In Re the Reporters Committee for Freedom of the Press

773 F.2d 1325, 249 U.S. App. D.C. 119, 12 Media L. Rep. (BNA) 1073, 1985 U.S. App. LEXIS 21666

• Court: Court of Appeals for the D.C. Circuit
• Decided: September 20, 1985
• Docket: 82-1820, 82-1821 and 83-1744
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge SCALIA.

Opinion concurring in part and dissenting in part filed by Circuit Judge J. SKELLY WRIGHT.

SCALIA, Circuit Judge.

The Reporters Committee for Freedom of the Press and four individual reporters appeal from two District Court orders delaying until after trial and entry of judgment the public’s access to court records consisting of documents produced by, and depositions furnished by the officers of, Mobil Oil Corp. in the course of third-party discovery in a civil suit, and used in connection with summary judgment and trial proceedings. The case presents preliminary issues of mootness and finality, and the merits issue of whether there is a First Amendment right of public access to court records pertaining to private civil actions prior to judgment.

I

The matters contested here arose in the course of litigation to which neither appellants nor appellee was a party — a libel suit brought by William Tavoulareas, the President of Mobil Oil Corp., and his son Peter, against the Washington Post Co. and a number of individuals connected with the Post, and a slander suit by the same plaintiffs against Philip Piro. In the course of those suits, which were consolidated, the Post sought to discover large numbers of documents from Mobil, and to take the depositions of Mobil-related witnesses. Before conducting a document search, Mobil requested a protective order to prevent public dissemination of the information to be obtained, on the ground that much of it was sensitive and confidential. It supported this request with an affidavit from Mobil Vice-President Walter E. MacDonald describing in general terms the negative effect release of the materials as a whole would have on Mobil’s business in Saudi Arabia and its competitive position in shipping. The affidavit also stated that it would be impractical for Mobil to go through documents one by one during the discovery process to determine whether they contained any confidential information.

The District Court entered a protective order on November 5, 1981. It held that the MacDonald affidavit adequately identified the harm which disclosure of the information would cause Mobil, and that it would be undesirable to have Mobil specify, and the court rule on, objections to disclosure of particular documents, since that would slow discovery enormously and involve the court excessively in the discovery process. Instead, it adopted the following procedure:

Mobil would simply note the confidentiality of certain documents produced, based upon a relatively cursory review of the contents or source of the documents, and would then turn them over to The Post for use in this litigation. In the event The Post then wished to challenge Mobil’s designation, Washington] P[ost] C[o.] counsel could seek an accommodation with Mobil or, as a last alternative, a court ruling that the material is neither confidential nor otherwise privileged.

Tavoulareas v. Piro, 93 F.R.D. 24, 29 (D.D.C.1981) (footnotes omitted). If the Post did make such a challenge, “Mobil ... would then bear the burden of establishing ‘good cause’ for the document’s continued protection.” Id. at 29-30 n. 3. The court also subjected to the protective order depositions in which information or documents designated confidential might be disclosed. Id. at 34.

On December 16, 1981, Mobil was granted leave to intervene to protect its interest in confidentiality. Discovery proceeded, in the course of which Mobil designated approximately 3,800 pages of deposition and an unspecified number of documents as confidential. Plaintiffs and defendants made cross-motions for summary judgment, in connection with which they filed under seal substantial portions of the materials designated confidential. The District Court denied those motions on June 30, 1982, a week before the trial was to begin. Tavoulareas v. Washington Post Co., Civil Nos. 80-3032 & 80-2387 (D.D.C. June 30, 1982) (Order).

On July 2, 1982, Mobil moved to extend the November 5 protective order to the trial itself. In an order filed on July 8, without requiring any supporting materials in addition to those Mobil had furnished to obtain the original protective order, the District Court granted Mobil’s request. It ruled that documents or depositions that Mobil continued to classify as confidential

will continue to be subject to the terms of the protective orders previously entered by the Court, but may be used by the parties for any proper trial purpose. They may be used to question or impeach witnesses and may be read or otherwise introduced into evidence. The document itself, however, will continue to remain subject to the protective orders of this Court.

Tavoulareas v. Washington Post Co., Civil Nos. 80-3032 & 80-2387, slip op. at 2 (D.D.C. July 8, 1982) (Memorandum-Order). As we understand this order, those portions of each protected document or deposition used to question or impeach witnesses or otherwise read into evidence were made available to the public as part of the transcript, but the rest, although part of the exhibit sent to the jury, was not. On the basis of this order, Mobil designated 52 trial exhibits as confidential.

During this entire period, the Post had not exercised its right to challenge Mobil’s confidentiality designations.¹ On July 12, 1982, however, appellants here, four individual newspaper reporters and The Reporters Committee for Freedom of the Press, an unincorporated association (“the reporters”), filed a motion to intervene to ask the District Court to reconsider its November 5 and July 8 orders. On July 20, 1982, the District Court granted the motion to intervene but denied the motion to reconsider the orders because continued sealing was “essential to the efficient and expeditious conduct of the trial,” Tavoular-eas v. Washington Post Co., Civil Nos. 80-3032 & 80-2387, slip op. at 4 (D.D.C. July 20, 1982) (Order). It did, however, agree to review the need for continuation of its protective order after the close of trial, and stated that it would require Mobil to identify the documents it considered confidential and explain the basis of its secrecy claim within thirty days after the end of trial. Id.

The reporters sought review of that order in separate appeals (consolidated here) pertaining to the two consolidated cases below. In accompanying motions for expedited appeal and mandamus, they urged us to take emergency action on the ground that, as to any documents used at trial or which were part of the summary judgment record,² maintenance of the protective order during trial without a prior hearing on the need for that order as to each individual document denied their First Amendment right of immediate access to judicial records. We denied both motions. Tavou-lareas v. Piro, Nos. 82-1820 & 82-1821 (D.C.Cir. July 30, 1982) (Order); In re The Reporters Committee for Freedom of the Press, Nos. 82-1819, 82-1820 & 82-1821 (D.C.Cir. July 26, 1982) (Order). The appeals were subsequently stayed with the agreement of the parties, pending the District Court’s post-trial reexamination of the need for continued sealing of the documents.

The jury trial ended July 30, 1982, with a verdict for William Tavoulareas against the Washington Post defendants, for the Washington Post defendants against Peter Tavoulareas, and for William and Peter Tavoulareas against Philip Piro. As the District Court had directed, thirty days later, on August 30, Mobil filed a memorandum identifying those documents whose confidentiality it still wished preserved and explaining the basis for its request. These included only 18 of the 52 trial exhibits originally designated as confidential and an unidentified number of documents that were part of the summary judgment record.

