Court Affirms Order Unsealing “Unguarded Emails”

The Eleventh Circuit reiterated the importance of access to judicial proceedings—including, in the case at hand, “unguarded emails expressing personal opinions,” in Callahan v. United Network for Organ Sharing, 2021 U.S. App. LEXIS 34201 (11th Cir. Nov. 17, 2021).

The underlying dispute arose from a revised organ donation policy approved by the defendant United Network for Organ Sharing (“UNOS”), which contracts with the federal Department of Health and Human Services to oversee nationwide coordination of organ transplants. A group of hospitals and patients sued UNOS, challenging the new policy, and sought a preliminary injunction, which the district court denied. On interlocutory appeal, the Eleventh Circuit affirmed that ruling. On remand, the district court ordered limited discovery, and UNOS’s subsequent document production included “several unguarded emails expressing personal opinions about the relative merits of living in different regions of the United States.”

The district court permitted the plaintiffs to file a supplemental brief in support of their motion for preliminary injunction, and the plaintiffs filed the “unguarded emails” as attachments to that brief. The district court put the brief and its attachments under seal, pending further review. The district court also excluded the documents from the administrative record for the plaintiffs’ claim against HHS under the Administrative Procedure Act, and denied the motion for preliminary injunction. The judge warned the parties, however, that the documents filed with the supplemental brief were “still part of [the] Court’s record” in the case. The plaintiffs moved to unseal the documents; the district court granted the motion; and UNOS appealed.

The Eleventh Circuit, in an opinion written by Judge Grant, affirmed. After confirming its jurisdiction under the collateral order doctrine, the court considered whether the documents attached to the brief were part of a “judicial record” subject to the common-law right of access. Citing the longstanding rule 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,” the court held that the documents attached to the brief in support of the motion for preliminary injunction were judicial records. In reaching that conclusion, the court roundly rejected UNOS’s suggestion that the court should adopt a less categorical approach and focus on the importance of a given document to the decision ultimately made by the district court: “That argument distorts our case law beyond recognition. . . .What matters is how the document was used by the parties—to support an argument before the court—and not whether the court itself used the document to resolve that argument.”

Judicial records are presumptively available to the public, but access may still be restricted for good cause, “including ‘whether allowing access would impair court functions or harm legitimate privacy interests,’” such as the interest in protecting trade secrets or other proprietary information. UNOS had failed to make such a showing with respect to the embarrassing emails, however. With respect to UNOS’s suggestion that the right to access might encourage litigants to use a court filing as a “Trojan horse” simply to publicize embarrassing material, the court noted Rule 12’s provision authorizing a motion to strike “any redundant, immaterial, impertinent, or scandalous matter” from the record. “Sealing documents is no more effective than striking them,” the court noted, and “motions to strike offer ample protection against the abusive litigation tactics that UNOS decries.”

Posted by Valerie Sanders.

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