Diane Bond v. Edwin Utreras

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2651

D IANE B OND,

Plaintiff,

v.

E DWIN U TRERAS, A NDREW S CHOEFF, C HRIST S AVICKAS,

R OBERT S TEGMILLER, and JOSEPH S EINITZ, in their

individual capacities; P HILLIP C LINE, Superintendent

of the Chicago Police Department, T ERRY H ILLARD ,

Former Superintendent of the Chicago Police Department,

and L ORI L IGHTFOOT, Former Chief Administrator of the

Office of Professional Standards, in their official capacities;

and C ITY OF C HICAGO,

Defendants-Appellants,

v.

JAMIE K ALVEN,

Intervenor-Appellee,

and

T ONI P RECKWINKLE, et al.,

Intervening Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 2617—Joan Humphrey Lefkow, Judge.

2 No. 07-2651

A RGUED JUNE 3, 2008—D ECIDED N OVEMBER 10, 2009

Before K ANNE, S YKES, and T INDER, Circuit Judges.

S YKES, Circuit Judge. Diane Bond sued the City of Chi-

cago and several members of its police department,

claiming that the officers violated her constitutional rights

while performing official duties. During discovery, the

City turned over voluminous material relating to citizen

complaints against its police officers; the information

was subject to a protective order that prohibited public

disclosure of these confidential records. The documents

produced during discovery were never filed with the

court nor used in any judicial proceeding.

Bond eventually settled with the City and its officers

(collectively “the City”), and the parties submitted

a stipulation and order for dismissal to the district

court. Just before the court entered the order, how-

ever, independent journalist Jamie Kalven petitioned for

permission to intervene so he could challenge the pro-

tective order. Kalven claimed that under Rule 26(c) of

the Federal Rules of Civil Procedure, there was no “good

cause” to maintain the protective order and asked that it

be modified to allow him access to some of the docu-

ments pertaining to citizen complaints against Chicago

police officers. (Kalven is joined on appeal by 28 Chicago

aldermen who also want access to these police depart-

ment records.) The district judge dismissed the case

with prejudice pursuant to the parties’ stipulation but

No. 07-2651 3

said she would keep the case “open” for purposes of

entertaining Kalven’s intervention petition.

Bond did not join Kalven’s request to modify the pro-

tective order. The City objected to any modification,

arguing that the order should be left in place given

the department’s interest in keeping these records confi-

dential. A few months after dismissing the case, the

district judge entered an order simultaneously granting

Kalven’s request to intervene and lifting the protective

order in its entirety. The City appealed, and we stayed

the district court’s order.

We now vacate that order; Kalven’s petition should

have been dismissed for lack of standing. The controversy

originally supporting the court’s jurisdiction no longer

existed at the time the court acted on Kalven’s petition;

the parties had settled, the case was dismissed with

prejudice, and neither Bond nor the City asked the court

to revisit and modify the terms of the protective order

postjudgment. With no live controversy ongoing, Kalven

was required to demonstrate his standing to intervene

and resuscitate the case—that is, he was required to

establish that he met the requirements of Article III by

showing an actual or imminent invasion of a legally

protected interest. Lujan v. Defenders of Wildlife, 504

U.S. 555, 560 (1992). Although no one challenged his

standing below or on appeal and the district court

did not independently address it, we are required to

satisfy ourselves that jurisdictional prerequisites are

met. We conclude they are not.

Kalven claims no constitutional or common-law right

to challenge the protective order—rightly so, because

4 No. 07-2651

there is no constitutional or common-law right of public

access to discovery materials exchanged by the parties

but not filed with the court. Unfiled discovery is private,

not public. Furthermore, Bond has not asserted an

interest in disseminating the documents (she agreed to

the protective order and did not ask that it be modified),

so Kalven cannot, and does not, claim a derivative

First Amendment right to receive them. Instead, Kalven

based his intervention petition on a supposed “presump-

tion” of public access emanating from Rule 26(c)’s “good

cause” requirement. There is no such presumption

for discovery that is not part of the court file and

therefore no “right” or legally protected interest to

support Kalven’s standing to intervene. The district court

lacked any alternative jurisdictional basis to revisit and

revoke the protective order sua sponte. Accordingly,

we vacate the court’s order permitting intervention and

lifting the protective order, and remand with instruc-

tions to dismiss Kalven’s petition for lack of standing.

I. Background

This appeal arises out of a § 1983 action Diane Bond

filed in 2004 against eight Chicago police officers and

supervisors and the City of Chicago. Bond alleged that

the police officers had subjected her to various forms of

physical and mental abuse while performing their

official duties. During pretrial discovery, the parties

agreed to a protective order that prohibited public disclo-

sure of certain confidential materials. The order covered

“employment, disciplinary, [and] investigatory” informa-

No. 07-2651 5

tion; “other information that is of a sensitive or non-

public nature” about Chicago police officers; and “files

generated by the investigation of complaints of miscon-

duct by Chicago police officers” (what the City calls

“Complaint Register files” or “CR files”), including

information that could be used to identify the officers. In

response to Bond’s discovery requests, the City produced

thousands of pages of documents; some of those docu-

ments were categorized as confidential under the pro-

tective order and therefore are subject to the nondis-

closure requirement. None of the discovery was filed

with the court.

The parties eventually settled Bond’s claims, and in

March 2007 they submitted an agreed order of dismissal

to the district court. On March 23, 2007, the court signed

and entered the order dismissing the case with preju-

dice. A week before, however, on March 15, 2007, Jamie

Kalven, an independent journalist, filed a “Petition

to Intervene and Motion to Unseal Public Docu-

ments Relating to Allegations of Police Misconduct.” This

phrasing was odd. The court had never been asked to seal

any documents in the court record; as such, there were no

“sealed public documents” to “unseal.” It was clear from

the petition, however, that Kalven sought modification

of the protective order and access to certain categories of

documents the City had produced during discovery. He

later narrowed the list of documents he seeks, but all

involve the police department’s confidential records

of citizen complaints filed against its officers. A docket

entry recording the entry of the dismissal order noted

that the case was dismissed with prejudice but also

stated that “[t]he case remains open for the purpose of the

6 No. 07-2651

Court retaining jurisdiction over the pending petition of

Jamie Kalven to intervene and motion to unseal public

documents relating to allegations of police misconduct.”

The City did not oppose Kalven’s intervention but

strongly objected to his challenge to the protective

order, arguing that “good cause” continued to support

keeping the documents confidential. See F ED. R. C IV. P.

26(c)(1). Bond did not join Kalven’s request to modify

the protective order and made no substantive response

to his petition. On July 2, 2007, the district court entered

an order allowing Kalven to intervene and rescinding

the protective order in its entirety. The court reevaluated

whether “good cause” existed to keep the documents

confidential, and in so doing applied a “presumption” of

public access to discovery materials. The court further

concluded that the public interest in information about

police misconduct outweighed the interest of the City

and its officers in keeping the records confidential. The

district court did not affirmatively order that the docu-

ments be provided to Kalven; rather, the court lifted the

protective order, thereby permitting either party to

disclose the discovery documents.1 The City appealed

the district court’s order and moved for a stay pending

appeal. A motions panel of this court granted that motion.

