Center for Auto Safety v. Chrysler Group, LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE CENTER FOR AUTO SAFETY, No. 15-55084

Intervenor-Appellant,

D.C. No.

v. 2:13-cv-08080-

DDP-VBK

CHRYSLER GROUP, LLC,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the Central District of California

Dean D. Pregerson, District Judge, Presiding

Argued and Submitted

October 20, 2015—Pasadena, California

Filed January 11, 2016

Before: Sandra S. Ikuta and John B. Owens, Circuit Judges

and William K. Sessions,* District Judge.

Opinion by Judge Owens;

Concurrence by Judge Sessions

Dissent by Judge Ikuta

*

The Honorable William K. Sessions III, District Judge for the U.S.

District Court for the District of Vermont, sitting by designation.

2 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP

SUMMARY**

Sealed Documents

The panel vacated the district court’s order denying The

Center for Auto Safety’s motions to intervene and unseal

documents filed to support and oppose a motion for

preliminary injunction in a putative class action between

Chrysler Group, LLC and certain named plaintiffs, and

remanded for further proceedings.

A party seeking to seal a judicial record bears the burden

of overcoming a strong presumption in favor of access to

court records by showing “compelling reasons,” and the court

must then balance the compelling interests of the public and

the party seeking to keep the judicial record secret. Under an

exception for sealed materials attached to a discovery motion

unrelated to the merits of a case, a party seeking to seal the

record need only satisfy a less exacting “good cause”

standard. When deciding what test to apply to a motion to

unseal a particular court filing – the presumptive “compelling

reasons” standard or the “good cause” exception – the court

has often deployed the terms “dispositive” and “non-

dispositive.”

The panel presumed that the instant motion for

preliminary injunction was technically nondispositive. The

panel held that public access to filed motions and their

attachments did not depend on whether the motion was

technically “dispositive;” but rather, public access turned on

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 3

whether the motion was more than tangentially related to the

merits of the case. The panel concluded that plaintiffs’

motion for preliminary injunction was more than tangentially

related to the merits. The panel remanded for the district

court to consider the documents under the compelling reasons

standard.

Concurring, District Judge Sessions wrote separately to

express his belief that reversal was warranted even under the

binary approach endorsed by the dissent because the

preliminary injunction at issue was literally “dispositive” of

plaintiffs’ request that Chrysler issue notice to its customers.

Judge Ikuta dissented because she believed that the

majority opinion overruled circuit precedent and vitiated Fed.

R. Civ. P. 26(c). Judge Ikuta would employ the “binary

approach” which holds that the public’s presumed right of

access applied to sealed discovery documents attached to a

dispositive motion, but did not apply to sealed discovery

documents attached to a nondispositive motion.

COUNSEL

Jennifer D. Bennett (argued) and Leslie A. Bailey, Public

Justice PC, Oakland, California, for Intervenor-Appellant.

Thomas H. Dupree, Jr. (argued) and Sarah G. Boyce, Gibson,

Dunn & Crutcher LLP, Washington, D.C.; Kathy A.

Wisniewski, John W. Rogers, and Stephen A. D’Aunoy,

Thompson Coburn LLP, St. Louis, Missouri; Rowena Santos,

Thompson Coburn LLP, Los Angeles, California, for

Defendant-Appellee.

4 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP

OPINION

OWENS, Circuit Judge:

The Center for Auto Safety (CAS) appeals from the

district court’s order denying CAS’s motions to intervene and

unseal documents filed in a putative class action lawsuit

between Chrysler Group, LLC (Chrysler) and certain named

plaintiffs. Because the district court applied the incorrect

standard when evaluating the motion to unseal these

documents, we vacate and remand for further proceedings.

I. FACTUAL BACKGROUND AND PROCEDURAL

HISTORY

In 2013, plaintiffs filed a putative class action alleging

defects in a part found in certain Chrysler vehicles.1 As part

of the discovery process, the parties entered into a stipulated

protective order. The protective order permitted each party

to designate certain documents as “confidential,” and required

any party that later wished to attach a “confidential”

document to a court pleading to apply to do so under seal.

In 2014, plaintiffs moved for a preliminary injunction to

require Chrysler to notify the proposed class of the alleged

risks its vehicles presented. Plaintiffs and Chrysler attached

“confidential” discovery documents to their memoranda

supporting and opposing the motion. Consistent with the

stipulated protective order, both parties applied to the district

court to file the documents under seal, and the district court

1

We express no opinion on the merits of the underlying lawsuit,

including whether the part in question was defective.

CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 5

granted the motions. The district court eventually denied the

motion for preliminary injunction.

Shortly before the district court denied plaintiffs’ motion

for preliminary injunction, CAS filed motions to intervene

and unseal the “confidential” documents filed to support and

oppose the motion for preliminary injunction. CAS argued

that only “compelling reasons” could justify keeping these

documents under seal, while Chrysler contended that it need

only show “good cause” to keep them from the public’s view.

The district court reviewed the relevant Ninth Circuit case

law and other district courts’ attempts to apply it to a motion

for preliminary injunction. While ordinarily a party must

show “compelling reasons” to keep a court document under

seal, Kamakana v. City & County of Honolulu, 447 F.3d

1172, 1178 (9th Cir. 2006), the district court relied on

language in our cases which provides that when a party is

attempting to keep records attached to a “non-dispositive”

motion under seal, it need only show “good cause,” id. at

1180. While recognizing that “[t]here is little clarity as to

what, exactly, constitutes a ‘dispositive’ motion,” and that our

circuit has not articulated the difference between a dispositive

and nondispositive motion,2 the district court decided to

2

District courts have understandably struggled with our use of the term

“dispositive” in these circumstances. Many courts have applied the

compelling reasons standard to motions for preliminary injunctions or

temporary restraining orders. See United Tactical Sys., LLC v. Real

Action Paintball, Inc., 2015 WL 295584, at *2 (N.D. Cal. Jan. 21, 2015);

Gamez v. Gonzalez, 2013 WL 127648, at *2 (E.D. Cal. Jan 9, 2013);

Melaluca Inc. v. Bartholomew, 2012 WL 5931690, at *2 (D. Idaho Nov.

27, 2012); FTC v. AMG Servs., Inc., 2012 WL 3562027, at *2 (D. Nev.