On May 2, 1983, the District Court granted judgment non obstante veredicto (“judgment n.o.v.”) for the Washington Post defendants. Tavoulareas v. Washington Post Co., 567 F.Supp. 651 (D.D.C.1983). On May 18, 1983, the court released 14 of the 18 trial exhibits, because they either had never been subject to the protective order or were already publicly available. Tavoulareas v. Washington Post Co., Civil Nos. 80-3032 & 80-2387, slip op. at 2 (D.D.C. May 18, 1983) (Order). As to the remaining four trial exhibits and those materials that were part of the summary judgment record, the court was not satisfied with Mobil’s showing, but gave Mobil additional opportunity to make a more specific demonstration of need. Id. In response, Mobil waived its claim as to all but one trial exhibit, and as to all but two summary judgment documents. On May 20, 1983, the court completed its rulings on post-trial motions going to the merits of the consolidated cases by granting a judgment n.o.v. to Piro. Tavoulareas v. Piro, Civil Nos. 80-2387 & 80-3032 (D.D.C. May 20, 1983) (Memorandum-Order). On June 21, it ruled on the last three documents for which Mobil continued to advance a claim of confidentiality. The trial exhibit proved to be among those the District Court had already ordered unsealed because it had never been subject to the protective order. The court examined the two summary judgment documents in camera, concluded that Mobil had not substantiated its claim of irreparable injury, and therefore ordered them unsealed as well. Tavoulareas v. Washington Post Co., Civil Nos. 80-3032 & 80-2387, slip op. at 4 (D.D.C. June 21, 1983) (Memorandum). Mobil did not appeal from that decision, but the reporters did, in appeal No. 83-1744. On September 8, 1983, this appeal was consolidated with their appeals from the District Court order of July 20, 1982, which were unstayed on the same date. Tavoulareas v. Piro, Nos. 82-1820, 82-1821 & 83-1744 (D.C.Cir. Sept. 8, 1983) (Order).

II

A

This case comes to us in a peculiar posture. The reporters appeal from two District Court orders: (1) in appeals Nos. 82-1820 and 82-1821, from the District Court’s July 20, 1982 refusal to reexamine its order forbidding disclosure of documents on file with the court at the time the summary judgment motions were denied, and of documents to be used at trial, other than the portions read into evidence or used to examine witnesses; and (2) in appeal No. 83-1744, from the June 21, 1983 order releasing all documents. The latter is plainly unappealable by these appellants, since it granted them all the relief they requested at that point. “A party may not appeal from a judgment or decree in his favor.” Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 242, 59 S.Ct. 860, 860, 83 L.Ed. 1263 (1939). Appeal No. 83-1744 is dismissed.

As for the appeals from the first order in each of the two cases, the ultimate release of the documents appears at first to moot any claims the reporters may have. Insofar as the reporters object to the documents’ sealing in the past — during the trial proceedings (which seems to be their principal grievance) and after trial, prior to issuance of the second order — that complaint is beyond remedy. And the second order eliminates any grievance they might have had regarding sealing in the future. Claims otherwise moot, however, will nonetheless be entertained if “the underlying dispute between the parties is ... ‘capable of repetition, yet evading review,’ ” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (1976), quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). That exception applies if “there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again” and “the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration.” Wein-stein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975).

The “capable of repetition” requirement is clearly met here. In Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), the Supreme Court held that Gannett’s objection to a trial court order closing a suppression hearing in a criminal trial to the press presented a controversy “capable of repetition” because “it is reasonably to be expected that the petitioner, as publisher of two New York newspapers, will be subjected to similar closure orders entered by New York courts in compliance with the judgment of that State’s Court of Appeals.” Id. at 377-78, 99 S.Ct. at 2904. Similarly, it is reasonably to be expected that at least the Reporters Committee for Freedom of the Press, which is headquartered in the District of Columbia and regularly participates in litigation involving media access to judicial proceedings, will again be confronted by an order of this sort issued by the United States District Court for the District of Columbia. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603, 102 S.Ct. 2613, 2618, 73 L.Ed.2d 248 (1982).³

Whether the “evading review” requirement is satisfied is less obvious. The issue, as we see it, is whether, without considering the possibility of expedited review (which would of course make the “evading review” test virtually impossible to meet), a sealing order is normally insusceptible of review before completion of trial in the case in which it is entered.⁴ Although in this case the issue of the sealing of the documents during trial came up very close to trial, because Mobil did not make a motion to keep them under seal until that time, Mobil could have moved for a protective order that would last through trial when it asked for its original protective order for discovery purposes. But even accepting the beginning of discovery as the starting point for computing the availability of review with regard to sealing both before and during trial, we still find that the reporters’ claim would evade review. Globe Newspaper Co. v. Superior Court found that the issue of the constitutionality of closure of a criminal trial to the press evaded review “because criminal trials are typically of ‘short duration.’ ” 457 U.S. at 603, 102 S.Ct. at 2618 (emphasis added) (citation omitted). The interval of time that typically elapses between the beginning of discovery and the completion of trial in a civil case is hard to measure, but it is safe to conclude that it is less than two years, which the Supreme Court has held short enough to cause action which would be mooted if not reviewed within that time to evade review. Southern Pacific Terminal Co. v. ICC, 219 U.S. at 514-16, 31 S.Ct. at 283-84.

We find, therefore, that the reporters’ claims arising but of the first (July 20) order are not barred by the mootness doctrine.

B

Mobil also argues that the July 20 order was not a “final decision,” and hence we have no jurisdiction to entertain an appeal from it under 28 U.S.C. § 1291 (1982). That section provides: “The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States.” 28 U.S.C. § 1291. Ordinarily a district court renders a final decision from which appeal may be taken under § 1291 only when it has finished adjudicating the case before it. There is, however, a “small class [of decisions] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). The reporters claim that the July 20 order is in that class. They contend that it finally determined that they were not entitled to a document-by-document assessment of confidentiality before sealing of the information, and resulted in their being denied access to it without that assessment during a critical period, the trial and its immediate aftermath.

We agree. In United States v. Hubbard, 650 F.2d 293 (D.C.Cir.1980), this court held that a district court order to unseal documents obtained in connection with a criminal trial was a collateral order capable of being appealed immediately. There, as here, the party challenging the order was not a party to the underlying criminal proceeding. We found that the order was “ ‘separable from, and collateral to’ the rights of the parties to the ... proceedings”; that because public access to the documents would irreparably damage the interests asserted, the unsealing order would as a practical matter “ ‘finally determine[ ]’ the claim”; and that consideration of the issues raised would neither halt nor disturb the orderly progress of the criminal proceeding. 650 F.2d at 314, quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. at 546, 69 S.Ct. at 1225.

Mutatis mutandis, this analysis holds for the counterpart right of access to information asserted by the reporters. The reporters’ claims arising from the July 20 order are just as separable from, and collateral to, the rights of the parties to the underlying proceeding. None of those parties is even involved in this appeal. Since the essence of the reporters’ claims is that they had a right to the unprivileged information during trial, when it had greater news value, and not, as the July 20 order’s provision for later submissions held forth as a prospect, after the conclusion of proceedings, the order “irreparably damage[d] the interest[ ] asserted,” id., and as a practical matter finally determined the claims. Finally, appellate consideration of the reporters’ claims would not disrupt the trial, even if it were still now in progress. Mobil’s counsel, who were presumably somewhat involved in the trial representing Mobil witnesses, would be distracted; but a similar objection could have been made to treating the unsealing order as collateral in the Hubbard case.