While the City’s appeal was pending, 28 Chicago alder-

men attempted to intervene in the district court to

1

Bond all but disappeared from this case after she settled her

claims with the City. As we have noted, she filed only an

inconsequential nonsubstantive response and has not other-

wise supported or opposed lifting the protective order.

No. 07-2651 7

obtain access to the police department’s confidential

documents. The aldermen wanted the records to help

them decide whether to adopt a proposal to separate the

police department’s oversight board from the police

department itself. The district court concluded that it

lacked jurisdiction because of the pending appeal, see

Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58

(1982); United States v. McHugh, 528 F.3d 538, 540 (7th Cir.

2008), and the aldermen appealed the district court’s

jurisdictional ruling. A motions panel dismissed that

appeal but allowed the aldermen to intervene in this

one. Thus, as this case comes to us, the aldermen and

Kalven have identical positions; they defend the

district court’s decision to lift the protective order.2

II. Discussion

The Federal Rules of Civil Procedure broadly permit

parties in litigation to obtain discovery “regarding any

nonprivileged matter that is relevant to any party’s

claim or defense.” FED. R. C IV. P. 26(b)(1). Given the

“extensive intrusion into the affairs of both litigants

and third parties” that is both permissible and common

in modern discovery, Seattle Times Co. v. Rhinehart, 467

U.S. 20, 30 (1984), the rules provide for the use of protective

orders, entered “for good cause,” to protect litigants and

third parties from the “annoyance, embarrassment, oppres-

2

Because their positions are essentially identical, we omit

repetitious reference to the aldermen and generally refer only

to Kalven as the proponent of the district court’s order.

8 No. 07-2651

sion, or undue burden or expense” that may attend the

discovery process, F ED. R. C IV. P. 26(c)(1). Protective

orders are often entered by stipulation when discovery

commences. That was the procedure used here.

In addition to prohibiting the public disclosure of

certain categories of confidential discovery material, the

agreed protective order provided that upon request at

the termination of the proceeding, the documents desig-

nated as confidential would be returned to the producing

party. The protective order also provided, however, that

before a party could submit documents otherwise

subject to the protective order to the court under seal, the

party would have to file a separate motion and obtain

a court order permitting the documents to be filed

under seal. This provision was consistent with the re-

quirements explained in Baxter International, Inc. v.

Abbott Laboratories, 297 F.3d 544 (7th Cir. 2002), and Citizens

First National Bank of Princeton v. Cincinnati Insurance Co.,

178 F.3d 943 (7th Cir. 1999), for submitting documents

to the court under seal.

It never came to that. None of the discovery mate-

rial—not that which was covered by the protective order

nor any other discovery—ever found its way into the

court file. Bond settled with the City, and the case was

dismissed with prejudice.3 Nevertheless, the district court,

postjudgment, entertained Kalven’s petition to intervene.

Without addressing the matter of Kalven’s standing,

3

It is not clear whether the City ever asked Bond to return

the confidential material it produced during discovery, as

contemplated by the agreed protective order.

No. 07-2651 9

the district court permitted the intervention and

rescinded the protective order.

That was a mistake. Although we have previously

held that permissive intervention is a procedurally appro-

priate device for bringing a third-party challenge to a

protective order, see Jessup v. Luther, 227 F.3d 993, 996-97

(7th Cir. 2000); In re Associated Press, 162 F.3d 503, 507 (7th

Cir. 1998); Grove Fresh Distribs., Inc. v. Everfresh Juice Co.,

24 F.3d 893, 896 (7th Cir. 1994), that was in the context of

requests for access to sealed records in the court file

(Jessup, Associated Press) and requests for intervention

made during ongoing litigation (Grove Fresh).4 Here, in

4

Grove Fresh involved two sets of intervenors: (1) plaintiffs in

collateral litigation against the same defendants, seeking access

to the discovery in the Grove Fresh litigation as a shortcut to

discovery in their own cases; and (2) a coalition of media

representatives. Regarding the first group of intervenors, this

court held that the request was governed by Wilk v. American

Medical Ass’n, 635 F.2d 1295 (7th Cir. 1981), which authorized

collateral litigants to obtain access to discovery on the same

terms as the litigants in the case before the court. Grove Fresh,

24 F.3d at 896. Wilk did not address either the intervenors’

standing or the standards for intervention under Rule 24

but instead skipped directly to the merits of the collateral

litigants’ request for access to discovery. This aspect of the

Grove Fresh opinion, Wilk, and other cases addressing the issue

of collateral litigants’ access to discovery in parallel litigation

have little relevance here. To the extent, however, that these

cases are premised upon a principle that “ ‘pre-trial discovery

must take place in . . . public unless compelling reasons exist

(continued...)

10 No. 07-2651

contrast, the litigation was over, the case was dismissed,

and Kalven wanted to intervene in order to press a

claimed right of access to unfiled discovery material; as

such, the question of his standing should have been

addressed. Although the parties and the district court

omitted this threshold inquiry, and the City did not raise

the issue on appeal, we have an independent obligation

to address it. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215,

230-31 (1990) (federal courts “are under an independent

obligation to examine their own jurisdiction”); Craig v.

Ont. Corp. 543 F.3d 872, 877 (7th Cir. 2008).

A. The Relationship Between Article III and Rule 24(b)

The exercise of federal judicial power is legitimate only

in live “cases” or “controversies,” and “ ‘one of the con-

trolling elements in the definition of a case or controversy

under Article III’ is standing.” Hein v. Freedom From

Religion Found., Inc., 127 S. Ct. 2553, 2562 (2007) (quoting

ASARCO Inc. v. Kadish, 490 U.S. 605, 613 (1989) (plurality

opinion)) (internal alteration omitted). The Supreme

Court has described standing as “perhaps the most impor-

tant . . . [Article III] doctrine[].” Allen v. Wright, 468 U.S.

737, 750 (1984). “In essence the question of standing is

4

(...continued)

for denying the public access to the proceedings,’ ” Wilk, 635

F.2d at 1299 (quoting Am. Tel. & Tel. Co. v. Grady, 594 F.2d 594,

596 (7th Cir. 1978)), they have been superseded by the 2000

amendment to Rule 5 of the Federal Rules of Civil Procedure.

See infra pp. 25-26.

No. 07-2651 11

whether the litigant is entitled to have the court decide

the merits of the dispute or of particular issues.” Warth v.

Seldin, 422 U.S. 490, 498 (1975). “To qualify as a case fit

for federal-court adjudication,” Arizonans for Official

English v. Arizona, 520 U.S. 43, 67 (1997), there must be “an

actual controversy [in existence] at all stages of review,

not merely at the time the complaint is filed,” Steffel v.

Thompson, 415 U.S. 452, 459 n.10 (1974). “If a dispute is not

a proper case or controversy, the courts have no business

deciding it . . . .” DaimlerChrysler Corp. v. Cuno, 547

U.S. 332, 341 (2006).

The standing issue that arises here is complex because

it involves the relationship between the requirements

of Article III and the rules for permissive intervention

under Rule 24(b) of the Federal Rules of Civil Procedure.