Aug 15, 2012); Apple, Inc. v. Samsung Elecs. Co., 2012 WL 2936432, at

*3 (N.D. Cal. July 18, 2012); Selling Source, LLC v. Red Rivers Ventures,

6 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP

read “dispositive” to mean that unless the motion could

literally lead to the “final determination on some issue,” a

party need show only good cause to keep attached documents

under seal. That was especially true in this case, the district

court believed, as the motion for preliminary injunction here

sought “notice of potential problems . . . to thousands of

purchasers,” and “was not a motion to temporarily grant the

relief ultimately sought in [the] underlying suit.”

Accordingly, the district court found that the motion for

preliminary injunction here was nondispositive, applied the

good cause standard to the documents filed under seal, and

concluded that good cause existed to keep them from the

public’s view.3

LLC, 2011 WL 1630338, at *4–5 (D. Nev. Apr. 29, 2011); B2B CFO

Partners, LLC v. Kaufman, 2010 WL 2104257, at *1 (D. Ariz. May 25,

2010); Dish Network LLC v. Sonicview USA, Inc., 2009 WL 2224596, at

*6 (S.D. Cal. July 23, 2009); Yountville Investors, LLC v. Bank of Am.,

2009 WL 411089, at *2 (W.D. Wash. Feb. 17, 2009).

Others, like the district court here, Velasco v. Chrysler Grp., LLC,

2014 WL 7404590, at *6 (C.D. Cal. Dec. 30, 2014), have applied the good

cause standard. See Hanginout, Inc. v. Google, Inc., 2014 WL 1234499,

at *1 (S.D. Cal. Mar. 24, 2014); In re Nat’l Sec. Telecomm. Records Litig.,

2007 WL 549854, at *3–4 (N.D. Cal. Feb. 20, 2007); Reilly v. MediaNews

Grp. Inc., 2007 WL 196682, at *1–2 (N.D. Cal. Jan. 24, 2007).

The dissent argues that our decision is unfair to Chrysler, as Chrysler

should have been able to “confidently rely on the district court’s protective

order” to shield these documents from public scrutiny. Dissent at 33. The

sharp disagreement in our district courts about the application of our

precedent to motions for preliminary injunction suggests that the result

here is neither unfair nor unexpected.

3

Because we are vacating the order denying the motion to unseal the

documents and remanding this case so the district court can apply the

“compelling reasons” standard, we also vacate the district court’s order

CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 7

II. STANDARD OF REVIEW

We review a district court’s decision to unseal court

records for an abuse of discretion. Blum v. Merrill Lynch

Pierce Fenner & Smith, Inc., 712 F.3d 1349, 1352 (9th Cir.

2013). Where “the district court’s decision turns on a legal

question, however, its underlying legal determination is

subject to de novo review.” San Jose Mercury News, Inc. v.

U.S. Dist. Court—N.D. Cal. (San Jose), 187 F.3d 1096, 1100

(9th Cir. 1999).

“We have jurisdiction because an order denying a motion

to unseal or seal documents is appealable either as a final

order under 28 U.S.C. § 1291 or as a collateral order.” Oliner

v. Kontrabecki, 745 F.3d 1024, 1025 (9th Cir. 2014) (internal

quotation marks and citation omitted).

III. ANALYSIS

A. Standard to File Documents Under Seal

“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.”

Nixon v. Warner Commnc’ns Inc., 435 U.S. 589, 597 (1978).

Following the Supreme Court’s lead, “we start with a strong

presumption in favor of access to court records.” Foltz v.

State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir.

2003). The presumption of access is “based on the need for

federal courts, although independent—indeed, particularly

because they are independent—to have a measure of

denying the motion to intervene, and remand this question to the district

court to examine anew.

8 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP

accountability and for the public to have confidence in the

administration of justice.” United States v. Amodeo (Amodeo

II), 71 F.3d 1044, 1048 (2d Cir. 1995); see also Valley Broad.

Co. v. U.S. Dist. Court—D. Nev., 798 F.2d 1289, 1294 (9th

Cir. 1986) (explaining that the presumption of public access

“promot[es] the public’s understanding of the judicial process

and of significant public events”).

Accordingly, “[a] party seeking to seal a judicial record

then bears the burden of overcoming this strong presumption

by meeting the ‘compelling reasons’ standard.” Kamakana,

447 F.3d at 1178. Under this stringent standard, a court may

seal records only when it finds “a compelling reason and

articulate[s] the factual basis for its ruling, without relying on

hypothesis or conjecture.” Id. at 1179. The court must then

“conscientiously balance[] the competing interests of the

public and the party who seeks to keep certain judicial

records secret.” Id. (quoting Foltz, 331 F.3d at 1135)

(alteration in original) (internal quotation marks omitted).

What constitutes a “compelling reason” is “best left to the

sound discretion of the trial court.” Nixon, 435 U.S. at 599.

Examples include when a court record might be used to

“gratify private spite or promote public scandal,” to circulate

“libelous” statements, or “as sources of business information

that might harm a litigant’s competitive standing.” Id. at

598–99.

Despite this strong preference for public access, we have

“carved out an exception,” Foltz, 331 F.3d at 1135, for sealed

materials attached to a discovery motion unrelated to the

merits of a case, see Phillips ex rel. Estates of Byrd v. Gen.

Motors Corp., 307 F.3d 1206, 1213–14 (9th Cir. 2002).

Under this exception, a party need only satisfy the less

exacting “good cause” standard. Foltz, 331 F.3d at 1135.

CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 9

The “good cause” language comes from Rule 26(c)(1), which

governs the issuance of protective orders in the discovery

process: “The court may, for good cause, issue an order to

protect a party or person from annoyance, embarrassment,

oppression, or undue burden or expense . . . .” Fed. R. Civ.

P. 26(c). “Applying a strong presumption of access to

documents a court has already decided should be shielded

from the public would surely undermine, and possibly

eviscerate, the broad power of the district court to fashion

protective orders,” and thereby undermine Rule 26(c).

Phillips, 307 F.3d at 1213; see also Seattle Times Co. v.

Rhinehart, 467 U.S. 20, 33 (1984) (explaining that discovery

is largely “conducted in private as a matter of modern

practice,” so the public is not presumed to have a right of

access to it); Anderson v. Cryovac, Inc., 805 F.2d 1, 13 (1st

Cir. 1986) (“There is no tradition of public access to

discovery, and requiring a trial court to scrutinize carefully

public claims of access would be incongruous with the goals

of the discovery process.”).

