Baxter Intern., Inc. v. Abbott Laboratories

• Citation: 297 F.3d 544
• Decision Date: 16 July 2002
• Docket Number: No. 02-2039.,02-2039.
• Parties: BAXTER INTERNATIONAL, INCORPORATED, Plaintiff-Appellant, v. ABBOTT LABORATORIES, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

297 F.3d 544

BAXTER INTERNATIONAL, INCORPORATED, Plaintiff-Appellant, v. ABBOTT LABORATORIES, Defendant-Appellee.

No. 02-2039.

United States Court of Appeals, Seventh Circuit.

July 16, 2002.

Constantine L. Trela, Sidley Austin Brown & Wood, Chicago, IL, for plaintiff-appellant.

R. Mark McCareins, Winston & Strawn, Chicago, IL, for defendant-appellee.

Before EASTERBROOK, KANNE, and WILLIAMS, Circuit Judges.

EASTERBROOK, Circuit Judge.

A few weeks ago a single judge of this court, serving as motions judge for the week, received and denied a joint motion to maintain documents under seal. The motion was generic: it related that the parties had agreed on secrecy, that the documents contained commercially sensitive information, and so on, but omitted details. What is more, the motion did not attempt to separate genuinely secret documents from others in the same box or folder that could be released without risk. The motion was patterned on the sort of broad secrecy agreement that often accompanies discovery in order to expedite that process by avoiding document-by-document analysis. Secrecy is fine at the discovery stage, before the material enters the judicial record. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). But those documents, usually a small subset of all discovery, that influence or underpin the judicial decision are open to public inspection unless they meet the definition of trade secrets or other categories of bona fide long-term confidentiality. See, e.g., Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir.1994); In re Continental Illinois Securities Litigation, 732 F.2d 1302 (7th Cir.1984). Information transmitted to the court of appeals is presumptively public because the appellate record normally is vital to the case's outcome. Agreements that were appropriate at the discovery stage are no longer appropriate for the few documents that determine the resolution of an appeal, so any claim of secrecy must be reviewed independently in this court. See this circuit's Operating Procedure 10.

Despite these principles, the parties' joint motion made no effort to justify the claim of secrecy. It was simply asserted, mostly on the basis of the agreement but partly on the ground that these are commercial documents. That won't do. See Union Oil Co. v. Leavell, 220 F.3d 562 (7th Cir.2000). The motion did not analyze the applicable legal criteria or contend that any document contains a protectable trade secret or otherwise legitimately may be kept from public inspection despite its importance to the resolution of the litigation. See Composite Marine Propellers, Inc. v. Van Der Woude, 962 F.2d 1263, 1266 (7th Cir.1992) (a litigant must do more than just identify a kind of information and demand secrecy). So perfunctory was this motion that it could have been summarily rejected. Instead, however, the motions judge denied the request without prejudice, explained to the parties some of its shortcomings, and invited renewal.

A new joint motion was not long in coming, and it revealed that the original had vastly overclaimed. Now the parties agree that most of the documents transmitted to this court may be revealed to the public without jeopardizing any legitimate interest. Still, they contend, some of the documents — including the contracts that form the basis of this suit — should remain confidential. The motions judge referred this renewed motion to a panel for resolution in light of the frequency with which such motions are filed and litigants' frequent inattention to the legal standards for closure of records.

The lead reason in the renewed motion is, once again, the parties' agreement. All that has changed since the first motion is the time of the agreement said to be controlling. The first motion contended that the parties' current agreement justifies confidentiality. The second motion points to two earlier agreements: one during discovery in the district court and another during the arbitration that preceded the litigation. The new contention, in other words, is that secrecy must be maintained today in order to give effect to the parties' agreements reached last year, or the year before.

Yet the sort of agreement that governs discovery (or arbitration) is even weaker as a reason for appellate secrecy than is a contemporaneous agreement limited to the record on appeal. Allowing such an agreement to hold sway would be like saying that any document deemed provisionally confidential to simplify discovery is confidential forever. That would contradict Grove Fresh and its predecessors, which hold that the dispositive documents in any litigation enter the public record notwithstanding any earlier agreement. How else are observers to know what the suit is about or assess the judges' disposition of it? Not only the legislature but also students of the judicial system are entitled to know what the heavy financial subsidy of litigation is producing. These are among the reasons why very few categories of documents are kept confidential once their bearing on the merits of a suit has been revealed. In civil litigation only trade secrets, information covered by a recognized privilege (such as the attorney-client privilege), and information required by statute to be maintained in confidence (such as the name of a minor victim of a sexual assault), is entitled to be kept secret on appeal. See generally Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978); Jessup v. Luther, 277 F.3d 926 (7th Cir.2002); United States v. Ladd, 218 F.3d 701 (7th Cir.2000); Citizens First National Bank v. Cincinnati Insurance Co., 178 F.3d 943 (7th Cir.1999); Ball Memorial Hospital Inc. v. Mutual Hospital Insurance, Inc., 784 F.2d 1325 (7th Cir.1986). Cf. Herrnreiter v. Chicago Housing Authority, 281 F.3d 634 (7th Cir.2002). As we remarked in Union Oil, many litigants would like to keep confidential the salary they make, the injuries they suffered, or the price they agreed to pay under a contract, but when these things are vital to claims made in litigation they must be revealed.

So does any of these documents contain a trade secret or something comparable whose economic value depends on its secrecy? The parties' joint motion does not make such an argument. Instead the parties again serve up a bald assertion that confidentiality promotes their business interests. Here is a representative sample; not one word of justification has been omitted:

Five of the documents include a copy of a confidential licensing agreement...