Public access is a cornerstone of the U.S. court system. So why do litigants so often succeed in keeping documents secret?
The study, which analyzed more than two million federal civil cases spanning a decade, found that judges grant motions to seal documents almost 90% of the time, often offering little or no explanation for their decision. The research is the first to quantify how often such requests are granted; prior research and investigations focused on the prevalence of sealing in certain types of cases.
Keeping documents under seal can have tangible, and tragic, consequences. As my Reuters colleagues reported in 2019, sealing in product liability cases can keep important safety information from the public. The investigation found that a West Virginia court sealed evidence about painkiller OxyContin’s risks in litigation against Purdue Pharma as opioid overdose deaths rose.
Three-quarters of the time, the study found, the opposing party and the public didn’t bother fighting sealing requests. With the majority of sealing motions filed by defendants, that means plaintiffs’ lawyers, who tout themselves as looking out for consumers, typically weren’t jumping in to push for disclosure.
The researchers dub this “shadow consent,” arguing in the study that the lack of opposition gives judges fewer viewpoints to consider, and can encourage them to view sealing as routine rather than a question of public access. Further, judges juggling heavy caseloads may have little reason to devote scarce time to closely scrutinizing uncontested sealing requests.
“Something is broken,” said Nora Freeman Engstrom, a Stanford Law professor and one of the lead researchers.
KNOWING WHEN TO FIGHT
Plaintiffs’ lawyers I spoke to about the research, which has been accepted for publication in Duke Law Journal next year, said they mostly agreed with the conclusions.
Fighting every defense request to keep information confidential is a drag on resources, lawyers told me, and ultimately doesn’t help their clients because they still get access to the documents even when the public doesn’t. Their main priority is reaching a settlement or winning at trial. Typically hired on contingency, meaning they get paid only if they win or settle, anything prolonging the process means a delay to a potential payday.
“You have to pick your battles,” said Megan Bonanni, a Michigan lawyer who represents sexual assault victims. For her, the battles worth fighting are those that ensure the public knows about systemic abuse occurring at institutions.
The other lawyers I spoke to also insisted that when it comes to defendants trying to keep documents sealed simply because the contents could be embarrassing, rather than for a legitimate confidentiality reason, they’ll push back.
“A sealing order is not supposed to be a reputation-protecting order,” said Florida lawyer Paul Geller, who represents plaintiffs in class-action and mass-tort litigation. To be sure, there are times when all sides agree sealing is justified, including documents with sensitive medical or personal information or company trade secrets.
Geller added that oftentimes in big cases, fights over confidentiality happen before a motion reaches a judge or are hashed out with a court-appointed special master, which wouldn’t be reflected in the Stanford data. He said disputes over sealing and confidentiality are near-constant in complex litigation he’s worked on, like the multidistrict litigation accusing drug makers, distributors and pharmacies of helping fuel the opioid epidemic.
“It’s really maddening,” he said, but it’s not always realistic to challenge everything. Plaintiffs sometimes make their own requests to keep client information confidential, he said, so pushing a transparency-at-all-costs approach doesn’t work, either.
PUSHING FOR CHANGE
Now that the Stanford researchers have documented the scope of the issue, the team is proposing policy solutions. To start, Engstrom said the Deborah L. Rhode Center on the Legal Profession she co-directs at Stanford is hiring a staff lawyer whose job will include filing challenges to sealing requests on behalf of the public interest. Courts should incentivize more third parties to challenge sealing, the study proposes, by offering attorneys’ fees for successful interventions akin to third-party objectors in class-action settlements. Some nonprofits, including Public Justice, already challenge sealing requests.
Engstrom's team is drafting letters to the chief justices of every federal appellate district, detailing instances they found where local court rules around sealing diverge from the case law in that district. “Most of the time when district courts cite a sealing standard, they cite the wrong standard,” Engstrom told me.
Federal judges sometimes speak out in favor of greater transparency, like Judge Joshua Wolson of Philadelphia, who said at an event in 2024 that the judiciary needs to vigorously police against over-sealing of records to restore public confidence in the courts.
The Stanford researchers are also pushing for a first-ever federal rule around sealing, suggesting that judges only grant requests "supported by a compelling interest that outweighs the presumption of public access."
The study — which used artificial intelligence to analyze documents filed from 2005 to 2014 in a rare large data set of federal court records — recounts some of the real-world ways that sealing impacts people, including examples from the earlier Reuters investigation. Those include gun maker Remington shielding information on rifles with faulty triggers that killed scores of people and documents remaining sealed that showed auto makers knew that car roofs could crumble and kill people.
With too much sealing, the study says, “Regulators and consumers cannot learn from past failures. And future litigants are condemned to reinvent the wheel.”
