The default presumption of public access to court records is rebuttable (Part 2 of 2)

February 5, 2015

Insurance LawThe parties must show why the things they want to keep out of the public eye should be sealed.  In practice, the substantive issues supported by proof have to be adequate to give the judge a reason for not disclosing the materials in question in the particular case.  It follows that the requisite showings vary from case to case, and from jurisdiction to jurisdiction, as well as varying from judge to judge within a given jurisdiction.

Sometimes the showings made by parties and their counsel on a motion to seal will carry the day and parts of depositions and exhibits, and parts of declarations (the legal equivalent of affidavits) and their exhibits, will be sealed, and sometimes the showings will be deemed inadequate.  The judicial determinations of these outcomes will not necessarily provide guidance for counsel and parties in other cases, however, keeping in mind always that the default presumption is to preserve public access to court records.  See, e.g., Ross v. Bar None Enter’s, Inc., No. 2:13-CV-00234-KJM-KJN, 2014 WL 2700901, * (E.D. Cal. June 12, 2014)(defendant’s motion to seal 69 pages of declarations, profit-and-loss statements, balance sheets, and tax returns put at issue on plaintiff’s motion to certify a class in an alleged unlawful labor practices case, was granted only as to the tax returns, as to which a federal statute on point required confidentiality; the defendant’s motion to seal was denied as to the remaining materials); Lane v. Wells Fargo Bank, N.A.,   No. C 12-04026 WHA, 2013 WL 2627487, *1-*3 (N.D. Cal. June 11, 2013)(holding that some parts of depositions and exhibits, and some parts of declarations and their exhibits, would be sealed and some would not, where the testimony and exhibits in question were presented with a nondispositive motion for class certification that would not end the litigation in a lender force-placed insurance case).

Next:  The Default Presumption of Public Access and the Process of Rebuttal:  Secrecy in Lender Force-Placed Insurance Cases in Federal Courts.