The Three Tests for Confidentiality of Litigation Documents

In re Avandia Marketing, Sales Practices and Products Liability Litigation, 924 F.3d 662 (3d Cir. 2019). This appeal had an unusual subject: whether certain documents that defendant GlaxoSmithKline (“GSK”) had designated as confidential in the District Court, pursuant to a protective order, but which were filed in connection with summary judgment proceedings, could go into the joint appellate appendix on plaintiffs’ appeal of that summary judgment ruling. GSK sought to keep the documents confidential on appeal. Plaintiffs disagreed, but the District Court largely sided with GSK and entered post-judgment sealing orders.

Plaintiffs appealed (a separate appeal from their appeal of the summary judgment granted to GSK, which remains pending). In an opinion by Chief Judge Smith, the Third Circuit reversed.

The panel held that the District Court had applied the wrong legal test. That court had invoked the standard for a protective order under Federal Rule of Civil Procedure 26, when it should instead have applied the common law right of access, “which requires as a starting point the application of a presumption of public access.” Plaintiffs had argued the common law right, as well as yet another test: the First Amendment. The panel majority saw no need to address the First Amendment issue. But the District Court’s use of the wrong test “incorrectly placed a burden on [plaintiffs] to show an interest in disclosure– rather than on GSK to justify continued sealing.”

Chief Judge Smith observed that there are “three distinct standards when considering various challenges to the confidentiality of documents.” The Third Circuit applies “the factors articulated in Pansy v. Borough of Stroudsburg, 23 F.3d 772, 783–92 (3d Cir. 1994),” when reviewing “orders preserving the confidentiality of discovery materials pursuant to Federal Rule of Civil Procedure 26.” But the court will “apply the more rigorous common law right of access when discovery materials are filed as court documents.” Finally, Chief Judge Smith said, “the First Amendment right of public access attaches to, inter alia, civil trials. “

After elaborating on each of these three standards in encyclopedic detail, a description that will serve as an excellent reference source going forward, Chief Judge Smith ruled that the District Court had erred in applying the Pansy criteria instead of the common law right standard, with its “strong presumption of access,” in these circumstances. He declined to reach the First Amendment issue. The panel remanded the matter to the District Court for application of the proper standard.

In a concurring opinion, Judge Restrepo stated that he would have reached the First Amendment issue. He concluded that “the First Amendment right of public access extends to documents submitted in connection with motions for summary judgment.” But an authoritative ruling on that issue will have to await another case.