Public access to court records in New York: the experience under Uniform Rule 216.1 and the rule's future in a world of electronic filing.
Electronic filing raises serious issues of public access and the privacy protection of litigants. Routine review of court records by the public is virtually unheard of. Only the press, the parties, or persons directly interested in a file routinely search through the hard copy records reposing in the various county clerks' offices throughout the state.
Under an electronic filing system, all papers filed with the court will potentially be available to anyone with access to the internet. Moreover, with search engines, the public will have ready access, at the touch of a button, to an array of potentially private and embarrassing information regarding anyone who was a party or who was even mentioned in papers filed in any action in any court.
The purpose of this article is to review how the rule has operated since its inception, to analyze the case law applying the rule and to examine whether the rule is appropriate for the electronic age.
I. THE PURPOSE OF THE RULE
The rule provides that a court shall not enter an order in a civil action (2) sealing court records, in whole or in part, "except upon a written finding of good cause, which shall specify the grounds thereof." (3) The rule was drafted by the New York State Advisory Committee on Civil Practice at the request of then-Chief Judge Sol Wachtler and the Office of Court Administration. (4)
The rule was adopted at a time when the plaintiffs' bar, consumer groups, and state and national public figures were expressing concern that sealing orders were preventing the public from learning about hazards arising from unsafe products or environmental toxins. (5) These groups argued that public hazards were being concealed by demands of defense counsel that the entire litigation file be sealed as a condition of settlement. (6) Plaintiffs' attorneys also argued that such sealing orders prevented them from using information obtained in one action to prosecute similar actions against the same defendants for the same product defects or toxic hazards. (7) Defense counsel argued that such agreements were "necessary to facilitate settlements, protect trade secrets, ... or prevent adverse publicity which might cause juries to be biased against the defendant in future cases." (8)
The New York rule is designed to end the parties' control over the sealing decision. It requires the court, when presented with a request to seal any or all of the court records, to weigh the interests of the public's qualified right to access court records (9) against the parties' interest in privacy. (10) The rule is designed to end what had become a common practice of pro forma approval by the courts of confidentiality and sealing orders entered into by the parties. (11)
The rule is an admonition to the courts that the public's oversight of the courts and its interest in the dissemination of important information must be balanced against the legitimate privacy interests of the parties on a case-by-case basis. As one court aptly stated, "[w]hat it all boils down to ... is the prudent exercise of the Court's discretion. In exercise of that discretion the Court engages in a balancing process weighing the potential for harm and embarrassment to the litigants and public alike." (12) The rule requires the courts to carefully set forth their reasons for sealing in writing, (13) to limit the sealing to only those particular documents or groups of documents that require it, and to refrain from sealing entire files unless absolutely necessary. (14) The rule makes confidentiality "the exception, not the rule." (15)
Published decisions issued since the promulgation of the rule seem to indicate that the rule is accomplishing its purpose. At least in the published decisions, courts are engaging in such balancing and are clearly articulating the reasons for their determinations. (16) While the case law is not entirely consistent, clear trends are developing. Courts are making it increasingly more difficult for parties to seal all or part of files. (17) Whether that trend will continue with the advent of full electronic filing remains to be seen.
II. THE RULE IN PRACTICE
New York courts have interpreted the rule pertaining to the sealing of court records as requiring a two-step analysis for determining a motion to seal. (18) The first step is a showing on the movant's part that there is good cause to seal the record. (19) Only after good cause is shown does the court engage in a balancing process, weighing the movant's cause for sealing against the public interest in access to court documents. (20) Thus, even where there is no public interest in the subject matter of the proceedings, courts will decline to seal the record in the absence of a showing of "significant and concrete harm." (21)
After an analysis of a number of factors the court can determine what amounts to "significant harm" sufficient to constitute good cause (22) and how it weighs against the importance of the public's right to access. Among the factors courts consider are the following:
(a) the extent to which the information was relied upon by the court in exercising its judicial functions; (23)
(b) whether the information is of the type that is traditionally considered to be private in nature or relates to the interest of minors or third-parties; (24)
(c) whether there is a legitimate public interest in the underlying subject matter of the litigation or simply "'mere curiosity'"; (25)
(d) whether a party seeks disclosure for tactical purposes, such as attempting to coerce a settlement; (26)
(e) whether the information, particularly if it is derogatory, has been proven, or is merely an allegation and whether the person or persons who are the subject of any derogatory information will have an opportunity to rebut it; (27) and,
(f) whether the parties produced the information in reasonable reliance upon a previously entered order ensuring confidentiality. (28)
The significance of each of these factors is discussed below.
