] Rule 26(c) and its
benefits,” Dissent at 32, not only ignores the real world
intersection of Rule 26(c) and the right to public access, but
also the clear language from our previous decisions. As the
dissent does not dispute, its reading of Rule 26(c) in this
context conflicts with virtually every other circuit to review
this issue. The district courts in those circuits routinely apply
a more nuanced test, and none has complained of staring at
“an ink blot.” Dissent at 31. We have full confidence that
judges in our circuit are equally capable. The dissent’s
convenient chessboard sweep of the experiences of our sister
circuits—responding only by calling them “irrelevant” in a
footnote—illustrates its shaky foundation. Dissent at 28, n.2.
And more importantly, the dissent’s indignation that we read
certain language in our opinions as descriptive, rather than
definitive, ignores that it does the same thing—it chooses to
interpret the dispositve/nondispositive language as “a bright
line rule,” while painting the “more than tangentially related
to the merits of a case” phrase as “reasoning we used to
justify the adoption of a bright line rule.” Dissent at 26. Yet
the dissent is the only opinion from any appellate court to
read our caselaw in such stark terms. We choose to follow
language in our case law that makes sense and is consistent
with our fellow circuits.
CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 19
B. The Instant Motion for Preliminary Injunction
Applying our circuit’s case law, we conclude that
plaintiffs’ motion for preliminary injunction is more than
tangentially related to the merits. In the complaint, plaintiffs
were seeking, in addition to damages, injunctive relief,
including an order “requiring Chrysler to adequately disclose
and repair the [vehicle] defect.” In the preliminary injunction
motion, plaintiffs requested that Chrysler notify its customers
that there was a part in their vehicle which could require
replacement and be dangerous if it failed. As Chrysler argued
in its opposition to the preliminary injunction, once notice is
given, it “alters the status quo and cannot be undone.” If
plaintiffs had succeeded in their motion for preliminary
injunction, they would have won a portion of the injunctive
relief they requested in the underlying complaint, and that
portion of their claims would have been resolved.
Chrysler’s counterarguments are unavailing. First,
Chrysler contends that because this motion for preliminary
injunction was denied, the court should not apply the
presumption of public access. But the common law right of
access promotes the “public interest in understanding” the
judicial process itself, Foltz, 331 F.3d at 1135 (quoting
Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)),
and the “bases or explanations for a court’s decision,” Oliner,
745 F.3d at 1025 (citation omitted). Nothing in our precedent
suggests that the right of access turns on any particular result.
In fact, in Kamakana, our circuit applied the presumption of
public access to a summary judgment motion that was
“denied, in large part.” 447 F.3d at 1176; see also Leucadia,
998 F.2d at 164 (citing Westinghouse, 949 F.2d at 661)
(explaining that papers filed in connection with a motion “are
20 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP
not entitled to be shielded from public access merely because
the district court denied the motion rather than granted it”).
Chrysler also argues that expanding the compelling
reasons standard makes it easier for “litigants to override
protective orders.” As a result, litigants will file more
“meritless motions.” This argument is similarly
unconvincing. District courts can use Rule 11 to impose
sanctions on any party that files a motion for an “improper
purpose” or who does so without a legal or factual basis. Fed.
R. Civ. P. 11(b)–(c).
As the preliminary injunction motion here was more than
tangentially related to the merits of the case, we vacate and
remand for the district court to consider the documents under
the compelling reasons standard.
IV. CONCLUSION
While simplicity has its virtues, it also has its vices.
Here, permitting the public’s right of access to turn on what
relief a pleading seeks—rather than on the relevance of the
pleading—elevates form too far beyond substance and over
reads language in our case law. Our precedent, which always
has focused on whether the pleading is more than tangentially
related to the merits, recognizes this essential point. To hold
otherwise would permit the discovery “exception” to swallow
the public access rule. Due to the strong presumption for
public access and the nature of the instant motion for a
CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 21
preliminary injunction, Chrysler must demonstrate
compelling reasons to keep the documents under seal.