Ill

Although appellants in cases of this sort typically assert a common law right of access to court records, the reporters place the issue before us in purely constitutional terms. They have framed and argued their appeal as follows: “Does the First Amendment prohibit a trial court from indefinitely postponing public access to the complete record of civil trials and summary judgment proceedings without a prior judicial determination that temporary sealing of specific documents is the least restrictive means necessary to protect a compelling governmental interest?” Brief for Appellants at 1 (Statement of Issue Presented).

No Supreme Court decision deals with the precise issue of the public’s First Amendment rights to court records in civil cases. It was not until 1980 that the Supreme Court found that the “common core purpose of assuring freedom of communication on matters relating to the functioning of government” shared by the various clauses of the First Amendment created a right to observe criminal trial proceedings, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575, 100 S.Ct. 2814, 2826, 65 L.Ed.2d 973 (1980). The precise contours of that right are in the process of being drawn. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (no exception for victims in rape trials); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (right extends to voir dire proceedings); cf. Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (Sixth Amendment right extends to evidence suppression hearings). The principle has not yet been applied to access to civil trials (though the Court has perhaps intimated that it obtains there, see Richmond Newspapers, 448 U.S. at 580 n. 17, 100 S.Ct. at 2829 n. 17), much less to access to records in civil trials — or, for that matter, even records in criminal trials.

On its facts, perhaps the closest Supreme Court case in point is Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978), relating to the court records in a criminal case. The Court rejected press claims of a right to physical access to the so-called “Watergate tapes” introduced and played at the trial of former Attorney General John Mitchell. The holding is not, however, particularly helpful here. In addition to the fact that it was expressly tied closely to “all the circumstances of this concededly singular case,” 435 U.S. at 608, 98 S.Ct. at 1317, it did not resolve the issue before us, even in the context of those circumstances. The Court found no common law right of access to the tapes, id., no right under the Sixth Amendment, id. at 610, 98 S.Ct. at 1318, and no right under the “freedom of press’’ clause of the First Amendment, id. at 608-10, 98 S.Ct. at 1317-19. The latter claim was curtly rejected on the ground that “the public [had] never had physical access” to the tapes in question, and that “[t]he First Amendment generally grants the press no right to information about a trial superior to that of the general public.” Id. at 609, 98 S.Ct. at 1318. Presumably the Court believed that it was constitutional that the public had been denied access (one would surmise that from its finding of no common law right of access); but the point of a First Amendment right of public access was not raised and not explicitly decided.

The only other Supreme Court case dealing with First Amendment rights to court records (or at least potential court records) is Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). Though this was closer to the present case in that it involved a civil rather than a criminal trial, it was more remote in that it did not involve a claim by the public to access, but rather a claim by one of the parties of the right to disseminate information acquired in the course of pretrial discovery. The Court upheld the trial court’s imposition of a protective order that restrained such dissemination. The information in question, however, had not, evidently, been filed with the court, much less introduced into evidence.

Since the Supreme Court has not spoken to the existence of a First Amendment right to court records of civil proceedings, we must resolve the question on the basis of the analysis which the Court has brought to bear in this general field. In deciding whether the public has a First Amendment right of access to judicial proceedings, the Court has made two inquiries: (1) whether the proceeding has historically been open, see Press-Enterprise Co. v. Superior Court, 104 S.Ct. at 822-23; Globe Newspaper Co. v. Superior Court, 457 U.S. at 605, 102 S.Ct. at 2619; Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 569-70, 100 S.Ct. at 2823-24; and (2) whether the right of access plays an essential role in the proper functioning of the judicial process and the government as a whole, see Press-Enterprise, 104 S.Ct. at ; Globe Newspaper, 457 U.S. at 606, 102 S.Ct. at 2619; Richmond Newspapers, 448 U.S. at 569-73, 100 S.Ct. at 2823-26. Apparently, both these questions must be answered affirmatively before a constitutional requirement of access can be imposed. An historical tradition of at least some duration is obviously necessary, particularly to support a holding based upon the remote implications of a constitutional text — which implications potentially include, in the case of the free speech clause of the First Amendment, not merely a right of access but all that furthers the “common core purpose of assuring freedom of communication on matters relating to the functioning of government.” ⁵ With neither the constraint of text nor the constraint of historical practice, nothing would separate the judicial task of constitutional interpretation from the political task of enacting laws currently deemed essential. The further requirement that the historical practice play “an essential role” in the proper functioning of government is also needed, since otherwise the most trivial and unimportant historical practices — for example, the courts’ earlier practice of reading their judgments aloud in open session — would be chiselled in constitutional stone. Cf. Williams v. Florida, 399 U.S. 78, 102, 90 S.Ct. 1893, 1907, 26 L.Ed.2d 446 (1970) (no Sixth Amendment requirement of trial by a jury of twelve because “the fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury system”).

As to the historical tradition: The Supreme Court opinion in Seattle Times contains the statement that “to the extent that courthouse records could serve as a source of public information, access to that source customarily is subject to the control of the trial court,” 104 S.Ct. at 2207-08 n. 19. This was said, however, in the context of a discussion of discovery materials not yet introduced into evidence, and the Court gave as illustrations of the “control” it had in mind the ability of the trial court to exempt such materials from filing requirements, or to provide for filing under seal. Despite the breadth of its expression, this statement cannot reasonably be considered support for the proposition that courts have traditionally had plenary power to close civil records in general to public access. That is clear from the qualification included within the Court’s later statement that “restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information,” id. at 2208 (emphasis added).

Nixon v. Warner Communications contains much more discussion relevant here. Though, as noted earlier, the case did not reach the First Amendment issue, it did consider the traditional practice with regard to court records at some length, in connection with its holding on the common law right of access. The practice immediately relevant was that relating to criminal trials, but the discussion goes well beyond that, and warrants quotation, at some length:

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. In contrast to the English practice, see, e.g., Browne v. Cumming, 10 B. & C. 70, 109 Eng.Rep. 377 (K.B.1829), American decisions generally do not condition enforcement of this right on a proprietary interest in the document or upon a need for it as evidence in a lawsuit. The interest necessary to support the issuance of a writ compelling access has been found, for example, in the citizen’s desire to keep a watchful eye on the workings of public agencies, see, e.g., State ex rel. Colscott v. King, 154 Ind. 621, 621-27, 57 N.E. 535, 536-38 (1900); State ex rel. Ferry v. Williams, 41 N.J.L. 332, 336-39 (1879), and in a newspaper publisher’s intention to publish information concerning the operation of government, see, e.g., State ex rel. Youmans v. Owens, 28 Wis.2d 672, 677, 137 N.W.2d 470, 472 (1965), modified on other grounds, 28 Wis.2d 685a, 139 N.W.2d 241 (1966). But see Burton v. Reynolds, 110 Mich. 354, 68 N.W. 217 (1896).

