Image: Holley Robinson, EDRM.
Lively v. Wayfarer Studios LLC, 2026 WL 145483 (S.D.N.Y. Jan. 20, 2026), is the latest in a long line of discovery and other decisions in this matter. The court wrote: “Before the Court are various requests for sealing and unsealing filed by both parties and non-parties regarding materials submitted in connection with” motions for sanctions and summary judgment. The court previously issued a “bottom-line order” and now was explaining it. Id. at *1.
I have covered many prior decisions in this matter. Please see, e.g., What Connects “Popcorned Planet” and Ms. Blake Lively? (Dec. 9, 2025); Decision on 557 Requests for Admission in Blake Lively v. Wayfarer Parties/Justin Baldoni (Dec. 3, 2025)(listing blogs); How Much Attention Does a Big Case Deserve? (Nov. 22, 2025)(between February 28th and November 5th, roughly eight months, there were 29 opinions issued in Lively).
In the most recent decision, the Lively court extensively explained the law governing sealing of records. It began with the well-established presumption of immediate public access to judicial documents which is grounded in both common-law and the First Amendment. Id. The presumption stems from “notions of democratic control and judicial accountability.” Id.
However, the court explained that the presumption applies only to documents that are “judicial,” meaning documents relevant to the performance of the judicial function. Id. A document meets that standard if it has a “tendency” to influence the court. Id. That decision is “binary”—meaning “yes” or “no”—and made as of the time that the document is filed. Id. Thus, it must be made regardless of how the court later rules and whether the document in fact influenced the court’s later decision. Id. While “the mere filing” of a document is insufficient to reach that level of a “tendency,” once filed a strong presumption of public access attaches. Id.
Where the presumption of public access attaches, courts must assess its relative weight. The fact that information has been designated confidential by a party has no bearing on this inquiry.
Lively v. Wayfarer Studios LLC, 2026 WL 145483 (S.D.N.Y. Jan. 20, 2026).
That does not end the analysis. The Lively court continued: “Where the presumption of public access attaches, courts must assess its relative weight. The fact that information has been designated confidential by a party has no bearing on this inquiry,” nor does any party agreement to seal documents carry weight. Id. at *2.
Courts act as guardians of the interests of the public in ruling on motions to seal. Id. (emphasis added). Further, the presumption of public access is “at its zenith” if the documents are used to determine substantive legal rights. Id. Thus, there is a “strong presumption” that applies to summary judgment materials. Id. As to materials filed with other motions that may be substantive or procedural, the weight of the presumption is an exercise of judgment. Id.
For that reason, as to summary judgment materials, sealing is permitted “only with specific, on-the-record findings that sealing is necessary to preserve higher values and only if the sealing order is narrowly tailored to achieve that aim,” and that requires “the most compelling reasons.” Id. The court provided several examples, and stated that the most commonly invoked reason is privacy. Id. at *3.
However, the court explained that “privacy” encompasses a number of interests, such as health records or proprietary business information. Id. at *3. A privacy analysis involves balancing of interests. Courts should consider whether the material is “traditionally considered private” and the degree of harm that would result from disclosure. Id. Privacy of innocent third persons should “weigh heavily,” but a generalized concern of adverse publicity is insufficient. Id.
The Lively court added that relevancy is not the governing standard: “To start, while each of the parties and non-parties here argues to some extent that the documents it wishes to keep confidential are not relevant to the Court’s summary judgment decision, the sealing decision on a motion for summary judgment ordinarily does not envision the Court making a ruling based on relevance.” Instead, it reiterated the compelling reasons standard. Id. at *3. And, because it was required to act “expeditiously,” the court declined to decide “exhibit by exhibit, much less line by line,” whether material should be sealed. Id.