VACATED AND REMANDED.
Chrysler shall bear costs on appeal.
SESSIONS, District Judge, concurring:
I fully concur in the majority opinion’s thoughtful
analysis of Ninth Circuit precedent, and in its determination
that public access to filed motions and their attachments
hinges not on whether the motion is literally “dispositive,”
but on whether the motion is more than tangentially related to
the merits of the underlying case. I also concur in the
majority’s conclusion that the preliminary injunction motion
here was more than tangentially related to the merits of the
case, and that the district court should therefore reconsider
the documents under the compelling reasons standard. I write
separately only to express my belief that reversal is warranted
even under the binary approach endorsed by the dissent, for
in my view the preliminary injunction motion at issue was
literally “dispositive” of plaintiffs’ request that Chrysler issue
notice to its customers.
Along with both the majority and the dissent, I accept that
a motion is literally dispositive if it “bring[s] about a final
determination.” See Maj. op. at 10 (quoting Black’s Law
Dictionary 540 (10th ed. 2014)); Dissent at 26. A motion
may bring about a final determination of one claim, however,
without disposing of an entire case. Indeed, it goes without
saying that parties frequently file motions for partial
22 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP
summary judgment. And as the dissent writes, “it is
undisputed that summary judgment motions are dispositive.”
Dissent at 29. Thus, it appears to be uncontroverted that
within a single case, a motion may be dispositive of some
claims and nondispositive of others.
In the present case, plaintiffs’ complaint sought not only
damages, but also injunctive relief, including an order
“requiring Chrysler to adequately disclose and repair the
[vehicle] defect.” Similarly, plaintiffs’ preliminary injunction
motion requested that Chrysler notify its customers that a part
in their vehicles may be dangerous and require replacement.
Because notice cannot be withdrawn once it is given, granting
the preliminary injunction motion would have awarded
plaintiffs a portion of their requested relief. For that reason,
I find that the preliminary injunction motion here was literally
“dispositive” of plaintiffs’ request that Chrysler issue notice
to its customers.
In sum, I fully concur in the judgment of the Court for the
reasons discussed in Judge Owens’s majority opinion. I add,
however, that in my view the motion for preliminary
injunction in the present case was literally “dispositive” of
plaintiffs’ request for disclosure. As a result, even under the
dissent’s approach, I would vacate and remand for the district
court to reconsider whether the documents relevant to
plaintiffs’ demand for notice should remain under seal using
the compelling reasons standard.
CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 23
IKUTA, Circuit Judge, dissenting:
According to the majority, the district court here erred
because it “relied on language in our cases which provides
that when a party is attempting to keep records attached to a
‘non-dispositive’ motion under seal, it need only show ‘good
cause.’” Maj. op. at 5. This comes as a surprise, because the
“language in our cases” constitutes binding precedent. But no
matter, the majority invents 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. Because this decision
overrules circuit precedent and vitiates Rule 26(c) of the
Federal Rules of Civil Procedure, I strongly dissent.
I
The right of litigants to protect certain documents
disclosed in discovery from release to the public is embodied
in Rule 26(c), which authorizes the district court to grant a
protective order “to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.”
Fed. R. Civ. P. 26(c). This includes “requiring that a trade
secret or other confidential research, development, or
commercial information not be revealed or be revealed only
in a specified way.” Fed. R. Civ. P. 26(c)(1)(G).
When discovery material is filed with a court, we balance
the protection afforded litigants under Rule 26(c) with the
presumption that the public has a right of access to public
documents, including judicial records. See Phillips ex rel.
Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1213
24 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP
(9th Cir. 2002). Our cases, as well as Supreme Court
decisions, have made clear that the common law right of
access “is not absolute,” Nixon v. Warner Commc’ns, Inc.,
435 U.S. 589, 598 (1978); see also Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 34 (1984). The presumption in favor
of access can be overcome by showing “sufficiently
important countervailing interests.” Phllips, 307 F.3d at
1212.
