There is a disturbing trend in federal court these days: the tendency to seal, or attempt to seal, vast portions of the record, and often entire cases, in civil litigation. In commercial cases, it is not uncommon for litigants to seek a broad protective order presumptively sealing all discovery unless and until a party successfully moves to unseal particular discovery.1
In state secrets cases (which are increasingly common in recent years), it is almost routine for the United States government to submit secret declarations and briefs to the court, unseen not only by the public, but also by the parties. And according to a 2009 report of the Federal Judicial Center, in a whole range of cases, courts are entering “super sealing” orders that are themselves secret and unknown to the public.
