Mob Bosses in Black Robes VI

Hiding Court Documents From Public View Does Not Justifiably Fall Under the Wide Discretion Afforded MDL Judges

This article examines how a “resourceful” MDL judge may allegedly attempt to maintain public confidence in the integrity and impartiality of the judiciary by intentionally hiding embarrassing court documents from public view. Since the BP oil well blowout MDL (“MDL 2179”) is considered to be the gold standard for MDL, it will be used as a case study.

The Public’s Right of Access to Judicial Records is a Fundamental Element of the Rule of Law

In Binh Hoa Le v. Exeter Fin. Corp., No. 20-10377 (5th Cir. March 5, 2021), the Fifth Circuit explains, “Judicial records are public records. And public records, by definition, presume public access….The presumption of openness is Law 101: “The public’s right of access to judicial records is a fundamental element of the rule of law.”16 Openness is also Civics 101. The Constitution’s first three words make clear that ultimate sovereignty is wielded not by government but by the governed.17 And because “We the People” are not meant to be bystanders, the default expectation is transparency - that what happens in the halls of government happens in public view. Americans cannot keep a watchful eye, either in capitols or in courthouses, if they are wearing blindfolds.

“Providing public access to judicial records is the duty and responsibility of the Judicial Branch.”18 Why is this important? Because accessibility enhances legitimacy, the assurance that things are on the level. Article III courts are independent, and it is “particularly because they are independent” that the access presumption is so vital - it gives the federal judiciary “a measure of accountability,” in turn giving the public “confidence in the administration of justice.”19 Put simply, protecting the public’s right of access is “important to maintaining the integrity and legitimacy of an independent Judicial Branch.”20 And hopefully, more access to judicial records means more trust in judicial officers and more respect for judicial orders.

American judicial proceedings are public.25 And judges must protect public accessibility for three mutually reinforcing reasons: (1) the public has a right to monitor the exercise of judicial authority;26 (2) judges are “the primary representative[s] of the public interest in the judicial process”;27 and (3) the judiciary’s institutional legitimacy depends on public trust. Public trust cannot coexist with a system wherein “important judicial decisions are made behind closed doors” and, worse, private litigants do the closing.28

In our view, courts should be ungenerous with their discretion to seal judicial records,29 which plays out in two legal standards relevant here. The first standard, requiring only “good cause,” applies to protective orders sealing documents produced in discovery.30 The second standard, a stricter balancing test, applies “[o]nce a document is filed on the public record” - when a document “becomes a ʻjudicial record.’”31 Under both standards, the working presumption is that judicial records should not be sealed.32 That must be the default because the opposite would be unworkable: “With automatic sealing, the public may never know a document has been filed that might be of interest.”33

Sixteen Court Documents Are Hidden From Public View in MDL 2179

A search on the Public Access to Court Electronic Records (PACER) system for Donovan v. Barbier, et al., 2:21-cv-00237 (EDLA) reveals that the last two documents filed in this case were:

February 17, 2021 - Donovan files his Notice of Voluntary Dismissal.

August 26, 2021 - The Court issued an order setting the amount of attorney fees Donovan must pay as a sanction to Herman and Roy. 

This is incorrect.

There were sixteen (16) court documents filed between February 17, 2021 and August 26, 2021 which are being hidden from public view.

These sixteen documents are available here.

The MDL judge hid these 16 court documents from public view for three reasons: (1) these documents would prove to be embarrassing to the Honorable Carl J. Barbier and three of his co-defendants in Donovan v. Barbier, et al.; (2) Judge Barbier’s impartiality would most certainly be questioned; and (3) the public’s confidence in the integrity of the judicial process would be severely damaged.

High ethical standards and transparency are essential to an independent judiciary and to maintaining the public’s trust.