We have developed the following bright line rule to
balance the common law right of access to court records with
the protection afforded litigants under Rule 26(c):
(1) If a party to a legal proceeding attaches a sealed
discovery document to a nondispositive motion, “the usual
presumption of the public’s right of access is rebutted,” and
“the party seeking disclosure must present sufficiently
compelling reasons why the sealed discovery document
should be released.” Phillips, 307 F.3d at 1213.
(2) If a party attaches a sealed discovery document to a
dispositive motion, the presumption of the public’s right of
access is not rebutted, and the party seeking to protect the
document must show compelling reasons to maintain the
documents under seal. Foltz, 331 F.3d at 1136.
There is nothing ambiguous about this rule, which we
have recited numerous times. Beginning in Phillips, we
explained that “when a party attaches a sealed discovery
document to a nondispositive motion, the usual presumption
of the public’s right of access is rebutted, so that the party
seeking disclosure must present sufficiently compelling
reasons why the sealed discovery document should be
released.” 307 F.3d at 1213. We justified this bright line rule
CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 25
on the ground that the presumption of access to judicial
documents should not eviscerate a district court’s protective
order, and that “[m]uch of the information that surfaces
during pretrial discovery may be unrelated, or only
tangentially related, to the underlying cause of action.” Id.
(quoting Rhinehart, 467 U.S. at 33).
We repeated this rule in Foltz, quoting Phillips verbatim
for the proposition that “when a party attaches a sealed
discovery document to a nondispositive motion, the usual
presumption of the public’s right of access is rebutted.”
331 F.3d at 1135. Foltz then added the second prong of our
rule, holding that “the presumption of access is not rebutted
where, as here, documents subject to a protective order are
filed under seal as attachments to a dispositive motion.” Id.
at 1136 (emphasis added).
We repeated this two-part rule in Kamakana v. City and
County of Honolulu, 447 F.3d 1172 (9th Cir. 2006). We first
explained that we have “carved out an exception to the
presumption of access to judicial records for a sealed
discovery document [attached] to a non-dispositive motion,
such that the usual presumption of the public’s right of access
is rebutted.” Id. at 1179 (citing Phillips, 307 F.3d at 1213,
and Foltz, 331 F.3d at 1135) (internal citations and quotation
marks omitted). By contrast, “[t]hose who seek to maintain
the secrecy of documents attached to dispositive motions
must meet the high threshold of showing that ‘compelling
reasons’ support secrecy.” Id. at 1180 (emphasis added).
Summing up, “we treat judicial records attached to
dispositive motions differently from records attached to
non-dispositive motions.” Id. at 1179. “Those who seek to
maintain the secrecy of documents attached to dispositive
26 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP
motions must meet the high threshold of showing that
‘compelling reasons’ support secrecy.” Id. By contrast, “[a]
‘good cause’ showing under Rule 26(c) will suffice to keep
sealed records attached to non-dispositive motions.” Id.
II
The majority boldly rejects this rule. It belittles the
“simplicity” of our “binary approach,” which holds that the
public’s presumed right of access applies to sealed discovery
documents attached to a dispositive motion, but does not
apply to sealed discovery documents attached to a
nondispositive motion. Maj. op. at 10–11.
Instead of following precedent, the majority creates a new
rule: “[W]e make clear that public access to filed motions and
their attachments does not merely depend on whether the
motion is technically ‘dispositive.’ Rather, public access will
turn on whether the motion is more than tangentially related
to the merits of a case.” Maj. op. at 17 (emphasis added). In
plucking this “more than tangentially related” language from
the reasoning we used to justify the adoption of a bright line
rule, see, e.g., Phillips, 307 F.3d at 1213, the majority
improperly replaces the rule itself with a single phrase from
our reasoning.
