Diane Bond v. Edwin Utreras

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2651
D IANE B OND,
Plaintiff,
v.
E DWIN U TRERAS, A NDREW S CHOEFF, C HRIST S AVICKAS,
R OBERT S TEGMILLER, and JOSEPH S EINITZ, in their
individual capacities; P HILLIP C LINE, Superintendent
of the Chicago Police Department, T ERRY H ILLARD ,
Former Superintendent of the Chicago Police Department,
and L ORI L IGHTFOOT, Former Chief Administrator of the
Office of Professional Standards, in their official capacities;
and C ITY OF C HICAGO,
Defendants-Appellants,
v.
JAMIE K ALVEN,
Intervenor-Appellee,
and
T ONI P RECKWINKLE, et al.,
Intervening Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 2617—Joan Humphrey Lefkow, Judge.
2 No. 07-2651
A RGUED JUNE 3, 2008—D ECIDED N OVEMBER 10, 2009
Before K ANNE, S YKES, and T INDER, Circuit Judges.
S YKES, Circuit Judge. Diane Bond sued the City of Chi-
cago and several members of its police department,
claiming that the officers violated her constitutional rights
while performing official duties. During discovery, the
City turned over voluminous material relating to citizen
complaints against its police officers; the information
was subject to a protective order that prohibited public
disclosure of these confidential records. The documents
produced during discovery were never filed with the
court nor used in any judicial proceeding.
Bond eventually settled with the City and its officers
(collectively “the City”), and the parties submitted
a stipulation and order for dismissal to the district
court. Just before the court entered the order, how-
ever, independent journalist Jamie Kalven petitioned for
permission to intervene so he could challenge the pro-
tective order. Kalven claimed that under Rule 26(c) of
the Federal Rules of Civil Procedure, there was no “good
cause” to maintain the protective order and asked that it
be modified to allow him access to some of the docu-
ments pertaining to citizen complaints against Chicago
police officers. (Kalven is joined on appeal by 28 Chicago
aldermen who also want access to these police depart-
ment records.) The district judge dismissed the case
with prejudice pursuant to the parties’ stipulation but
No. 07-2651 3
said she would keep the case “open” for purposes of
entertaining Kalven’s intervention petition.
Bond did not join Kalven’s request to modify the pro-
tective order. The City objected to any modification,
arguing that the order should be left in place given
the department’s interest in keeping these records confi-
dential. A few months after dismissing the case, the
district judge entered an order simultaneously granting
Kalven’s request to intervene and lifting the protective
order in its entirety. The City appealed, and we stayed
the district court’s order.
We now vacate that order; Kalven’s petition should
have been dismissed for lack of standing. The controversy
originally supporting the court’s jurisdiction no longer
existed at the time the court acted on Kalven’s petition;
the parties had settled, the case was dismissed with
prejudice, and neither Bond nor the City asked the court
to revisit and modify the terms of the protective order
postjudgment. With no live controversy ongoing, Kalven
was required to demonstrate his standing to intervene
and resuscitate the case—that is, he was required to
establish that he met the requirements of Article III by
showing an actual or imminent invasion of a legally
protected interest. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992). Although no one challenged his
standing below or on appeal and the district court
did not independently address it, we are required to
satisfy ourselves that jurisdictional prerequisites are
met. We conclude they are not.
Kalven claims no constitutional or common-law right
to challenge the protective order—rightly so, because
4 No. 07-2651
there is no constitutional or common-law right of public
access to discovery materials exchanged by the parties
but not filed with the court. Unfiled discovery is private,
not public. Furthermore, Bond has not asserted an
interest in disseminating the documents (she agreed to
the protective order and did not ask that it be modified),
so Kalven cannot, and does not, claim a derivative
First Amendment right to receive them. Instead, Kalven
based his intervention petition on a supposed “presump-
tion” of public access emanating from Rule 26(c)’s “good
cause” requirement. There is no such presumption
for discovery that is not part of the court file and
therefore no “right” or legally protected interest to
support Kalven’s standing to intervene. The district court
lacked any alternative jurisdictional basis to revisit and
revoke the protective order sua sponte. Accordingly,
we vacate the court’s order permitting intervention and
lifting the protective order, and remand with instruc-
tions to dismiss Kalven’s petition for lack of standing.
I. Background
This appeal arises out of a § 1983 action Diane Bond
filed in 2004 against eight Chicago police officers and
supervisors and the City of Chicago. Bond alleged that
the police officers had subjected her to various forms of
physical and mental abuse while performing their
official duties. During pretrial discovery, the parties
agreed to a protective order that prohibited public disclo-
sure of certain confidential materials. The order covered
“employment, disciplinary, [and] investigatory” informa-
No. 07-2651 5
tion; “other information that is of a sensitive or non-
public nature” about Chicago police officers; and “files
generated by the investigation of complaints of miscon-
duct by Chicago police officers” (what the City calls
“Complaint Register files” or “CR files”), including
information that could be used to identify the officers. In
response to Bond’s discovery requests, the City produced
thousands of pages of documents; some of those docu-
ments were categorized as confidential under the pro-
tective order and therefore are subject to the nondis-
closure requirement. None of the discovery was filed
with the court.
The parties eventually settled Bond’s claims, and in
March 2007 they submitted an agreed order of dismissal
to the district court. On March 23, 2007, the court signed
and entered the order dismissing the case with preju-
dice. A week before, however, on March 15, 2007, Jamie
Kalven, an independent journalist, filed a “Petition
to Intervene and Motion to Unseal Public Docu-
ments Relating to Allegations of Police Misconduct.” This
phrasing was odd. The court had never been asked to seal
any documents in the court record; as such, there were no
“sealed public documents” to “unseal.” It was clear from
the petition, however, that Kalven sought modification
of the protective order and access to certain categories of
documents the City had produced during discovery. He
later narrowed the list of documents he seeks, but all
involve the police department’s confidential records
of citizen complaints filed against its officers. A docket
entry recording the entry of the dismissal order noted
that the case was dismissed with prejudice but also
stated that “[t]he case remains open for the purpose of the
6 No. 07-2651
Court retaining jurisdiction over the pending petition of
Jamie Kalven to intervene and motion to unseal public
documents relating to allegations of police misconduct.”
The City did not oppose Kalven’s intervention but
strongly objected to his challenge to the protective
order, arguing that “good cause” continued to support
keeping the documents confidential. See F ED. R. C IV. P.
26(c)(1). Bond did not join Kalven’s request to modify
the protective order and made no substantive response
to his petition. On July 2, 2007, the district court entered
an order allowing Kalven to intervene and rescinding
the protective order in its entirety. The court reevaluated
whether “good cause” existed to keep the documents
confidential, and in so doing applied a “presumption” of
public access to discovery materials. The court further
concluded that the public interest in information about
police misconduct outweighed the interest of the City
and its officers in keeping the records confidential. The
district court did not affirmatively order that the docu-
ments be provided to Kalven; rather, the court lifted the
protective order, thereby permitting either party to
disclose the discovery documents.1 The City appealed
the district court’s order and moved for a stay pending
appeal. A motions panel of this court granted that motion.
