ORDER
The opinion filed September 21, 2011, is amended as follows:
At Slip Op. 17922, line 1: Change “names” to “identity”
At Slip Op. 17922, line 3: Change “name” to “identifying information”
At Slip Op. 17922, line 5: Change “name” to “identifying information”
At Slip Op. 17929, lines 22-23: Change “the names of Fathers M and D” to “Fathers M and D’s identifying information”
At Slip Op. 17929, line 2k: Change “name” to “identifying information”
At Slip Op. 17929, lines 2k~25: Change “(but not Father M’s name)” to “(but not Father M’s)”
At Slip Op. 17930, line 20: Change both instances of “name” to “identifying information”
With these amendments, the panel has voted to deny Appellant Father D’s Petition for Panel Rehearing filed on October 5, 2011.
The panel has voted to deny Appellant Father M’s motions and alternative motions filed on October 5, 2011. This denial is without prejudice to Father M’s bringing a motion in the district court, under Rule 60 of the Federal Rules of Civil Procedure, for relief from the bankruptcy court’s order in light of our opinion, as amended by this order. The district court is hereby directed to consider and rule on any such promptly filed motion before remanding this case to the bankruptcy court.
The panel has voted to deny Appellee’s Petition for Rehearing En Banc filed on October 5, 2011.
No further filings shall be accepted in this case.
OPINION
Documents produced in discovery and filed in the bankruptcy court contained allegations that Fathers M and D, two priests who were not parties to the Portland Archdiocese’s bankruptcy case, had sexually abused children. The bankruptcy court held that the discovery documents at issue could be disclosed to the public, because the public’s interest in disclosure of these discovery documents outweighed the priests’ privacy interests under Rule 26(c) of the Federal Rules of Civil Procedure. It also held that the documents filed in court could be disclosed to the public because they did not contain “scandalous”
I
The Portland Archdiocese was the subject of multiple lawsuits seeking millions of dollars in compensatory and punitive damages for sexual abuse of children by specific clergy members of the Archdiocese. In July 2004, while the tort claimants’ lawsuits were pending, the Archdiocese filed for Chapter 11 bankruptcy protection. The bankruptcy case thus became the forum for many of the proceedings relating to the tort claims. 1 The appellees (referred to here as Appellee Claimants) are a small subset of the many tort claimants who were parties to the bankruptcy case. 2
After the Chapter 11 filing, the bankruptcy court scheduled mediation to give the tort claimants and the Archdiocese an opportunity to settle the tort claims. Before mediation commenced, the tort claimants sought discovery regarding their claims pursuant to Rule 26 of the Federal Rules of Civil Procedure (which is made applicable to bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 7026). In order to prove that the Archdiocese had engaged in a pattern and practice of misconduct, the tort claimants sought discovery regarding, among other things, all reports of sexual abuse by priests within the Archdiocese, not just reports regarding the priests who were the defendants in the tort suits.
The bankruptcy court entered two orders governing premediation discovery, both dated January 14, 2005. The first order directed the Archdiocese to produce the personnel files of 37 accused priests identified by the Archdiocese for the “John Jay Study,” a national study of clergy abuse commissioned by the United States Conference of Catholic Bishops, and to make available four officials for deposition. Second, the court entered a stipulated protective order, which had been negotiated between the Archdiocese and the tort claimants. Relevant here, paragraph 7 of the protective order provided as follows:
In the event that tort claimants wish to remove from the restrictions of this order any document designated as “Confidential” by Debtor pursuant to this order, tort claimants shall provide prior written notice to Debtor’s counsel and counsel for the priest whose file is at issue, if any. Counsel shall then have seven (7) days to file a motion with the court seeking an order preventing the disclosure of such document. The document or documents shall remain subject to this order unless the court rules otherwise following the filing of counsel’s motion.
The protective order allowed the Archdiocese to designate “any and all documents produced pursuant to the [first discovery] order” as confidential.
Among the documents disclosed pursuant to the bankruptcy court’s discovery order were the personnel files of Father M and Father D. The Archdiocese produced these files only because their names were included in the John Jay Study; neither had been sued by the tort claimants. Father M, 72 years old, had left Portland in
During 2007, the Archdiocese and the tort claimants engaged in negotiations regarding both the damage claims and the scope of disclosure of documents produced in the bankruptcy filing.
In connection with the negotiations to settle the damage claims, the Appellee Claimants filed a memorandum on March 6, 2007, which “summarize[d] the pattern and practice evidence and the punitive damages evidence in support of the estimation” of five unresolved tort claims. The memorandum included, as attachments, the clergy personnel files of 27 priests (including Father M and Father D), plus deposition excerpts and other documents. These documents were filed under seal pursuant to the court’s protective order. The tort claimants (including the Appellee Claimants) settled most of the claims against the Archdiocese.