There is some confusion as to whether permissive

intervenors must, as a general matter, independently

demonstrate standing before they can be allowed to

enter a lawsuit. The Supreme Court has said generally

that Rule 24(b) “plainly dispenses with any require-

ment that the intervenor shall have a direct personal or

pecuniary interest in the subject of the litigation,” SEC v.

U.S. Realty & Improvement Co., 310 U.S. 434, 459 (1940), but

has also observed that “an intervenor’s right to continue

a suit in the absence of the party on whose side inter-

vention was permitted is contingent upon a showing by

the intervenor that he fulfills the requirements of

[Article] III,” Diamond v. Charles, 476 U.S. 54, 68 (1986)

(emphasis added). Some circuits have concluded that

permissive intervenors do not need to show standing “so

12 No. 07-2651

long as another party with constitutional standing on

the same side as the intervenor remains in the case.” San

Juan County, Utah v. United States, 420 F.3d 1197, 1206 (10th

Cir. 2005), aff’d, 503 F.3d 1163 (10th Cir. 2007) (en banc)

(emphasis added); see also Shaw v. Hunt, 154 F.3d 161, 165-

66 (4th Cir. 1998) (intervenors do not need to show stand-

ing to obtain attorney’s fees under 42 U.S.C. § 1988).

This circuit has not directly addressed the relation-

ship between Article III and Rule 24(b).5 Although we

5

Jessup and Associated Press do not address standing at all. Grove

Fresh refers only summarily to the question of the intervenors’

standing. At one point, addressing the collateral litigants’

request for access to discovery, the opinion collapses the

jurisdictional question into a question of the procedural propri-

ety of intervention. Grove Fresh, 24 F.3d at 896 (“It is apparent . . .

that intervention is the procedurally appropriate course for

third-party challenges to protective orders. . . . Hence, [the

defendants’] jurisdictional challenges are unavailing.”). But the

procedural propriety of using Rule 24(b) does not answer the

separate question of whether the requirements of Article III

must be or have been satisfied. At another point Grove Fresh

broadly states without analysis that “the press does have

standing to challenge a protective order for abuse or impropri-

ety.” Id. at 898. Following this statement are citations to a case

from this circuit regarding access to sealed documents in

court files, In re Continental Illinois Securities Litigation, 732

F.2d 1302 (7th Cir. 1984), and an Eleventh Circuit case re-

garding intervention for purposes of challenging a protective

order in an ongoing suit, In re Alexander Grant & Co. Litigation,

(continued...)

No. 07-2651 13

have held that standing is necessarily a component of

intervention as of right under Rule 24(a), see Solid Waste

Agency of N. Cook County v. U.S. Army Corps of Eng’rs, 101

F.3d 503, 507 (7th Cir. 1996), we have also noted that it is

an “open question in this circuit . . . whether Article III

standing is required for permissive intervention under

Rule 24(b),” Transamerica Ins. Co. v. South, 125 F.3d 392

(7th Cir. 1997); but see Flying J, Inc. v. J.B. Van Hollen, 578

F.3d 569, 571 (7th Cir. 2009) (stating without discussion

that a permissive intervenor must establish Article III

standing). Regarding intervention in general, we have

recognized that “at some fundamental level the pro-

posed intervenor must have a stake in the litigation” in

order to satisfy Article III. Sokaogon Chippewa Cmty. v.

Babbitt, 214 F.3d 941, 946 (7th Cir. 2000).

In the typical permissive-intervention case, a third party

wants to join a lawsuit to advocate for the same outcome

as one of the existing parties. See Horne v. Flores, 129 S. Ct.

2579, 2591 (2009) (group of legislators intervened to argue

a contempt order should be lifted—the same relief that

one of the parties to the case sought). In this typical case,

the permissive intervenor may not need to show

standing for the same reason that not every plaintiff in

a lawsuit is required to show standing: As long as there

5

(...continued)

820 F.2d 352 (11th Cir. 1987). Here, the documents Kalven seeks

are not in the court file, and the lawsuit had been settled and

dismissed at the time the district court permitted him to

intervene.

14 No. 07-2651

is “at least one individual plaintiff who has demon-

strated standing to assert these rights as his own,” a court

“need not consider whether the other . . . plaintiffs have

standing to maintain the suit.” Vill. of Arlington Heights v.

Metro. Hous. Dev. Corp., 429 U.S. 252, 264 & n.9 (1977). In

this situation, “[t]he case will proceed and the concrete

dispute must be resolved whether the intervenor is there

or not,” and therefore the intervenor’s standing is irrele-

vant to the court’s power to decide the case. Bethune

Plaza, Inc. v. Lumpkin, 863 F.2d 525, 531 (7th Cir. 1988);

accord Ruiz v. Estelle, 161 F.3d 814, 828-34 (5th Cir. 1998).

Intervention for purposes of challenging a protective

order is an unusual species of permissive intervention

that triggers its own unique standing issues. Rule 24(b)

allows intervenors to join as parties to a lawsuit when

they raise a “claim” or a “defense” that “shares with the

main action a common question of law or fact.” 6 F ED. R.

C IV. P. 24(b)(1)(B). We have held that this language is

broad enough to encompass a third-party challenge to a

protective order even though it is not a neat fit: The

“interest” being asserted by such an intervenor is not

really a “claim” or “defense.” See Jessup, 227 F.3d at 998;

Grove Fresh, 24 F.3d at 896; see also EEOC v. Nat’l Children’s

Ctr., Inc., 146 F.3d 1042, 1045 (D.C. Cir. 1998) (“On its

6

The rule also authorizes permissive intervention in other

circumstances not relevant here. See F ED . R. C IV . P. 24(b)(1)(A)

(authorizing intervention where the intervenor “is given a

conditional right to intervene by a federal statute”), and F ED . R.

C IV . P. 24(b)(2) (authorizing intervention by a government

officer or agency).

No. 07-2651 15

face, Rule 24(b) would appear to be a questionable pro-

cedural basis for a third-party challenge to a confiden-

tiality order.”).

Also, when a third party intervenes to challenge a

protective order, it cannot be said to have intervened on

an existing party’s “side” unless that party also opposes

the protective order. Where, as in many cases and in this

case, the protective order is entered by stipulation of the

parties, “the extra litigant . . . is not simply along for

the ride” but rather shifts the progress of the lawsuit in

a new direction to obtain relief that neither the plaintiff

nor the defendant may want. Bethune Plaza, 863 F.2d at

531. Intervention to challenge a protective order after a

case has been dismissed interferes even more fundamen-

tally: It revives a concluded case for the purpose of enter-

taining an outsider’s claim of interest in the proceeds of

the parties’ discovery process. Rule 24(b) specifically

provides that in deciding whether to permit intervention,

“the court must consider whether the intervention will

unduly delay or prejudice the adjudication of the orig-

inal parties’ rights.” FED. R. C IV. P. 24(b)(3) (emphasis

added). This language suggests that intervention

postjudgment—which necessarily disturbs the final

adjudication of the parties’ rights—should generally be

disfavored.

For our purposes here, we may set to one side the

question whether a permissive intervenor must establish

standing to challenge a protective order in an ongoing

16 No. 07-2651

case.7 The question for us is whether an intervenor must

establish standing to challenge a protective order after

the case has been dismissed. The answer is “yes.”