While the City’s appeal was pending, 28 Chicago alder-
men attempted to intervene in the district court to
1
Bond all but disappeared from this case after she settled her
claims with the City. As we have noted, she filed only an
inconsequential nonsubstantive response and has not other-
wise supported or opposed lifting the protective order.
No. 07-2651 7
obtain access to the police department’s confidential
documents. The aldermen wanted the records to help
them decide whether to adopt a proposal to separate the
police department’s oversight board from the police
department itself. The district court concluded that it
lacked jurisdiction because of the pending appeal, see
Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58
(1982); United States v. McHugh, 528 F.3d 538, 540 (7th Cir.
2008), and the aldermen appealed the district court’s
jurisdictional ruling. A motions panel dismissed that
appeal but allowed the aldermen to intervene in this
one. Thus, as this case comes to us, the aldermen and
Kalven have identical positions; they defend the
district court’s decision to lift the protective order.2
II. Discussion
The Federal Rules of Civil Procedure broadly permit
parties in litigation to obtain discovery “regarding any
nonprivileged matter that is relevant to any party’s
claim or defense.” FED. R. C IV. P. 26(b)(1). Given the
“extensive intrusion into the affairs of both litigants
and third parties” that is both permissible and common
in modern discovery, Seattle Times Co. v. Rhinehart, 467
U.S. 20, 30 (1984), the rules provide for the use of protective
orders, entered “for good cause,” to protect litigants and
third parties from the “annoyance, embarrassment, oppres-
2
Because their positions are essentially identical, we omit
repetitious reference to the aldermen and generally refer only
to Kalven as the proponent of the district court’s order.
8 No. 07-2651
sion, or undue burden or expense” that may attend the
discovery process, F ED. R. C IV. P. 26(c)(1). Protective
orders are often entered by stipulation when discovery
commences. That was the procedure used here.
In addition to prohibiting the public disclosure of
certain categories of confidential discovery material, the
agreed protective order provided that upon request at
the termination of the proceeding, the documents desig-
nated as confidential would be returned to the producing
party. The protective order also provided, however, that
before a party could submit documents otherwise
subject to the protective order to the court under seal, the
party would have to file a separate motion and obtain
a court order permitting the documents to be filed
under seal. This provision was consistent with the re-
quirements explained in Baxter International, Inc. v.
Abbott Laboratories, 297 F.3d 544 (7th Cir. 2002), and Citizens
First National Bank of Princeton v. Cincinnati Insurance Co.,
178 F.3d 943 (7th Cir. 1999), for submitting documents
to the court under seal.
It never came to that. None of the discovery mate-
rial—not that which was covered by the protective order
nor any other discovery—ever found its way into the
court file. Bond settled with the City, and the case was
dismissed with prejudice.3 Nevertheless, the district court,
postjudgment, entertained Kalven’s petition to intervene.
Without addressing the matter of Kalven’s standing,
3
It is not clear whether the City ever asked Bond to return
the confidential material it produced during discovery, as
contemplated by the agreed protective order.
No. 07-2651 9
the district court permitted the intervention and
rescinded the protective order.
That was a mistake. Although we have previously
held that permissive intervention is a procedurally appro-
priate device for bringing a third-party challenge to a
protective order, see Jessup v. Luther, 227 F.3d 993, 996-97
(7th Cir. 2000); In re Associated Press, 162 F.3d 503, 507 (7th
Cir. 1998); Grove Fresh Distribs., Inc. v. Everfresh Juice Co.,
24 F.3d 893, 896 (7th Cir. 1994), that was in the context of
requests for access to sealed records in the court file
(Jessup, Associated Press) and requests for intervention
made during ongoing litigation (Grove Fresh).4 Here, in
4
Grove Fresh involved two sets of intervenors: (1) plaintiffs in
collateral litigation against the same defendants, seeking access
to the discovery in the Grove Fresh litigation as a shortcut to
discovery in their own cases; and (2) a coalition of media
representatives. Regarding the first group of intervenors, this
court held that the request was governed by Wilk v. American
Medical Ass’n, 635 F.2d 1295 (7th Cir. 1981), which authorized
collateral litigants to obtain access to discovery on the same
terms as the litigants in the case before the court. Grove Fresh,
24 F.3d at 896. Wilk did not address either the intervenors’
standing or the standards for intervention under Rule 24
but instead skipped directly to the merits of the collateral
litigants’ request for access to discovery. This aspect of the
Grove Fresh opinion, Wilk, and other cases addressing the issue
of collateral litigants’ access to discovery in parallel litigation
have little relevance here. To the extent, however, that these
cases are premised upon a principle that “ ‘pre-trial discovery
must take place in . . . public unless compelling reasons exist
(continued...)
10 No. 07-2651
contrast, the litigation was over, the case was dismissed,
and Kalven wanted to intervene in order to press a
claimed right of access to unfiled discovery material; as
such, the question of his standing should have been
addressed. Although the parties and the district court
omitted this threshold inquiry, and the City did not raise
the issue on appeal, we have an independent obligation
to address it. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215,
230-31 (1990) (federal courts “are under an independent
obligation to examine their own jurisdiction”); Craig v.
Ont. Corp. 543 F.3d 872, 877 (7th Cir. 2008).
A. The Relationship Between Article III and Rule 24(b)
The exercise of federal judicial power is legitimate only
in live “cases” or “controversies,” and “ ‘one of the con-
trolling elements in the definition of a case or controversy
under Article III’ is standing.” Hein v. Freedom From
Religion Found., Inc., 127 S. Ct. 2553, 2562 (2007) (quoting
ASARCO Inc. v. Kadish, 490 U.S. 605, 613 (1989) (plurality
opinion)) (internal alteration omitted). The Supreme
Court has described standing as “perhaps the most impor-
tant . . . [Article III] doctrine[].” Allen v. Wright, 468 U.S.
737, 750 (1984). “In essence the question of standing is
4
(...continued)
for denying the public access to the proceedings,’ ” Wilk, 635
F.2d at 1299 (quoting Am. Tel. & Tel. Co. v. Grady, 594 F.2d 594,
596 (7th Cir. 1978)), they have been superseded by the 2000
amendment to Rule 5 of the Federal Rules of Civil Procedure.
See infra pp. 25-26.
No. 07-2651 11
whether the litigant is entitled to have the court decide
the merits of the dispute or of particular issues.” Warth v.
Seldin, 422 U.S. 490, 498 (1975). “To qualify as a case fit
for federal-court adjudication,” Arizonans for Official
English v. Arizona, 520 U.S. 43, 67 (1997), there must be “an
actual controversy [in existence] at all stages of review,
not merely at the time the complaint is filed,” Steffel v.
Thompson, 415 U.S. 452, 459 n.10 (1974). “If a dispute is not
a proper case or controversy, the courts have no business
deciding it . . . .” DaimlerChrysler Corp. v. Cuno, 547
U.S. 332, 341 (2006).
The standing issue that arises here is complex because
it involves the relationship between the requirements
of Article III and the rules for permissive intervention
under Rule 24(b) of the Federal Rules of Civil Procedure.