There can be no mistake that this new rule is inconsistent
with our existing precedent. As the majority concedes,
“dispositive” has a precise legal definition: a motion is
dispositive if it “bring[s] about a final determination.” Maj.
op. at 10 (quoting Black’s Law Dictionary 540 (10th ed.
2014)). Likewise, the majority concedes that this legal
definition “would include motions to dismiss, for summary
judgment, and judgment on the pleadings,” but would not
CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 27
include “a motion for preliminary injunction or a motion in
limine.” Maj. op. at 10–11. And in this case, the majority
assumes “that the instant motion for preliminary injunction
was technically nondispositive.” Maj. op. at 13. Under our
existing precedent, therefore, the majority effectively admits
it is wrong in holding that the documents attached to the
preliminary injunction motion are subject to the public’s
presumed right of access absent compelling reasons for
secrecy.1
The majority attempts to avoid this problem by relying on
the oft-rejected casuistry that words have no fixed meaning,
and therefore “non-dispositive” can also mean “dispositive.”
Surely, the majority argues, we did not intend to be bound by
the literal meaning of the terms “dispositive” and
“nondispositive” that “we have sometimes deployed,” Maj.
op. at 9, because that would merely “morph” these words
“into mechanical classifications,” Maj. op. at 11. Nothing in
our case law (other than the words themselves), the majority
claims, “contemplates that the right of public access would be
limited solely to literally dispositive motions.” Maj. op. at 12
(emphasis added).
This theory that we are not bound by the literal meaning
of the words of our opinions would, of course, deprive our
precedent of any binding force. Such a theory erodes the
concept that law can be applied as written, whether by the
1
As the concurrence points out, Conc. op. at 21, the majority could have
reached the same result on much narrower grounds by holding that the
preliminary injunction motion at issue in this case was literally
“dispositive.” But apparently eager to jettison our precedent, the majority
instead assumes without deciding that the motion was “technically
nondispositive.” Maj. op. at 13.
28 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP
legislature or judges, and “undermines the basic principle that
language provides a meaningful constraint on public and
private conduct.” Trident Ctr. v. Conn. Gen. Life Ins. Co.,
847 F.2d 564, 569 (9th Cir. 1988). But judges are bound not
merely by “the reason and spirit of cases” but also by “the
letter of particular precedents.” Hart v. Massanari, 266 F.3d
1155, 1170 (9th Cir. 2001) (internal quotation marks
omitted). While we have the authority to distinguish
precedent on a principled basis, we are not free to ignore the
literal meaning of our rulings, even when the panel believes
the precedent is “unwise or incorrect.” Hart, 266 F.3d at
1170; see also, e.g., United States v. Contreras, 593 F.3d
1135, 1136 (9th Cir. 2010) (en banc) (reversing a three-judge
panel for overruling binding circuit precedent that was not
clearly irreconcilable with intervening higher authority.)
Moreover, we are bound by our precedent even if every other
circuit has rejected our view. See Al Ramahi v. Holder,
725 F.3d 1133, 1138 n.2 (9th Cir. 2013) (noting that “[n]early
all our sister circuits have rejected” our interpretation of the
Real ID Act, but “in the absence of any intervening higher
authority we are bound by” our prior opinion.).2 By
intentionally disregarding the language “we have sometimes
deployed,” Maj. op. at 9, the majority has flouted this most
basic, fundamental principle.
The majority’s claim that we have previously rejected a
literal interpretation of the word “dispositive” does not
withstand examination. For instance, In re Midland National
Life Insurance Co. Annuity Sales Practices Litigation,
686 F.3d 1115 (9th Cir. 2012), see Maj. op. at 15–16, did not
purport to overrule our distinction between dispositive and
2
For this reason, the out-of-circuit cases relied on by the majority, Maj.
op. at 14–15, are entirely irrelevant.
CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 29
nondispositive filings. Rather, it deemed the expert reports
filed “in connection with” pending summary judgment
motions, id. at 1120, as being equivalent to attachments to
those motions. Because it is undisputed that summary
judgment motions are dispositive, the panel concluded that
the attached reports did not “fall into the exception to the
presumption of public access” which applies to judicial
records attached to a non-dispositive motion.
Nor does our interpretation of the Federal Magistrates
Act, 28 U.S.C. § 636, support the majority’s approach. See
Maj. op. at 17 n.8. Section 636(b) authorizes a magistrate
judge to “hear and determine any pretrial matter pending
before the court, except a motion for injunctive relief, for
judgment on the pleadings, for summary judgment, to dismiss
or quash an indictment or information made by the defendant,
to suppress evidence in a criminal case, to dismiss or to
permit maintenance of a class action, to dismiss for failure to
state a claim upon which relief can be granted, and to
involuntarily dismiss an action.” Id. § 636(b)(1)(A) (emphasis
added). In passing, we have referred to the category of
motions listed in the exceptions to a magistrate judge’s
jurisdiction as “dispositive motions.” Thus we have noted
that the Federal Magistrates Act “provides that certain
matters (for example, non-dispositive pretrial matters) may be
referred to a magistrate judge for decision, while certain other
matters (such as case-dispositive motions [and] petitions for
writs of habeas corpus) may be referred only for evidentiary
hearing, proposed findings, and recommendations.” Flam v.
Flam, 788 F.3d 1043, 1046 (9th Cir. 2015) (quoting United
States v. Reyna–Tapia, 328 F.3d 1114, 1118 (9th Cir. 2003)
(en banc)) (internal quotation marks omitted). But we have
never addressed the question whether a preliminary
injunction motion constitutes a case-dispositive motion for
30 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP
purposes of the Federal Magistrates Act—let alone for
purposes of the public’s presumed right of access—nor would
we have occasion to do so, because the Act precludes a
magistrate judge from ruling on such a motion regardless of
how it is characterized.
III
In reality, the majority’s only rationale for disregarding
our precedent is policy: the majority prefers to strike a
different balance between the common law right of public
access and the protections provided by Rule 26. According
to the majority, the key policy concern here is that a motion
for preliminary injunction is very important. Such a motion
may “test the boundaries of equal protection,” “police the
separation of powers in times of domestic and global
instability,” and “may even, as a practical matter, determine
the outcome of a case,” Maj. op at 13, 16. Therefore,
according to the majority, treating a nondispositive motion
for preliminary injunction the same as a summary judgment
motion would be incongruous, and “[n]either our case law nor
the strong principles of public access to the courts supports
such incongruity.” Maj. op. at 13–14.
As a threshold matter, even if the policy judgment
embodied in our precedent were wrong, the majority would
still be bound by it. See Hart, 266 F.3d at 1170. But there
are many policy reasons to reject the rule the majority invents
today. For one, the majority’s “more than tangentially
related” test has no discernible meaning. A bright line
distinction between dispositive and nondispositive orders is
easy to administer, while district courts will have no
framework for deciding what quantum of relatedness is more
than tangential. The majority’s ill-defined standard is
CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 31
certainly no improvement for the district courts that the
majority claims have “struggled” with our rule. Maj. op. at
5 n.2. The district courts that have declined to follow our rule
have simply adopted an alternate bright line rule, holding that
motions for preliminary injunctions are per se deemed
dispositive in the sealing context.3 The majority rejects even
this rule—which at least purports to follow our precedent—in
favor of an ink blot test.
More important, the majority’s rule upsets the balance
between the common law right of access and Rule 26 that we
have developed. As Rhinehart explained, “[i]t is clear from
experience that pretrial discovery by depositions and
interrogatories has a significant potential for abuse,” because,
among other things, it “may seriously implicate privacy
interests of litigants and third parties” if litigants obtain
information that “if publicly released could be damaging to
reputation and privacy.” 467 U.S. at 34–35. For this reason,
despite the “extent of the impairment of First Amendment
rights that a protective order” may cause, id. at 32, the Court
concluded that “[t]he government clearly has a substantial
interest in preventing this sort of abuse of its processes,” id.
at 35.