It is uncontested, however, that the right to inspect and copy judicial records is not absolute. Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes. For example, the common-law right of inspection has bowed before the power of a court to insure that its records are not “used to gratify private spite or promote public scandal” through the publication of “the painful and sometimes disgusting details of a divorce case.” In re Caswell, 18 R.I. 835, 836, 29 A. 259 (1893). Accord, e.g., C. v. C., 320 A.2d 717, 723, 727 (Del.1974). See also King v. King, 25 Wyo. 275, 168 P. 730 (1917). Similarly, courts have refused to permit their files to serve as reservoirs of libelous statements for press consumption, Park v. Detroit Free Press Co., 72 Mich. 560, 568, 40 N.W. 731, 734-35 (1888); see Cowley v. Pulsifer, 137 Mass. 392, 395 (1884) (per Holmes, J.); Munzer v. Blais-dell, 268 App.Div. 9, 11, 48 N.Y.S.2d 355, 356 (1944); see also Sanford v. Boston Herald-Traveler Corp., 318 Mass. 156, 158, 61 N.E.2d 5, 6 (1945), or as sources of business information that might harm a litigant’s competitive standing, see, e.g., Schmedding v. May, 85 Mich. 1, 5-6, 48 N.W. 201, 202 (1891); Flexmir, Inc. v. Herman, 40 A.2d 799, 800 (N.J.Ch.1945).

435 U.S. at 597-98, 98 S.Ct. at 1312 (footnotes omitted).

On the basis of this discussion, we take it as a given that there is a tradition of public access to court records, and that that right is not absolute. The factor most obviously distinguishing the request for records in the present case from the requests at issue in the vast majority of reported cases — and the factor that obviously caused the District Court to deny access without the document-by-document examination that ordinarily accompanies Rule 26(c) protective orders — was the pendency of the litigation at the time the request was made. We must consider, therefore, whether the tradition of public access includes pre-judgment access.

An early opinion of this court speaks to the point. Ex parte Drawbaugh, 2 App. D.C. 404 (1894), ruled on a motion made in connection with an appeal from a decision of the Patent Office. The appellant, “upon filing the transcript of the papers pertaining to the appeal with the clerk of this court, ... moved the court ... ‘that the files relating to the above appeal be preserved in secrecy, and that the clerk of this court be directed not to permit said files, nor any part thereof, to be inspected, nor any copy to be taken from said files, except upon request of the appellant or his attorneys, or upon special order of this court first obtained, after due notice to appellant’s attorneys.’ ” Id. at 404. The motion was denied. In the course of its opinion, the court made the following observations relevant to the issue now before us:

But the record or transcript brought into this court on appeal, after judgment entered on the proceedings by the tribunal appealed from, do not stand upon the footing of original papers placed in the files of a court of original jurisdiction, and where there has been no trial had or judgment entered thereon.

Id. at 406 (emphasis added).

[TJhere is also a distinction made in some of the cases between the right to inspect judicial records after trial, and the right to inspect and take copies from papers merely filed, but before any action had thereon by the court. In the latter case, it has been held, in one instance at least, that the court might withhold from a publisher of a newspaper the right to inspect and take copies of papers or documents on file, for publication before the trial of the cause. That was done in the case of Schmedding v. May, 85 Mich., 1 [48 N.W. 201], and the same power was intimated to exist, rather than decided, in the case of Cowley v. Pulsifer, 137 Mass., 392. But those decisions have no application to this ease.

Id. at 407.

The two cases cited in the foregoing excerpt — both of which were also referred to by the Supreme Court in Nixon, see supra page 1333 — assert as the common law rule that there is no right of public access to prejudgment records in civil cases. The first of them, Schmedding v. May, 85 Mich. 1, 48 N.W. 201 (1891), was a holding by the Michigan Supreme Court, which was soon followed by another holding of the same court to the same effect, Burton v. Reynolds, 110 Mich. 354, 68 N.W. 217 (1896). The second case, Cowley v. Pulsi-fer, 137 Mass. 392 (1884), contained a dictum on the point by Justice Holmes. A holding to the same effect appears in a 1953 decision of the United States District Court for the Northern District of Illinois, Birnbaum v. Wilcox-Gay Corp., 17 F.R.D. 133, 139, 140 (N.D.Ill.1953).⁶ And a number of cases, including several federal cases, refer to the pre-judgment rule adopted by other courts, without confirming' that it represents general common law, but likewise without disapproving it, see Ex parte Drawbaugh, 2 App.D.C. at 407, quoted supra at page 1333; In re Sackett, 136 F.2d 248, 249 (C.C.P.A.1943); Werfel v. Fitzgerald, 23 A.D.2d 306, 309, 260 N.Y. S.2d 791, 795 (1965); or express what they regard as the common law rule in a fashion that allows for the prejudgment exception, see Ex parte Drawbaugh, 2 App.D.C. at 406, quoted supra at page 1333.⁷

A suspicion that the pre-judgment nonaccess rule represented the general common law is aroused by the natural connection between such a policy of nonaccess and another common law rule that was indisputably (at least prior to 1927) “supported by an almost unbroken line of authority,” Annot., 52 A.L.R. 1438, 1438 (1928): the rule that the “public records privilege”— the privilege against liability for defamation in the accurate reporting of public records — did not extend to “accusations contained in papers filed by a party and not yet brought before a judge or magistrate for official action.” Sanford v. Boston Herald-Traveler Corp., 318 Mass. 156, 158, 61 N.E.2d 5, 6 (1945). See also Park v. Detroit Free Press Co., 72 Mich. 560, 568-69, 40 N.W. 731, 734 (1888). It would be strange, if not unthinkable, see Cowley v. Pulsifer, 137 Mass, at 396, to assess civil liability for bringing to the public’s attention government records which the public is entitled to see. The reasons that support the one rule support the other as well. Schmedding’s perception that matters in a civil lawsuit “involve private dealings between private parties” until made public in open court, or until “their truthfulness has been determined by the judgment or decree of the court,” 85 Mich, at 5, 48 N.W. at 202, was the very basis for that court’s earlier holding that pre-judgment civil records do not come within the public records privilege:

One of the reasons why parties are privileged from suit for accusations made in their pleadings is that the pleadings are addressed to courts where the facts can be fairly tried, and to no other readers ____ The public have no rights to any information on private suits till they come up for public hearing or action in open court; and, when any publication is made involving such matters, they possess no privilege, and the publication must rest on either nonlibelous character or truth to defend it. A suit thus brought with scandalous accusations may be discontinued without any attempt to try it, or on trial the ease may easily fail of proof or probability. The law has never authorized any such mischief.

Park v. Detroit Free Press, 72 Mich, at 568-69, 40 N.W. at 734. And Justice Holmes’ expression of the reasons why public policy does not require that publication of pre-judgment records enjoy the same immunity from defamation liability as publication of post-judgment records applies as well to a distinction between public access to the two:

The chief advantage to the country which we can discern [from application of the public records privilege to judicial records] ... is the security which publicity gives for the proper administration of justice____ It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.

