This set of cases is illustrated by the decision of a Federal Court in North Carolina in a case in which the Federal Deposit Insurance Corporation sued former executives of one Cooperative Bank for making bad loans. In that case, the Court sealed the evidence against the executives. This prompted much commentary on the Court’s actions in that case, including this observation:
The F.D.I.C. complaint made accusations that certainly sounded as if there were some bad faith. It said officers of the bank regularly ignored the bank’s own lending rules and ignored repeated warnings from state and federal bank examiners. It said the board made no effort to force the bank officers to abide by the bank’s own rules, let alone comply with the examiner’s recommendations.
So what facts indicated there was no bad faith? That is hard to tell. The judge sealed many documents, including the F.D.I.C.’s arguments against the summary judgment.
The Court in this case based its secrecy order, first, on the fact that the several motions under consideration filed by the parties requesting that the records be sealed, were each and all unopposed in that case and, second, on “the May 21, 2013 Amended Stipulated Protective Order and Non-Waiver Agreement [DE 71].” Remarkably, the order does not refer to Federal Rule of Civil Procedure 26 which governs requests for a protective order including requests to seal things on file from disclosure to non-parties.
Although the amended stipulation referenced in the order does refer to Rule 26, the Rule contains no provision for parties to a lawsuit to alter its requirements. The record of this case reveals that the procedures of Rule 26 were simply not followed in this case when it came time to seal the evidence. The available record does not reflect “good cause” shown by any party “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Rule 26 does not provide that a party or person who might be annoyed, embarrassed, oppressed, or burdened by discovery or disclosure in Federal civil litigation is entitled to a protective order sealing the proceedings just because the party or person says so. They have to prove it. That is their burden.
Except in cases involving secrecy stipulations, it appears.
 Floyd Norris, “High & Low Finance / Failed Bank’s Broken Vows Mean Little” p. B1, col. 1 (New York Times Nat’l ed., “Business Day” Section, Friday, September 19, 2014). The order of the Federal Court in North Carolina can be found in FDIC v. Rippy, Order of September 10, 2014 granting defendants’ summary judgment motion, Dkt. No. 124 (E.D.N.C. Case No. 7-11-cv-00165-BO).
 FDIC v. Rippy, Dkt. No. 124, Order of September 10, 2014 granting defendants’ summary judgment motion, at p. 3 (E.D.N.C. Case No. 7-11-cv-00165-BO).
 FDIC v. Rippy, Dkt. No. 71, May 21, 2013 Amended Stipulated Protected Order and Non-Waiver Agreement, at p. 2 (E.D.N.C. Case No. 7-11-cv-00165-BO).
 Fed. R. Civ. P. 26.
 In addition to the clear language of Rule 26, the Advisory Committee Notes to the present enactment of Rule 26(c) in 1970, provide:
The new reference to trade secrets and other confidential commercial information reflects existing law. The courts have not given trade secrets automatic and complete immunity against disclosure, but have in each case weighed their claim to privacy against the need for disclosure.
An alternative to secrecy stipulations pursued in the cases, is to settle the class action case and provide for secrecy in the settlement agreement which the Court is then requested to approve. This method of obtaining secrecy is at work in the class action lawsuit filed against the high-profile corporations of Silicon Valley who allegedly conspired to limit their workers’ “mobility and incomes.” David Streitfeld, “New Accord is Expected in Hiring Ban,” p. B1, col. 5 (New York Times Nat’l ed., “Business Day” Section, Thursday, January 15, 2015). As explained in this Times report, a second settlement agreement was reached in the case and presented to the Court for approval “[t]o head off a trial and the exposure of reams of incriminating emails.” The Federal District Judge already rejected one settlement because the amount was too low to be “’within the range of reasonableness,’” i.e., the original settlement amount presented for the Court’s approval was unreasonably low. Although the second attempt at a settlement agreement contains more money, “[t]he settlement money is pocket change to the companies, which include some of the world’s wealthiest. If they let the case go to trial, however, it might corrode their image as forward-thinking, worker-friendly benevolent empires.” David Streitfeld, “New Accord is Expected in Hiring Ban,” p. B1, col. 5 (New York Times Nat’l ed., “Business Day” Section, Thursday, January 15, 2015).
More to Come....
Reprinted with the permission of Thomson Reuters West from the manuscript of the author's 2015 Supplement chapters in “Catastrophe Claims: Insurance Coverage for Natural and Man-Made Disasters” ©2015 by Thomson Reuters West.