Jodi Munn Schebel, Discovery Group Chair and Co-Managing Partner of Bowman and Brooke’s Detroit Office, testified before the House Judiciary Sub-Committee on Courts, Intellectual Property and the Internet on Thursday, September 26, on the topic of “The Federal Judiciary in the 21st Century: Ensuring the Public’s Right of Access to the Courts.”
Ms. Schebel spoke about sealing the record and preserving litigants’ rights to protect their privacy interests in confidential documents and information exchanged during litigation. She explained that applicable standards to seal a document in federal court depends on the purpose for which the confidential document is offered. Good cause is generally sufficient to seal documents during discovery, but a compelling interest must be shown to overcome the public’s right to access court documents related to the merits of the case. 
Ms. Schebel identified a significant issue that typically occurs at the trial stage of a case when sealing is imperative. “When preparing for trial, the parties file and serve exhibit lists which identify documents that the parties may use during trial. In complex litigation, these lists often contain thousands of documents. In such cases, the effort to substantiate the need to seal each and every confidential document on a trial exhibit list would be extraordinary. Moreover, when filed before the trial even begins, the parties are left without context for the specific use to which the documents might be put, if they are even used during the trial at all.”
She suggested that in order to adequately protect a party’s property interest in its documents during litigation, sealing should be routine until the conclusion of a case. Then the party seeking to seal the record is in the best position to fully support their request and the court has the benefit of any factual findings made regarding the underlying case which may impact the public’s right to access court records. Such conditional sealing will “promote judicial economy in the spirit of Fed. R. Civ. P. 1, will afford parties the benefit of a court’s decision on the merits in connection with their request to seal, and will provide the proponent of sealing the most extensive opportunity to maintain confidentiality over its documents without chilling the public’s right to access.”
Click here to read more on the topic from Law360. Jodi Munn Schebel written statement is available here and video testimony is available here.