There is some confusion as to whether permissive
intervenors must, as a general matter, independently
demonstrate standing before they can be allowed to
enter a lawsuit. The Supreme Court has said generally
that Rule 24(b) “plainly dispenses with any require-
ment that the intervenor shall have a direct personal or
pecuniary interest in the subject of the litigation,” SEC v.
U.S. Realty & Improvement Co., 310 U.S. 434, 459 (1940), but
has also observed that “an intervenor’s right to continue
a suit in the absence of the party on whose side inter-
vention was permitted is contingent upon a showing by
the intervenor that he fulfills the requirements of
[Article] III,” Diamond v. Charles, 476 U.S. 54, 68 (1986)
(emphasis added). Some circuits have concluded that
permissive intervenors do not need to show standing “so
12 No. 07-2651
long as another party with constitutional standing on
the same side as the intervenor remains in the case.” San
Juan County, Utah v. United States, 420 F.3d 1197, 1206 (10th
Cir. 2005), aff’d, 503 F.3d 1163 (10th Cir. 2007) (en banc)
(emphasis added); see also Shaw v. Hunt, 154 F.3d 161, 165-
66 (4th Cir. 1998) (intervenors do not need to show stand-
ing to obtain attorney’s fees under 42 U.S.C. § 1988).
This circuit has not directly addressed the relation-
ship between Article III and Rule 24(b).5 Although we
5
Jessup and Associated Press do not address standing at all. Grove
Fresh refers only summarily to the question of the intervenors’
standing. At one point, addressing the collateral litigants’
request for access to discovery, the opinion collapses the
jurisdictional question into a question of the procedural propri-
ety of intervention. Grove Fresh, 24 F.3d at 896 (“It is apparent . . .
that intervention is the procedurally appropriate course for
third-party challenges to protective orders. . . . Hence, [the
defendants’] jurisdictional challenges are unavailing.”). But the
procedural propriety of using Rule 24(b) does not answer the
separate question of whether the requirements of Article III
must be or have been satisfied. At another point Grove Fresh
broadly states without analysis that “the press does have
standing to challenge a protective order for abuse or impropri-
ety.” Id. at 898. Following this statement are citations to a case
from this circuit regarding access to sealed documents in
court files, In re Continental Illinois Securities Litigation, 732
F.2d 1302 (7th Cir. 1984), and an Eleventh Circuit case re-
garding intervention for purposes of challenging a protective
order in an ongoing suit, In re Alexander Grant & Co. Litigation,
(continued...)
No. 07-2651 13
have held that standing is necessarily a component of
intervention as of right under Rule 24(a), see Solid Waste
Agency of N. Cook County v. U.S. Army Corps of Eng’rs, 101
F.3d 503, 507 (7th Cir. 1996), we have also noted that it is
an “open question in this circuit . . . whether Article III
standing is required for permissive intervention under
Rule 24(b),” Transamerica Ins. Co. v. South, 125 F.3d 392(7th Cir. 1997); but see Flying J, Inc. v. J.B. Van Hollen, 578
F.3d 569, 571 (7th Cir. 2009) (stating without discussion
that a permissive intervenor must establish Article III
standing). Regarding intervention in general, we have
recognized that “at some fundamental level the pro-
posed intervenor must have a stake in the litigation” in
order to satisfy Article III. Sokaogon Chippewa Cmty. v.
Babbitt, 214 F.3d 941, 946 (7th Cir. 2000).
In the typical permissive-intervention case, a third party
wants to join a lawsuit to advocate for the same outcome
as one of the existing parties. See Horne v. Flores, 129 S. Ct.
2579, 2591 (2009) (group of legislators intervened to argue
a contempt order should be lifted—the same relief that
one of the parties to the case sought). In this typical case,
the permissive intervenor may not need to show
standing for the same reason that not every plaintiff in
a lawsuit is required to show standing: As long as there
5
(...continued)
820 F.2d 352 (11th Cir. 1987). Here, the documents Kalven seeks
are not in the court file, and the lawsuit had been settled and
dismissed at the time the district court permitted him to
intervene.
14 No. 07-2651
is “at least one individual plaintiff who has demon-
strated standing to assert these rights as his own,” a court
“need not consider whether the other . . . plaintiffs have
standing to maintain the suit.” Vill. of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 264 & n.9 (1977). In
this situation, “[t]he case will proceed and the concrete
dispute must be resolved whether the intervenor is there
or not,” and therefore the intervenor’s standing is irrele-
vant to the court’s power to decide the case. Bethune
Plaza, Inc. v. Lumpkin, 863 F.2d 525, 531 (7th Cir. 1988);
accord Ruiz v. Estelle, 161 F.3d 814, 828-34 (5th Cir. 1998).
Intervention for purposes of challenging a protective
order is an unusual species of permissive intervention
that triggers its own unique standing issues. Rule 24(b)
allows intervenors to join as parties to a lawsuit when
they raise a “claim” or a “defense” that “shares with the
main action a common question of law or fact.” 6 F ED. R.
C IV. P. 24(b)(1)(B). We have held that this language is
broad enough to encompass a third-party challenge to a
protective order even though it is not a neat fit: The
“interest” being asserted by such an intervenor is not
really a “claim” or “defense.” See Jessup, 227 F.3d at 998;
Grove Fresh, 24 F.3d at 896; see also EEOC v. Nat’l Children’s
Ctr., Inc., 146 F.3d 1042, 1045 (D.C. Cir. 1998) (“On its
6
The rule also authorizes permissive intervention in other
circumstances not relevant here. See F ED . R. C IV . P. 24(b)(1)(A)
(authorizing intervention where the intervenor “is given a
conditional right to intervene by a federal statute”), and F ED . R.
C IV . P. 24(b)(2) (authorizing intervention by a government
officer or agency).
No. 07-2651 15
face, Rule 24(b) would appear to be a questionable pro-
cedural basis for a third-party challenge to a confiden-
tiality order.”).
Also, when a third party intervenes to challenge a
protective order, it cannot be said to have intervened on
an existing party’s “side” unless that party also opposes
the protective order. Where, as in many cases and in this
case, the protective order is entered by stipulation of the
parties, “the extra litigant . . . is not simply along for
the ride” but rather shifts the progress of the lawsuit in
a new direction to obtain relief that neither the plaintiff
nor the defendant may want. Bethune Plaza, 863 F.2d at
531. Intervention to challenge a protective order after a
case has been dismissed interferes even more fundamen-
tally: It revives a concluded case for the purpose of enter-
taining an outsider’s claim of interest in the proceeds of
the parties’ discovery process. Rule 24(b) specifically
provides that in deciding whether to permit intervention,
“the court must consider whether the intervention will
unduly delay or prejudice the adjudication of the orig-
inal parties’ rights.” FED. R. C IV. P. 24(b)(3) (emphasis
added). This language suggests that intervention
postjudgment—which necessarily disturbs the final
adjudication of the parties’ rights—should generally be
disfavored.
For our purposes here, we may set to one side the
question whether a permissive intervenor must establish
standing to challenge a protective order in an ongoing
16 No. 07-2651
case.7 The question for us is whether an intervenor must
establish standing to challenge a protective order after
the case has been dismissed. The answer is “yes.”