When deciding what test to apply to a motion to unseal a

particular court filing—the presumptive “compelling reasons”

standard or the “good cause” exception—we have sometimes

deployed the terms “dispositive” and “non-dispositive.” For

example, in Phillips, the Los Angeles Times moved to unseal

confidential settlement information that General Motors

produced in discovery under a protective order and was

subsequently attached to a discovery sanctions motion.

307 F.3d at 1208–10. The district court granted the motion

to unseal. Id. at 1208–09. In reversing that decision, we

stressed the special role that protective orders play, that

“[m]uch of the information that surfaces during pretrial

discovery may be unrelated, or only tangentially related, to

the underlying cause of action,” and reasoned that it made

10 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP

“little sense to render the district court’s protective order

useless simply because the plaintiffs attached a sealed

discovery document to a nondispositive sanctions motion

filed with the court.” Id. at 1212–13 (quoting in part Seattle

Times Co., 467 U.S. at 33); see also Kamakana, 447 F.3d at

1179–80 (explaining that the sealed records in Phillips were

“not directly relevant to the merits of the case”). Applying

the good cause standard from Rule 26(c) as an exception for

discovery-related motions makes sense, as the private

interests of litigants are “the only weights on the scale.”

Kamakana, 447 F.3d at 1180.

In Foltz, we again discussed “dispositive” and

“nondispositive” motions. We recognized that “[t]here are

good reasons to distinguish between dispositive and

nondispositive motions,” as while discovery-related motions

are often unrelated to the merits of a case, “[t]he same cannot

be said for materials attached to a summary judgment motion

because ‘summary judgment adjudicates substantive rights

and serves as a substitute for trial.’” 331 F.3d at 1135–36

(quoting Rushford v. New Yorker Magazine, 846 F.2d 249,

252 (4th Cir. 1988)). Accordingly, we applied the

“compelling reasons” standard to documents attached to a

motion for summary judgment. Id.; see also Kamakana,

447 F.3d at 1178–80 (reviewing Phillips and Foltz).

Like the district court, Chrysler urges us to read our case

law to limit the “compelling reasons” test to only those cases

in which the motion at issue is literally dispositive, meaning

that it “bring[s] about a final determination.” Black’s Law

Dictionary 540 (10th ed. 2014). This would include motions

to dismiss, for summary judgment, and judgment on the

pleadings, but would not include other motions that go to the

heart of a case, such as a motion for preliminary injunction or

CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 11

a motion in limine. In other words, the public would not be

presumed to have regular access to much (if not most) of the

litigation in federal court, as that litigation rarely falls into the

narrow category of “dispositive.”

Although the apparent simplicity of the district court’s

binary approach is appealing, we do not read our case law to

support such a limited reading of public access.4 Most

litigation in a case is not literally “dispositive,” but

nevertheless involves important issues and information to

which our case law demands the public should have access.

To only apply the compelling reasons test to the narrow

category of “dispositive motions” goes against the long held

interest “in ensuring the public’s understanding of the judicial

process and of significant public events.” Kamakana,

447 F.3d at 1179 (quoting Valley Broad. Co., 798 F.2d at

1295) (internal quotation marks omitted). Such a reading also

contradicts our precedent, which presumes that the

“‘compelling reasons’ standard applies to most judicial

records.” Pintos v. Pac. Creditors Ass’n, 605 F.3d 665,

677–78 (9th Cir. 2009) (emphasis added).

When using the words “dispositive” and “nondispositive,”

we do not believe our court intended for these descriptions to

morph into mechanical classifications. Rather, these

descriptive terms are indicative of when a certain test should

apply. For example, in Kamakana, we wrote that there is a

“good reason[]” why the public interest in accessing

nondispositive motions is not as strong as dispositive

motions: because nondispositive motions “are often

4

Moreover, as previously noted, district courts have sometimes

struggled with this binary approach, and therefore it is not as simple as it

first appears. See supra note 2.

12 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP

‘unrelated, or only tangentially related, to the underlying

cause of action.’” 447 F.3d at 1179 (emphasis added)

(quoting Seattle Times Co., 467 U.S. at 33). This statement

implicitly acknowledges that nondispositive motions are not

always unrelated to the underlying cause of action. The

nondispositive discovery motion in Phillips was unlikely to

be related to the merits, while the motions for summary

judgment in Foltz and Kamakana obviously were. Nothing

in Phillips (or any other case cited by Chrysler or the dissent)

contemplates that the right of public access would be limited

solely to literally dispositive motions, as none of those cases

address the situation in which a nondispositive motion may

be directly related to the merits of the case and where the

“good reason” identified for treating nondispositive motions

differently no longer applies.

The focus in all of our cases is on whether the motion at

issue is more than tangentially related to the underlying cause

of action. See Phillips, 307 F.3d at 1212–13; Foltz, 331 F.3d

at 1134–36; Kamakana, 447 F.3d at 1179; Pintos, 605 F.3d

at 678; Oliner, 745 F.3d at 1026. It is true that nondispositive

motions are sometimes not related, or only tangentially

related, to the merits of a case, as in Phillips. But plenty of

technically nondispositive motions—including routine

motions in limine—are strongly correlative to the merits of a

case.5

Particularly relevant here, a motion for preliminary

injunction frequently requires the court to address the merits

5

For example, a motion in limine to admit statements in furtherance of

a conspiracy under Federal Rule of Evidence 801(d)(2)(E) will often spell

out the very conspiracy alleged in a civil RICO complaint. See Kaley v.

United States, 134 S. Ct. 1090, 1111–12 (2014) (Roberts, C.J., dissenting).

CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 13

of a case, which often includes the presentation of substantial

evidence. Stormans v. Selecky, 586 F.3d 1109, 1127 (9th Cir.

2009). A motion for preliminary injunction may even, as a

practical matter, determine the outcome of a case. See, e.g.,

Miller v. Rich, 845 F.2d 190, 191 (9th Cir. 1988) (explaining

how “in this case, the denial of the preliminary injunction

effectively decided the merits of the case” (citation omitted)).

