## Facts

- Procter & Gamble Co. (P&G) sued Bankers Trust Co. and BT Securities Corp. in federal court, alleging fraud in the sale of complex derivatives and losses exceeding $100 million.
- During discovery, P&G and Bankers Trust entered a broad stipulated protective order allowing the parties (and certain non-parties) to designate discovery materials as “confidential” and file them under seal without individualized judicial findings.
- The McGraw-Hill Companies, Inc., publisher of *Business Week*, obtained certain sealed discovery documents from a confidential source and prepared an article describing their contents.
- The district court issued an ex parte temporary restraining order, followed by successive injunctive orders over roughly three weeks, barring *Business Week* from publishing the information.
- The district court later unsealed photocopies of the documents but entered a permanent injunction forbidding *Business Week* from publishing or using the “original” sealed documents.
- McGraw-Hill appealed.

## Issues

1. Whether the appeal was moot after the district court unsealed photocopies while maintaining a permanent injunction as to the original documents.
2. Whether the district court’s TROs and injunctions prohibiting publication constituted an unconstitutional prior restraint under the First Amendment.
3. Whether private commercial confidentiality interests reflected in a stipulated protective order can justify a prior restraint on the press.

## Decision

- The Sixth Circuit held the appeal was not moot because the permanent injunction remained in effect as a final, appealable order and the challenged restraints were capable of repetition yet evading review.
- The court reversed, holding the orders were unconstitutional prior restraints on speech.
- The court concluded that the asserted confidentiality interests did not constitute the “most compelling circumstances” required to justify even a temporary restraint on publication.
- The court criticized enforcing a party-driven sealing regime through judicial speech restrictions without sufficient judicial findings or timely adversary process.

## Legal Principles

- Prior restraints on pure speech are presumptively invalid and may be imposed only in the most compelling circumstances.
- Private litigants’ interests in maintaining confidentiality of discovery materials sealed by stipulation, without individualized judicial findings, generally do not justify restraining the press from publication.
- A controversy is not moot where an injunction continues to bind the parties, and prior-restraint disputes may fall within the “capable of repetition, yet evading review” exception.
- Courts should not convert broad stipulated protective orders into enforceable publication bans against the press without rigorous constitutional scrutiny and appropriate procedures.

## Conclusion

The Sixth Circuit reversed a district court’s injunction barring *Business Week* from publishing information obtained from sealed discovery, holding that enforcing stipulated confidentiality through court-ordered publication bans imposed an impermissible prior restraint absent exceptionally compelling justification.


Procter & Gamble Co. v. Bankers Tr. Co., 78 F.3d 219 (6th Cir. 1996)