[I]t is clear that [these grounds] have no application whatever to the contents of a preliminary written statement of a claim or charge. These do not constitute a proceeding in open court. Knowledge of them throws no light upon the administration of justice. Both form and contents depend wholly on the will of a private individual, who may not be even an officer of the court.

Cowley v. Pulsifer, 137 Mass, at 394.

Because of their sparseness, the authorities discussed above are perhaps weak support for a general common law rule of nonaccess to pre-judgment records in private civil cases. But when laid beside our inability to find any historical authority, holding or dictum, to the contrary, they are more than enough to rule out a general tradition of access to such records. It is possible that modern American practice is to the contrary — though that is less than clear from the cases,⁸ and it is risky to generalize from one’s familiarity with the practice in a few jurisdictions, or, for that matter, to assume that a practice of granting access where no objection is made establishes the existence of an acknowledged right to access. See, e.g., In re McLean, 16 F.Cas. 237, 239 (C.C.S.D.Ohio 1879) (No. 8,877) (in a case where no one but the clerk of court resisted the provision of records to a person who had no qualifying private interest in them, “[t]he judges afterwards granted ex gratia what they ruled the petitioner was not entitled to, as a matter of law”). But even accepting as representative of current law the modern dicta which, without distinguishing between pre-judgment and post-judgment, announce a “public right of access” in civil cases, see, e.g., Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 362 N.E.2d 1189 (1977), we cannot discern an historic practice of such clarity, generality and duration as to justify the pronouncement of a constitutional rule preventing federal courts and the states from treating the records of private civil actions as private matters until trial or judgment.

The same conclusion would , result from application of the second of the Supreme Court’s tests for First Amendment entitlement to access: whether access plays an essential role in the proper functioning of the judicial process. The Court has found that open criminal trials enhance the quality and safeguard the integrity of factfind-ing, see Globe Newspaper, 457 U.S. at 606, 102 S.Ct. at 2619; Richmond Newspapers, 448 U.S. at 569, 100 S.Ct. at 2823; assure an appearance of fairness, see Press-Enterprise, 104 S.Ct. at 823; Globe Newspaper, 457 U.S. at 606, 102 S.Ct. at 2619; Richmond Newspapers, 448 U.S. at 569-70, 100 S.Ct. at 2823-24; function as a check on the judicial and governmental process, see Globe Newspaper, 457 U.S. at 606, 102 S.Ct. at 2619; Richmond Newspapers, 448 U.S. at 569, 100 S.Ct. at 2823; and play a cathartic role in permitting the community to observe justice being done, see Press-Enterprise, 104 S.Ct. at 823-24; Richmond Newspapers, 448 U.S. at 570-72, 100 S.Ct. at 2823-25. Even assuming, as seems unlikely, that these functions are as important in the context of civil suits between private parties as they are in criminal prosecutions, they are not greatly enhanced by access to documents (which, unlike live proceedings, do not contain unrecordable subtleties) before judgment rather than after. In fact, such access appears to be rarely requested, and its denial does not provoke the kind of outcry which closing of a trial usually excites.⁹

We have been assuming in the foregoing discussion that the relevant inquiry is, as the reporters have framed it, whether there is an important tradition of public access to court records. The more precise inquiry, however, is a functional rather than classi-ficational one: whether information of the sort at issue here — regardless of its prior or current classification as court records— was traditionally open to public scrutiny. An historical tradition of access to civil and criminal judgments, adequate to sustain a constitutional claim, could hardly be defeated, for example, by a state statute providing that henceforth such judgments will not become part of court records. Contrariwise, a new constitutional right of public access to litigants’ personal financial data would hardly be created by a state statute requiring such data to be filed with the court, simply because all other court records have been (let us assume) traditionally open. This distinction is significant here with regard to the pre-trial materials sought by the reporters — i.e., those materials never introduced at trial — the vast majority of which consisted of depositions and discovery documents.

Traditionally, absent a statute dr court order, even parties to the case did not have the right to inspect depositions taken at the behest of their opponents. See 18 C.J. Depositions § 312 (1919). Requirements for the filing and “publication” ¹⁰ of depositions were designed to make their contents known to the litigants, and even these requirements were far from absolute. See id. at § 300. And when filed, unless delivered to the court personally by the magistrate who took them, depositions were filed under seal, and “[ujnless by consent ... [could not] be opened out of court____” Id. at § 306. See Beale v. Thompson, 12 U.S. (8 Crunch) 70, 3 L.Ed. 491 (1814). The tradition that the opening (i.e., publication) of depositions merely made them available to parties was carried forward following passage of the Federal Rules of Civil Procedure in 1938, as most district courts adopted local rules providing that depositions, which the rules required to be filed “securely seal[ed] ... in an envelope,” Fed. R.Civ.P. 30(f)(1), were to remain sealed except “upon request of any counsel in the case.” Cohn, Federal Discovery: A Survey of Local Rules and Practices in View of Proposed Changes to the Federal Rules, 63 Minn.L.Rev. 253, 284 (1979). The current Federal Rules require deposition transcripts to be filed, but the court may on its own motion dispense with the requirement, Fed.R.Civ.P. 5(d). Many district courts have adopted local rules making such dispensation standard except where the depositions are needed in connection with motion proceedings, and excluding public access even where filing occurs. See Marcus, Myth and Reality in Protective Order Litigation, 69 Cornell L.Rev. 1, 13-14 & nn. 61-62 (1983). It can thus hardly be said that there was a tradition, or is even now a general practice, of public access to pretrial depositions. As for discovery documents: Besides the fact that they (at least in their currently permitted scope — including all third-party documents such as those at issue here) are a relatively modern phenomenon, see 18 C.J. Discovery §§ 111-16 (1919), the Federal Rules continue to contain no provision for their filing. See Marcus, op. cit., at 13.

Chief Justice Burger, in a passage of his concurring opinion in Gannett cited approvingly by the Court in Seattle Times, described the past and present practice with regard to pre-trial proceedings in general as follows:

Even though the draftsmen of the Constitution could not anticipate the 20th-century pretrial proceedings to suppress evidence, pretrial proceedings were not wholly unknown in that day. Written interrogatories were used pretrial in 18th-century litigation, especially in admiralty cases____ Yet, no one ever suggested that there was any “right” of the public to be present at such pretrial proceedings as were available in that time; until the trial it could not be known whether and to what extent the pretrial evidence would be offered or received.

Similarly, during the last 40 years in which the pretrial processes have been enormously expanded, it has never occurred to anyone, as far as I am aware, that a pretrial deposition or pretrial interrogatories were other than wholly private to the litigants.

