Benjamin Franklin remarked in Poor Richard’s Almanack that “three may keep a secret, if two of them are dead.” Keeping secrets is indeed a tricky business, and none the less so in civil litigation. Over the course of their careers in the law, the authors of this blog have perceived an increase in litigants’ attempts to maintain substantial amounts of information related to their cases under seal, even as they seek redress (or seek to defend themselves) in the ostensibly public forum of a courthouse. We addressed the “fine line between publicity and privacy in litigation” in this post early last year.

Sixth Circuit reins in unsupported sealing orders

As we explained in that previous post, the U.S. Court of Appeals for the Sixth Circuit addressed this trend towards secrecy in Shane Grp., Inc. v. Blue Cross Blue Shield, a 2016 case which has now been cited more than 700 times by courts within the Sixth Circuit. In Shane Group, the Sixth Circuit rejected a settlement in a large class action, concluding that the trial court abused its discretion in sealing most of the parties’ substantive filings in the case, including 200 exhibits and an expert report upon which the settlement was based. The Sixth Circuit recognized the “strong presumption” in favor of access to court records, and distinguished between the considerations that courts should apply during the discovery phase (via protective orders) and the more demanding considerations they should apply during the adjudicatory phase (via sealing orders restricting public access to the docket).

Rules of Superintendence set state-court standard

Even before Shane Group, the Ohio Supreme Court had adopted Rules of Superintendence for the Courts of Ohio to confirm procedures applicable in the context of public access to court records. Those rules codify a presumption of access to court records, address remote access to them, require the omission of personal identifiers, and require courts to restrict public access to case documents if they find, by clear and convincing evidence, that the presumption of openness is outweighed by a higher interest, after considering:

• Whether public policy is served by restricting public access;
• Whether any state, federal, or common law exempts the document or information from public access; and
• Whether factors that support restriction of public access exist, including risk of injury to persons, individual privacy rights and interests, proprietary business information, public safety, and fairness of the adjudicatory process.

There are a couple of recent Ohio Supreme Court decisions reflecting how closely the Supreme Court will scrutinize court orders restricting public access to court documents in light of these considerations, including State ex rel. Cincinnati Enquirer v. Forsthoefel and State ex rel. Cincinnati Enquirer v. Shanahan, both of which were decided in 2022. In both of those cases, the Supreme Court concluded (as the Sixth Circuit did in Shane Group) that the lower courts had been too overbroad in their sealing orders, and had thereby shielded too much information from public access (and from the Cincinnati newspaper that successfully brought both challenges). In the Shanahan opinion, which we discussed in greater detail in last year’s post, the Supreme Court compelled the trial judge to unseal a police officer’s affidavit and denied the officer’s request to proceed under a pseudonym, despite the officer’s concerns about publicly disclosing his identity.

Recent Fifth District decision highlights procedural trap for the unwary

Toward the end of November 2023, Ohio’s Fifth District Court of Appeals issued a decision that, while brief, usefully highlights a procedural wrinkle when it comes to Ohio state (not federal) trial court orders sealing court records from public access. In PTJWE Consulting, LLC, et al. v. Sun Color Corp., the plaintiff sued for breach of contract, unjust enrichment, and promissory estoppel. After serving an original answer, the defendant later sought leave to amend the answer, accompanied by a motion to seal its counterclaims. The defendant alleged that exposing its counterclaims to public access on the court docket would disclose its proprietary business information and trade secrets. The trial court granted leave for the amended answer, but denied the motion to file it under seal. The defendant appealed the denial of the motion to seal.    

Without even addressing the merits of the defendant’s motion to seal its counterclaims, the Fifth District unanimously affirmed the trial court’s decision denying it, holding that the defendant invoked the wrong procedure (that is, a direct appeal) to challenge the trial court’s denial of the motion to seal. The Fifth District noted that the Rules of Superintendence specify (in Rule 47(B)) that “[a] person aggrieved by the failure of a court or clerk of court to comply with the requirements of [the Rules on public access to court records] may pursue an action in mandamus pursuant to Chapter 2731 of the Revised Code.”   (Emphasis added). The Fifth District also noted that the Ohio Supreme Court confirmed that an original action mandamus – with the trial judge as the named respondent – is the appropriate remedy in this context in State ex rel. Ware v. Kurt.   

Quirks to be cognizant of

The Fifth District’s recent decision in PTJWE Consulting may be brief, but it calls to mind a number of things that Ohio litigators may wish to consider when fighting over whether or not court filings can sealed and restricted from public access:

• Remember the Shane Group case and standard in federal court; remember the Rules of Superintendence (Rules 44-47) and case law interpreting those rules in Ohio state courts.

• Be aware of the distinction noted in Shane Group between protective orders in discovery and sealing orders to restrict public access to docketed filings.

• Although Shane Group was a direct appeal from a class-action settlement, in which the Sixth Circuit considered the merits of a challenge to a district court’s sealing orders, the recent PTJWE Consulting decision confirms that Ohio district courts of appeal will only address challenges to trial court applications of Superintendence Rules 44-47 in mandamus actions, not in direct appeals.

• The upshot of the point just above is that in Ohio state court, counsel can file a direct appeal from a trial court order denying a motion for protective order about the trade secrets implicated in the parties’ exchange of discovery (see, for example, the Eighth District’s 2021 decision in Hance v. Cleveland Clinic), but under the rule recently noted in PTJWE Consulting you need a mandamus action to challenge a trial court order that grants public access to your court filings pursuant to Superintendence Rules 44-47.

If you are challenging the denial of a motion to seal your client’s information on the trial court docket, consider whether/how you need to ask the court of appeals to seal that very same information while your challenge is pending.