This conclusion flows from the established general

principle, noted above, that “an actual controversy must

be extant at all stages of review, not merely at the time

the complaint is filed” in order “[t]o qualify as a case fit

for federal-court adjudication.” Arizonans for Official

English, 520 U.S. at 67 (internal quotation marks omitted).

The Supreme Court has also suggested, if not directly

held, that permissive intervenors must show standing if

there is otherwise no live case or controversy in existence.

For example, in Arizonans for Official English, the Court

expressed “grave doubts” about the standing of a group

of intervenors that had been permitted to enter the

7

Accordingly, we do not decide whether a permissive

intervenor needs independent standing to intervene in a live

controversy for the purpose of challenging a protective or-

der. We note, however, that most cases addressing third-party

challenges to protective orders in ongoing lawsuits overlook

the standing question, and those that do address it are con-

flicting. Compare, e.g., Newby v. Enron Corp., 443 F.3d 416, 422

(5th Cir. 2006) (an intervenor may enter an ongoing lawsuit

to challenge a protective order without independent stand-

ing); with Okla. Hosp. Ass’n v. Okla. Publ’g Co., 748 F.2d 1421 (10th

Cir. 1984) (third party lacked standing to intervene prejudg-

ment to challenge protective order). As we have explained

above, to date our circuit’s consideration of the question

has been conclusory. See supra n.5.

No. 07-2651 17

lawsuit as defendants-appellants to challenge an ad-

verse decision of the district court; under the unusual

procedural circumstances of the case, the original defen-

dants had not challenged the adverse decision and were

no longer considered parties to the case. Id. at 66-67. In

the end, however, the Court did not need to resolve

the question of the intervenors’ standing; based on a

change in the plaintiff’s circumstances, the Court declared

the case moot, vacated the lower-court decision, and

remanded with instructions to dismiss. Id. at 72-74. That

the Court raised the intervenor-standing issue at all,

however, suggests that had the case not been moot, the

Court would have required the intervenors to demonstrate

their independent standing to keep the controversy alive.

More recently in Horne v. Flores, 129 S. Ct. 2579, the

Court raised but again did not need to resolve an

intervenor-standing issue. Horne involved a request to lift

a contempt order that imposed fines on the State of Ari-

zona for every day that it failed to comply with a court

order requiring it to adequately fund an English-language

educational program. The request was brought by the

State Superintendent of Public Instruction, a defendant

in the underlying litigation, but two state legislators also

intervened under Rule 24(b) arguing for the same relief.

The Court said that because the intervening legislators

were aligned with the superintendent and the super-

intendent plainly had standing, the question of the inter-

vening legislators’ standing need not be addressed. 129

S. Ct. at 2592-93. As in Arizonans for Official English, how-

ever, the Court’s reference to the intervenors’ standing

suggests that had the superintendent not requested

18 No. 07-2651

relief from the contempt order, the intervening legislators

would have been required to establish their independent

standing to do so.

Our conclusion is also consistent with the approach

followed by other circuits in cases involving postjudg-

ment intervention for the purpose of challenging a pro-

tective order. For example, the Fifth Circuit has con-

cluded that a third party seeking to intervene to chal-

lenge a protective order after the main controversy has

been disposed of must demonstrate standing. See Deus

v. Allstate Ins. Co., 15 F.3d 506, 526 (5th Cir. 1994). In the

Fifth Circuit’s view, while “there is no Article III require-

ment that [such] intervenors have standing in a pending

case,” Newby v. Enron Corp., 443 F.3d 416, 422 (5th Cir.

2006), a third-party challenge to a protective order after the

plaintiff’s claims have been dismissed cannot be main-

tained if the third party “ha[s] no personal interest afford-

ing . . . standing to intervene,” Deus, 15 F.3d at 526; see

also Newby, 443 F.3d at 422 (“In the absence of a live

controversy in a pending case, an intervenor would need

standing to intervene.”); Pansy v. Borough of Stroudsburg,

23 F.3d 772, 777-78 (3d Cir. 1994) (requiring newspaper

intervenors to establish standing to challenge protective

order postjudgment and concluding that they had done

so); Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 787

(1st Cir. 1988) (addressing standing in the context of

postjudgment request by third-party public-interest

group for access to discovery documents covered by

protective order).

Accordingly, we hold that when a third party seeks

intervention under Rule 24(b) for the purpose of chal-

No. 07-2651 19

lenging a protective order in a case or controversy that

is no longer live—as when the case has been dismissed

and none of the original parties has sought this relief

postjudgment—the intervenor must meet the standing

requirements of Article III in addition to Rule 24(b)’s

requirements for permissive intervention. Here, the

litigation between Bond and the City had been settled

and the case was about to be dismissed with prejudice

when Kalven filed his petition to intervene. At that

point, and certainly thereafter, when the case was in

fact dismissed, a live Article III case or controversy be-

tween the parties no longer existed. As such, Kalven was

required to independently establish his standing before

being permitted to intervene. See Flying J, 578 F.3d at 571

(in another context, noting without discussion that a

permissive intervenor must have Article III standing to

intervene for purposes of appealing an adverse decision

that the original losing defendant did not want to appeal).

B. Third-party Standing to Challenge a Protective

Order to Access Unfiled Discovery

Article III standing requires an injury-in-fact capable of

being redressed by a favorable decision of the court. Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). An

injury-in-fact is “a ‘concrete and particularized’ invasion

of a ‘legally protected interest,’ ” Spring Commc’ns Co. v.

APCC Servs., Inc., 128 S. Ct. 2531, 2535 (2008) (quoting

Lujan, 504 U.S. at 560), and must be “actual or imminent,

not conjectural or hypothetical,” Lujan, 504 U.S. at

560 (internal quotation marks omitted). Furthermore,

20 No. 07-2651

standing exists only if it is “ ‘likely,’ as opposed to merely

‘speculative,’ that the injury will be ‘redressed by a favor-

able decision.’ ” Id. (quoting Simon v. E. Ky. Welfare

Rights Org., 426 U.S. 26, 38, 43 (1976)).

“Although standing in no way depends on the merits

of the plaintiff’s contention,” standing does turn on “the

nature and source of the claim asserted.” Warth, 422 U.S.

at 500; see also McConnell v. FEC, 540 U.S. 93, 227 (2003)

(standing requires a “claim of injury . . . to a legally

cognizable right”). We have noted that the Supreme

Court’s standing doctrine requires litigants to establish

an injury to an interest “that the law protects when it is

wrongfully invaded,” and this is “quite different from

requiring them to establish a meritorious legal claim.”

Aurora Loan Servs., Inc. v. Craddieth, 442 F.3d 1018, 1024

(7th Cir. 2006); see also DH2, Inc. v. SEC, 422 F.3d 591, 597

(7th Cir. 2005); Clay v. Fort Wayne Cmty. Sch., 76 F.3d 873,

878 (7th Cir. 1996). However, while a litigant need not

definitively “establish that a right of his has been in-

fringed,” he “must have a colorable claim to such a

right” to satisfy Article III. Aurora Loan, 442 F.3d at 1024;

see also DH2, 422 F.3d at 597.

