Eleventh Circuit Affirms Unsealing of Exhibits That Contain “Inadvisable Hot Takes” and Takes Aim at Abuse of Trendy “(Cleaned Up)” Parenthetical

In Callahan v. United Network for Organ Sharing, No. 20-13932 11th Cir. Nov. 17, 2021), the panel affirms a district court’s decision to unseal exhibits filed in support of a preliminary motion.

A consortium of individuals, hospitals, and universities (the hospitals) sued to enjoin a Health and Human Services regulation changing the formula for allocating livers for transplants. “[T]hey sued UNOS [United Network for Organ Sharing] and HHS, alleging violations of the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment. The hospitals also sought preliminary injunctive relief, which the district court denied based on its review of one of the APA claims.”

In a brief filed in support of the motion for preliminary injunction, the hospitals attached emails obtained in discovery which they argued “exposed ‘bad faith and improper behavior’ in UNOS’s policymaking process and should be considered as proof that the policy change was arbitrary, capricious, and the result of a denial of due process. Pending its own review, the court put both the supplemental briefing and attached documents under provisional seal, restricting them to ‘parties and Court users only.’”

The court noted that the emails included “colorable evidence of animosity and even some measure of regional bias’—what it characterized in a later order as “’inadvisable ‘hot takes,’’ ‘inflammatory remarks,’ and ‘clear preferences for policy outcomes.’” The court ultimately excluded the exhibits from evidence.

But after the district court denied the injunction, “the hospitals moved to unseal the supplemental briefs with the appended documents. The district court granted the motion, concluding that the documents were judicial records and that UNOS had not shown good cause to seal them.”

The Eleventh Circuit affirms.

First, the panel holds (in an issue of first impression for the court) that it has appellate jurisdiction over the unsealing of the exhibits under the collateral order doctrine. “Like an order granting a motion to seal or denying a motion to unseal, an order granting a motion to unseal conclusively decides a disputed question and resolves an important issue separate from a lawsuit’s merits. And it becomes effectively unreviewable if interlocutory appeal is unavailable— even more so than an order granting a motion to seal or denying a motion to unseal. The tools of the information age have only made more apparent what has always been true—once information is revealed, it cannot be made secret again.” (The panel notes a circuit split, though: the Ninth Circuit has held such orders not immediately appealable.)

Second, the panel rejects the argument that exhibits were not “judicial records” that are presumptively open to the public. Comm’r, Alabama Dep’t of Corr. v. Advance Local Media, LLC, 918 F.3d 1161 (11th Cir. 2019); FTC v. AbbVie Products LLC, 713 F.3d 54 (11th Cir. 2013); Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304 (11th Cir. 2001). “Remarkably, UNOS argues that the Chicago Tribune test no longer applies because of our holding in Advance Local Media. It contends that our focus there on the role a given document played in the district court’s decisionmaking nudges us inexorably toward a ‘functional approach,’ and away from the categorical approach we’ve applied so far.” But the panel says this “distorts our case law beyond recognition.”

“We decline UNOS’s invitation to part ways with these precedents. Under the standard we have consistently applied, the outcome here is clear: as the district court correctly concluded, the documents at issue ‘were used in connection with merits briefing such that the public right of access attaches.’They were attached to the hospitals’ supplemental brief in support of a preliminary injunction—a pretrial motion separate from discovery. The materials thus qualify as judicial records, and they are subject to the common-law right of access.”

Third, the panel holds that the district court did not abuse its discretion in unsealing the emails. “UNOS offered no particularly compelling reasons to keep the documents sealed in the first place. They involve policymaking on a topic of genuine public concern, and do not contain proprietary information or trade secrets that require protection. Nor is there any suggestion that the emails are fraudulent; UNOS itself produced the communications. To be sure, UNOS’s eagerness to keep the documents secret is understandable; we are certain that these are not the first litigants to wish they had been more circumspect in their emails. But UNOS’s reasoning boils down to a desire to keep indiscreet communications out of the public eye, which is not enough to satisfy our standard for good cause.”

Finally, in a footnote, the panel exposes one litigant’s abuse of the ascendent “(Cleaned Up)” signifier now used in briefs to indicate where a quotation is supposedly presented stripped of non-substantive content, such as brackets, quotation marks, ellipses, footnote reference numbers, and internal citations. “A ‘cleaned up’ parenthetical has limited utility at most. And whatever utility that innovation may have will vanish entirely if it is used to obscure relevant information. Here, UNOS quoted Advance Local Media as saying that ‘[u]nlike ‘materials that invoke judicial resolution of the merits,’ the public interest is not furthered by documents that are ‘irrelevant to the underlying issues,’ like ‘the overwhelming majority of documents disclosed during discovery.’’ But the text UNOS ‘cleaned up’ comes from an explanatory ‘cf.’ parenthetical summarizing AbbVie Products and therefore does not constitute a holding in Advance Local Media itself . . . . Even more troubling, UNOS omitted the end of the sentence it quoted, which reiterated that ‘public access is presumed for materials that invoke judicial resolution of the merits.’ Id. (quotations omitted).”

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