In re: Avandia Marketing (United Food & Commerical Workers Local 1776)—civil—reversal—Smith

In an interesting procedural opinion issued late yesterday, the Third Circuit vacated a district court’s ruling sealing some documents at GlaxoSmithKline’s request that the appellant wanted to include in the appendix on appeal:

We conclude that the District Court failed to apply the proper legal standard for the common law right of access, which requires as a starting point the application of a presumption of public access. See Bank of Am. Nat’l Tr. & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986). By applying, instead, our standard for a protective order under Federal Rule of Civil Procedure 26, the able District Judge incorrectly placed a burden on the plans to show an interest in disclosure—rather than on GSK to justify continued sealing. We will therefore vacate and remand to allow the District Court to consider GSK’s motions for continued confidentiality under the appropriate standard.

The panel majority declined, on constitutional-avoidance grounds, to reach the appellant’s argument that disclosure was required by the First Amendment’s right of access to civil trials. Judge Restrepo dissented on this point, expressing his view that avoidance was not required and that access to the documents was constitutionally required.

Joining Smith were Ambro in full and Restrepo in part; Restrepo dissented in part. Arguing counsel were former McKee clerk Hannah Brennan of Massachusetts for the appellant and Sean Fahey of Pepper Hamilton for GSK.