Many of our decisions—as well as decisions from other

circuits—speak broadly about a “presumption of public

access to discovery materials.” Citizens First Nat’l Bank,

178 F.3d at 946; see also Public Citizen, 858 F.2d at 788-89;

In re Agent Orange Prod. Liab. Litig., 821 F.2d 139, 146 (2d

Cir. 1987) (referring to the public’s “presumptive right

of access to discovery materials”). To the extent that this

language suggests the existence of a general public right

No. 07-2651 21

to access the materials that litigating parties exchange

in response to discovery requests, it sweeps too broadly.

As we will explain, while the public has a presumptive

right to access discovery materials that are filed with

the court, used in a judicial proceeding, or otherwise

constitute “judicial records,” the same is not true of

materials produced during discovery but not filed with

the court. Generally speaking, the public has no con-

stitutional, statutory (rule-based), or common-law right

of access to unfiled discovery.

It is beyond dispute that most documents filed in court

are presumptively open to the public; members of the

media and the public may bring third-party challenges

to protective orders that shield court records and court

proceedings from public view. See, e.g., Jessup, 227 F.3d at

997 (“ ‘[T]hose who seek access to [sealed court] material

have a right to be heard in a manner that gives full pro-

tection to the asserted right.’ ”(quoting Associated Press,

162 F.3d at 507)); Citizens First Nat’l Bank, 178 F.3d at 945-

46 (regarding filing of appellate appendix under seal);

Associated Press, 162 F.3d at 507 (regarding press access

to sealed court records). This right is derived from the

common-law principle that courts are public institutions

that operate openly—a principle codified at 28 U.S.C.

§ 452—and judicially imposed limitations on this right

are subject to the First Amendment. See, e.g., Globe News-

paper Co. v. Super. Ct. for Norfolk County, 457 U.S. 596, 603-06

(1982); Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597

(1978) (“It is clear that the courts of this country recognize

a general right to inspect and copy public records and

documents, including judicial records and documents.”

22 No. 07-2651

(footnote omitted)); see also Smith v. U.S. Dist. Ct. for S. Dist.

of Ill., 956 F.2d 647, 650 (7th Cir. 1992) (recognizing that

although this principle originally stemmed from a need

to ensure access to criminal proceedings, the right

of access has subsequently been expanded to civil pro-

ceedings).

While the public’s right to access court records is not

unlimited, see Nixon, 435 U.S. at 598; Press-Enterprise Co. v.

Super. Ct. of Cal., Riverside County, 464 U.S. 501, 510

(1984), and Rule 26(c) allows a court to shield certain

documents from the public when there is good cause to

do so, Citizens First Nat’l Bank, 178 F.3d at 945 (public

interest in observing judicial process can be overridden

if “the property and privacy interests of the litigants . . .

predominate in the particular case”), the general right

of public access to judicial records is enough to give

members of the public standing to attack a protective

order that seals this information from public inspection.

See Jessup, 227 F.3d at 997-98; Grove Fresh, 24 F.3d at 897-

98; Associated Press, 162 F.3d at 506-09.

This case is different. Here, Kalven is seeking access

to discovery materials that have never been filed with

the court and have never influenced the outcome of a

judicial proceeding. The Supreme Court has held that the

public’s right of access is limited to traditionally publicly

available sources of information, and “discovered, but not

yet admitted, information” is not “a traditionally public

source of information.” Seattle Times Co. v. Rhinehart,

467 U.S. 20, 33 (1984); accord Grove Fresh, 24 F.3d at 897-98

(“[U]ntil admitted into the record, material uncovered

No. 07-2651 23

during pretrial discovery is ordinarily not within the

scope of press access.”). At common law, pretrial pro-

ceedings were closed to the public, see Gannett Co., Inc. v.

DePasquale, 443 U.S. 368, 389 (1979), and the federal dis-

covery rules have not changed this common-law tradition.

As the Court noted in Seattle Times, “[d]iscovery rarely

takes place in public,” 467 U.S. at 33 n.19, and the

system created by Rule 26 contemplates that the

exchange of information in discovery will occur with

minimal judicial involvement. See F ED . R. C IV .

P. 26(a)(1)(A), (2), (3) (requiring parties to disclose certain

material automatically, regardless of whether other

litigants have requested it); id. 26(c)(1) (party seeking a

protective order must certify that it has “in good faith

conferred or attempted to confer with other affected

parties in an effort to resolved the dispute without court

action”); see also N.D. ILL. L.R. 37.2 (providing that courts

“shall hereafter refuse to hear any and all motions for

discovery and production of documents under Rules 26

through 37 of the Federal Rules of Civil Procedure,

unless the motion includes a statement (1) that after

consultation in person or by telephone and good faith

attempts to resolve differences they are unable to reach an

accord, or (2) counsel’s attempts to engage in such consul-

tation were unsuccessful due to no fault of counsel’s”).

There are good reasons to treat the public’s right to

access filed and unfiled discovery materials differently.

For starters, “pretrial discovery, unlike the trial itself, is

usually conducted in private.” Citizens First Nat’l Bank,

178 F.3d at 944. Pretrial discovery—depositions, inter-

rogatories, and the production of documents—“are not

24 No. 07-2651

public components of a civil trial,” “were not open to

the public at common law,” and “in general, are con-

ducted in private as a matter of modern practice.” Seattle

Times, 467 U.S. at 33. That the court’s discovery

processes and rules are used to require litigants to

produce otherwise private information to an opposing

party is not enough to alter the legal rights of the general

public. Discovery rules are “a matter of legislative

grace,” and “[l]iberal discovery is provided for the sole

purpose of assisting in the preparation and trial, or the

settlement, of litigated disputes.” Seattle Times, 467 U.S.

at 32, 34. We have said that “[s]ecrecy is fine at the dis-

covery stage, before the material enters the judicial

record.” Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 545

(7th Cir. 2002).

The rights of the public kick in when material produced

during discovery is filed with the court. See Seattle

Times, 467 U.S. at 33 & n.19 (recognizing that the public

has a right to access anything that is a “traditionally

public source of information” and observing that “court-

house records could serve as a source of public infor-

mation”). At this point, the documents have been “used

in [a court] proceeding,” FED. R. C IV. P. 5(d), and conse-

quently the possibility exists that they could “influence

or underpin the judicial decision” and they are therefore

presumptively “open to public inspection unless they

meet the definition of trade secret or other categories

No. 07-2651 25

of bona fide long-term confidentiality.”8 Baxter Int’l.,

297 F.3d at 545; see also Citizens First Nat’l Bank, 178 F.3d

at 945.

It is true that some cases suggest that Rule 26(c) creates

a substantive right of public access to discovery. See

San Jose Mercury News, Inc. v. U.S. Dist. Court for N. Dist. of

Cal., 187 F.3d 1096, 1103 (9th Cir. 1999); Public Citizen, 858

F.2d at 787-90; Agent Orange, 821 F.2d at 145-47.

These cases, however, were based on a prior version of

Rule 5(d) of the Federal Rules of Civil Procedure that gener-

ally required all discovery materials to be filed with the

court unless the court ordered otherwise. See, e.g.,

8

However, the public does not acquire a right to access

discovery material just because a judge might review it in

camera in the course of discovery proceedings. See SEC v.

