From the Fifth Circuit's decision yesterday in Sealed Appellant v. Sealed Appellee, a per curiam signed by Chief Judge Priscilla Richman and Judges Edith Jones and James Ho:
Plaintiff sued Defendant for allegedly posting explicit pictures of Plaintiff online and otherwise harassing Plaintiff and her family. Plaintiff and Defendant have since settled, but we must still address whether the district court abused its discretion by unsealing the case. Because the district court applied an incorrect standard for determining when judicial records may be sealed, we vacate and remand….
Plaintiff and Defendant engaged in an affair for approximately a year. Plaintiff ultimately ended the affair. She alleges, however, that Defendant retaliated by harassing Plaintiff and her family, including by posting sexually explicit images of Plaintiff online. Plaintiff sued Defendant for public disclosure of private facts and intrusion on seclusion, later amending her complaint to also include claims against the adult websites Defendant allegedly used to post explicit images. Plaintiff requested and received both a temporary restraining order and a temporary injunction against Defendant.
After she filed her original complaint and the district court granted the TRO, Plaintiff moved to seal the case, citing the "nature and content of documents on file," the "anticipated filing" of exhibits "depicting pornographic images" and "sexually-related texts and messages," and "reference[s] … in pleadings or materials on file" to Plaintiff's family, including her daughter. The district court granted the motion, ordering that all pleadings and documents on file in the case—including all future filings—be sealed.
Nonetheless, some case documents were published online on legal websites and databases. When Plaintiff discovered this, she asked the district court to issue an order preventing the websites from publishing the information. Defendant opposed the motion and moved to unseal the case. The district court denied Plaintiff's motion to prevent publication, but it also denied Defendant's motion to unseal, noting that the case would remain sealed with attorney-only electronic access. Defendant later moved again to unseal. The district court largely denied this request, granting only in part to allow parties and attorneys electronic access to certain documents but continuing to completely restrict public access.
Professor Eugene Volokh then moved to intervene. Volokh is a law professor who specializes in the First Amendment and desires to write about this case. He explained that this case came to his attention after one of the district court's orders turned up in a scheduled daily Westlaw search for cases mentioning sealing and the First Amendment. Volokh sought permission to intervene so he could move to unseal.