It rejecting a relevancy test, the court looked to the summary judgment standard: “The inclusion of evidence in connection with a summary judgment motion is not optional. And the Rules permit the Court to engage in a searching examination of the record before granting or denying summary judgment; the Court is not necessarily limited to the portions of an exhibit that are cited in a brief or quoted in a Rule 56.1 statement.” Id. at *4. The Lively court explained:
The Court’s decision about whether a particular document or item in a document is relevant is itself a judicial act about which the public has a right to know (and to criticize). Indeed, it may be among the more important decisions a court makes in ruling upon a motion for summary judgment. Requiring an exhaustive relevance inquiry would also serve no higher purpose. The parties have no cognizable interest in keeping summary judgment materials under seal simply because such documents have not previously been publicly disclosed. They have a right to keep documents confidential if and only if doing so servers [sic] a higher value. If a party believes that a document could have no conceivable relevance to a motion for summary judgment, its remedy is a motion to strike…. In sum, on a motion for summary judgment, relevance is not a threshold issue that the Court must analyze before determining whether the presumption of public access attaches, what its strength is, and whether disclosure of the document would affect a party’s rights or implicate a higher value.
Id. (emphasis added).
Nor is “admissibility” the standard. The test is whether a higher value would be served by sealing. Id. Further, in that regard: “The Court assumes that a party moving for or opposing summary judgment will have supported its motion only on the basis of ‘such facts as would be admissible in evidence.” Id. at *4. In short: “If a court decides not to consider an item because it is not admissible, the public has a right to know that.” Id.
The purpose of promoting public access is not to appeal to any prurient interest or to “cater ‘to a morbid craving for that which is sensational and impure,’”… but to enable democratic oversight of the courts, and admissibility determinations play an important part of that public accountability… [P]ublic access to a court’s decision to admit or exclude evidence—a crucial judicial function in maintaining fair trial rights—promotes public monitoring of federal courts and an appearance of fairness.”
Id. at *4.
Finally, the Lively court stated that privacy is a “nuanced analysis.” The mere fact that a document mentions a third-party is not sufficient. Traditional notions of privacy must be applied. Id. at *5. Thus, for example, the identities of people who used public relations services “when the services being sought are themselves of the type that is traditionally considered private (e.g., consultation with a particular type of medical doctor) or when the specific services being provided are themselves confidential,” are private. Id.
The Lively court then applied these principles to eight situations. Id. at *6-10.
Ms. Isabela Ferrer, a non-party, sought to seal her testimony concerning filming of “intimate scenes” and other matters, including religious discussions. She did not prevail on the facts. Id. at *6.
Betty B Holdings sought to seal what I will summarize as financial documents. However, Betty B “shares a close association with Lively….” Id. at *7. It failed, in large part because the information was relevant to Ms. Lively’s claim, old and “stale.” Id. at *6-7. Further, Betty B failed to offer “narrowly tailored redactions….” Id. at *7. Betty B also failed to make a sufficient showing as to its member’s K-1s. Id.
Family Hive, LLC, sought to seal parts of depositions and expert reports.
The requests are denied for largely the reasons that Betty B’s requests are denied. Information regarding Family Hive’s sales are at once “stale” while also relevant to Lively’s damages arguments. There are limited, if any, privacy concerns involving the identities of corporate non-parties that Family Hive wished to conduct business with. Although Family Hive is a non-party, it shares a close affiliation with Lively, as evidenced by her claim for damages stemming from Family Hive’s business losses. Family Hive has not specifically established any imminent competitive harm associated with unadopted marketing plans and outdated sales information.
Id.at *7.
Sony Pictures Entertainment successfully sought to seal a commercial agreement and PII, but failed as to certain testimony and messages. Id. at *7. Its sealing argument that the latter materials were not relevant to the judicial function and therefore not covered by the presumption, failed, as did its admissibility argument based on hearsay. Id. at *7-8. The court wrote that it appeared that the request was solely to avoid negative publicity and that some of the information had already been publicly disclosed. Id. at *8. A request by WME, “largely mirrors” Sony’s and was rejected for the same reasons. Id. at*8.
Three other motions were discussed; however, the court’s tabular decisions are not reproduced in Westlaw. Id. at *9.1
For a discussion of a prior motion to seal in Lively, see Another Discovery Decision in Blake Lively v. Wayfarer Parties/Justin Baldoni (Nov. 28, 2025).
Sealing motions are generally subject to procedural prerequisites. For more on motions to seal, see:
Notes