TheStreet.com, 273 F.3d 222, 233 (2d Cir. 2001) (court review of

documents for the purpose of determining whether a pro-

tective order should be entered does not “transform every

document that a court reviews into a ‘judicial document’

presumptively open to the public”); Chi. Tribune Co. v.

Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312-13 (11th Cir. 2001)

(holding 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”); United States v. Wolfson, 55 F.3d 58, 61 (2d Cir. 1995)

(“We are not aware . . . of any common-law principle that

documents submitted to a court in camera for the sole purpose

of confirming that the refusal to disclose them to another party

was proper, are to be deemed judicial records open to the

public.”).

26 No. 07-2651

Agent Orange, 821 F.2d at 146 (citing a prior version

of Rule 5(d)). The drafters of a 1980 amendment to

Rule 5(d) considered establishing a rule that dis-

couraged the filing of all discovery but decided not to;

“such materials are sometimes of interest to those who

may have no access to them except by a requirement of

filing, such as members of a class, litigants similarly

situated, or the public generally.” F ED . R. C IV. P. 5(d),

advisory committee note (1980). Accordingly, some

courts read the prior Rule 5(d) together with Rule 26(c)

and concluded that these rules implied the existence of

a public right to access discovery even if the discovery

was not filed with the court. E.g., Agent Orange, 821 F.2d

at 145-46.

Whatever force these decisions had was destroyed by

the 2000 amendment to Rule 5(d), which reversed the

longstanding rule generally requiring discovery to be

filed with the court. Since 2000, information exchanged

in discovery “must not be filed” until it is “used in the

proceeding” or until “the court orders filing.” FED. R. C IV.

P. 5(d) (emphasis added). In its present form, then, Rule

5(d) separates discovery material—regardless of whether

it is subject to a Rule 26(c) protective order—into two

categories: (1) that which is filed with the court (because

it is used in a court proceeding or is ordered to be

filed); and (2) that which remains unfiled and therefore

not part of the public court record. As the Second Circuit

has recognized, this amendment eliminated any implied

right of public access to unfiled discovery emanating

from the procedural rules. See SEC v. TheStreet.com,

273 F.3d 222, 233 n.11 (2d Cir. 2001) (observing that the

No. 07-2651 27

2000 amendment to Rule 5(d) “provides no presumption

of filing of all discovery materials, let alone public access

to them”) (abrogating Agent Orange). Accordingly,

nothing in Rule 26(c)—either standing alone or when

read in conjunction with the current version of

Rule 5(d)—confers substantive rights upon third parties

seeking access to the fruits of discovery.9

The district court’s analysis indicates that the judge

thought Rule 26(c) conferred a right on third parties to

challenge a protective order at any time and under any

circumstances; the court seized upon language from

some of our caselaw that refers to a “presumption” in

favor of public access. E.g., Citizens First Nat’l Bank,

178 F.3d at 946 (“Most cases endorse a presumption of

public access to discovery materials . . . .”); In re Cont’l Ill.

Sec. Litig., 732 F.2d 1302, 1309-10 (7th Cir. 1984). The “pre-

sumption” mentioned in these cases simply refers to

the general right of the public to access material con-

9

See 4B C HARLES A LAN W RIGHT & A RTHUR R. M ILLER , F EDERAL

P RACTICE & P ROCEDURE § 1152, at 465 (3d ed. 2002 & Supp.

2009) (“The 2000 amendment to Rule 5(d) eliminates the

presumption of filing all discovery materials, thereby removing

the presumption in favor of allowing unlimited access to

all discovery materials. This limitation controls both the

parties’ and the media’s access to those materials not con-

sidered judicial documents.” (footnote omitted)); 8 C HARLES

A LAN W RIGHT ET AL ., F EDERAL P RACTICE & P ROCEDURE § 2042,

at 542 (2d ed. 1994 & Supp. 2009) (acknowledging that the

changes to Rule 5(d) “may weaken arguments that there is

a presumptive public right of access to such materials”).

28 No. 07-2651

tained in court files and the limited right of litigants

under the First Amendment to “disseminate information

discovered in advance of trial,” Seattle Times, 467 U.S. at

34. It is a mistake to conclude, as the district court did,

that Rule 26(c) creates a freestanding public right of

access to unfiled discovery. Kalven’s standing thus

cannot be grounded in Rule 26(c).1 0

10

In Pansy v. Borough of Stroudsburg, 23 F.3d 772, the Third

Circuit held that media representatives had standing to chal-

lenge a protective order shielding an unfiled settlement agree-

ment because the order interfered with their effort to obtain

access to the agreement from the municipal defendant as a

public record under Pennsylvania’s Right to Know Act. The

underlying lawsuit in Pansy was brought by a former

police chief against his municipal employer, and the media

representatives had filed a state-court action against the munici-

pality under the Pennsylvania Right to Know Act contending

that the settlement agreement was a public record and they

were entitled under the Act to inspect it. The state-court

action had stalled because of the federal-court protective

order; this was enough to establish an injury-in-fact. Id. at 784.

Unlike the media intervenors in Pansy, Kalven has not sought

access to the documents under the Illinois Freedom of Informa-

tion Act, 5 I LL . C OMP . S TAT . 140/1 et seq. (the “Illinois FOIA”),

presumably on the assumption that they are exempt. See Lieber

v. Bd. of Trs. of S. Ill. Univ., 680 N.E.2d 374 (Ill. 1997); Copley

Press, Inc. v. Bd. of Educ. for Peoria Sch. Dist. No. 150, 834 N.E.2d

558 (Ill. App. Ct. 2005). Two recent cases—one from the Illinois

Supreme Court and one from the Appellate Court of Illi-

nois—may bear on the question of how the Illinois FOIA applies

(continued...)

No. 07-2651 29

Nor can it be grounded in the First Amendment. Kalven

appears to concede this point; he does not assert a con-

stitutional right of access to the unfiled discovery. The

only First Amendment concern raised by a protective

order limiting disclosure of unfiled discovery is the

effect such an order may have on a litigant’s free-expres-

sion rights, which the Supreme Court has said are

limited by the context through which the information is

acquired. Seattle Times made it clear that “[a] litigant has

no First Amendment right of access to information

made available only for purposes of trying his suit.”

467 U.S. at 32. As such, “judicial limitations on a party’s

ability to disseminate information discovered in ad-

vance of trial implicate[] the First Amendment rights of

the restricted party to a far lesser extent than would

10

(...continued)

to the police department records at issue here. See Stern v.

Wheaton-Warrenville Cmty. Unit Sch. Dist. 200, 910 N.E.2d 85 (Ill.

2009); Gekas v. Williamson, 912 N.E.2d 347 (Ill. App. Ct. 2009).

These cases are difficult to reconcile with Lieber and Copley Press.

We need not try to predict how the Illinois Supreme Court might

resolve the conflict. Kalven never sought access to the docu-

ments under the Illinois FOIA. Even if he had, it would not

make a difference. The protective order does not interfere

with Kalven’s ability to try to obtain the documents he seeks

directly from the City under the Illinois FOIA. Unlike the order

prohibiting disclosure of the settlement agreement in Pansy,

nothing in the protective order here prohibits the City from

disclosing any of its police department records to the public

upon request. Accordingly, Kalven is not similarly situated

as the media intervenors in Pansy.