While these settlement talks were underway, the parties also negotiated the scope of release of bankruptcy documents. Counsel for several tort claimants (but not Appellee Claimants) invoked paragraph 7 of the protective order, notifying the Archdiocese of their intent to release some 1,760 pages of material that were produced by the Archdiocese in discovery as well as deposition transcripts. As was their right under the protective order, the Archdiocese and nine individual priests moved the bankruptcy court to prevent the release of the discovery material. The parties entered into a new round of negotiations regarding which sealed documents would be made public. Fathers M and D were not part of these negotiations. On May 24, 2007, counsel for the tort claimants informed the bankruptcy court that the parties had agreed to a resolution. As a result of this agreement, the Archdiocese released over 2,000 documents and posted them to a public website. This resolution did not bind Appellee Claimants.
On September 28, 2007, the bankruptcy court closed the Archdiocese’s Chapter 11 case, retaining jurisdiction over any pending adversary proceedings. The conclusion of the Archdiocese’s bankruptcy proceedings did not, however, resolve whether there would be public disclosure of documents designated as confidential or filed under seal. As noted above, Appellee Claimants were not bound by the May 24, 2007 mediation agreement, and they filed a motion to unseal the punitive damage estimation memorandum and exhibits filed as part of the successful negotiations to settle the tort claims. Appellee Claimants also notified the Archdiocese that they intended to release all personnel records from the clergy files that were produced in discovery. The Archdiocese opposed the Ap-pellee Claimants’ motion to unseal the court documents and also sought an order preventing the disclosure of the discovery documents. A number of priests whose files stood to be released, including Fathers M and D, filed similar motions.
After a hearing in which counsel for Fathers M and D participated, the bankruptcy court ruled in favor of the Appellee Claimants. The court first considered the personnel records produced in discovery. Applying Rule 26(c),
3
the court concluded
Second, the court considered whether 11 U.S.C. § 107 4 precluded the release of attachments to the Appellee Claimants’ punitive damage estimation memorandum that had been filed with the court. The priests argued that the personnel files attached to the memorandum contained “scandalous” materials, and thus qualified for the exception to disclosure in § 107(b). The bankruptcy court rejected this argument. It defined the word “scandalous” to mean a document that “improperly casts a derogatory light on someone,” and determined that the Appellee Claimants were not using the personnel files for an improper purpose. Therefore, it ordered the release of these files.
Fathers M and D appealed the bankruptcy court’s order to the district court. The district court affirmed, and Fathers M and D timely appealed. The bankruptcy court stayed the order pending the outcome of this appeal.
We review the district court’s decision on appeal from a bankruptcy court de novo, giving no “deference to the district court’s determinations.”
In re Mantz,
II
We first consider the bankruptcy court’s ruling under Rule 26 of the Federal Rules of Civil Procedure allowing the release of Fathers M and D’s personnel files, which were produced during discovery but not filed with the court.
A
‘We review a lower court’s decision to grant, lift or modify a protective order for abuse of discretion.”
Phillips v. Gen. Motors Corp.,
As a general rule, the public is permitted “access to litigation documents and information produced during discovery.”
Phillips,
While courts generally make a finding of good cause before issuing a protective order, a court need not do so where (as here) the parties stipulate to such an order. When the protective order “was a stipulated order and no party ha[s] made a ‘good cause’ showing,” then “the burden of proof ... remain[s] with the party seeking protection.”
Phillips,
A court considering a motion for a continuation of the protective order must proceed in two steps. First, it must determine whether “particularized harm will result from disclosure of information to the public.”
Id.
at 1211. As we have explained, “[b]road allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.”
Beckman Indus., Inc. v. Int’l Ins. Co.,
Accordingly, in determining whether to protect discovery materials from disclosure under Rule 26(c), a court must not only consider whether the party seeking protection has shown particularized harm, and whether the balance of public and private interests weighs in favor, but also keep in mind the possibility of redacting sensitive material.
B
In light of these principles, we now turn to Fathers M and D’s argument that the bankruptcy court erred in rejecting their motion under Rule 26(c) to protect their personnel files from disclosure. The priests raise two different arguments: first, that the bankruptcy court should have presumed that they had good cause to protect their personnel files from disclosure, because they were not sued and had not intervened; and second, even if they were not relieved of the burden of proving good cause, they had carried that burden, and the bankruptcy court erred in concluding otherwise. We address their arguments in turn.