In fact, because motions for preliminary injunctions are so

significant, they are one of the few categories of motions that

may be heard as interlocutory appeals. See id.; see also

28 U.S.C. § 1292. In certain circumstances, an appellate

court may even choose to decide the merits of the case on an

appeal from a motion for preliminary injunction as to the

applicable rule of law. Thornburgh v. Am. Coll. of

Obstetricians & Gynecologists, 476 U.S. 747, 756–57 (1986)

(overruled in part on other grounds by Planned Parenthood

of Se. Pa. v. Casey, 505 U.S. 833 (1992)); Gorbach v. Reno,

219 F.3d 1087, 1091 (9th Cir. 2000) (en banc). For the

purposes of this opinion, however, we assume that the instant

motion for preliminary injunction was technically

nondispositive.6

Under Chrysler’s view, the strong presumption of public

access does not apply to any of the prior examples, but it

would apply to a motion for summary judgment, which may

contain the exact same materials. A motion for discovery

sanctions that requests dismissal as a remedy would be

“dispositive” under Chrysler’s test, while the same motion

attaching the same documents—but seeking a remedy just shy

of dismissal—would be “nondispositive.” Neither our case

6

We do not decide whether a motion for preliminary injunction is

always “nondispositive.”

14 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP

law nor the strong principles of public access to the courts

supports such incongruity.

Nor does the case law of other circuits, which rejects a

mechanistic rule to determine when the presumption of public

access applies. In the Second Circuit, for example, the

weight given to the presumption of access is “governed by the

role of the material at issue in the exercise of Article III

judicial power and the resultant value of such information to

those monitoring the federal courts.” Amodeo II, 71 F.3d at

1049. Documents submitted to the court exist on a

“continuum,” spanning those that play a role in “determining

litigants’ substantive rights,” which are afforded “strong

weight,” to those that play only a “negligible role in

performance of Article III duties . . . such as those passed

between the parties in discovery,” which lie “beyond the

presumption’s reach.” Id. at 1049–50. Similarly, in the First

Circuit, the public has a right of access to “materials on which

a court relies in determining the litigants’ substantive rights”

which are “distinguished from those that relate[ ] merely to

the judge’s role in management of the trial and therefore play

no role in the adjudication process.” United States v. Kravetz,

706 F.3d 47, 54 (1st Cir. 2013) (citations omitted) (alterations

in original).

The Third and Eleventh Circuits directly reject a literal

divide between dispositive and nondispositive motions.

According to the Third Circuit, “there is a presumptive right

of access to pretrial motions of a nondiscovery nature,

whether preliminary or dispositive, and the material filed in

connection therewith. . . . We see no reason to distinguish

between material submitted in connection with a motion for

summary judgment and material submitted in connection with

a motion for preliminary injunction . . . .” Leucadia, Inc. v.

CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 15

Applied Extrusion Tech., Inc., 998 F.2d 157, 164 (3d Cir.

1993). The rationale is that the presumption should apply to

any motion related to a “matter[] which the public has a right

to know about and evaluate.” Id. (alteration in original)

(citation omitted). Similarly, in the Eleventh Circuit, material

filed in connection with any “substantive pretrial motion,

unrelated to discovery, is subject to the common law right of

access,” “whether or not characterized as dispositive.”

Romero v. Drummond Co., 480 F.3d 1234, 1245–46 (11th

Cir. 2007) (citing Amodeo II, 71 F.3d at 1050).

Given that preliminary injunctions are “extraordinary and

drastic” remedies, Lopez v. Brewer, 680 F.3d 1068, 1072 (9th

Cir. 2012), they may certainly affect litigants’ “substantive

rights,” see Kravetz, 706 F.3d at 54, Amodeo II, 71 F.3d at

1049. They also invoke important “Article III” powers,

Amodeo II, 71 F.3d at 1049, so much so that magistrate

judges may not even rule upon them, 28 U.S.C.

§ 636(b)(1)(A). A bright line rule that does not afford a

presumption of access to a motion for preliminary injunction

because it is “nondispositive” conflicts with the Third and

Eleventh Circuits and is, at best, in tension with the First and

Second Circuits.

In re Midland National Life Insurance Company Annuity

Sales Practices Litigation, 686 F.3d 1115 (9th Cir. 2012),

illustrates that our circuit looks past the literal

dispositive/nondispositive label. In that case, an intervenor

moved to unseal documents attached to a Daubert motion.

Id. at 1118. The district court, like the district court here,

concluded that the documents should remain under seal

because “the Daubert motion was non-dispositive,” as it

“would not have been a determination on the merits of any

claim or defense.” Id. at 1119. We rejected the district

16 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP

court’s focus on whether the motion was literally

“dispositive”: “That the records are connected to a Daubert

motion does not, on its own, conclusively resolve the issue.”

Id. As the motion, in effect, “pertain[ed] to central issues

bearing on defendant’s summary judgment motion,” we

treated that motion as dispositive. Id. We did not allow the

technically nondispositive nature of the Daubert motion to

cloud the reality that it was able to significantly affect the

disposition of the issues in the case. See also Oliner,

745 F.3d at 1025–26 (applying “compelling reasons” test to

motion to seal entire court record of an appeal from the

bankruptcy court, even though motion did not result in a final

determination on the merits).

Case law is also replete with examples of motions for

preliminary injunctions that reflect the need for the public

right of access—to “provide the public with a more complete

understanding of the judicial system and a better perception

of its fairness.” Leucadia, 998 F.2d at 161 (quoting Republic

of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653,

660 (3d Cir. 1991)). Motions for preliminary injunctions

have been utilized to: test the boundaries of equal protection;

police the separation of powers in times of domestic and

global instability; protect “one of our most valuable rights,”

the right to retain United States citizenship; and even

determine life or death.7 “People in an open society do not

7

Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 715 (9th Cir. 1997)

(vacating grant of motion for preliminary injunction and sustaining

constitutionality of California’s anti-affirmative action initiative,

Proposition 209); Monterey Mech. Co. v. Wilson, 125 F.3d 702, 714–15

(9th Cir. 1997) (holding, on appeal from motion for preliminary

injunction, that state program setting goals for ethnic and sex

characteristics of construction subcontractors violates the equal protection

clause); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584–85

CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 17

demand infallibility from their institutions” with respect to

such issues, “but it is difficult for them to accept what they

are prohibited from observing.” Richmond Newspapers, Inc.

v. Virginia, 448 U.S. 555, 572 (1980). In light of the strong

presumption, these impactful motions should not be

categorically shielded from the public right of access.

