A federal judge in the Eastern District of Pennsylvania declined to order "the sealing of any judicial document containing information marked CONFIDENTIAL, HIGHLY CONFIDENTIAL-ATTORNEY'S EYES ONLY, or HIGHLY CONFIDENTIAL SOURCE CODE." J Morita MFG Corp. v. Dental Imagining Tech's Corp., No. 21-0663-KSM, 2021 WL 4078036, at *2 (E.D. Pa. June 1, 2021). The Court therefore struck Section 11.1 from this proposed order because it invalidly purported to regulate filing documents under seal. Note that the capitalized language quoted above from the proposed, stipulated protective order in this case is regularly used in proposed, stipulated protective orders throughout the country.
But this language will not necessarily fly within the Third Circuit as far as sealing documents goes. Once a document is filed with a court in the Third Circuit, a presumption of public access attaches to it. The Third Circuit Court of Appeals requires a document-by-document review of the contents of any such documents which must survive judicial review before they can survive a sealing challenge. See J Morita, 2021 WL 4078036, at *2.
In contrast, the Court in this case found good cause to enter a pinpoint stipulated protective order, even while recognizing the settled rule that "[p]rotective orders stipulated between the parties are not guaranteed judicial approval." Stipulated protective orders must still be accompanied by a showing of good cause for not disclosing information which also requires a demonstration that the information is confidential. J Morita, 2021 WL 4078036, at *1, quoting and following Spinturf, Inc. v. Sw. Rec. Indus., Inc., 216 F.R.D. 320, 323 (E.D. Pa. 2003).
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