1
We begin by considering Fathers M and D’s request that we develop a new rule governing the disclosure of discovery material containing confidential information about third parties. First, the priests assert that the types of personnel files at issue raise privacy concerns that are appropriately subject to protective orders, particularly with respect to third parties.
See Foltz,
Although this argument is not without merit, we decline to adopt the priests’ proposed rule because it is not consistent with
Our reading is supported by the observation that the drafters of the Federal Rules of Civil Procedure knew how to vary from the general rule that discovery material is presumptively public when they wanted to. Thus, Rule 5.2 provides that “[ujnless the court orders otherwise,” and subject to certain exemptions inapplicable to third parties, an “electronic or paper filing with the court” may include only “(1) the last four digits of [a person’s] social-security number and taxpayer-identification number; (2) the year of the individual’s birth; (3) [a] minor’s initials; and (4) the last four digits of the financial-account number.” Fed.R.Civ.P. 5.2(a). While Rule 5.2 makes certain types of confidential information presumptively confidential, nothing in Rule 26(c), or any other rule, suggests a similar intent by the drafters to presume confidentiality of all sensitive information about third parties. Thus, we decline to fashion such a rule.
2
We now turn to Fathers M and D’s second argument, that the bankruptcy court erred in concluding that there was not good cause to protect their personnel files from disclosure. As noted above, the good cause analysis proceeds in three steps.
First, a bankruptcy court must consider the evidence of particularized harm resulting from disclosure. The priests submitted the following evidence of the “specific prejudice or harm” that will result if their personnel files are disclosed. Father M stated that no claims were made against him in the bankruptcy proceeding, but if his name “is associated with the Archdiocese bankruptcy proceeding and settlements in any way, people will assume [he] was guilty of wrongdoing.” Because of the seriousness of the allegations, and because people will not “move forward and regain their trust” in the priests involved in the matter, Father M concluded that “if my name is released in connection with this case[,] I honestly think my career and life will be ruined.”
In a June 2008 declaration, Father D stated that he was currently 85 years old, and had retired in August 1989 due to severe depression. Further, he stated that “[n]o person has ever filed a claim of sexual abuse against me or demanded any settlement from the Archdiocese as a result of something I allegedly did or did not do.” And he made clear that as a retiree, he did not want the “public attention and humiliation” that would result from being
The bankruptcy court here did not directly address whether Fathers M and D had shown a particularized harm resulting from disclosure. We may, however, infer that it implicitly determined that the priests did carry their burden of showing such a harm, because otherwise it would not have proceeded to balance private and public interests.
See Phillips,
Accordingly, we proceed to the second step, namely, whether the balance of public and private interests weighed in favor of the priests’ interest in confidentiality. Here, the bankruptcy court concluded that Fathers M and D’s “desire to be protected from scandal does not demonstrate a clearly defined and serious injury outweighing the public interest necessary to establish good cause.” The bankruptcy court reasoned that although no claims of misconduct had been filed against the priests in the bankruptcy case, the personnel files established that “there were credible allegations of abuse made.” According to the court, allegations against Father M had been brought to the attention of the district attorney, who did not prosecute because the statute of limitations had run. Further, the court noted that allegations had been made against Father M in a newspaper article posted on a public website. Turning to Father D, the court noted that he had admitted misconduct to the Archbishop, and that his name appeared on the exhibit list for the Archbishop’s deposition, which had been posted on a public website.
While the bankruptcy court did not expressly identify the public and private interests, we infer that it concluded that the private interest was small, given that Fathers M and D’s names had both been publicly disclosed, and that the public interest was large due to the credibility of the allegations of misconduct. The Appel-lee Claimants provide additional arguments regarding the public interest in disclosure of Fathers M and D’s personnel files. Specifically, they argue that the public has an interest in identifying sexual abusers of children, particularly those occupying positions of power and trust; public safety; giving other victims comfort from knowing they are not alone; and exposing church officials’ knowledge of the rampant abuse.
Thus, we must now consider whether the bankruptcy court abused its discretion in determining that the balance between public and private interests weighed in favor of disclosure. We first note that the mere allegation of misconduct in the discovery documents filed in this case, without more, does not create a public interest sufficiently large to outweigh the priests’ private interests in confidentiality. There has been no judicial determination regarding the truth of the allegations against
The public does, however, have a weighty interest in public safety and in knowing who might sexually abuse children.
See New York v. Ferber,
This public safety concern is not applicable to Father D, however. Father D has been retired for many years, and nothing in the record indicates that he continues working in the community. Nor is it clear that the other public interests identified by the Appellee Claimants, namely comforting victims of abuse and exposing church officials, outweigh Fathers D’s privacy interests.
