The default presumption of public access to court records is rebuttable

February 3, 2015

Insurance LawAn article in this space preceding this one briefly explored the default presumption that court records are open to the public.  The default presumption is rebuttable.

The accepted way to rebut the presumption of public access to court records includes a requirement that the parties give the judge reasons for not disclosing the particular testimony or documents.  Turning again to Judge Richard Posner’s thoughts on the subject, in an opinion he wrote while deciding motions to seal filed by the parties during consolidated appeals, “the fact that they don’t want to disclose is not a reason.”  Goebel v. Boley Int’l (H.K.) Ltd., 738 F.3d 831, 835 (7th Cir. 2013)(Posner, J., sitting as motions judge for the Seventh Circuit).  Sometimes a Local Rule will explicitly mandate that a stipulated or blanket protective order allowing the parties to designate what documents and things can and cannot be sealed, is legally inadequate to support secrecy in a given case.  See, e.g., Ingram v. Pacific Gas & Elec. Co., No. 12-cv-02777-JST, 2013 WL 5340697, *1 (N.D. Cal. September 24, 2013).

Even as the rule is settled that more is required than a stipulation or a blanket protective order, what is required in the cases is proof.  Substantively, the general issues permitting secrecy are fairly specific:  Trade secrets and litigating without particular parties being identified as, for example, in a lawsuit filed on behalf of a minor, and litigating, testifying, or submitting documentation in a lawsuit without revealing social security numbers or other protected personal information to the public outside of that lawsuit. Some documents simply fall outside of the standing presumption that they should be disclosed to the public even if the documents are contained in a court file.  For example, settlement agreements are ordinarily not required to be disclosed.  Settlement agreements are subject to court-mandated disclosure when “judicial approval of the terms is required, or they become an issue in a subsequent lawsuit, or the settlement is sought to be enforced.”   Goesel, 738 F. 3d at 834.