Recognizing the competing considerations between the
common law right of access and the policy goals embodied in
Rule 26, we struck an appropriate balance between the two.
3
See, e.g., Selling Source, LLC v. Red River Ventures, LLC, 2011 WL
1630338, at *5 (D. Nev. Apr. 29, 2011) (“[R]equests for preliminary
injunctive relief should be treated as dispositive motions for purposes of
sealing court records.”); Yountville Investors, LLC v. Bank of Am., N.A.,
2009 WL 411089, at *2 (W.D. Wash. Feb. 17, 2009) (“A motion for a
preliminary injunction is treated as a dispositive motion under these
rules.”).
32 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP
As we explained, there are “good reasons to distinguish
between dispositive and non-dispositive motions.”
Kamakana, 447 F.3d at 1179 (quoting Foltz, 331 F.3d at
1135). We noted that “the public has less of a need for access
to court records attached only to non-dispositive motions,”
and so “[t]he public policies that support the right of access
to dispositive motions, and related materials, do not apply
with equal force to non-dispositive materials.” Id. We were
also careful to avoid eviscerating Rule 26(c), noting that
“[a]lthough we understand the public policy reasons behind
a presumption of access to judicial documents (judicial
accountability, education about the judicial process etc.), it
makes little sense to render the district court’s protective
order useless simply because the plaintiffs attached a sealed
discovery document to a nondispositive sanctions motion
filed with the court.” Phillips, 307 F.3d at 1213. Thus, our
rule tracks the “good cause” standard of Rule 26(c) with
respect to nondispositive motions, but gives due regard to the
common law right of access to materials supporting
dispositive motions by requiring litigants to make a higher
showing to rebut the public’s presumed right of access to
material that resolves a legal dispute.
By contrast, the majority’s test effectively holds that all
sealed documents attached to any filing that has any relation
to the merits of the case are subject to the public’s presumed
right of access, and therefore deprives protective orders
issued under Rule 26(c) of any force or effect. Rule 26(c)
“gives the district court much flexibility in balancing and
protecting the interests of private parties,” Kamakana,
447 F.3d at 1180, and has the beneficial effects of
encouraging parties to exchange documents while reducing
discovery disputes. The majority’s rule eviscerates Rule26(c)
and its benefits.
CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 33
Indeed, this very case demonstrates the problems with the
majority’s new rule. The plaintiffs obtained 86,000
documents from Chrysler (including confidential and trade
secret documents) without being put to the cost and delay of
fighting discovery battles because Chrysler could confidently
rely on the district court’s protective order. But under the
majority’s new rule, the majority holds that these confidential
documents filed under seal are subject to the public’s
presumed right of access because the plaintiff elected to
attach them to a motion for preliminary injunction on a
tangential issue (and which was summarily denied by the
district court). Any member of the public will be able to
obtain these documents filed under seal unless Chrysler can
meet the intentionally stringent “compelling reasons”
standard, which generally requires proof that the documents
are being intentionally used for an improper purpose “such as
the use of records to gratify private spite, promote public
scandal, circulate libelous statements, or release trade
secrets.” Kamakana, 447 F.3d at 1179 (internal quotation
marks omitted). In addition to the unfairness of making
Chrysler bear the consequences of encountering a three-judge
panel that disagrees with its own circuit’s precedent, it is
clear that no future litigant can rely on a protective order and
will have to chart its course through discovery cautiously and
belligerently, to the detriment of the legal system.
Our circuit has considered it important to reject efforts by
three-judge panels to overrule binding circuit precedent. See
Contreras, 593 F.3d at 1136. Disregarding the language of
our opinions erodes the framework of our judicial system.
Because the majority here overtly overrules our prior
decisions, I dissent.