Consistent with our precedent, we make clear that public

access to filed motions and their attachments does not merely

depend on whether the motion is technically “dispositive.”8

Rather, public access will turn on whether the motion is more

than tangentially related to the merits of a case. While many

technically nondispositive motions will fail this test, some

will pass. Our reading of the public access cases is consistent

with our own case law, and more importantly, comports with

(1952) (making a “final determination of the constitutional validity of the

President’s order” on an appeal from a motion for preliminary injunction

restraining the Secretary of Commerce from seizing the nation’s steel

mills); Reno, 219 F.3d at 1091, 1098–99 (holding on appeal from a motion

for preliminary injunction that the INS may not revoke a person’s

citizenship administratively); Lopez, 680 F.3d at 1074, 1078 (allowing an

execution to proceed on appeal of denial of motion for preliminary

injunction over an Eighth Amendment challenge).

8

Our circuit already considers motions for preliminary injunctions

“dispositive” in the context of magistrate jurisdiction. A magistrate judge

may “hear and determine any pretrial matter pending before the court

except a motion for injunctive relief, for judgment on the pleadings, for

summary judgment, to dismiss or quash an indictment or information

made by the defendant, to suppress evidence in a criminal case, to dismiss

or to permit maintenance of a class action, to dismiss for failure to state a

claim upon which relief can be granted, and to involuntarily dismiss an

action.” 28 U.S.C. § 636(b)(1)(A) (emphasis added). Those “matters

listed in 28 U.S.C. § 636(b)(1)(A) are dispositive while, in general, other

matters are non-dispositive.” Flam v. Flam, 788 F.3d 1043, 1046 (9th Cir.

2015) (emphasis in original).

18 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP

the old tradition of ensuring public access which “antedates

the Constitution and . . . is now beyond dispute.” Leucadia,

998 F.2d at 161 (internal quotation marks and citation

omitted).

The dissent’s doomsday depiction of our opinion, in

which we purportedly “eviscerate[] Rule 26(c) and its

benefits,” Dissent at 32, not only ignores the real world

intersection of Rule 26(c) and the right to public access, but

also the clear language from our previous decisions. As the

dissent does not dispute, its reading of Rule 26(c) in this

context conflicts with virtually every other circuit to review

this issue. The district courts in those circuits routinely apply

a more nuanced test, and none has complained of staring at

“an ink blot.” Dissent at 31. We have full confidence that

judges in our circuit are equally capable. The dissent’s

convenient chessboard sweep of the experiences of our sister

circuits—responding only by calling them “irrelevant” in a

footnote—illustrates its shaky foundation. Dissent at 28, n.2.

And more importantly, the dissent’s indignation that we read

certain language in our opinions as descriptive, rather than

definitive, ignores that it does the same thing—it chooses to

interpret the dispositve/nondispositive language as “a bright

line rule,” while painting the “more than tangentially related

to the merits of a case” phrase as “reasoning we used to

justify the adoption of a bright line rule.” Dissent at 26. Yet

the dissent is the only opinion from any appellate court to

read our caselaw in such stark terms. We choose to follow

language in our case law that makes sense and is consistent

with our fellow circuits.

CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 19

B. The Instant Motion for Preliminary Injunction

Applying our circuit’s case law, we conclude that

plaintiffs’ motion for preliminary injunction is more than

tangentially related to the merits. In the complaint, plaintiffs

were seeking, in addition to damages, injunctive relief,

including an order “requiring Chrysler to adequately disclose

and repair the [vehicle] defect.” In the preliminary injunction

motion, plaintiffs requested that Chrysler notify its customers

that there was a part in their vehicle which could require

replacement and be dangerous if it failed. As Chrysler argued

in its opposition to the preliminary injunction, once notice is

given, it “alters the status quo and cannot be undone.” If

plaintiffs had succeeded in their motion for preliminary

injunction, they would have won a portion of the injunctive

relief they requested in the underlying complaint, and that

portion of their claims would have been resolved.

Chrysler’s counterarguments are unavailing. First,

Chrysler contends that because this motion for preliminary

injunction was denied, the court should not apply the

presumption of public access. But the common law right of

access promotes the “public interest in understanding” the

judicial process itself, Foltz, 331 F.3d at 1135 (quoting

Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)),

and the “bases or explanations for a court’s decision,” Oliner,

745 F.3d at 1025 (citation omitted). Nothing in our precedent

suggests that the right of access turns on any particular result.

In fact, in Kamakana, our circuit applied the presumption of

public access to a summary judgment motion that was

“denied, in large part.” 447 F.3d at 1176; see also Leucadia,

998 F.2d at 164 (citing Westinghouse, 949 F.2d at 661)

(explaining that papers filed in connection with a motion “are

20 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP

not entitled to be shielded from public access merely because

the district court denied the motion rather than granted it”).

Chrysler also argues that expanding the compelling

reasons standard makes it easier for “litigants to override

protective orders.” As a result, litigants will file more

“meritless motions.” This argument is similarly

unconvincing. District courts can use Rule 11 to impose

sanctions on any party that files a motion for an “improper

purpose” or who does so without a legal or factual basis. Fed.

R. Civ. P. 11(b)–(c).

As the preliminary injunction motion here was more than

tangentially related to the merits of the case, we vacate and

remand for the district court to consider the documents under

the compelling reasons standard.

IV. CONCLUSION

While simplicity has its virtues, it also has its vices.

Here, permitting the public’s right of access to turn on what

relief a pleading seeks—rather than on the relevance of the

pleading—elevates form too far beyond substance and over

reads language in our case law. Our precedent, which always

has focused on whether the pleading is more than tangentially

related to the merits, recognizes this essential point. To hold

otherwise would permit the discovery “exception” to swallow

the public access rule. Due to the strong presumption for

public access and the nature of the instant motion for a

CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 21

preliminary injunction, Chrysler must demonstrate

compelling reasons to keep the documents under seal.

VACATED AND REMANDED.

Chrysler shall bear costs on appeal.

SESSIONS, District Judge, concurring:

I fully concur in the majority opinion’s thoughtful

analysis of Ninth Circuit precedent, and in its determination

that public access to filed motions and their attachments

hinges not on whether the motion is literally “dispositive,”

but on whether the motion is more than tangentially related to

the merits of the underlying case. I also concur in the

majority’s conclusion that the preliminary injunction motion

here was more than tangentially related to the merits of the

case, and that the district court should therefore reconsider

the documents under the compelling reasons standard. I write

separately only to express my belief that reversal is warranted

even under the binary approach endorsed by the dissent, for

in my view the preliminary injunction motion at issue was

literally “dispositive” of plaintiffs’ request that Chrysler issue

notice to its customers.

