On March 18, 2019, in Comm'r, Alabama Dep't of Corr. v. Advance Local Media, LLC, the US Court of Appeals for the Eleventh Circuit held that materials submitted by litigants that are integral to the judicial resolution of a case's merits in any action taken by the court are subject to the common law right of access as judicial records even if not formally filed ( (11th Cir. Mar. 18, 2019)).

In December 2017, Doyle Lee Hamm, a death row inmate, sued the Alabama Department of Corrections (Alabama) in the US District Court for the Northern District of Alabama under 42 U.S.C. § 1983. Hamm alleged that Alabama's plan to execute him by lethal injection would violate the Eighth Amendment of the US Constitution, as applied.

During litigation, Alabama submitted its lethal injection protocol to the district court. While Alabama did not formally file the protocol, the parties debated the protocol and subjected it to expert testimony, and the court relied on the protocol in denying Alabama's motion for summary judgment and Hamm's motion for a preliminary injunction.

In March 2018, the parties stipulated to dismiss Hamm's claims. Alabama Media Group, the Montgomery Advertiser, and the Associated Press (the intervenors) then moved to intervene under Federal Rule of Civil Procedure (FRCP) 24. The intervenors also moved to unseal court records, transcripts, and briefs discussing Alabama's execution protocol, citing the common-law right of access to judicial records.

The district court granted intervention as a matter of right under FRCP 24(a) and granted the intervenors' motion to unseal the lethal injection protocol records. It ruled that the execution protocol was a judicial record because the court relied on the protocol to resolve Alabama's motion for summary judgment and Hamm's motion for a preliminary injunction, and because other judicial records referred to the protocol. The district court issued an order unsealing redacted versions of the protocol and related records.

Alabama appealed, arguing that the district court abused its discretion when it granted the intervenors' motion to unseal the records. Alabama contended that the lethal injection protocol was not a judicial record subject to the common-law right of access because it was not formally filed.

The Eleventh Circuit clarified its earlier decisions and held that filing is not necessary to qualify a document as a judicial record. What makes a document a judicial record is whether it is integral to the judicial resolution of the merits, even if not filed.

While the lethal injection protocol was not formally filed, it was:

As a result, the Eleventh Circuit ruled that the protocol was a judicial record subject to the common-law right of access.

The Eleventh Circuit additionally ruled that the district court did not abuse its discretion in granting the intervenors' motions to intervene and to access the protocol records, and it therefore affirmed the district court's rulings.