New California court rules discourage sealing of court records.

The California Judicial Council has approved new court rules prohibiting judges from sealing records absent evidence of an overriding interest that outweighs the public's right to access court documents. Under the new rules, which will take effect in all civil, criminal, and appellate courts on January 1, parties in litigation will no longer be able to seal court documents by agreement.

The council's action was welcomed by the Consumer Attorneys of California, ATLA's state affiliate, which is opposed to secrecy in litigation and had lobbied for wording that would extend the rules' reach to discovery, settlement agreements, and other court documents not filed with the courts or used in the litigation process. (Proposed California Court Rules "Disfavor" Sealing of Court Documents, TRIAL, Nov. 2000, at 12.)

Instead, the council chose to include language that specifically exempts material that does not become part of a court's records. "The rule simply sets out the standard in NBC Subsidiary," said Patrick O'Donnell, legal counsel to the Judicial Council committee that drafted the rules.

In that case, the California Supreme Court ruled that a lower court's ruling barring the public from a hearing in a case involving actors Sondra Locke and Clint Eastwood violated the First Amendment. The high court concluded that the judge should have first held a hearing to determine whether an overriding privacy interest trumped the public's right to know. (NBC Subsidiary, Inc. v. Superior Court of Los Angeles, 980 P.2d 337 (Cal. 1999).)

An early draft of the rules listed possible overriding interests, including protecting an individual's right to a fair trial and ensuring the anonymity of juvenile offenders. But this list was excised from the final version, O'Donnell said, because committee members found it was both over- and underinclusive. "We decided the better way to handle it was to put in a commentary addressing this," O'Donnell said.

An advisory committee comment provides that "courts have found that, under appropriate circumstances, various statutory privileges, trade secrets, and privacy interests, when properly asserted and not waived, may constitute `overriding interests.' The rules do not attempt to define what may constitute an `overriding interest' but leave this to case law."

When the new rules go into effect, California will join the ranks of nine other states that have limited confidentiality agreements in litigation: Arkansas, Florida, Louisiana, Kentucky, Nevada, North Carolina, Oregon, Virginia, and Washington.

ATLA is strongly opposed to secrecy in the courts. More than a decade ago the association's Board of Governors passed a resolution opposing secrecy orders and agreements and encouraging judges to refuse to enter or enforce them without good cause. (For more information on the effect of secrecy in the courts, see University of San Francisco School of Law Adjunct Professor Richard A. Zitrin's article, "Overcoming Secrecy with Judicial Power," on page 74 of TRIAL's November 2000 issue.)