On October 26, 2021, Judge Jennifer Walker Elrod, Chair of the Codes of Conduct Committee of the Judicial Conference of the U.S. who serves on the Fifth Circuit U.S. Court of Appeals, appeared before the United States House of Representatives Committee on the Judiciary. She testified:

“The statutes and case law on recusal, the Code of Conduct provisions, as well as the Judiciary policies, practices, and enforcement mechanisms … are the tools and resources available to the federal Judiciary and to the public to ensure the functioning of an ethical and independent judicial branch and to enhance the public’s trust in the Third Branch.”

It’s time for MDL judges to focus on: (a) justice for the plaintiffs rather than merely judicial efficiency; (b) ensuring the functioning of an ethical and independent judicial branch; and (c) rehabilitating/enhancing the public’s trust in the federal judiciary. “MDL Judges” should not be perceived as “Mob Bosses.”

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16 In re Leopold to Unseal Certain Elec. Surveillance Applications & Orders, 964 F.3d 1121, 1123 (D.C. Cir. 2020).

17 Collins v. Mnuchin, 938 F.3d 553, 562 (5th Cir. 2019) (en banc), cert. granted, 141 S. Ct. 193 (2020) (“No mere tinkerers, the Founders’ upended things. Three rival branches deriving power from three unrivaled words - ʻWe the People’ -  inscribed on the page in supersize script. In an era of kings and sultans, nothing was more audacious than the Preamble’s first three words, a script-flipping declaration that ultimate sovereignty resides not in the government but in the governed.”).

18 Leopold, 964 F.3d at 1134.

19 United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995) (emphasis added).

20 MetLife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 663 (D.C. Cir. 2017).

25 Matter of Krynicki, 983 F.2d 74, 75 (7th Cir. 1992) (Easterbrook, J.).

26 See Bradley on behalf of AJW v. Ackal, 954 F.3d 216, 224 (5th Cir. 2020) (“The public ʻhas a common law right to inspect and copy judicial records.’”); Citizens First Nat. Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999) (Posner, J.) (“[T]he public at large pays for the courts and therefore has an interest in what goes on at all stages of a judicial proceeding.”).

27 Citizens, 178 F.3d at 945.

28 Vantage Health Plan, Inc. v. Willis-Knighton Med. Ctr., 913 F.3d 443, 450 (5th Cir. 2019) (quoting United States v. Holy Land Found. for Relief & Dev., 624 F.3d 685, 690 (5th Cir. 2010)); accord Bradley, 954 F.3d at 224 (public access to judicial records “promotes the trustworthiness of the judicial process, curbs judicial abuses, and provides the public with a better understanding of the judicial process, including its fairness[, and] serves as a check on the integrity of the system” (quoting United States v. Sealed Search Warrants, 868 F.3d 385, 395 (5th Cir. 2017)).

29 Holy Land, 624 F.3d at 690 (“[T]he power to seal court records must be used sparingly in light of the public’s right to access.”); S.E.C. v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993) (“[T]he district court’s discretion to seal the record of judicial proceedings is to be exercised charily.” (quotation omitted)).

30 Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985) (discussing Fed. R. Civ. P. 26); Fed. R. Civ. P. 26 (c)(1) (requiring good cause for sealing discovery documents). See also Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv. L. Rev. 427, 433 (1991) (describing good cause as a “particularized factual showing of the harm” to be avoided by sealing).

31 Vantage, 913 F.3d at 451. One explanation of the different sealing standards for discovery and judicial records is that “material filed with discovery motions is not subject to the common-law right of access, whereas discovery material filed in connection with pretrial motions that require judicial resolution of the merits is subject to the common-law right.” Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312 (11th Cir. 2001). Accord Endo, supra n.21, at 1283 (dispositive filings generally subject to a more stringent sealing standard than discovery documents).

32 Vantage, 913 F.3d at 450.

33 Gregg Costa, Federal Appellate Judge: Too Many Sealed Documents, Nat’l Law J. (Feb. 15, 2016, 12:00 AM), https://www.law.com/nationallawjournal/almID/ 1202749628845/Federal-Appellate-Judge-Too-Many-Sealed-Documents/?rss=rss_nlj (describing the crucial role of unsealed court documents in the Boston Globe exposé of the cover-up of sexual abuse by Catholic priests).