This conclusion flows from the established general
principle, noted above, that “an actual controversy must
be extant at all stages of review, not merely at the time
the complaint is filed” in order “[t]o qualify as a case fit
for federal-court adjudication.” Arizonans for Official
English, 520 U.S. at 67 (internal quotation marks omitted).
The Supreme Court has also suggested, if not directly
held, that permissive intervenors must show standing if
there is otherwise no live case or controversy in existence.
For example, in Arizonans for Official English, the Court
expressed “grave doubts” about the standing of a group
of intervenors that had been permitted to enter the
7
Accordingly, we do not decide whether a permissive
intervenor needs independent standing to intervene in a live
controversy for the purpose of challenging a protective or-
der. We note, however, that most cases addressing third-party
challenges to protective orders in ongoing lawsuits overlook
the standing question, and those that do address it are con-
flicting. Compare, e.g., Newby v. Enron Corp., 443 F.3d 416, 422
(5th Cir. 2006) (an intervenor may enter an ongoing lawsuit
to challenge a protective order without independent stand-
ing); with Okla. Hosp. Ass’n v. Okla. Publ’g Co., 748 F.2d 1421 (10th
Cir. 1984) (third party lacked standing to intervene prejudg-
ment to challenge protective order). As we have explained
above, to date our circuit’s consideration of the question
has been conclusory. See supra n.5.
No. 07-2651 17
lawsuit as defendants-appellants to challenge an ad-
verse decision of the district court; under the unusual
procedural circumstances of the case, the original defen-
dants had not challenged the adverse decision and were
no longer considered parties to the case. Id. at 66-67. In
the end, however, the Court did not need to resolve
the question of the intervenors’ standing; based on a
change in the plaintiff’s circumstances, the Court declared
the case moot, vacated the lower-court decision, and
remanded with instructions to dismiss. Id. at 72-74. That
the Court raised the intervenor-standing issue at all,
however, suggests that had the case not been moot, the
Court would have required the intervenors to demonstrate
their independent standing to keep the controversy alive.
More recently in Horne v. Flores, 129 S. Ct. 2579, the
Court raised but again did not need to resolve an
intervenor-standing issue. Horne involved a request to lift
a contempt order that imposed fines on the State of Ari-
zona for every day that it failed to comply with a court
order requiring it to adequately fund an English-language
educational program. The request was brought by the
State Superintendent of Public Instruction, a defendant
in the underlying litigation, but two state legislators also
intervened under Rule 24(b) arguing for the same relief.
The Court said that because the intervening legislators
were aligned with the superintendent and the super-
intendent plainly had standing, the question of the inter-
vening legislators’ standing need not be addressed. 129
S. Ct. at 2592-93. As in Arizonans for Official English, how-
ever, the Court’s reference to the intervenors’ standing
suggests that had the superintendent not requested
18 No. 07-2651
relief from the contempt order, the intervening legislators
would have been required to establish their independent
standing to do so.
Our conclusion is also consistent with the approach
followed by other circuits in cases involving postjudg-
ment intervention for the purpose of challenging a pro-
tective order. For example, the Fifth Circuit has con-
cluded that a third party seeking to intervene to chal-
lenge a protective order after the main controversy has
been disposed of must demonstrate standing. See Deus
v. Allstate Ins. Co., 15 F.3d 506, 526 (5th Cir. 1994). In the
Fifth Circuit’s view, while “there is no Article III require-
ment that [such] intervenors have standing in a pending
case,” Newby v. Enron Corp., 443 F.3d 416, 422 (5th Cir.
2006), a third-party challenge to a protective order after the
plaintiff’s claims have been dismissed cannot be main-
tained if the third party “ha[s] no personal interest afford-
ing . . . standing to intervene,” Deus, 15 F.3d at 526; see
also Newby, 443 F.3d at 422 (“In the absence of a live
controversy in a pending case, an intervenor would need
standing to intervene.”); Pansy v. Borough of Stroudsburg,
23 F.3d 772, 777-78 (3d Cir. 1994) (requiring newspaper
intervenors to establish standing to challenge protective
order postjudgment and concluding that they had done
so); Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 787
(1st Cir. 1988) (addressing standing in the context of
postjudgment request by third-party public-interest
group for access to discovery documents covered by
protective order).
Accordingly, we hold that when a third party seeks
intervention under Rule 24(b) for the purpose of chal-
No. 07-2651 19
lenging a protective order in a case or controversy that
is no longer live—as when the case has been dismissed
and none of the original parties has sought this relief
postjudgment—the intervenor must meet the standing
requirements of Article III in addition to Rule 24(b)’s
requirements for permissive intervention. Here, the
litigation between Bond and the City had been settled
and the case was about to be dismissed with prejudice
when Kalven filed his petition to intervene. At that
point, and certainly thereafter, when the case was in
fact dismissed, a live Article III case or controversy be-
tween the parties no longer existed. As such, Kalven was
required to independently establish his standing before
being permitted to intervene. See Flying J, 578 F.3d at 571(in another context, noting without discussion that a
permissive intervenor must have Article III standing to
intervene for purposes of appealing an adverse decision
that the original losing defendant did not want to appeal).
B. Third-party Standing to Challenge a Protective
Order to Access Unfiled Discovery
Article III standing requires an injury-in-fact capable of
being redressed by a favorable decision of the court. Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). An
injury-in-fact is “a ‘concrete and particularized’ invasion
of a ‘legally protected interest,’ ” Spring Commc’ns Co. v.
APCC Servs., Inc., 128 S. Ct. 2531, 2535 (2008) (quoting
Lujan, 504 U.S. at 560), and must be “actual or imminent,
not conjectural or hypothetical,” Lujan, 504 U.S. at
560 (internal quotation marks omitted). Furthermore,
20 No. 07-2651
standing exists only if it is “ ‘likely,’ as opposed to merely
‘speculative,’ that the injury will be ‘redressed by a favor-
able decision.’ ” Id. (quoting Simon v. E. Ky. Welfare
Rights Org., 426 U.S. 26, 38, 43 (1976)).
“Although standing in no way depends on the merits
of the plaintiff’s contention,” standing does turn on “the
nature and source of the claim asserted.” Warth, 422 U.S.
at 500; see also McConnell v. FEC, 540 U.S. 93, 227 (2003)
(standing requires a “claim of injury . . . to a legally
cognizable right”). We have noted that the Supreme
Court’s standing doctrine requires litigants to establish
an injury to an interest “that the law protects when it is
wrongfully invaded,” and this is “quite different from
requiring them to establish a meritorious legal claim.”
Aurora Loan Servs., Inc. v. Craddieth, 442 F.3d 1018, 1024
(7th Cir. 2006); see also DH2, Inc. v. SEC, 422 F.3d 591, 597
(7th Cir. 2005); Clay v. Fort Wayne Cmty. Sch., 76 F.3d 873,
878 (7th Cir. 1996). However, while a litigant need not
definitively “establish that a right of his has been in-
fringed,” he “must have a colorable claim to such a
right” to satisfy Article III. Aurora Loan, 442 F.3d at 1024;
see also DH2, 422 F.3d at 597.