Along with both the majority and the dissent, I accept that

a motion is literally dispositive if it “bring[s] about a final

determination.” See Maj. op. at 10 (quoting Black’s Law

Dictionary 540 (10th ed. 2014)); Dissent at 26. A motion

may bring about a final determination of one claim, however,

without disposing of an entire case. Indeed, it goes without

saying that parties frequently file motions for partial

22 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP

summary judgment. And as the dissent writes, “it is

undisputed that summary judgment motions are dispositive.”

Dissent at 29. Thus, it appears to be uncontroverted that

within a single case, a motion may be dispositive of some

claims and nondispositive of others.

In the present case, plaintiffs’ complaint sought not only

damages, but also injunctive relief, including an order

“requiring Chrysler to adequately disclose and repair the

[vehicle] defect.” Similarly, plaintiffs’ preliminary injunction

motion requested that Chrysler notify its customers that a part

in their vehicles may be dangerous and require replacement.

Because notice cannot be withdrawn once it is given, granting

the preliminary injunction motion would have awarded

plaintiffs a portion of their requested relief. For that reason,

I find that the preliminary injunction motion here was literally

“dispositive” of plaintiffs’ request that Chrysler issue notice

to its customers.

In sum, I fully concur in the judgment of the Court for the

reasons discussed in Judge Owens’s majority opinion. I add,

however, that in my view the motion for preliminary

injunction in the present case was literally “dispositive” of

plaintiffs’ request for disclosure. As a result, even under the

dissent’s approach, I would vacate and remand for the district

court to reconsider whether the documents relevant to

plaintiffs’ demand for notice should remain under seal using

the compelling reasons standard.

CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 23

IKUTA, Circuit Judge, dissenting:

According to the majority, the district court here erred

because it “relied on language in our cases which provides

that when a party is attempting to keep records attached to a

‘non-dispositive’ motion under seal, it need only show ‘good

cause.’” Maj. op. at 5. This comes as a surprise, because the

“language in our cases” constitutes binding precedent. But no

matter, the majority invents a new rule, namely that a party

cannot keep records under seal if they are attached to any

motion that is “more than tangentially related to the merits of

a case,” Maj. op. at 17, unless the party can meet the

“stringent standard” of showing that compelling reasons

support secrecy, Maj. op. at 8. Because this decision

overrules circuit precedent and vitiates Rule 26(c) of the

Federal Rules of Civil Procedure, I strongly dissent.

I

The right of litigants to protect certain documents

disclosed in discovery from release to the public is embodied

in Rule 26(c), which authorizes the district court to grant a

protective order “to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense.”

Fed. R. Civ. P. 26(c). This includes “requiring that a trade

secret or other confidential research, development, or

commercial information not be revealed or be revealed only

in a specified way.” Fed. R. Civ. P. 26(c)(1)(G).

When discovery material is filed with a court, we balance

the protection afforded litigants under Rule 26(c) with the

presumption that the public has a right of access to public

documents, including judicial records. See Phillips ex rel.

Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1213

24 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP

(9th Cir. 2002). Our cases, as well as Supreme Court

decisions, have made clear that the common law right of

access “is not absolute,” Nixon v. Warner Commc’ns, Inc.,

435 U.S. 589, 598 (1978); see also Seattle Times Co. v.

Rhinehart, 467 U.S. 20, 34 (1984). The presumption in favor

of access can be overcome by showing “sufficiently

important countervailing interests.” Phllips, 307 F.3d at

1212.

We have developed the following bright line rule to

balance the common law right of access to court records with

the protection afforded litigants under Rule 26(c):

(1) If a party to a legal proceeding attaches a sealed

discovery document to a nondispositive motion, “the usual

presumption of the public’s right of access is rebutted,” and

“the party seeking disclosure must present sufficiently

compelling reasons why the sealed discovery document

should be released.” Phillips, 307 F.3d at 1213.

(2) If a party attaches a sealed discovery document to a

dispositive motion, the presumption of the public’s right of

access is not rebutted, and the party seeking to protect the

document must show compelling reasons to maintain the

documents under seal. Foltz, 331 F.3d at 1136.

There is nothing ambiguous about this rule, which we

have recited numerous times. Beginning in Phillips, we

explained that “when a party attaches a sealed discovery

document to a nondispositive motion, the usual presumption

of the public’s right of access is rebutted, so that the party

seeking disclosure must present sufficiently compelling

reasons why the sealed discovery document should be

released.” 307 F.3d at 1213. We justified this bright line rule

CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 25

on the ground that the presumption of access to judicial

documents should not eviscerate a district court’s protective

order, and that “[m]uch of the information that surfaces

during pretrial discovery may be unrelated, or only

tangentially related, to the underlying cause of action.” Id.

(quoting Rhinehart, 467 U.S. at 33).

We repeated this rule in Foltz, quoting Phillips verbatim

for the proposition that “when a party attaches a sealed

discovery document to a nondispositive motion, the usual

presumption of the public’s right of access is rebutted.”

331 F.3d at 1135. Foltz then added the second prong of our

rule, holding that “the presumption of access is not rebutted

where, as here, documents subject to a protective order are

filed under seal as attachments to a dispositive motion.” Id.

at 1136 (emphasis added).

We repeated this two-part rule in Kamakana v. City and

County of Honolulu, 447 F.3d 1172 (9th Cir. 2006). We first

explained that we have “carved out an exception to the

presumption of access to judicial records for a sealed

discovery document [attached] to a non-dispositive motion,

such that the usual presumption of the public’s right of access

is rebutted.” Id. at 1179 (citing Phillips, 307 F.3d at 1213,

and Foltz, 331 F.3d at 1135) (internal citations and quotation

marks omitted). By contrast, “[t]hose who seek to maintain

the secrecy of documents attached to dispositive motions

must meet the high threshold of showing that ‘compelling

reasons’ support secrecy.” Id. at 1180 (emphasis added).

Summing up, “we treat judicial records attached to

dispositive motions differently from records attached to

non-dispositive motions.” Id. at 1179. “Those who seek to

maintain the secrecy of documents attached to dispositive

26 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP

motions must meet the high threshold of showing that

‘compelling reasons’ support secrecy.” Id. By contrast, “[a]

‘good cause’ showing under Rule 26(c) will suffice to keep

sealed records attached to non-dispositive motions.” Id.

