Monday, March 2, 2020

"Once the Cat Is Out of the Bag, the Ball Game Is Over"

By Eugene Volokh - March 02, 2020 at 12:18PM

In January, I blogged about an interesting Colorado case, in which the defendants moved to retroactively seal some previously filed court documents. I opposed the motion, and the movant narrowed it, but added this request:

Finally, to ensure that the Restriction is implemented, and in the face of Professor Volokh's expressed desire to publish documents from this case, which publication would seriously harm Bonsai's business interests, Bonsai requests that this Court's order specify that no publication of these documents (or redacted portions of documents) be published, regardless of whether these documents were previously available on the court's website or otherwise.

That, I argued to the court, would violate my free speech and free press rights, and not just my right of access to court records. Once someone has downloaded publicly accessible documents, that person has a right to quote them and write about them, and that right cannot be taken away by retroactively sealing the documents. The sealing order could bar future access to the documents in the court file, and might also constrain the parties to the case. But it can't bar continued speech about those documents by outsiders who had lawfully accessed them. (Cf. Florida Star v. B.J.F.)

The motion was resolved a few days later (following an excellent telephonic oral argument by my student Jennifer Wilson), but I got distracted and neglected to blog an update; so here it is.

[1.] Magistrate Judge Michael E. Hegarty didn't reach the gag order question, because he denied the motion to seal, thus rendering the gag order request moot.

[2.] And he denied the motion to seal chiefly relying on his opinion four years before in Gunn v. WCA Logistics, LLC, No. 13-cv-02197-WJM-MEH, 2016 WL 7868827, at *1 (D. Colo. Jan. 12, 2016). He didn't issue a detailed written order, but this passage from Gunn summarizes the matter well:

The documents at issue in Defendants' motion were not filed under [seal]…. Only [some weeks later] did Defendants seek to [seal] the documents. Because Defendants failed to avail themselves of the protections provided by the District's local rules in filing [the documents], any claim to confidentiality has been waived. The cat has already been let out of the bag. Cf. Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 n.11 (2d Cir. 2004) ("Once the cat is out of the bag, the ball game is over.") …. After-the-fact sealing should not generally be permitted. See id. at 144 ("… We simply do not have the power, even were we of the mind to use it if we had, to make what has thus become public private again.").

To be sure, mistakes happen, and in my experience attempts to seal filed just a day or two after an erroneous open-court filing are sometimes granted. But once you wait weeks, and especially once others see the cat and decide to post a cat video of it on the Internet, the feathers don't go back into the pillow. Courts actually give lawyers considerable latitude to fix procedural errors, especially if the lawyers ask nicely and contritely enough. But some errors are hard or impossible to fix; missed jurisdictional deadlines are a classic example, and so are erroneous filings in open court (again, especially if the request comes after weeks or months rather than days).

[3.] Attempts to unseal can work even years after the sealing, see, e.g., EEOC v. Nat'l Children's Ctr., 146 F.3d 1042, 1047 (2d Cir. 1998); Blum v. Merrill Lynch Pierce Fenner & Smith Inc., 712 F.3d 1349, 1354 (9th Cir. 2013); United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990). But some court rules strongly prefer prompt objections to motions to seal—the District of Colorado seeks objections basically within four business days of the motion, which is posted on the District's web site. As a result, I had to move to oppose sealing right away, if I wanted to easily write about the case in the future; otherwise, moving to unseal later would be dicier and at least more time-consuming. I hope to write more about the case, which involves interesting issues of tort law, waivers of liability for recreational activities, and zip-line accidents, as more develops.

But in the meantime, here's one of the documents that the court ruled couldn't be sealed; it was filed as an attachment to the Complaint. (Of course, though it is potentially relevant to the case, it is by no means dispositive of whether the company is liable, and for all I know they may be entirely not at fault.)

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