But even assuming that they do, we must still consider the third step in the good cause analysis, the question of redaction. Fathers M and D argue that redacting their identifying information, as we did in Foltz, would not undermine the interests identified by Appellee Claimants. We agree as to Father D: victims can know that they are not alone, and church officials’ complicity in the abuse can be revealed, without disclosing the identity of accused priests. By contrast, the public safety concern discussed above cannot be satisfied if Father M’s identifying information is redacted. We therefore hold that the bankruptcy court abused its discretion in declining to redact Father D’s identifying information from the personnel files, but we uphold the court’s decision as to Father M.
Ill
We now turn to Fathers M and D’s argument that the bankruptcy court erred in unsealing the punitive damage estimation memorandum and the attached documents concerning Fathers M and D that were filed in bankruptcy court.
6
The
For its part, the bankruptcy court held that the documents attached to the tort claimants’ punitive damage estimation memorandum were not “scandalous” matter for purposes of § 107(b),
7
and therefore did not constitute an exception to the general right of public access established by § 107(a). Relying on two out-of-circuit cases,
In re Gitto Global Corp.,
A
Before we address Fathers M and D’s argument based on their interpretation of the statutory language of § 107(b), we must address the parties’ arguments as to whether the statute supplants the common law right of public access to judicial documents. At common law, there is a “strong presumption in favor of access” to information filed with a court.
Kamakana v. City and Cnty. of Honolulu,
There is, however, a narrow exception to the presumption in favor of access for documents that were (1) subject to a protective order issued by a court pursuant to a finding of good cause, and
We need not address this novel issue, however, because we conclude that this common' law right is not applicable here. Although § 107(a) addresses the same public access right as the common law, our comparison of common law principles with the statute leads us to conclude that § 107 displaces the common law right of access in the bankruptcy context. A statutory provision abrogates a well-established common law rule if it “speak[s] directly to the question addressed by the common law,”
United States v. Texas,
We perceive such a divergence between § 107 and the common law. The statute speaks directly to, and diverges from, the common law right of judicial access. First, the common law rule distinguishes between dispositive and non-dis-positive motions, while § 107 covers all papers filed in a bankruptcy case. Second, the common law rule gives courts the discretion to create exceptions to the general rule of disclosure to the public.
See, e.g., Times Mirror Co. v. United States,
Because § 107 speaks directly to and conflicts with significant aspects of the common law right of access, we join our sister circuits in holding that § 107 preempts the common law right of access in bankruptcy proceedings.
See Gitto Global,
B
In light of this conclusion, we must now determine whether the bankruptcy court was correct in holding that to invoke the “scandalous” exception to public disclosure in § 107(b), the priests had to show “not only that the materials are likely to cause a reasonable person to alter his or her opinion of the person who is the subject of the materials, but also that they contain material that is either untrue, or potentially untrue and either irrelevant or included in the record for improper purposes.” Because this rule is based primarily on Gitto Global and Neal, we begin with those cases.
In
Gitto Global,
a court-appointed examiner submitted, under seal, an investigative report of fraud by the debtor corporation and corporate officers.
The
Gitto Global
court derived this test from a number of different sources. It created the
“potentially
untrue” prong by rejecting as unworkable a test adopted by the bankruptcy court below, whereby the party seeking non-disclosure had to prove the allegedly defamatory material was in fact untrue.
Id.
at 11.
Gitto Global
adopted the “irrelevant” prong from bankruptcy court decisions that had considered the relevance and purpose of material in determining whether the § 107(b) exception applies.
Id.
at 12-13 (citing
In re Commodore Corp.,
Although
Gitto Global
focused only on the “defamatory” exception in § 107(b),
Neal
relied on it in defining the “scandalous” exception. Thus,
Neal
held that to determine whether the exception applies, a court should consider whether “ ‘a reasonable person could alter their [sic] opinion’ ” of the person moving for non-disclosure,
We are not persuaded by either case. Because we have concluded that § 107 displaced the common law right of access to judicial records, and agree that a party’s invocation of the exception in § 107(b) does not trigger the common law analysis, there is no basis for incorporating common law concepts derived from Nixon (as Neal did) or the historical roots and premises underlying equity rules (as in Gitto Global ). Nor is there anything in § 107 or its legislative history suggesting that Congress intended to interpret the word “scandalous” in § 107(b) in the same manner as courts have interpreted “scandalous” in Rule 12(f), or to adopt any special common law or historical interpretation of the word. 10
Instead of relying on the interpretative aids adopted in
Gitto Global
and
Neal,
we must apply our standard tools of statutory analysis. And “[a]s with any statutory interpretation, we start with the plain meaning of the statute’s text.”