Gannett Co. v. DePasquale, 443 U.S. at 396, 99 S.Ct. at 2914 (Burger, C.J., concurring), cited with approval in Seattle Times Co. v. Rhinehart, 104 S.Ct. at 2208. It is true that in the present case the reporters were only seeking those pretrial materials that could have been considered by the court in its disposition of the Rule 56(c) motion — what they call the “summary judgment record.” Chief Justice Burger’s analysis does not make any such distinction, though it would be an obvious one to make if it were relevant. We are certainly unaware of any tradition of public access (pre- or post-judgment) to all documents consulted (or, as appellants would have it, consultable) by a court in ruling on pre-trial motions. If such a tradition existed, public files would presumably be filled with complaints stricken as scurrilous and with proffered evidence ruled inadmissible. The passage of Seattle Times which cites Chief Justice Burger’s analysis with approval evidently considers the admission of evidence the touchstone of a First Amendment right to public access: “Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.” 104 S.Ct. at 2208 (emphasis added). Even if one were to expand this perception to include all admissible evidence, it would still lead to the conclusion that material placed before the court in connection with summary judgment motions is not constitutionally required to be open to the public— unless we are to subject trial courts to the constitutional necessity of ruling, either pre-trial or post-trial, on the admissibility of voluminous material that is filed, and perhaps even referred to in the summary judgment motion, but not sought to be introduced.

Since the functional analysis we have just undertaken does not resolve the case as to all the documents at issue (certainly not as to those introduced into evidence), we return to the pre-judgment distinction we discussed earlier, to determine whether that suffices to dispose of the entire matter. Final judgment in the libel case against the Post was entered upon the trial court’s grant of judgment n.o.v. in favor of the defendants on May 2, 1983, and in the slander case against Piro upon the grant of judgment n.o.v. in defendant’s favor on May 20, 1983. We therefore find that until May 2,1983 and May 20,1983, respectively, the District Court could, without violating the First Amendment to the Constitution, categorically refuse the reporters access to the materials at issue in the two cases. The reporters thus had no First Amendment entitlement to a document-by-doe-ument determination of the need for confidentiality prior to those dates.

Part of the reporters’ grievance, however, consists of the District Court’s continuing failure to grant the requested access until June 21,1983, more than a month after the entry of final judgment in the suit against Piro and more than seven weeks after final judgment in the suit against the Post. It is questionable, to begin with, whether a challenge to the July 20, 1982 denial of the motion to reconsider the sealing order — which denial did not even mention the date on which unsealing would be ruled upon, much less specify that that date would be after entry of judgment — is the proper vehicle to place in issue the post-judgment delay. Even if a new motion to be accorded immediate access was not necessary, and a ruling on the earlier motion could be regarded as having been merely deferred, surely the appropriate means of appealing the allegedly unconstitutional continuation of the deferral to a point too long after the entry of judgment would have been a petition for mandamus rather than the appeal of the earlier order. Assuming that the point is properly before us, however, we think it readily disposed of.

To the extent a First Amendment right to post-judgment civil records exists, it does not exceed, for the reasons discussed earlier, the traditional common law right. That was not conceivably violated here. The District Court had, as early as July 20, 1982, determined that its final ruling on confidentiality would turn on Mobil’s ability to provide specific, document-by-document justification for the claim of confidentiality — which is precisely the substantive standard, though not the time frame, insisted upon by the reporters. Thus, the only issue with regard to post-judgment access is the propriety of retaining the seals on the documents after entry of judgment in the two cases, pending the final (document-specific) determination. For obvious reasons, courts have uniformly approved the practice of provisionally sealing documents pending assessment of justification for a request to seal. See In re Knight Publishing Co., 743 F.2d 231, 235 n. 1 (4th Cir.1984); Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1073 (3d Cir.1984); Hubbard, 650 F.2d at 324-25. Mobil’s claim, supported by the MacDonald affidavit, that disclosure of the material would be likely to injure its competitive standing established a prima facie case for placing it under seal until the confidentiality claims could be ruled on. It is true that Mobil had, by the time the judgments n.o.v. were entered, abandoned the claim of confidentiality with regard to almost all of the documents initially designated under the protective order. That could have been regarded, as appellants suggest, as casting doubt on the totality of the MacDonald affidavit. But it did not have to be so regarded — and could indeed have been thought to suggest a particularly high need for confidentiality with respect to the documents remaining. What view to take was assuredly one of those matters regarding access “best left to the sound discretion of the trial court.” Nixon, 435 U.S. at 599, 98 S.Ct. at 1312. The reporters make much of the fact that at the end of the day all of Mobil’s confidentiality claims were either abandoned or found to be unwarranted. That, however, goes only to the merits of the claims, not to whether the affidavit asserting them could reasonably be regarded as sufficient to overcome the presumption of access pending a determination of the merits. The only remaining question, then, is whether the provisional seals were retained after judgment for an unreasonable length of time; in making its final ruling and setting aside the provisional seals in the two cases within fifty and thirty-two days, respectively, of the entries of judgment n.o.v., the District Court did not, in our estimation, exceed the limits of its discretion.

sH * * * *

We have addressed in this opinion only the assignment of error presented, holding that the District Court’s action did not violate the First Amendment to the Constitution of the United States. Conceivably, it violated the federal common law, which can of course go beyond constitutional prescriptions — either because the pre-judgment nonaccess rule was never so general as to include the federal courts, or because the federal rule (by reason of adoption of the Federal Rules of Civil Procedure or otherwise) has changed.

Although these points were neither raised, briefed nor argued, the dissent takes us to task for not considering them— perhaps after requesting supplemental briefing — and for thus reaching the constitutional question unnecessarily, see Dissent at 1342. That charge is unfounded. We decline to consider the existence of a common law right to access in these circumstances for the same reason (presumably) appellants declined to raise and argue it: In the absence of some overriding constitutional command to provide access, the eminently reasonable action of the trial court in deferring his ruling on these complex matters unrelated to the dispute between the parties, declining to interrupt an ongoing trial for that purpose, seemed to us unquestionably lawful. The prudential rule against reaching constitutional issues unnecessarily, see, e.g., Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 568-72, 67 S.Ct. 1409, 1419-21, 91 L.Ed. 1666 (1947), does not require a vain excursion through areas of law considered potentially helpful neither by the parties nor the court.

The dissent’s excursion into the modern common law of access does not show our estimation of its futility to have been wrong. The dissent concludes that current law does not provide a right of access except with respect to documents designated as exhibits at trial — so with respect to the remaining documents at issue here, even in the dissent’s view the constitutional issue must be reached. Even as to designated exhibits, however, the dissent’s avoidance of the constitutional question is illusory. What the dissent would prescribe is a “minimal” common-law requirement that the trial judge demand “document-by-document justification of ... confidentiality” before he renders designated trial exhibits inaccessible to the public pending later judgment; but no requirement (which the dissent evidently agrees would be unreasonable in a case such as this, involving “massive documentation”) that the trial judge immediately rule upon the claim of confidentiality. Dissent at 1344. If this is correct (which is debatable, since document-by-document justification will often disrupt the responding party’s ability to conduct a pending case as much as document-by-document ruling on the “provisional sealing” will disrupt the judge’s), then the dissent has assuredly provided useful guidance to our district court for the future. But it has not determined the invalidity of the July 20, 1982 denial, in this case, of the motion here on appeal — which sought not a more precise statement of Mobil’s basis for its claims of confidentiality (followed by a deferral of the ruling on those claims), but a ruling, then and there, and a release of the subject documents. It would be extraordinary to reverse a trial judge for failing to provide something that was not remotely the relief requested, and not remotely the relief sought on appeal. In other words, the dissent demonstrates that our answer to the question of the utility of the common law is wrong only by changing the question to one that is not presented here. Since, even on the dissent’s analysis, the district court would have to be affirmed with regard to all of the documents on common-law grounds, consideration of constitutional grounds for reversal was essential.