II

The majority boldly rejects this rule. It belittles the

“simplicity” of our “binary approach,” which holds that the

public’s presumed right of access applies to sealed discovery

documents attached to a dispositive motion, but does not

apply to sealed discovery documents attached to a

nondispositive motion. Maj. op. at 10–11.

Instead of following precedent, the majority creates a new

rule: “[W]e make clear that public access to filed motions and

their attachments does not merely depend on whether the

motion is technically ‘dispositive.’ Rather, public access will

turn on whether the motion is more than tangentially related

to the merits of a case.” Maj. op. at 17 (emphasis added). In

plucking this “more than tangentially related” language from

the reasoning we used to justify the adoption of a bright line

rule, see, e.g., Phillips, 307 F.3d at 1213, the majority

improperly replaces the rule itself with a single phrase from

our reasoning.

There can be no mistake that this new rule is inconsistent

with our existing precedent. As the majority concedes,

“dispositive” has a precise legal definition: a motion is

dispositive if it “bring[s] about a final determination.” Maj.

op. at 10 (quoting Black’s Law Dictionary 540 (10th ed.

2014)). Likewise, the majority concedes that this legal

definition “would include motions to dismiss, for summary

judgment, and judgment on the pleadings,” but would not

CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 27

include “a motion for preliminary injunction or a motion in

limine.” Maj. op. at 10–11. And in this case, the majority

assumes “that the instant motion for preliminary injunction

was technically nondispositive.” Maj. op. at 13. Under our

existing precedent, therefore, the majority effectively admits

it is wrong in holding that the documents attached to the

preliminary injunction motion are subject to the public’s

presumed right of access absent compelling reasons for

secrecy.1

The majority attempts to avoid this problem by relying on

the oft-rejected casuistry that words have no fixed meaning,

and therefore “non-dispositive” can also mean “dispositive.”

Surely, the majority argues, we did not intend to be bound by

the literal meaning of the terms “dispositive” and

“nondispositive” that “we have sometimes deployed,” Maj.

op. at 9, because that would merely “morph” these words

“into mechanical classifications,” Maj. op. at 11. Nothing in

our case law (other than the words themselves), the majority

claims, “contemplates that the right of public access would be

limited solely to literally dispositive motions.” Maj. op. at 12

(emphasis added).

This theory that we are not bound by the literal meaning

of the words of our opinions would, of course, deprive our

precedent of any binding force. Such a theory erodes the

concept that law can be applied as written, whether by the

1

As the concurrence points out, Conc. op. at 21, the majority could have

reached the same result on much narrower grounds by holding that the

preliminary injunction motion at issue in this case was literally

“dispositive.” But apparently eager to jettison our precedent, the majority

instead assumes without deciding that the motion was “technically

nondispositive.” Maj. op. at 13.

28 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP

legislature or judges, and “undermines the basic principle that

language provides a meaningful constraint on public and

private conduct.” Trident Ctr. v. Conn. Gen. Life Ins. Co.,

847 F.2d 564, 569 (9th Cir. 1988). But judges are bound not

merely by “the reason and spirit of cases” but also by “the

letter of particular precedents.” Hart v. Massanari, 266 F.3d.

1155, 1170 (9th Cir. 2001) (internal quotation marks

omitted). While we have the authority to distinguish

precedent on a principled basis, we are not free to ignore the

literal meaning of our rulings, even when the panel believes

the precedent is “unwise or incorrect.” Hart, 266 F.3d at

1170; see also, e.g., United States v. Contreras, 593 F.3d

1135, 1136 (9th Cir. 2010) (en banc) (reversing a three-judge

panel for overruling binding circuit precedent that was not

clearly irreconcilable with intervening higher authority.)

Moreover, we are bound by our precedent even if every other

circuit has rejected our view. See Al Ramahi v. Holder,

725 F.3d 1133, 1138 n.2 (9th Cir. 2013) (noting that “[n]early

all our sister circuits have rejected” our interpretation of the

Real ID Act, but “in the absence of any intervening higher

authority we are bound by” our prior opinion.).2 By

intentionally disregarding the language “we have sometimes

deployed,” Maj. op. at 9, the majority has flouted this most

basic, fundamental principle.

The majority’s claim that we have previously rejected a

literal interpretation of the word “dispositive” does not

withstand examination. For instance, In re Midland National

Life Insurance Co. Annuity Sales Practices Litigation,

686 F.3d 1115 (9th Cir. 2012), see Maj. op. at 15–16, did not

purport to overrule our distinction between dispositive and

2

For this reason, the out-of-circuit cases relied on by the majority, Maj.

op. at 14–15, are entirely irrelevant.

CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 29

nondispositive filings. Rather, it deemed the expert reports

filed “in connection with” pending summary judgment

motions, id. at 1120, as being equivalent to attachments to

those motions. Because it is undisputed that summary

judgment motions are dispositive, the panel concluded that

the attached reports did not “fall into the exception to the

presumption of public access” which applies to judicial

records attached to a non-dispositive motion.

Nor does our interpretation of the Federal Magistrates

Act, 28 U.S.C. § 636, support the majority’s approach. See

Maj. op. at 17 n.8. Section 636(b) authorizes a magistrate

judge to “hear and determine any pretrial matter pending

before the court, except a motion for injunctive relief, for

judgment on the pleadings, for summary judgment, to dismiss

or quash an indictment or information made by the defendant,

to suppress evidence in a criminal case, to dismiss or to

permit maintenance of a class action, to dismiss for failure to

state a claim upon which relief can be granted, and to

involuntarily dismiss an action.” Id. § 636(b)(1)(A) (emphasis

added). In passing, we have referred to the category of

motions listed in the exceptions to a magistrate judge’s

jurisdiction as “dispositive motions.” Thus we have noted

that the Federal Magistrates Act “provides that certain

matters (for example, non-dispositive pretrial matters) may be

referred to a magistrate judge for decision, while certain other

matters (such as case-dispositive motions [and] petitions for

writs of habeas corpus) may be referred only for evidentiary

hearing, proposed findings, and recommendations.” Flam v.