Many of our decisions—as well as decisions from other
circuits—speak broadly about a “presumption of public
access to discovery materials.” Citizens First Nat’l Bank,
178 F.3d at 946; see also Public Citizen, 858 F.2d at 788-89;
In re Agent Orange Prod. Liab. Litig., 821 F.2d 139, 146 (2d
Cir. 1987) (referring to the public’s “presumptive right
of access to discovery materials”). To the extent that this
language suggests the existence of a general public right
No. 07-2651 21
to access the materials that litigating parties exchange
in response to discovery requests, it sweeps too broadly.
As we will explain, while the public has a presumptive
right to access discovery materials that are filed with
the court, used in a judicial proceeding, or otherwise
constitute “judicial records,” the same is not true of
materials produced during discovery but not filed with
the court. Generally speaking, the public has no con-
stitutional, statutory (rule-based), or common-law right
of access to unfiled discovery.
It is beyond dispute that most documents filed in court
are presumptively open to the public; members of the
media and the public may bring third-party challenges
to protective orders that shield court records and court
proceedings from public view. See, e.g., Jessup, 227 F.3d at
997 (“ ‘[T]hose who seek access to [sealed court] material
have a right to be heard in a manner that gives full pro-
tection to the asserted right.’ ”(quoting Associated Press,
162 F.3d at 507)); Citizens First Nat’l Bank, 178 F.3d at 945-
46 (regarding filing of appellate appendix under seal);
Associated Press, 162 F.3d at 507 (regarding press access
to sealed court records). This right is derived from the
common-law principle that courts are public institutions
that operate openly—a principle codified at 28 U.S.C.
§ 452—and judicially imposed limitations on this right
are subject to the First Amendment. See, e.g., Globe News-
paper Co. v. Super. Ct. for Norfolk County, 457 U.S. 596, 603-06
(1982); Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597
(1978) (“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.”
22 No. 07-2651
(footnote omitted)); see also Smith v. U.S. Dist. Ct. for S. Dist.
of Ill., 956 F.2d 647, 650 (7th Cir. 1992) (recognizing that
although this principle originally stemmed from a need
to ensure access to criminal proceedings, the right
of access has subsequently been expanded to civil pro-
ceedings).
While the public’s right to access court records is not
unlimited, see Nixon, 435 U.S. at 598; Press-Enterprise Co. v.
Super. Ct. of Cal., Riverside County, 464 U.S. 501, 510
(1984), and Rule 26(c) allows a court to shield certain
documents from the public when there is good cause to
do so, Citizens First Nat’l Bank, 178 F.3d at 945 (public
interest in observing judicial process can be overridden
if “the property and privacy interests of the litigants . . .
predominate in the particular case”), the general right
of public access to judicial records is enough to give
members of the public standing to attack a protective
order that seals this information from public inspection.
See Jessup, 227 F.3d at 997-98; Grove Fresh, 24 F.3d at 897-
98; Associated Press, 162 F.3d at 506-09.
This case is different. Here, Kalven is seeking access
to discovery materials that have never been filed with
the court and have never influenced the outcome of a
judicial proceeding. The Supreme Court has held that the
public’s right of access is limited to traditionally publicly
available sources of information, and “discovered, but not
yet admitted, information” is not “a traditionally public
source of information.” Seattle Times Co. v. Rhinehart,
467 U.S. 20, 33 (1984); accord Grove Fresh, 24 F.3d at 897-98(“[U]ntil admitted into the record, material uncovered
No. 07-2651 23
during pretrial discovery is ordinarily not within the
scope of press access.”). At common law, pretrial pro-
ceedings were closed to the public, see Gannett Co., Inc. v.
DePasquale, 443 U.S. 368, 389 (1979), and the federal dis-
covery rules have not changed this common-law tradition.
As the Court noted in Seattle Times, “[d]iscovery rarely
takes place in public,” 467 U.S. at 33 n.19, and the
system created by Rule 26 contemplates that the
exchange of information in discovery will occur with
minimal judicial involvement. See F ED . R. C IV .
P. 26(a)(1)(A), (2), (3) (requiring parties to disclose certain
material automatically, regardless of whether other
litigants have requested it); id. 26(c)(1) (party seeking a
protective order must certify that it has “in good faith
conferred or attempted to confer with other affected
parties in an effort to resolved the dispute without court
action”); see also N.D. ILL. L.R. 37.2 (providing that courts
“shall hereafter refuse to hear any and all motions for
discovery and production of documents under Rules 26
through 37 of the Federal Rules of Civil Procedure,
unless the motion includes a statement (1) that after
consultation in person or by telephone and good faith
attempts to resolve differences they are unable to reach an
accord, or (2) counsel’s attempts to engage in such consul-
tation were unsuccessful due to no fault of counsel’s”).
There are good reasons to treat the public’s right to
access filed and unfiled discovery materials differently.
For starters, “pretrial discovery, unlike the trial itself, is
usually conducted in private.” Citizens First Nat’l Bank,
178 F.3d at 944. Pretrial discovery—depositions, inter-
rogatories, and the production of documents—“are not
24 No. 07-2651
public components of a civil trial,” “were not open to
the public at common law,” and “in general, are con-
ducted in private as a matter of modern practice.” Seattle
Times, 467 U.S. at 33. That the court’s discovery
processes and rules are used to require litigants to
produce otherwise private information to an opposing
party is not enough to alter the legal rights of the general
public. Discovery rules are “a matter of legislative
grace,” and “[l]iberal discovery is provided for the sole
purpose of assisting in the preparation and trial, or the
settlement, of litigated disputes.” Seattle Times, 467 U.S.
at 32, 34. We have said that “[s]ecrecy is fine at the dis-
covery stage, before the material enters the judicial
record.” Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 545
(7th Cir. 2002).
The rights of the public kick in when material produced
during discovery is filed with the court. See Seattle
Times, 467 U.S. at 33 & n.19 (recognizing that the public
has a right to access anything that is a “traditionally
public source of information” and observing that “court-
house records could serve as a source of public infor-
mation”). At this point, the documents have been “used
in [a court] proceeding,” FED. R. C IV. P. 5(d), and conse-
quently the possibility exists that they could “influence
or underpin the judicial decision” and they are therefore
presumptively “open to public inspection unless they
meet the definition of trade secret or other categories
No. 07-2651 25
of bona fide long-term confidentiality.”8 Baxter Int’l.,
297 F.3d at 545; see also Citizens First Nat’l Bank, 178 F.3d
at 945.
It is true that some cases suggest that Rule 26(c) creates
a substantive right of public access to discovery. See
San Jose Mercury News, Inc. v. U.S. Dist. Court for N. Dist. of
Cal., 187 F.3d 1096, 1103 (9th Cir. 1999); Public Citizen, 858
F.2d at 787-90; Agent Orange, 821 F.2d at 145-47.
These cases, however, were based on a prior version of
Rule 5(d) of the Federal Rules of Civil Procedure that gener-
ally required all discovery materials to be filed with the
court unless the court ordered otherwise. See, e.g.,
8
However, the public does not acquire a right to access
discovery material just because a judge might review it in
camera in the course of discovery proceedings. See SEC v.
TheStreet.com, 273 F.3d 222, 233 (2d Cir. 2001) (court review of
documents for the purpose of determining whether a pro-
tective order should be entered does not “transform every
document that a court reviews into a ‘judicial document’
presumptively open to the public”); Chi. Tribune Co. v.
Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312-13 (11th Cir. 2001)
(holding that “material filed with discovery motions is not
subject to the common-law right of access, whereas discovery
material filed in connection with pretrial motions that require
judicial resolution of the merits is subject to the common-law
right”); United States v. Wolfson, 55 F.3d 58, 61 (2d Cir. 1995)
(“We are not aware . . . of any common-law principle that
documents submitted to a court in camera for the sole purpose
of confirming that the refusal to disclose them to another party
was proper, are to be deemed judicial records open to the
public.”).
26 No. 07-2651
Agent Orange, 821 F.2d at 146 (citing a prior version
of Rule 5(d)). The drafters of a 1980 amendment to
Rule 5(d) considered establishing a rule that dis-
couraged the filing of all discovery but decided not to;
“such materials are sometimes of interest to those who
may have no access to them except by a requirement of
filing, such as members of a class, litigants similarly
situated, or the public generally.” F ED . R. C IV. P. 5(d),
advisory committee note (1980). Accordingly, some
courts read the prior Rule 5(d) together with Rule 26(c)
and concluded that these rules implied the existence of
a public right to access discovery even if the discovery
was not filed with the court. E.g., Agent Orange, 821 F.2d
at 145-46.
Whatever force these decisions had was destroyed by
the 2000 amendment to Rule 5(d), which reversed the
longstanding rule generally requiring discovery to be
filed with the court. Since 2000, information exchanged
in discovery “must not be filed” until it is “used in the
proceeding” or until “the court orders filing.” FED. R. C IV.
P. 5(d) (emphasis added). In its present form, then, Rule
5(d) separates discovery material—regardless of whether
it is subject to a Rule 26(c) protective order—into two
categories: (1) that which is filed with the court (because
it is used in a court proceeding or is ordered to be
filed); and (2) that which remains unfiled and therefore
not part of the public court record. As the Second Circuit
has recognized, this amendment eliminated any implied
right of public access to unfiled discovery emanating
from the procedural rules. See SEC v. TheStreet.com,
273 F.3d 222, 233 n.11 (2d Cir. 2001) (observing that the
No. 07-2651 27
2000 amendment to Rule 5(d) “provides no presumption
of filing of all discovery materials, let alone public access
to them”) (abrogating Agent Orange). Accordingly,
nothing in Rule 26(c)—either standing alone or when
read in conjunction with the current version of
Rule 5(d)—confers substantive rights upon third parties
seeking access to the fruits of discovery.9
The district court’s analysis indicates that the judge
thought Rule 26(c) conferred a right on third parties to
challenge a protective order at any time and under any
circumstances; the court seized upon language from
some of our caselaw that refers to a “presumption” in
favor of public access. E.g., Citizens First Nat’l Bank,
178 F.3d at 946 (“Most cases endorse a presumption of
public access to discovery materials . . . .”); In re Cont’l Ill.
Sec. Litig., 732 F.2d 1302, 1309-10 (7th Cir. 1984). The “pre-
sumption” mentioned in these cases simply refers to
the general right of the public to access material con-
9
See 4B C HARLES A LAN W RIGHT & A RTHUR R. M ILLER , F EDERAL
P RACTICE & P ROCEDURE § 1152, at 465 (3d ed. 2002 & Supp.
2009) (“The 2000 amendment to Rule 5(d) eliminates the
presumption of filing all discovery materials, thereby removing
the presumption in favor of allowing unlimited access to
all discovery materials. This limitation controls both the
parties’ and the media’s access to those materials not con-
sidered judicial documents.” (footnote omitted)); 8 C HARLES
A LAN W RIGHT ET AL ., F EDERAL P RACTICE & P ROCEDURE § 2042,
at 542 (2d ed. 1994 & Supp. 2009) (acknowledging that the
changes to Rule 5(d) “may weaken arguments that there is
a presumptive public right of access to such materials”).
28 No. 07-2651
tained in court files and the limited right of litigants
under the First Amendment to “disseminate information
discovered in advance of trial,” Seattle Times, 467 U.S. at
34. It is a mistake to conclude, as the district court did,
that Rule 26(c) creates a freestanding public right of
access to unfiled discovery. Kalven’s standing thus
cannot be grounded in Rule 26(c).1 0
10
In Pansy v. Borough of Stroudsburg, 23 F.3d 772, the Third
Circuit held that media representatives had standing to chal-
lenge a protective order shielding an unfiled settlement agree-
ment because the order interfered with their effort to obtain
access to the agreement from the municipal defendant as a
public record under Pennsylvania’s Right to Know Act. The
underlying lawsuit in Pansy was brought by a former
police chief against his municipal employer, and the media
representatives had filed a state-court action against the munici-
pality under the Pennsylvania Right to Know Act contending
that the settlement agreement was a public record and they
were entitled under the Act to inspect it. The state-court
action had stalled because of the federal-court protective
order; this was enough to establish an injury-in-fact. Id. at 784.
Unlike the media intervenors in Pansy, Kalven has not sought
access to the documents under the Illinois Freedom of Informa-
tion Act, 5 I LL . C OMP . S TAT . 140/1 et seq. (the “Illinois FOIA”),
presumably on the assumption that they are exempt. See Lieber
v. Bd. of Trs. of S. Ill. Univ., 680 N.E.2d 374 (Ill. 1997); Copley
Press, Inc. v. Bd. of Educ. for Peoria Sch. Dist. No. 150, 834 N.E.2d
558 (Ill. App. Ct. 2005). Two recent cases—one from the Illinois
Supreme Court and one from the Appellate Court of Illi-
nois—may bear on the question of how the Illinois FOIA applies
(continued...)
No. 07-2651 29
Nor can it be grounded in the First Amendment. Kalven
appears to concede this point; he does not assert a con-
stitutional right of access to the unfiled discovery. The
only First Amendment concern raised by a protective
order limiting disclosure of unfiled discovery is the
effect such an order may have on a litigant’s free-expres-
sion rights, which the Supreme Court has said are
limited by the context through which the information is
acquired. Seattle Times made it clear that “[a] litigant has
no First Amendment right of access to information
made available only for purposes of trying his suit.”
467 U.S. at 32. As such, “judicial limitations on a party’s
ability to disseminate information discovered in ad-
vance of trial implicate[] the First Amendment rights of
the restricted party to a far lesser extent than would
10
(...continued)
to the police department records at issue here. See Stern v.
Wheaton-Warrenville Cmty. Unit Sch. Dist. 200, 910 N.E.2d 85 (Ill.
2009); Gekas v. Williamson, 912 N.E.2d 347 (Ill. App. Ct. 2009).
These cases are difficult to reconcile with Lieber and Copley Press.
We need not try to predict how the Illinois Supreme Court might
resolve the conflict. Kalven never sought access to the docu-
ments under the Illinois FOIA. Even if he had, it would not
make a difference. The protective order does not interfere
with Kalven’s ability to try to obtain the documents he seeks
directly from the City under the Illinois FOIA. Unlike the order
prohibiting disclosure of the settlement agreement in Pansy,
nothing in the protective order here prohibits the City from
disclosing any of its police department records to the public
upon request. Accordingly, Kalven is not similarly situated
as the media intervenors in Pansy.
