In an article published in the May 2017 issue of the Association of Corporate Counsel's ACC Docket, Burr & Forman Nashville partner Kenneth Bryant and associate Jonathan Tebbs and CiOX Health's deputy general counsel Dart Jackson provide guidance as to how a 2009 study by the Federal Judicial Center found that district courts and individual judges were vastly inconsistent in granting requests for seals.

A recent decision from the United States Court of Appeals for the Sixth Circuit brings guidance to both litigants and judges and takes a conservative view of the need to seal cases. Shane Grp., Inc. v. Blue Cross Blue Shield, 825 F.3d 299, 305 (Sixth Cir. 2016), sets a high bar for sealing documents.

"Shane Group highlights the practical challenges of effectively litigating a case while properly maintaining the confidentiality of sensitive financial data, trade secrets, and personal information," Bryant and Tebbs explain. "Shane Group raises important questions and offers guidance for all counsel who must protect sensitive information from unwanted public disclosure in court filings."

The most important lesson from Shane Group is that the documents designated "confidential" in discovery, even in accordance with a protective order, may not be filed under seal as a matter of course. Whether or not a document is treated as confidential in discovery has nothing to do with whether it can be filed under seal.

The authors say that the Shane Group and other recent rulings suggest that most courts will bring renewed scrutiny to such requests. "Courts are likely to continue to protect genuine trade secrets and sensitive business information, but counsel should take nothing for granted."