Because ERISA law is different than other statutes and state law, the litigation may proceed differently. One matter that frequently arises, perhaps more so in ERISA litigation than some other types of litigation, is the request for a protective order and to allow documents to be filed under seal. Long-term disability claims usually involve the medical condition of a claimant and therefore the need to protect health information may arise. That is a common reason for a protective order.

Long-term disability insurers often like to keep information regarding their claim record under wraps. For example, the insurer may object to producing information relative to how many claims it has denied and how many it has paid. The insurer may refuse to provide such information without a protective order. That may or may not be well-founded. An insurer may also object to producing its claim manual (used internally to adjudicate claims) unless there is a protective order.

Many claimants who are required to litigate after exhausting all claim remedies with the long-term disability carrier, may desire to avoid some of the fighting over protective orders and over filing documents under seal. Ultimately, however, it is not up to the claimant.

A recent case from the Fifth Circuit,Binh Hoa Le v. Exeter Finance Corporation, blasted the lower court and the attorneys for failing to follow Fifth Circuit precedent relating to filing documents under seal. The case provides a good reminder of why protective orders should be opposed in some instances and why filing documents under seal should be rare.

It is tempting to simply do a cost-benefit analysis to determine whether it is worth the fight to oppose a protective order. Maybe it is in the best interests of that particular client not to delay litigation. After all, getting full and complete relief sooner is better for that client, right? After all, we have a duty to zealously represent our client. But what about our duty as an officer of the court and a duty to the entire judicial system to preserve trust in it? How do we balance these?

While the Eleventh Circuit mandates the same good causeconsideration as the Fifth Circuit as to both protective orders and filing documents under seal, the balancing of interests is different.

The Protective Order Standard: “good cause…to protect…from annoyance, embarrassment, oppression, or undue burden or expense” Fed. R. Civ. P. 26(c)
InChicago Tribune Co. v. Bridgestone/Firestone, Inc., the court ruled that while Rule 26(c) permits a court to enter a protective order. Because the district court failed to make a good cause determination, the Eleventh Circuit vacated the district court's unsealing of documents and remanded the matter for a “good cause” determination.

“The Press's common-law right of access does not extend to the sealed materials submitted in connection with motions to compel discovery; and, as to the documents submitted in connection with the motions for summary judgment, the Rule 26 good cause determination will resolve the Press's common-law right of access claim to these materials, as the standards are the same. Id at 1315.” (Emphasis added).

One may believe that “good cause” for a protective order is all that is needed for filing under seal as well. But while the standard is similar, the balancing is different.

The Balancing Difference: No Common Law Right of Access for Discovery but There is for Resolution

In Romero v. Drummond Co., the court discusses the balancing difference.

“[D]ocuments filed in connection with motions to compel discovery are not subject to the common-law right of access,” Id. at 1312-13, but “material filed in connection with pretrial motions that require judicial resolution of the merits is subject to the common-law right,” Id. at 1312. We have explained that the need for public access to discovery is low because discovery is “essentially a private process . . . the sole purpose [of which] is to assist trial preparation.” United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir.1986). (Emphasis added)

Details on Balancing: Court Function, Privacy, Injury, Reliability, Response & Options
“In balancing the public interest in accessing court documents against a party's interest in keeping the information confidential, courts consider, among other factors, whether allowing access would impair court functions or harm legitimate privacy interests, the degree of and likelihood of injury if made public, the reliability of the information, whether there will be an opportunity to respond to the information, whether the information concerns public officials or public concerns, and the availability of a less onerous alternative to sealing the documents.”See, In re Alexander Grant Co. Litig., 820 F.2d 352, 356 (11th Cir.1987); Shingara v. Skiles, 420 F.3d 301, 305-06 (3d Cir.2005); Amodeo, 71 F.3d at 1050-51.

A party's privacy or proprietary interest in information sometimes overcomes the interest of the public in accessing the information. See Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570 (1978); Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv. L. Rev. 427, 464-74 (1991).” Romero at 1246. (Emphasis added).

Key Difference – Resolution: The Public Right to Know the Basis
“Once a matter is brought before a court for resolution, it is no longer solely the party's case, but also the public's case.” In re Alexander Grant & Co. Litig., 820 F.2d 352, 355 (11th Cir. 1987). See also, Brown v. Advantage Eng'g, Inc., 960 F.2d 1013, (11th Cir. 1992).

So even though certain matters in litigation may be embarrassing or provide unwanted or undesirable publicity, the protection of such matters must be balanced against the public's right to know the basis of the resolution of the matter. The judge is the ultimate representative of the public and as officers of the court, our role is to follow the rules while advancing the interests of our clients. A little bit of sunlight in a situation may well be needed to avoid mistrust of the judicial system.