Moreover, even if the petitioners could be deemed properly to have requested something short of a conclusive ruling on Mobil’s confidentiality claims, we cannot imagine what request they would have been entitled to, under the most favorable assumptions of modern common law, that would warrant a reversal here. The dissent’s categorical rule that no claim for confidentiality of trial exhibits can be sustained unless accompanied by a document-by-document justification is simply unworkable. At the time the requirement to provide such justification would have arisen in the present ease, Mobil’s counsel were engaged in preparing for and attending depositions of Mobil witnesses; according to Mobil’s uncontested representation, depositions noticed by the Post, most of which involved Mobil officers and employees, “took up the entire two months prior to” the trial, and even continued mornings and nights during the trial itself. Brief for Appellees at 17. See also Transcript at 2351 (July 16, 1982) (at argument on Reporters’ request for access, lead counsel for Mobil stated the request had to be discussed with his client by another attorney, since “I attended the deposition last night that lasted until 10:00 o’clock”). It does not suffice to say that this problem was Mobil’s fault for making its sealing request at the “eleventh hour.” Dissent at 1355 n. 27. Any request for such protection, other than one for blanket sealing of all trial exhibits (which we presume the dissent does not intend to promote) must be made close to the date of trial, since only then are the parties’ lists of proposed trial exhibits available. Here those lists were filed on July 2, 1982, and trial began five days later (never mind that two of those days were a weekend, and a third an official holiday).¹¹ Given the other matters on which counsel were occupied, it was effort enough (and surely a demonstration of good faith) to review the approximately 600 Mobil documents (comprising a much larger number of pages) included in plaintiffs’ and defendants’ proposed trial exhibits, and to limit the confidentiality claims to such degree that of the approximately 150 Mobil documents considered important enough ultimately to be used at trial, only 52 were within the remaining scope of the confidentiality claim. It would have been excessive to expect in addition, at that stage of the proceedings, the crafting of a document-by-document specification of bases for the claim that would sustain post-trial legal attack. And the difficulties encountered in the present case are as nothing compared with those that a major antitrust trial would present. In sum, the dissent’s made-for-the-occasion categorical rule of instantaneous document-by-document justification is utterly infeasible; and any feasible rule, which would have to accord the district judge a reasonable degree of discretion, could not conceivably have been violated here, where the document-by-document justification was required within 30 days after conclusion of the trial.

The appeal in No. 83-1744 is dismissed. The ruling in appeals Nos. 82-1820 and 82-1821 is

Affirmed.

1 . In fact, it did not do so until September 14, 1982, well after completion of the trial. At that point it moved to unseal all documents filed with the court. The court ultimately granted that motion at the same time that it granted the reporters’ request to unseal the last of the trial and summary judgment exhibits. Tavoulareas v. Washington Post Co., Civil Nos. 80-3032 & 80-2387 (D.D.C. June 21, 1983) (Order). Mobil challenged in a separate appeal the District Court’s unsealing of deposition exhibits not used at trial. A panel of this court reversed the District Court and ordered the seal reinstated. Tavoulareas v. Washington Post Co., 724 F.2d 1010 (D.C.Cir.1984). The court en banc vacated the panel opinion and remanded the case to the District Court for reconsideration in light of Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984), and Fed.R.Civ.P. 26(c). Tavoulareas v. Washington Post Co., 737 F.2d. 1170 (D.C.Cir.1984).

2 . By the summary judgment record, the reporters mean all documents on file with the court at the time of its summary judgment ruling which could have been considered by the court under Fed.R.Civ.P. 56(c). Brief for Appellants at 31 n. 21.

3 . It is perhaps not likely that future orders restricting the Reporters Committee's access to summary judgment and trial materials will be entered at Mobil’s behest. Gannett, however, considers the court entering the order to be the relevant factor. 443 U.S. at 377-78, 99 S.Ct. at 2904-05. If the requesting party were relevant, the facts here would present a stronger case for review than Gannett, where the order was entered at the request of a criminal defendant whose case had ultimately been disposed of by a plea bargain. Id. at 376 n. 4, 99 S.Ct. at 2904 n. 4.

4 . We regard completion of trial as the cut-off date both because the order on appeal envisioned giving appellants what they desired (document-by-document justification for the sealing) shortly after trial (Mobil was to provide such justification within thirty days thereafter); and because the reporters’ principal grievance is the denial of access during trial, when the material was current news. Mobil argues that the reporters' claims do not evade review because in a future case the District Court might decide never to unseal the documents. That is true, but irrelevant. If the case came to us in that posture, it would present a live controversy as to the future status of the documents, but with regard to their prior sealing would be just as moot as it is here. Furthermore, since the timing and length of the denial of access may determine its permissibility, see infra pages 1338-1339, review of the permanent sealing of documents would not present the same issue.

5 . If the holding falls directly within the text of the constitutional provision — as in Seattle Times, where not an implied right of access but the expressly protected right of "freedom of speech" was at issue — historical practice may be relegated to a lesser role, serving not as a sine qua non but as an important tool for interpretation.

6 . The dissent contends that Schmedding, Burton and Birnbaum do not constitute holdings because on their facts they excluded access only pre-trial and not after the commencement of trial but pre-judgment. See Dissent at 1348-49, 1350 n. 20. This is a quibble over the meaning of "holding.” The rationale on which the court rested its decision in all three of these cases was that there was no right of access until judgment. If one chooses not to consider that a holding, it is no less forceful — especially given the absence of any contrary expression in any case we have been able to discover — as an indication of the common-law rule.