30 No. 07-2651
restraints on dissemination of information in a different
context.” Id. at 34; see also Arthur R. Miller, Confidentiality,
Protective Orders, and Public Access to the Courts, 105
H ARV . L. R EV. 427, 487 (1991) (describing the interest in
accessing information produced by discovery as a side
effect of—and therefore subordinate to—the judicial
system’s central concern of resolving disputes between
litigants). Where, as here, the litigants themselves agreed
to the protective order and do not seek its modification,
this (limited) interest simply is not in play.
Accordingly, Kalven cannot claim standing based on
a derivative First Amendment right to receive informa-
tion; this doctrine requires the existence of a willing
speaker. See Va. State Bd. of Pharmacy v. Va. Citizens Con-
sumer Council, Inc., 425 U.S. 748, 756 (1976) (“Freedom of
speech presupposes a willing speaker. But where a
speaker exists, . . . the protection afforded is to the com-
munication, to its source and to its recipients both.”
(footnote omitted)); accord Kleindienst v. Mandel, 408 U.S.
753, 762-63 (1972) (acknowledging a First Amendment
right to “receive information and ideas” and that freedom
of speech “necessarily protects the right to receive”). Media
challenges to trial-court gag orders have been allowed
where the orders interfere with the right to receive infor-
mation from parties and their attorneys who wish to
disseminate it. See, e.g., In re Dow Jones & Co., 842 F.2d 603(2d Cir. 1988); CBS Inc. v. Young, 522 F.2d 234, 237-38 (6th
Cir. 1975). But a stipulated protective order involves self-
imposed secrecy and is therefore not the equivalent of
a gag order.
No. 07-2651 31
We have said in another context that a First Amend-
ment right-to-receive claim lies only where there is a
willing speaker because “[a] precondition of the right to
receive . . . is the existence of a ‘willing speaker.’ ” Ind.
Right to Life, Inc. v. Shepard, 507 F.3d 545, 549 (7th Cir. 2007)
(quoting Va. State Bd. of Pharmacy, 425 U.S. at 756). Every
circuit to have considered the question of standing in
the context of a right-to-receive claim has reached the
same conclusion: “[I]n order to maintain a ‘right to lis-
ten’ claim, a plaintiff must clearly establish the ex-
istence of a ‘willing speaker.’ In the absence of a willing
speaker, an Article III court must dismiss the action
for lack of standing.” Pa. Family Inst., Inc. v. Black, 489
F.3d 156, 166 (3d Cir. 2007) (internal quotation marks
omitted); accord Stephens v. County of Albemarle, Va., 524
F.3d 485, 490-93 (4th Cir. 2008); Competitive Enter. Inst. v.
U.S. Dep’t of Transp., 856 F.2d 1563 (D.C. Cir. 1988);
Basiardanes v. City of Galveston, 682 F.2d 1203, 1211-12 (5th
Cir. 1982) (“Recipients of protected communication have
standing only if there is a speaker who wishes to
express himself or herself.”).
Thus, to satisfy Article III on this type of claim, an
intervenor must do more than simply assert that a pro-
tective order interferes with his inchoate, derivative
“right” to receive discovery information. See Okla. Hosp.
Ass’n, 748 F.2d at 1424-26. Imagining the existence of a
willing speaker runs contrary to the Supreme Court’s
command that injuries-in-fact must be “actual or immi-
nent, not conjectural or hypothetical.” Lujan, 504 U.S. at
560 (internal quotation marks omitted). Where, as here,
the litigants have voluntarily bound themselves to keep
certain discovery confidential and do not themselves
32 No. 07-2651
seek relief from the requirements of the protective
order, there is no willing speaker on which to premise
a First Amendment right-to-receive claim.
In short, Kalven has no injury to a legally protected
interest and therefore no standing to support interven-
tion. Neither do the aldermen; in all material respects,
they are in the same position as Kalven.
C. Alternative Basis for Jurisdiction
As an alternative basis for jurisdiction, it might be
argued that the district court’s authority to modify or
revoke the protective order postjudgment is premised
upon its inherent power. A district court’s dismissal of a
lawsuit by stipulation under Rule 41(a)(1)(A)(ii) of the
Federal Rules of Civil Procedure generally limits the power
of the court to issue further orders, see Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994),
but the Supreme Court has recognized that a court can
take certain postdismissal action in furtherance of its
ancillary jurisdiction, a doctrine “which recognizes
federal courts’ jurisdiction over some matters (otherwise
beyond their competence) that are incidental to other
matters properly before them.” Id. at 378. A sua sponte
postjudgment modification of a protective order does not
fall within the court’s ancillary jurisdiction; it is not a
matter “incidental to” another matter that is “properly
before” the court.
Kokkonen held that after a lawsuit has been dismissed,
the doctrine of ancillary jurisdiction—which has alterna-
No. 07-2651 33
tively been called pendent jurisdiction, supplemental
jurisdiction, or ancillary-enforcement jurisdiction, 13
C HARLES A LAN W RIGHT ET AL., F EDERAL P RACTICE &
P ROCEDURE § 3523.2, at 212-13 (3d ed. 2008)—will em-
power the court to act only where necessary to “enable
the court to function successfully, that is, to manage its
proceedings, vindicate its authority, and effectuate its
decrees.” Kokkonen, 511 U.S. at 380. More specifically, the
Court held in Kokkonen that to support an exercise of
ancillary jurisdiction postjudgment, there must be an
express reservation of jurisdiction in the judgment.
Kokkonen involved the question of a federal court’s
jurisdiction to enforce a settlement agreement following
dismissal. The Court said that ancillary jurisdiction to
enforce a settlement agreement would exist only “if
the parties’ obligation to comply with the terms of the
settlement agreement had been made part of the order
of dismissal—either by separate provision (such as a
provision ‘retaining jurisdiction’ over the settlement
agreement) or by incorporating the terms of the settle-
ment agreement in the order.” Id. at 381. In that
situation, the Court said, “a breach of the agreement
would be a violation of the order, and ancillary juris-
diction to enforce the agreement would therefore exist.”
Id. But where the dismissal order neither incorporated
the parties’ settlement agreement nor expressly
retained jurisdiction over it, the court lacked ancillary
jurisdiction to enforce it and any action for breach of
the agreement belonged in state court. Id.As applied here, these principles foreclose the possi-
bility that the district court had inherent authority to
34 No. 07-2651
revisit and rescind the protective order. We note again
that the protective order did not operate to shield the
court’s own records from public view; although a
court may have inherent authority to modify a protec-
tive order sealing documents maintained in the court
file, see Nixon, 435 U.S. at 598 (“[e]very court has super-
visory power over its own records and files”), that’s not
what’s at issue here. And although Rule 60 of the
Federal Rules of Civil Procedure might have provided a
basis for a postjudgment motion for relief from the pro-
tective order by Bond or the City, that’s obviously not at
issue here, either. 1 1 There was no breach of the protective
order nor fraud in connection with its entry—either of
these might have supported an exercise of ancillary
jurisdiction to enable the court to “vindicate its authority.”
