Ninth Circuit Establishes Procedures For Obtaining Access To Documents Under Protective Order In A Different Case

Defendants often request blanket protective orders in an attempt to limit the use of discovery to a particular case, and many plaintiffs will agree merely to facilitate discovery. However, in Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122 (9th Cir. June 18, 2003), the court allowed plaintiffs in a different case to obtain access to protected documents. In a thorough analysis of the relevant issues, the court established procedures for handling requests to obtain (a) sealed filings, and (b) discovery designated confidential but not filed in court. In both situations, the court that entered the protective order must weigh the relevance of the documents sought against the producers’ reliance interest and the policy interest of avoiding duplicative discovery. If that court permits access, the court handling the collateral litigation becomes responsible for resolving specific disputes over the discoverability of particular documents. There is a presumption of access to documents filed under seal in support of dispositive motions only, for which “compelling reasons” must be shown to maintain the seal.