Any thought that the Sixth Circuit's June decision regarding
filings under seal in Shane Group, Inc. v. BlueCross Blue
Shield of Michigan, 825 F.3d 299 (6th Cir. 2016)
1, might be narrowly construed based upon the
nature of the case—a challenge to a class settlement where
the parties' filings under seal prevented the class from
knowing or reviewing key bases for the settlement—should be
dispelled once and for all.
In an unpublished decision issued in July, the Sixth Circuit on
its own motion vacated a district court order that allowed the
parties to file any documents designated "Confidential"
under seal. John W. Beauchamp et al. v. Federal Home Loan
Mortgage Corp., et al., Case No. 15-6067 (July 11, 216). In
Beauchamp, a couple's personal possessions were
destroyed when a contractor hired by Freddie Mac to prepare a
foreclosed condominium and garage for resale hit the wrong unit.
The couple sued Freddie Mac, claiming vicarious liability for the
contractor's actions. In the course of the case, the parties
had entered a fairly standard discovery protective order allowing
the parties to designate certain discovery materials as
"Confidential" and providing that any party filing such
materials or documents incorporating such materials must file them
under seal. The parties then filed numerous documents under seal
without a separate, specific motion or ruling from the district
court. The district court ultimately granted summary judgment to
On appeal, the Sixth Circuit reversed the summary judgment
ruling. The Court did not stop there, however, instead declaring,
"[t]here remains one issue we raise on our own motion."
That issue was that the parties had filed numerous documents
"at the nub of this dispute" under seal and unavailable
to the public. Citing its prior ruling in Shane Group, the
Court explained the following:
During discovery, courts often issue blanket protective orders
that empower the parties themselves to designate which documents
contain confidential information. Once the parties place the
document in the record, however, "very different
The Court then reiterated the Shane Group holding that
filings under seal require (i) that the proponent overcome a very
high hurdle and provide compelling reasons to seal documents and
demonstrate as much with respect to each document proposed to be
filed under seal, and (ii) that the district court, even when there
is no objection, "set forth specific findings and conclusions
which justify nondisclosure to the public."
Noting that, in this case, the filings under seal all were made
in accordance with a discovery protective order and lacked both
independent justifications proffered by the parties and specific
findings by the district court of the kind required in Shane
Group, the Court quickly determined that the record did not
justify filing under seal.
Beauchamp highlights the emphasis – arguably new
– that the Sixth Circuit places on filings under seal. The
blanket discovery protective order of old, providing for automatic
filings under seal of documents designated
"Confidential," common in many cases, will no longer
carry the day. Filings under seal will be heavily scrutinized and
will require substantial justification in every case, whether
opposed by any other party or not. Even if that fails to occur at
the district court level, the Sixth Circuit will take it upon
itself to remedy the situation.
1 This blog is Part Two of a three-part series on the
Sixth Circuit's recent rulings on filings under seal and some
of their potential impacts on litigants and practitioners.
Part One, Sixth Circuit Denies Seal of Approval for Unjustified
Filings Under Seal, addressed the Sixth
Circuit's June 7, 2016, decision in Shane Group, Inc. v.
Blue Cross Blue Shield of Michigan. This Part Two addresses
the Sixth Circuit's subsequent, unpublished ruling on filings
under seal issued in July 2016. Part Three will address the impact
of these rulings on third-parties who are compelled to produce
documents by subpoena.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Seventh Circuit recently reviewed a district court's dismissal of an FCA claim against the City of Chicago, in which the relator alleged that the City's certifications of compliance with civil rights laws were false...
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).