30 No. 07-2651

restraints on dissemination of information in a different

context.” Id. at 34; see also Arthur R. Miller, Confidentiality,

Protective Orders, and Public Access to the Courts, 105

H ARV . L. R EV. 427, 487 (1991) (describing the interest in

accessing information produced by discovery as a side

effect of—and therefore subordinate to—the judicial

system’s central concern of resolving disputes between

litigants). Where, as here, the litigants themselves agreed

to the protective order and do not seek its modification,

this (limited) interest simply is not in play.

Accordingly, Kalven cannot claim standing based on

a derivative First Amendment right to receive informa-

tion; this doctrine requires the existence of a willing

speaker. See Va. State Bd. of Pharmacy v. Va. Citizens Con-

sumer Council, Inc., 425 U.S. 748, 756 (1976) (“Freedom of

speech presupposes a willing speaker. But where a

speaker exists, . . . the protection afforded is to the com-

munication, to its source and to its recipients both.”

(footnote omitted)); accord Kleindienst v. Mandel, 408 U.S.

753, 762-63 (1972) (acknowledging a First Amendment

right to “receive information and ideas” and that freedom

of speech “necessarily protects the right to receive”). Media

challenges to trial-court gag orders have been allowed

where the orders interfere with the right to receive infor-

mation from parties and their attorneys who wish to

disseminate it. See, e.g., In re Dow Jones & Co., 842 F.2d 603

(2d Cir. 1988); CBS Inc. v. Young, 522 F.2d 234, 237-38 (6th

Cir. 1975). But a stipulated protective order involves self-

imposed secrecy and is therefore not the equivalent of

a gag order.

No. 07-2651 31

We have said in another context that a First Amend-

ment right-to-receive claim lies only where there is a

willing speaker because “[a] precondition of the right to

receive . . . is the existence of a ‘willing speaker.’ ” Ind.

Right to Life, Inc. v. Shepard, 507 F.3d 545, 549 (7th Cir. 2007)

(quoting Va. State Bd. of Pharmacy, 425 U.S. at 756). Every

circuit to have considered the question of standing in

the context of a right-to-receive claim has reached the

same conclusion: “[I]n order to maintain a ‘right to lis-

ten’ claim, a plaintiff must clearly establish the ex-

istence of a ‘willing speaker.’ In the absence of a willing

speaker, an Article III court must dismiss the action

for lack of standing.” Pa. Family Inst., Inc. v. Black, 489

F.3d 156, 166 (3d Cir. 2007) (internal quotation marks

omitted); accord Stephens v. County of Albemarle, Va., 524

F.3d 485, 490-93 (4th Cir. 2008); Competitive Enter. Inst. v.

U.S. Dep’t of Transp., 856 F.2d 1563 (D.C. Cir. 1988);

Basiardanes v. City of Galveston, 682 F.2d 1203, 1211-12 (5th

Cir. 1982) (“Recipients of protected communication have

standing only if there is a speaker who wishes to

express himself or herself.”).

Thus, to satisfy Article III on this type of claim, an

intervenor must do more than simply assert that a pro-

tective order interferes with his inchoate, derivative

“right” to receive discovery information. See Okla. Hosp.

Ass’n, 748 F.2d at 1424-26. Imagining the existence of a

willing speaker runs contrary to the Supreme Court’s

command that injuries-in-fact must be “actual or immi-

nent, not conjectural or hypothetical.” Lujan, 504 U.S. at

560 (internal quotation marks omitted). Where, as here,

the litigants have voluntarily bound themselves to keep

certain discovery confidential and do not themselves

32 No. 07-2651

seek relief from the requirements of the protective

order, there is no willing speaker on which to premise

a First Amendment right-to-receive claim.

In short, Kalven has no injury to a legally protected

interest and therefore no standing to support interven-

tion. Neither do the aldermen; in all material respects,

they are in the same position as Kalven.

C. Alternative Basis for Jurisdiction

As an alternative basis for jurisdiction, it might be

argued that the district court’s authority to modify or

revoke the protective order postjudgment is premised

upon its inherent power. A district court’s dismissal of a

lawsuit by stipulation under Rule 41(a)(1)(A)(ii) of the

Federal Rules of Civil Procedure generally limits the power

of the court to issue further orders, see Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994),

but the Supreme Court has recognized that a court can

take certain postdismissal action in furtherance of its

ancillary jurisdiction, a doctrine “which recognizes

federal courts’ jurisdiction over some matters (otherwise

beyond their competence) that are incidental to other

matters properly before them.” Id. at 378. A sua sponte

postjudgment modification of a protective order does not

fall within the court’s ancillary jurisdiction; it is not a

matter “incidental to” another matter that is “properly

before” the court.

Kokkonen held that after a lawsuit has been dismissed,

the doctrine of ancillary jurisdiction—which has alterna-

No. 07-2651 33

tively been called pendent jurisdiction, supplemental

jurisdiction, or ancillary-enforcement jurisdiction, 13

C HARLES A LAN W RIGHT ET AL., F EDERAL P RACTICE &

P ROCEDURE § 3523.2, at 212-13 (3d ed. 2008)—will em-

power the court to act only where necessary to “enable

the court to function successfully, that is, to manage its

proceedings, vindicate its authority, and effectuate its

decrees.” Kokkonen, 511 U.S. at 380. More specifically, the

Court held in Kokkonen that to support an exercise of

ancillary jurisdiction postjudgment, there must be an

express reservation of jurisdiction in the judgment.

Kokkonen involved the question of a federal court’s

jurisdiction to enforce a settlement agreement following

dismissal. The Court said that ancillary jurisdiction to

enforce a settlement agreement would exist only “if

the parties’ obligation to comply with the terms of the

settlement agreement had been made part of the order

of dismissal—either by separate provision (such as a

provision ‘retaining jurisdiction’ over the settlement

agreement) or by incorporating the terms of the settle-

ment agreement in the order.” Id. at 381. In that

situation, the Court said, “a breach of the agreement

would be a violation of the order, and ancillary juris-

diction to enforce the agreement would therefore exist.”

Id. But where the dismissal order neither incorporated

the parties’ settlement agreement nor expressly

retained jurisdiction over it, the court lacked ancillary

jurisdiction to enforce it and any action for breach of

the agreement belonged in state court. Id.

As applied here, these principles foreclose the possi-

bility that the district court had inherent authority to

34 No. 07-2651

revisit and rescind the protective order. We note again

that the protective order did not operate to shield the

court’s own records from public view; although a

court may have inherent authority to modify a protec-

tive order sealing documents maintained in the court

file, see Nixon, 435 U.S. at 598 (“[e]very court has super-

visory power over its own records and files”), that’s not

what’s at issue here. And although Rule 60 of the

Federal Rules of Civil Procedure might have provided a

basis for a postjudgment motion for relief from the pro-

tective order by Bond or the City, that’s obviously not at

issue here, either. 1 1 There was no breach of the protective

order nor fraud in connection with its entry—either of

these might have supported an exercise of ancillary

jurisdiction to enable the court to “vindicate its authority.”

