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Can’t Seal a Case Just Because the Parties Settled

The parties in Woods v. Rocky Vista Univ. (a disability discrimination claim brought by a student against a university) asked for the docket to be sealed:

2. On May 19, 2020, Plaintiff filed a Complaint with Jury Demand [ECF No. 01] in
this matter.

3. On November 17, 2020, the Parties entered into a Confidential Settlement
Agreement and General Release (“Agreement”) in the above-captioned matter.

4. On November 20, 2020, the Parties filed a Joint Stipulation of Dismissal with
Prejudice [ECF No. 32].

5. As part of the consideration described in the Agreement, the Parties agreed to file
a joint motion requesting that the Court restrict access to the records in this lawsuit. Additionally, the public has no valid interest in the contents of these records.

6. Pursuant to D.C.COLO.LCivR 7.2, the parties request that entire proceeding related
to the above-captioned matter be deemed a Level 1 Restriction, allowing only access by the parties and the Court….

No, Judge Daniel D. Domenico held today:

The parties request that this case be restricted, but they have failed to (1) show that a private interest in restriction outweighs the presumption of public access to court filings; (2) identify a clearly defined, serious injury that will result if access is not restricted; and (3) explain why there is no less-restrictive means available than complete restriction of the case. See D.C.COLO.LCivR 7.2.

Seems quite right to me, even when the case went no further than the filing of the complaint and then the settlement, as the Second Circuit held in Bernstein v. Bernstein Litowitz Berger & Grossmann (2016):

The fact that a suit is ultimately settled without a judgment on the merits does not impair the “judicial record” status of pleadings. It is true that settlement of a case precludes the judicial determination of the pleadings’ veracity and legal sufficiency. But attorneys and others submitting pleadings are under an obligation to ensure, when submitting pleadings, that “the factual contentions [made] have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.”

In any event, the fact of filing a complaint, whatever its veracity, is a significant matter of record. Even in the settlement context, the inspection of pleadings allows “the public [to] discern the prevalence of certain types of cases, the nature of the parties to particular kinds of actions, information about the settlement rates in different areas of law, and the types of materials that are likely to be sealed.” Thus, pleadings are considered judicial records “even when the case is pending before judgment or resolved by settlement.” IDT Corp., 709 F.3d at 1223 (citations omitted); accord Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 n.* (4th Cir.1988); Laurie Doré, Secrecy by Consent: The Use and Limits of Confidentiality in the Pursuit of Settlement, 74 Notre Dame L. Rev. 283, 378 (1999).

We therefore hold that pleadings—even in settled cases—are Judicial records subject to a presumption of public access.

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Eugene Volokh

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