March / April 2007 - Sacramento County Bar Association

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8 Litigators often represent clients who wish to avoid any publicity that accompanies a lawsuit. The client may instruct the attorney to take steps to make sure the matter stays out of the press by closing the hearing and/or sealing sensitive documents to be filed, or even the entire file. The lawsuit may concern sensitive issues regarding a minor that the parents do not want to become public knowledge for fear of causing further injury to the child. The lawsuit may involve a trade secret that the client does not want to get into the hands of a competitor or involve adverse information that others could use to their advantage. There also may be matters concerning the attorney-client privilege in which documents need to be sealed pending determination as to whether or not the privilege applies. This column will address the steps to take and the evidence to present in either making or opposing a motion to seal a file or a portion thereof. In the next issue of Sacramento Lawyer, this column will address motions to close a hearing or a portion of a trial. My usual disclaimer applies. Nothing herein is to be considered a local rule of court, an unwritten rule, or a court policy. What follows are simply the views of one judge, who reserves the right to change his mind. The Rules of Court were amended and renumbered effective January 1, 2007. With respect to the rules concerning the sealing of files and documents, matters that were formerly governed by CRC Rules 243.1 -243.2 are now covered by CRC Rules 2.550 - 2.551. Counsel seeking to seal a file or a portion thereof must file a motion accompanied by a memorandum of points and authorities and a declaration containing facts that justify an order sealing such documents. CRC Rule 2.551(b)(1) [formerly CRC Rule 243.2(b)(1)]. The papers must be served on all parties to the action. CRC Rule 2.551(b)(2) [formerly CRC Rule 243.2(b)(2)]. An unredacted version of the document must be lodged with the court at the time the motion is filed and placed conditionally under SACRAMENTO LAWYER ■ MARCH/APRIL 2007 Litigation Making and Opposing Motions to Seal Files or Documents In dealing with a motion to seal documents, the Court must begin with the presumption that all court records are open, unless confidentiality is required by law. By Judge Loren McMaster seal. CRC Rule 2.551(b)(4) and (5) [formerly CRC Rule 243.2(b)(4)]. Absent a court order, the party that is already in possession of the documents at issue must be served with both an unredacted and redacted version of the papers. CRC Rule 2.551(b)(2) [formerly CRC, Rule 243.2(b)(2)]. In dealing with a motion to seal documents, the Court must begin with the presumption that all court records are open, unless confidentiality is required by law. CRC Rule 2.550(c) [formerly CRC Rule 243.1(c)]. In addition the court must be concerned with the right of a party, particularly a defendant in a criminal case, to receive a fair trial which right may be impaired if documents are left unsealed. See People v. Jackson (2005) 128 Cal.App.4th 1009, 1023 [relating to Michael Jackson's criminal trial]. Before ordering documents or files to be sealed, the Court must make the findings required by CRC Rule 2.550(d) [formerly CRC Rule 243.1(d)]. This rule of court is based upon the findings that the Supreme Court determined to be necessary in NBC Subsidiary (KNBC) v. Superior Court (1999) 20 Cal.4th 1178. “An order sealing the record must: (A) specifically set forth the facts that support the findings and (B) direct the sealing of only those documents and pages, or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.” CRC Rule 2.550(e)(1) [formerly CRC Rule 243.1(e)(1)]. The mechanics of filing a document under seal are set forth in CRC Rule 2.551 (b) and (d) [formerly CRC Rule 243.2(d) and (e)]. Often parties will prepare stipulated protective orders that purport to require that certain documents be sealed. However, parties cannot stipulate away the requirements of CRC Rules 2.550 and 2.551 without first obtaining a court order. CRC Rule 2.551(a) [formerly CRC Rule 243.2(a)]. Any protective order must contain the findings required by CRC Rule 2.550(d) before any file or document may be sealed. Huffy Corp. v Superior Court (2003) 112 Cal.App. 4th 97. An agreement between the parties not to disclose documents between the parties may constitute an “overriding interest.” Nevertheless, there must be a finding based on admissible evidence that such interest would be prejudiced by disclosure. Huffy Corp. v Superior Court (2003) 112 Cal App.4th 97; Universal City Studios v. Superior Court (2003) 110 Cal.App.4th 1273. Evidence must be presented in the moving papers to support each of the required findings. It will be very helpful to the judge if counsel prepares and presents a proposed order containing the required findings with reference to the supporting evidence.
It is generally too late to request that a previously filed document be placed under seal. “[B]ecause the information is already public, the harm to the patient's privacy has already occurred and cannot be prevented by the order. While we are sympathetic to the trial court's concerns, neither the state nor the federal Constitution permits the court to lock the barn door after the horse is gone.” Hurvitz v. Hoefflin (2000) 84 Cal.App. 4th 1232, 1245. In Hurvitz, the records in question were part of the public record only one day before the trial court ordered them sealed. CRC Rules 2.550 and 2.551 “do not apply to records that are required to be kept confidential by law.” CRC Rule 2.550 (a)(2). The “rules do not apply to discovery motions and records filed or lodged in connection with discovery motions or proceedings.” CRC Rule 2.550 (a)(5). “However, the rules do apply to discovery materials that are used at trial or submitted as a basis for adjudication of matters other than discovery motions or proceedings.” Id. A party who intends to use documents subject to a protective order or confidentiality agreement, but does not seek to file such documents under seal, must provide the other party or parties notice of such. If an affected party fails to file a motion within 10 days of service of the notice seeking to have such documents filed under seal, the documents will be placed in the public record. CRC Rule 2.551(b)(3). The rule also sets forth the procedure to be filed by the party seeking to use the documents at trial. Any party, member of the public, or the Court on its own motion, may file a motion to unseal the records that previously had been sealed. The motion must be presented both in a public version (i.e., redacted) and a sealed complete version. CRC Rule 2.551(h)(2) [formerly CRC Rule 243.2(h)(2)]. Rule 2551(h)(4) requires the Court to consider the matters set forth in forth in Rule 2.550(c)-(e) in making its determination whether to unseal the file or document. However, no findings comparable to those required by CRC Rule 2.550(d) are required before the trial court grants a motion to unseal the previously sealed records. The trial court's ruling is reviewed under the substantial evidence standard, considering all evidence in the record, both sealed and unsealed. In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292. If the records sought to be sealed are voluminous, the court may (1) appoint a referee and “fix and allocate the referee's fees among the parties” (CRC Rule 2.551(e)(2) [formerly CRC Rule 243.1(e)(2)] and/or (2) if those documents are in the custody of a public agency, the court may order that such agency maintain custody of the documents (CRC Rule 2.551(g) [formerly CRC Rule 243.2(g)]). An appellate court recently emphasized that the default position of every court must be that files will not be sealed based on the wishes and convenience of the parties. The Court held that Family Code section 2024.6, which provided that upon the request of any party to a divorce proceeding the court must seal the documents that set forth the parties financial assets and liabilities, was unconstitutional on its face on First Amendment grounds (violating the general public's First Amendment right of access to such information). Burkle v. Burkle (2006) 135 Cal.App.4th 1045. The Court suggested that a more narrowly drawn statute might survive constitutional challenge. 135 Cal.App.4th at 1070, fn. 30. ■ MARCH/APRIL 2007 SACRAMENTO LAWYER 9
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March / April 2007 - Sacramento County Bar Association

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