Kokkonen, 511 U.S. at 380.

And finally, although the docket notation recording the

entry of the agreed order of dismissal said the case re-

mained “open” for the purpose of “the Court retaining

jurisdiction” over Kalven’s petition to intervene to “unseal

public documents,” this is an insufficient basis upon

which to rest ancillary jurisdiction. First of all, there

were no “sealed public documents” in the court’s file

that the judge might have been prevailed upon to “un-

seal.” Second, neither the parties’ stipulation to dismiss

nor the agreed dismissal order incorporated a retention

of jurisdiction; the docket entry alone cannot supply

11

Kokkonen specifically distinguished Rule 60(b) motions that

“reopen[ ] the dismissed suit.” 511 U.S. at 378.

No. 07-2651 35

ancillary jurisdiction. Once the case was dismissed with

prejudice, Kalven’s third-party attack on the protective

order simply cannot be considered “ancillary” or “inciden-

tal” to any matter properly before the court. We have

found no case suggesting that a district court may

sua sponte raise and rebalance the equities that led to

the entry of a protective order after the dispute that

created the need for it has ended. The district court’s

order dissolving the protective order therefore cannot

be justified as an exercise of its inherent authority.

For the foregoing reasons, we V ACATE the district court’s

order granting Kalven’s petition to intervene and lifting

the protective order and R EMAND with instructions to

dismiss the petition for lack of standing. Because the

aldermen also lack standing, we V ACATE our prior order

granting their motion to intervene in this appeal; that

motion is now D ENIED and they are D ISMISSED from

the appeal.

T INDER, Circuit Judge, concurring. I concur in the

result because I believe that the district court lacked

justification to lift the protective order. As the majority

correctly explains, the district court erroneously applied

a presumption of public access under Rule 26(c) to the

36 No. 07-2651

unfiled discovery documents exchanged in this case.

Such a presumption is no longer tenable in light of the

2000 amendment to Rule 5(d), which provided that dis-

covery documents should not be filed with the court

until used in a judicial proceeding. Op. at 25-27. So

where, as here, the parties have agreed to a con-

fidentiality order covering unfiled discovery materials

which, for good cause, was judicially approved, a district

court should honor that order absent some showing of

abuse or other extraordinary circumstances. To require

any less of a showing would undermine the parties’

reliance on protective orders, which are essential to a

fair, efficient discovery process. See SEC v. TheStreet.com,

273 F.3d 222, 229-30 (2d Cir. 2001). The district court

relied on the public’s significant interest in monitoring

police misconduct as the basis for lifting the protective

order. In my view, this generalized public interest in

allegations of police misconduct, while not insignificant,

is, standing alone, not sufficiently compelling to con-

clude that the parties’ stipulated confidentiality order

lacks good cause under Rule 26(c). But Kalven presented

nothing more so he clearly failed to make a sufficient

showing to undo the protective order. (Nor do the alder-

men evidence that they could do any better in that re-

gard.) For that reason, I would reverse the district

court’s decision to lift the protective order.

So, I would arrive at the same place as the majority

opinion but by going to the merits of the decision to

alter the protective order rather than barring the

petition for lack of standing. I don’t mean to put the

cart before the horse by addressing the merits of Kalven’s

No. 07-2651 37

claim without considering the foundational question of

standing. The majority opinion provides a thoughtful

analysis of the complex interplay between Article III

standing, permissive intervention under Rule 24(b), and

third-party challenges to protective orders. Nevertheless,

I respectfully suggest that, although it is a very close

call, Kalven had sufficient standing to bring his brink-of-

dismissal challenge to the protective order in this case.

Courts have recognized that third parties can chal-

lenge a protective order under Rule 26(c) for good

cause, even where the order covers non-judicial records

that fall outside of the public’s common law right of

access. See Public Citizen v. Ligget Group, Inc., 858 F.2d

775, 787-88 (1st Cir. 1988) (public interest group had

standing to demand good cause under Rule 26(c) to

maintain a protective order covering discovery materials);

In re Alexander Grant & Co. Litigation, 820 F.2d 352, 354-56

(11th Cir. 1987) (per curiam) (journalists had standing

to bring a Rule 26(c) challenge to a protective order even

though they had no First Amendment right of access to

the discovery documents). As we explained in Grove

Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 898

(7th Cir. 1994), the press has standing to challenge a

protective order for abuse or impropriety. A third party

may claim that a litigant is exploiting a court’s confidenti-

ality order to insulate embarrassing documents that

present no “good cause” for secrecy within the meaning

of Rule 26(c). Id.; cf. Citizens First Nat’l Bank of Princeton

v. Cincinnati Ins. Co., 178 F.3d 943, 944-46 (7th Cir. 1999)

(concluding that a protective order allowing the parties

to designate virtually any discovery materials as con-

38 No. 07-2651

fidential, even those introduced into the judicial record,

was overbroad).

After a very thorough review of these and other

cases, the majority explains that courts in the past have

failed to carefully distinguish between the public’s rights

of access to judicial records and to unfiled discovery

materials, and that Rule 26(c)’s “good cause” requirement

does not support any “presumption” of public access to

the latter. Op. at 20-21, 25-28. That is true, and because

the information sought here has never been filed with

the court, this matter calls for an even more stringent

review of standing than the host of cases involving court-

filed documents. But I respectfully suggest that it

does not follow that a third-party intervenor necessarily

lacks standing to bring a Rule 26(c) challenge to a pro-

tective order covering unfiled discovery documents.

Although unfiled discovery does not fall within the pub-

lic’s presumptive right of access, the public still “has

an interest in what goes on at all stages of a judicial

proceeding.” Citizens First Nat’l Bank, 178 F.3d at 945. As

noted, third-party Rule 26(c) claims may prevent

litigants from abusing a court-approved confidentiality

order to seal whatever they want. See Grove Fresh, 24

F.3d at 898. Other circumstances (not present here) could

arise where a third party shows such an “extraordinary

circumstance or compelling need” for unfiled discovery

documents that a district court should modify an order

protecting those documents. TheStreet.com, 273 F.3d at

229. Kalven’s request came so late in the life of this

case and is so lacking in merit that it is tempting to sim-

ply join in the majority’s well-reasoned and persuasive

No. 07-2651 39

standing conclusion. However, I hesitate to do so because

I fear that a determination that Kalven lacks standing

might be read as a categorical bar to third parties who

would seek unfiled discovery materials that are subject

to protective orders. While circumstances in which

such requests might be granted ought to be exceedingly

rare, I think Kalven presented just enough to the

district court to get in the door to argue his position.

There is no way to know whether the settlement in this

case was reached between the parties before or after

Kalven filed his intervention request. But we do know

that his petition reached the court prior to the issuance

of the order of dismissal, albeit only slightly. And we do

know that his assertion of status as a journalist conducting

research on a matter of public interest such as police

brutality is genuine. We also know that the unfiled dis-

covery documents subject to the protective order are

concerned with allegations of police misconduct. As

such, I think Kalven’s petition contained just enough to

demonstrate his standing to file it. But the substance of

his request came nowhere close to mustering enough

weight to justify altering the protective order upon

which the parties had relied in fulfilling their discovery

obligations.

11-10-09