7 . The dissent seeks to make much of the fact that the language used to describe the rule in the foregoing cases is not consistent, but sometimes refers to the absence of a right of access "before trial,” or “until after trial," rather than "before judgment." See Dissent at 1348-51. But the former variation ("before trial”) is entirely consistent with the pre-judgment access rule, which, as described above, holds that access is not a matter of right before judgment except to the extent that material is disclosed at trial. It is an entirely natural and accurate description of the consequences of the rule to say that there is no right of access "before the trial of the cause,” Drawbaugh, 2 App.D.C. at 407, or "prior to trial,” Werfel, 23 A.D.2d at 309, 260 N.Y.S.2d at 795, or “before trial,” In re Sackett, 136 F.2d at 249. In fact Schmedding itself uses this simplified formulation, see 85 Mich, at 4, 48 N.W. at 202 (characterizing issue as whether there is a "right to an examination of the records and papers in a cause ..., before trial or hearing, or before they become public by proceedings in open court”). As for the latter variation (no right of access until "after trial”), see, e.g., Drawbaugh, 2 App.D.C. at 407; Birnbaum, 17 F.R.D. at 139, that is admittedly an inaccurate description of the rule, though only by implication — i.e., it is entirely true that under the pre-judgment rule there is no right of access until trial is completed, but the implication that there is a right of access after trial is completed is wrong. The implication is in any event not inevitable (c/. the longstanding controversy among biblical exegetes over "And [Joseph] knew her not till she had brought forth her first-born son,” Matthew 1:25), and is particularly weak when one considers that the time between conclusion of trial and judgment is ordinarily brief, and that none of the cases using this formulation involved that interval, so that in the writer’s mind the conclusion of trial and judgment may have been synonymous. Since all of the cases using the variations cite Schmedding or annotations based on Schmed-ding (except Sackett, whose reference to "some cases,” 136 F.2d at 249, must allude to the same line of authority) as support for the rule they are applying or describing, there is no reasonable basis to believe that they are setting forth anything but the Schmedding rule itself. And Schmedding, despite the dissent’s selective quotation to establish the contrary, is unequivocal that entry of judgment is the crucial stage.

It is, moreover, extravagant to believe, as the dissent evidently does, see Dissent at 1348 n. 17, that Schmedding’s exception for material "made public ... by proceedings in open court,” 85 Mich, at 7, 48 N.W. at 202 (citing Cowley v. Pulsifer), meant to generate access, at the time of trial, to all material entered into evidence at the trial, whether or not read aloud or displayed to the jury in a fashion visible to the public. To think that, one would have to accept that the court, writing in the days before photostatic copying, envisioned the passing around of documentary exhibits from the jury to the audience, or the manual copying of all of them. The more natural meaning of the phrase "made public by proceedings" and the reason of the matter unite to establish that the court had in mind only those disclosures to the viewing audience automatically produced by the oral proceedings in a traditionally open trial.

8 . See Times-Call Publishing Co. v. Wingfield, 159 Colo. 172, 410 P.2d 511 (1966) (en banc) (interpreting Colorado statute that denies pre-judgment access); State ex rel. Williston Herald, Inc. v. O’Connell, 151 N.W.2d 758, 762-63 (N.D.1967) (pre-judgment access denied, even in criminal case); C. v. C., 320 A.2d 717, 724 (Del.1974) ("It is generally held that judicial records are subject to inspection after completion of the proceedings") (dictum). The closely related pre-judgment exception to the public records privilege rule, discussed above, continues to be the majority rule in this country. See Newell v. Field Enterprises, Inc., 91 Ill.App.3d 735, 745-46, 47 Ill.Dec. 429, 438-39, 415 N.E.2d 434, 443-44 (1980) .

Many statutes express an absolute right of access to court records. See, e.g., Ill.Ann.Stat. ch. 25, § 16(6) (Smith-Hurd Supp.1984-85); Va. Code § 17-43 (1982); W.Va.Code § 51-4-2 (1981) . But the purpose of most if not all of these was evidently to eliminate the English rule that no civil court records, pre-judgment or post-judgment, were accessible to persons without some private interest in them. See, e.g., Sloan Filter Co. v. El Paso Reduction Co., 117 F. 504, 507 (C.C.D.Colo.1902); In re McLean, 16 F.Cas. 237, 238 (C.C.S.D. Ohio 1879) (No. 8,877). They have not been read to prevent judicial withholding entirely, see, e.g., Deere & Co. v. Finley, 103 III.App.3d 774, 775-76, 59 Ill.Dec. 444, 445-46, 431 N.E.2d 1201, 1202-03 (1981), and thus need not be read to exclude judicial withholding prior to judgment. Our substantial, though perhaps not exhaustive, research has disclosed no case, even in recent times, explicitly discussing and rejecting the pre-judgment nonaccess rule. Indeed, we find few cases without such discussion that reverse a trial court’s denial of access (or even affirm a trial court’s grant of access) in a civil matter prior to merits judgment, and in most of these either (1) a government agency was a party, see The Miami Herald Publishing Co. v. Collazo, 329 So.2d 333 (Fla.Dist.Ct.App.1976), cert. denied, 342 So.2d 1100 (Fla.1976); Charlottesville Newspapers, Inc. v. Berry, 215 Va. 116, 206 S.E.2d 267 (1974), or (2) at least with respect to some of the parties, the action had been dismissed (and probably dismissed with prejudice), see In re Continental Illinois Securities Litigation, 732 F.2d 1302 (7th Cir.1984); Mary R. v. B. & R. Corp., 149 Cal.App.3d 308, 196 Cal.Rptr. 871 (Cal.Ct.App.1983); The Miami Herald Publishing Co. v. Collazo, supra. The former category of case appears always to have been outside the pre-judgment nonaccess rule, see Schmedding, 85 Mich, at 5, 48 N.W. at 202 (referring to civil suits that involve "private dealings between private parties,” 85 Mich, at 5, 48 N.W. at 202); and perhaps “with prejudice” dismissals were regarded as judgments (insofar as the sought-after records pertained to parties and claims dismissed) — at least where the dismissal was for a reason other than settlement, see 85 Mich, at 6, 48 N.W. at 202 (justifying the non-access rule on the ground that ”[t]hese suits, involving private transactions, may never come to trial or hearing. The troubles may be settled, and the charges withdrawn").

9 . The dissent’s response to this point is to appeal to Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941), which stresses that the public interest in obtaining news is an interest in obtaining contemporaneous news. See Dissent at 1352-53. Quite so. But the dissent is mistaken in assuming that the public interest in obtaining news is the focus of inquiry in right-of-access cases, as it was in Bridges, which involved the attempted suppression of editorial comment concerning pending litigation. Rather, as Globe, Richmond Newspapers, and Press-Enterprise make clear, the focus is upon the public's ability to assure proper functioning of the courts. Contemporaneity of access to written material does not significantly enhance that ability.

10 . Publication meant "the open showing of depositions and giving copies of them to the parties by the clerks or examiners in whose custody they are." 18 CJ. Depositions § 311 at 721 n. 59 (1919) (emphasis added).

11 . It appears that the proposed lists were transmitted to Mobil’s counsel some time before their filing, but close enough beforehand that, as of July 1, review of the documents simply to determine whether they were subject to the preexisting protective orders was "not as yet complete.” Letter of July 1, 1982, from Loren Kieve to John J. Walsh, et al. at 1, Tavoulareas v. Washington Post Co., Civil Nos. 80-3032 & 80-2387 (D.D.C. filed July 2, 1982). It was envisioned that after this review the documents would be classified into two categories, those as to which the protection would continue and those as to which it would not. Id.