United States v. Wright,
Under the common usage of the word, allegations that a priest has sexually abused children are most assuredly “scandalous” because they bring discredit onto the alleged perpetrators. In light of the mandatory language of § 107(b), the bankruptcy court erred in not granting Fathers M and D’s motion to strike the punitive damage estimation memorandum and its attachments.
C
Fathers M and D also invoke Rule 26(c) and § 107(b) in requesting redaction of identifying information contained in the deposition transcripts and exhibits. 11 Our ruling here applies equally to the deposition transcripts, so that Fathers M and D’s identifying information should be redacted from the depositions filed with the bankruptcy court, and Father D’s identifying information (but not Father M’s) should be redacted from the depositions that were not so filed.
IV
Rule 26(c) and § 107(b), as we have interpreted them, require courts to use care in determining when documents containing sensitive information affecting a person’s privacy interests can be made public over that person’s objections. A court must implement the procedure for making such a determination even more carefully when the person objecting to the disclosure was not a party to the proceeding and had limited notice (and, thus, little or no ability to negotiate privacy issues or to challenge the damaging information). Although the public’s right of access to documents produced in litigation is long established and has been given great weight from the time of the equity courts in England, courts have likewise given serious consideration to privacy interests of those involved.
In sum, we affirm the bankruptcy court’s ruling as to the release of discovery documents disclosing Father M’s name under Rule 26(c), because the public’s serious safety concerns cannot be addressed if Father M’s name is redacted. But because the record does not reflect the existence of any similar significant public interest that requires the disclosure of Father D’s identifying information, we hold that Father D’s identifying information must be redacted from any discovery documents that are released. Finally, because of the mandatory duty to keep scandalous material confidential at the request of a party under § 107(b), we reverse the court’s decision to release the punitive damages memorandum and attached documents. 12
AFFIRMED in part and REVERSED in part.
Notes
. Subject to certain exceptions, “all proceedings that arise during the case are to take place before the bankruptcy court.” Collier on Bankruptcy ¶3.02[2] (16th ed. rev.2011). A bankruptcy court is not, however, authorized to determine the amount of damages awarded in a tort lawsuit; that duly is entrusted only to the district court. See 28 U.S.C. § 157(b)(1), (5).
. There are about two dozen Appellee Claimants out of over 140 tort claimants.
. Rule 26(c) of the Federal Rules of Civil Procedure provides, in pertinent part:
(c) Protective Orders.
(1) In General. A party or any person from whom discovery is sought may move for a protective order in the courtwhere the action is pending — or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the mov-ant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(A) forbidding the disclosure or discovery. ...
. 11 U.S.C. § 107 provides, in pertinent part:
(a) Except as provided in subsections (b) and (c) and subject to section 112, a paper filed in a case under this title and the dockets of a bankruptcy court are public records and open to examination by an entity at reasonable times without charge.
(b) On request of a party in interest, the bankruptcy court shall, and on the bankruptcy court's own motion, the bankruptcy court may ...
(2) protect a person with respect to scandalous or defamatory matter contained in a paper filed in a case under this title.
. Those factors are:
(1) whether disclosure will violate any privacy interests; (2) whether the information is being sought for a legitimate purpose or for an improper purpose; (3) whether disclosure of the information will cause a party embarrassment; (4) whether confidentiality is being sought over information important to public health and safety; (5) whether the sharing of information among litigants will promote fairness and efficiency; (6) whether a party benefitting fromthe order of confidentiality is a public entity or official; and (7) whether the case involves issues important to the public.
Glenmede Trust,56 F.3d at 483 .
. The Appellee Claimants argue that Fathers M and D waived the issue of the bankruptcy court’s application of § 107 by failing to raise it before the district court. In the bankruptcy
. On appeal, Fathers M and D do not claim that the material is defamatory, so we do not consider that exception.
. For all other documents (i.e., those attached to "dispositive pleadings, including motions for summary judgment and related attachments”), the "strong presumption of access to judicial records applies fully.”
Kamakana,
. Rule 12(f) provides that "the court may strike from any pleading any ... redundant, immaterial, impertinent, or scandalous matter.”
. As one commentator has noted, § 107's legislative history does “little more than parrot the language of the statute." William T. Bodoh & Michelle M. Morgan, Protective Orders in the Bankruptcy Court: The Congressional Mandate of Bankruptcy Code Section 107 and Its Constitutional Implications, 24 Hastings Const. L.Q. 67, 76 n. 47 (Fall 1996).
. Although Appellee Claimants contend that the priests have waived this argument, we may reach this issue for the reasons explained above, supra note 6.
. Each party shall bear its own costs on appeal,