Kokkonen, 511 U.S. at 380.
And finally, although the docket notation recording the
entry of the agreed order of dismissal said the case re-
mained “open” for the purpose of “the Court retaining
jurisdiction” over Kalven’s petition to intervene to “unseal
public documents,” this is an insufficient basis upon
which to rest ancillary jurisdiction. First of all, there
were no “sealed public documents” in the court’s file
that the judge might have been prevailed upon to “un-
seal.” Second, neither the parties’ stipulation to dismiss
nor the agreed dismissal order incorporated a retention
of jurisdiction; the docket entry alone cannot supply
11
Kokkonen specifically distinguished Rule 60(b) motions that
“reopen[ ] the dismissed suit.” 511 U.S. at 378.
No. 07-2651 35
ancillary jurisdiction. Once the case was dismissed with
prejudice, Kalven’s third-party attack on the protective
order simply cannot be considered “ancillary” or “inciden-
tal” to any matter properly before the court. We have
found no case suggesting that a district court may
sua sponte raise and rebalance the equities that led to
the entry of a protective order after the dispute that
created the need for it has ended. The district court’s
order dissolving the protective order therefore cannot
be justified as an exercise of its inherent authority.
For the foregoing reasons, we V ACATE the district court’s
order granting Kalven’s petition to intervene and lifting
the protective order and R EMAND with instructions to
dismiss the petition for lack of standing. Because the
aldermen also lack standing, we V ACATE our prior order
granting their motion to intervene in this appeal; that
motion is now D ENIED and they are D ISMISSED from
the appeal.
T INDER, Circuit Judge, concurring. I concur in the
result because I believe that the district court lacked
justification to lift the protective order. As the majority
correctly explains, the district court erroneously applied
a presumption of public access under Rule 26(c) to the
36 No. 07-2651
unfiled discovery documents exchanged in this case.
Such a presumption is no longer tenable in light of the
2000 amendment to Rule 5(d), which provided that dis-
covery documents should not be filed with the court
until used in a judicial proceeding. Op. at 25-27. So
where, as here, the parties have agreed to a con-
fidentiality order covering unfiled discovery materials
which, for good cause, was judicially approved, a district
court should honor that order absent some showing of
abuse or other extraordinary circumstances. To require
any less of a showing would undermine the parties’
reliance on protective orders, which are essential to a
fair, efficient discovery process. See SEC v. TheStreet.com,
273 F.3d 222, 229-30 (2d Cir. 2001). The district court
relied on the public’s significant interest in monitoring
police misconduct as the basis for lifting the protective
order. In my view, this generalized public interest in
allegations of police misconduct, while not insignificant,
is, standing alone, not sufficiently compelling to con-
clude that the parties’ stipulated confidentiality order
lacks good cause under Rule 26(c). But Kalven presented
nothing more so he clearly failed to make a sufficient
showing to undo the protective order. (Nor do the alder-
men evidence that they could do any better in that re-
gard.) For that reason, I would reverse the district
court’s decision to lift the protective order.
So, I would arrive at the same place as the majority
opinion but by going to the merits of the decision to
alter the protective order rather than barring the
petition for lack of standing. I don’t mean to put the
cart before the horse by addressing the merits of Kalven’s
No. 07-2651 37
claim without considering the foundational question of
standing. The majority opinion provides a thoughtful
analysis of the complex interplay between Article III
standing, permissive intervention under Rule 24(b), and
third-party challenges to protective orders. Nevertheless,
I respectfully suggest that, although it is a very close
call, Kalven had sufficient standing to bring his brink-of-
dismissal challenge to the protective order in this case.
Courts have recognized that third parties can chal-
lenge a protective order under Rule 26(c) for good
cause, even where the order covers non-judicial records
that fall outside of the public’s common law right of
access. See Public Citizen v. Ligget Group, Inc., 858 F.2d
775, 787-88 (1st Cir. 1988) (public interest group had
standing to demand good cause under Rule 26(c) to
maintain a protective order covering discovery materials);
In re Alexander Grant & Co. Litigation, 820 F.2d 352, 354-56
(11th Cir. 1987) (per curiam) (journalists had standing
to bring a Rule 26(c) challenge to a protective order even
though they had no First Amendment right of access to
the discovery documents). As we explained in Grove
Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 898
(7th Cir. 1994), the press has standing to challenge a
protective order for abuse or impropriety. A third party
may claim that a litigant is exploiting a court’s confidenti-
ality order to insulate embarrassing documents that
present no “good cause” for secrecy within the meaning
of Rule 26(c). Id.; cf. Citizens First Nat’l Bank of Princeton
v. Cincinnati Ins. Co., 178 F.3d 943, 944-46 (7th Cir. 1999)
(concluding that a protective order allowing the parties
to designate virtually any discovery materials as con-
38 No. 07-2651
fidential, even those introduced into the judicial record,
was overbroad).
After a very thorough review of these and other
cases, the majority explains that courts in the past have
failed to carefully distinguish between the public’s rights
of access to judicial records and to unfiled discovery
materials, and that Rule 26(c)’s “good cause” requirement
does not support any “presumption” of public access to
the latter. Op. at 20-21, 25-28. That is true, and because
the information sought here has never been filed with
the court, this matter calls for an even more stringent
review of standing than the host of cases involving court-
filed documents. But I respectfully suggest that it
does not follow that a third-party intervenor necessarily
lacks standing to bring a Rule 26(c) challenge to a pro-
tective order covering unfiled discovery documents.
Although unfiled discovery does not fall within the pub-
lic’s presumptive right of access, the public still “has
an interest in what goes on at all stages of a judicial
proceeding.” Citizens First Nat’l Bank, 178 F.3d at 945. As
noted, third-party Rule 26(c) claims may prevent
litigants from abusing a court-approved confidentiality
order to seal whatever they want. See Grove Fresh, 24
F.3d at 898. Other circumstances (not present here) could
arise where a third party shows such an “extraordinary
circumstance or compelling need” for unfiled discovery
documents that a district court should modify an order
protecting those documents. TheStreet.com, 273 F.3d at
229. Kalven’s request came so late in the life of this
case and is so lacking in merit that it is tempting to sim-
ply join in the majority’s well-reasoned and persuasive
No. 07-2651 39
standing conclusion. However, I hesitate to do so because
I fear that a determination that Kalven lacks standing
might be read as a categorical bar to third parties who
would seek unfiled discovery materials that are subject
to protective orders. While circumstances in which
such requests might be granted ought to be exceedingly
rare, I think Kalven presented just enough to the
district court to get in the door to argue his position.
There is no way to know whether the settlement in this
case was reached between the parties before or after
Kalven filed his intervention request. But we do know
that his petition reached the court prior to the issuance
of the order of dismissal, albeit only slightly. And we do
know that his assertion of status as a journalist conducting
research on a matter of public interest such as police
brutality is genuine. We also know that the unfiled dis-
covery documents subject to the protective order are
concerned with allegations of police misconduct. As
such, I think Kalven’s petition contained just enough to
demonstrate his standing to file it. But the substance of
his request came nowhere close to mustering enough
weight to justify altering the protective order upon
which the parties had relied in fulfilling their discovery
obligations.
11-10-09