Attorneys frequently navigate choppy waters between the presumption of openness that applies to court proceedings and the insistence of their clients to file a number of documents under seal to maintain the secrecy of information relevant to the proceedings.

The fine line between publicity and privacy in litigation

Not too long ago, the U.S. Court of Appeals for the Sixth Circuit issued a sharply worded reversal when, in the context of a class-action settlement, the district court sealed nearly 200 exhibits and an expert report upon which the settlement was based. Shane Grp., Inc. v. Blue Cross Blue Shield, 825 F.3d 299 (C.A.6 2016).

In Shane Group, the unanimous Sixth Circuit held that the sealing of all this information meant that “both the general public and the class were able to access only fragmentary information about the conduct giving rise to this litigation, and next to nothing about the bases of the settlement itself.” The Sixth Circuit noted that there is a big difference between the parties agreeing to a Protective Order for designating information “confidential” for purposes of discovery, on the one hand, and a court sealing items during the adjudicatory phase of a proceeding, on the other.

After Shane Group, some district judges in the Sixth Circuit cited the case in their standing orders to emphasize the high hurdle a party must satisfy to justify sealing documents on the docket and preventing the public from accessing them.

The Ohio Supreme Court and the presumption of public access

In a decision issued Feb. 17, 2022, the Ohio Supreme Court wrestled with these issues of publicity and privacy in State ex rel. Cincinnati Enquirer v. Shanahan, Slip Opinion No. 2022-Ohio-448. This interesting case confirms that the court’s preference for public access to court documents under the Rules of Superintendence can result in the issuance of extraordinary writs of mandamus and prohibition to order the unsealing of what a trial judge has previously sealed.

What led to the Enquirer’s writ action? A police officer’s controversial hand gesture

In the summer of 2020, a police officer was providing security for a meeting in Cincinnati’s city hall where anti-police protesters were urging city council to “defund” the police. At one point, the officer made an “okay” hand gesture to someone who had asked him about the status of another officer who had left the scene. Some in the crowd interpreted that “okay” gesture as a white-supremacy hand signal. The next day, derogatory comments were made about the officer on social media, portraying him as a white supremacist, and complaints were filed about the officer with the city’s Citizen Complaint Authority.

The officer sued a number of specifically-identified and John Doe defendants for false-light invasion of privacy and defamation. Citing concerns for privacy and safety, he sought leave to proceed under a pseudonym and to file under seal the affidavit in support of his motion for temporary restraining order. The officer’s affidavit included some personal details and attached several social media posts and citizen complaints filed against him. The trial court immediately granted the officer’s requests.

The Enquirer and UCLA Law Professor Eugene Volokh filed motions under Rule 45 of the Rules of Superintendence to unseal the affidavit. The trial court heard arguments of counsel, but no witnesses testified and no evidence was taken. The trial court then issued a second sealing order, which prompted the Enquirer and Volokh to pursue their extraordinary writ actions in the Ohio Supreme Court.

Mandamus and prohibition to unseal the affidavit

The Ohio Supreme Court unanimously granted a writ of mandamus to compel the trial judge to unseal the officer’s affidavit (with Justice Kennedy concurring in judgment only).

First, the court noted that Rule 47 of the Rules of Superintendence provides that a person aggrieved by a court’s failure to comply with Rules 44-47 regarding public access to court records can pursue an action in mandamus under R.C. Chapter 2731.

Next, although the trial judge contended that the exercise of her discretion was not reviewable in mandamus, the Supreme Court disagreed, noting that its review is de novo when a court has shielded documents under Superintendence Rule 45(E).

Finally, the Supreme Court concluded that the trial judge failed to show that the evidence clearly and convincingly justified restricting access to the officer’s affidavit, particularly because the officer’s identity was already available, and “doxing” the officer did not amount to a threat of injury to the officer or his family.

Prohibition to preclude the pseudonym

The Supreme Court also unanimously granted a writ of prohibition to bar the trial judge from allowing the officer to proceed under a pseudonym. Although the Enquirer and Volokh had framed their request for this relief in mandamus, the Supreme Court noted that prohibition was the appropriate route to follow, because “in substance they seek to undo the effect” of the judge’s prior orders allowing the officer to forgo the requirements of Civil Rule 10(A) and proceed under the pseudonym, “M.R.”

Again, the Supreme Court disagreed with the standard of review proposed by the trial judge, who wanted her decision reviewed for an abuse of discretion. Instead, the Supreme Court distinguished this original action from an appeal and held that it must consider this legal question de novo. Noting that allowing a plaintiff to proceed under a pseudonym was the “rare exception,” the Justices concluded that the threat of publication of the officer’s personal information was insufficient to invoke this exception.

The Supreme Court cited three factors that the Ninth Circuit applies in this context: (1) the severity of the threatened harm; (2) the reasonableness of the anonymous party’s fears; and (3) the anonymous party’s vulnerability to retaliation. Here, the court concluded the officer “did not show that anyone actually threatened his family or that his concerns are reasonable.” The court also noted that the officer’s identity had previously been revealed in published articles and in open court in other proceedings involving the officer and his wife.

Upshot: Don’t take filings under seal for granted

It can be attractive to clients to attempt to pursue confidential litigation. If there is a lesson for litigators to glean from the Sixth Circuit’s Shane Group case and the Ohio Supreme Court’s more recent Cincinnati Enquirer decision, it is not to take the sealing of court records for granted, and don’t oversell the concept of sealing court records to your clients. Inform your clients about the presumption of public access to court records and counsel them about the hurdles they will need to meet in order to seal documents submitted to the courts in connection with the litigation.

As the Cincinnati Enquirer decision shows, Ohio’s Rules of Superintendence create entirely separate, additional remedies — including extraordinary writ actions — that can be pursued successfully by third parties seeking access to purportedly confidential information that a trial judge has previously sealed.