Flam, 788 F.3d 1043, 1046 (9th Cir. 2015) (quoting United

States v. Reyna–Tapia, 328 F.3d 1114, 1118 (9th Cir. 2003)

(en banc)) (internal quotation marks omitted). But we have

never addressed the question whether a preliminary

injunction motion constitutes a case-dispositive motion for

30 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP

purposes of the Federal Magistrates Act—let alone for

purposes of the public’s presumed right of access—nor would

we have occasion to do so, because the Act precludes a

magistrate judge from ruling on such a motion regardless of

how it is characterized.

III

In reality, the majority’s only rationale for disregarding

our precedent is policy: the majority prefers to strike a

different balance between the common law right of public

access and the protections provided by Rule 26. According

to the majority, the key policy concern here is that a motion

for preliminary injunction is very important. Such a motion

may “test the boundaries of equal protection,” “police the

separation of powers in times of domestic and global

instability,” and “may even, as a practical matter, determine

the outcome of a case,” Maj. op at 13, 16. Therefore,

according to the majority, treating a nondispositive motion

for preliminary injunction the same as a summary judgment

motion would be incongruous, and “[n]either our case law nor

the strong principles of public access to the courts supports

such incongruity.” Maj. op. at 13–14.

As a threshold matter, even if the policy judgment

embodied in our precedent were wrong, the majority would

still be bound by it. See Hart, 266 F.3d at 1170. But there

are many policy reasons to reject the rule the majority invents

today. For one, the majority’s “more than tangentially

related” test has no discernible meaning. A bright line

distinction between dispositive and nondispositive orders is

easy to administer, while district courts will have no

framework for deciding what quantum of relatedness is more

than tangential. The majority’s ill-defined standard is

CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 31

certainly no improvement for the district courts that the

majority claims have “struggled” with our rule. Maj. op. at

5 n.2. The district courts that have declined to follow our rule

have simply adopted an alternate bright line rule, holding that

motions for preliminary injunctions are per se deemed

dispositive in the sealing context.3 The majority rejects even

this rule—which at least purports to follow our precedent—in

favor of an ink blot test.

More important, the majority’s rule upsets the balance

between the common law right of access and Rule 26 that we

have developed. As Rhinehart explained, “[i]t is clear from

experience that pretrial discovery by depositions and

interrogatories has a significant potential for abuse,” because,

among other things, it “may seriously implicate privacy

interests of litigants and third parties” if litigants obtain

information that “if publicly released could be damaging to

reputation and privacy.” 467 U.S. at 34–35. For this reason,

despite the “extent of the impairment of First Amendment

rights that a protective order” may cause, id. at 32, the Court

concluded that “[t]he government clearly has a substantial

interest in preventing this sort of abuse of its processes,” id.

at 35.

Recognizing the competing considerations between the

common law right of access and the policy goals embodied in

Rule 26, we struck an appropriate balance between the two.

3

See, e.g., Selling Source, LLC v. Red River Ventures, LLC, 2011 WL

1630338, at *5 (D. Nev. Apr. 29, 2011) (“[R]equests for preliminary

injunctive relief should be treated as dispositive motions for purposes of

sealing court records.”); Yountville Investors, LLC v. Bank of Am., N.A.,

2009 WL 411089, at *2 (W.D. Wash. Feb. 17, 2009) (“A motion for a

preliminary injunction is treated as a dispositive motion under these

rules.”).

32 CENTER FOR AUTO SAFETY V. CHRYSLER GROUP

As we explained, there are “good reasons to distinguish

between dispositive and non-dispositive motions.”

Kamakana, 447 F.3d at 1179 (quoting Foltz, 331 F.3d at

1135). We noted that “the public has less of a need for access

to court records attached only to non-dispositive motions,”

and so “[t]he public policies that support the right of access

to dispositive motions, and related materials, do not apply

with equal force to non-dispositive materials.” Id. We were

also careful to avoid eviscerating Rule 26(c), noting that

“[a]lthough we understand the public policy reasons behind

a presumption of access to judicial documents (judicial

accountability, education about the judicial process etc.), it

makes little sense to render the district court’s protective

order useless simply because the plaintiffs attached a sealed

discovery document to a nondispositive sanctions motion

filed with the court.” Phillips, 307 F.3d at 1213. Thus, our

rule tracks the “good cause” standard of Rule 26(c) with

respect to nondispositive motions, but gives due regard to the

common law right of access to materials supporting

dispositive motions by requiring litigants to make a higher

showing to rebut the public’s presumed right of access to

material that resolves a legal dispute.

By contrast, the majority’s test effectively holds that all

sealed documents attached to any filing that has any relation

to the merits of the case are subject to the public’s presumed

right of access, and therefore deprives protective orders

issued under Rule 26(c) of any force or effect. Rule 26(c)

“gives the district court much flexibility in balancing and

protecting the interests of private parties,” Kamakana,

447 F.3d at 1180, and has the beneficial effects of

encouraging parties to exchange documents while reducing

discovery disputes. The majority’s rule eviscerates Rule26(c)

and its benefits.

CENTER FOR AUTO SAFETY V. CHRYSLER GROUP 33

Indeed, this very case demonstrates the problems with the

majority’s new rule. The plaintiffs obtained 86,000

documents from Chrysler (including confidential and trade

secret documents) without being put to the cost and delay of

fighting discovery battles because Chrysler could confidently

rely on the district court’s protective order. But under the

majority’s new rule, the majority holds that these confidential

documents filed under seal are subject to the public’s

presumed right of access because the plaintiff elected to

attach them to a motion for preliminary injunction on a

tangential issue (and which was summarily denied by the

district court). Any member of the public will be able to

obtain these documents filed under seal unless Chrysler can

meet the intentionally stringent “compelling reasons”

standard, which generally requires proof that the documents

are being intentionally used for an improper purpose “such as

the use of records to gratify private spite, promote public

scandal, circulate libelous statements, or release trade

secrets.” Kamakana, 447 F.3d at 1179 (internal quotation

marks omitted). In addition to the unfairness of making

Chrysler bear the consequences of encountering a three-judge

panel that disagrees with its own circuit’s precedent, it is

clear that no future litigant can rely on a protective order and

will have to chart its course through discovery cautiously and

belligerently, to the detriment of the legal system.

Our circuit has considered it important to reject efforts by

three-judge panels to overrule binding circuit precedent. See

Contreras, 593 F.3d at 1136. Disregarding the language of

our opinions erodes the framework of our judicial system.

Because the majority here overtly overrules our prior

decisions, I dissent.