A. Judicial Reliance on the Records.
The rule draws a bright-line distinction between "court records" and discovery materials. (29) "Court records" are defined to include "all documents and records of any nature filed with the clerk in connection with the action." (30) The rule goes on to provide that "[d]ocuments obtained through disclosure and not filed with the clerk shall remain subject to protective orders as set forth in [N.Y.] CPLR 3103(a)." (31)
This distinction reflects the advisory committee's view that "the presumption of public disclosure, which [has long] applie[d] to materials filed with the court, should not apply to materials exchanged by the parties in discovery." (32) The committee believed that the standards to be applied by a court in granting or denying a protective order under N.Y. CPLR 3103 relating to discovery materials should be very different from that used by a court in determining whether to open or seal court records. (33)
Courts and commentators have increasingly recognized that there is no presumptive right to public access to disclosure materials (34) for several reasons. First, discovery traditionally takes place in private and the public generally plays no role in that process. (35) Unlike trials, the exchange of documents and the conduct of depositions is usually a private affair in which only the attorneys and the parties participate. Second, the New York discovery rules, like the Federal Rules of Civil Procedure, are extremely broad and allow for a searching review of the parties'--and often non-parties'--private papers, which often include intimate health and financial information. (36) This broad search is designed to facilitate the litigation process; it is not designed to provide an open door for public viewing of every litigant's most private papers. (37) Finally, many of the documents distributed and exchanged in discovery may never be presented to, or introduced in, a court and therefore may have little or no relevance to the ultimate court determination. (38)
In contrast, documents filed with the court are presumptively relevant to the court's determination, and their mere placement in a public repository creates a presumption of public access. (39) In New York, of course, what winds up in the file is primarily under the control of the parties. While the summons and complaint (40) and all motion papers must be filed, what motions are made and what materials are submitted with the motions are determined by the litigants. If the action is settled, the only document that needs to be filed by the court is a standard, short-form stipulation of discontinuance. (41) The more elaborate settlement agreement that often embodies the terms on which the matter is settled, including any payments made in settlement and any stipulations as to confidentiality, need not be filed with the court. (42)
Typically, discovery materials are exchanged between the parties but not filed with the court unless they are contained as exhibits to motions or introduced as evidence at trial. (43) It is also the general practice in most courts in the state for the trial clerk to return all exhibits to the parties at the conclusion of the trial. (44) Such exhibits make their way to the public record if there is an appeal but only to the extent that either party designates those exhibits to be relevant to the issues raised on appeal. (45)
As noted above, whatever makes its way into the file is presumptively open for public review. However, both state and federal courts have come to recognize that the strength of the presumption should depend upon the extent to which the document is used by the court in the exercise of its judicial functions. (46) Filing may occur primarily for the convenience of the parties or to preserve testimony, but the filed documents may never actually be reviewed by the court.
An example is the filing of deposition transcripts. CPLR 3116(b) provides for the filing of all depositions in the court unless a copy of the deposition is furnished to each party or the parties stipulate to waive filing. (47) There is no evidence from the wording of the rule (48) or from the notes of the advisory committee that drafted the rule (49) that the purpose of the filing was to provide public access to deposition transcripts. In practice, of course, deposition transcripts are almost never filed and parties routinely waive such filing and make arrangements for private distribution of copies to each party. (50) Thus, a party's mere filing of a deposition transcript, where such filing is not part of a motion or request for judicial action, should not weigh heavily in the court's decision as to whether to seal the transcript. (51) Where, however, excerpts of deposition transcripts are submitted to the court as part of motion papers, the full presumption of public access applies. (52)
A pair of decisions by the Second Circuit Court of Appeals in the United States v. Amodeo (53) argues that the mere filing of a document does not create a presumption of public access. (54) Rather, the primary factor is the extent to which the document or information is relied upon by the court in exercising its judicial functions. (55) This conclusion follows from the fact that the primary purpose of granting the public access to judicial proceedings is to allow public oversight of the judicial process and to insure the accuracy and fairness of judicial proceedings through such oversight. (56) Disclosure of documents that play no role in court decision-making would not further that fundamental purpose. (57)
The court in Amodeo addressed a progress report created by a special officer appointed by the court to investigate allegations of corruption in a local union. (58) The court officer herself "deemed it advisable to submit" this report on a periodic basis to the court. (59) The Second Circuit found the report to be "on the periphery of the adjudicative process." (60) The Court of Appeals therefore reversed, as an abuse of discretion, the District Court's unsealing of substantial portions of the report. (61)
The reasoning of Amodeo can be easily accommodated to the New York rule. New York State Uniform Rule 216.1 for Trial Courts requires a party to show good cause to seal any portion of the public record. (62) The movant's burden should be significantly less where the document was not part of the judicial decision-making process and where the document does not inherently raise legitimate issues of public interest. (63) For example, in People v. Hodges, (64) a criminal case in which the court cited uniform rule 216.1 for guidance, the court analyzed the sealing request by examining the significance of material sought to be sealed in the decision-making process. Defendant sought to seal a voluntary disclosure form which contained defendant's confession and which was filed by the prosecutor as "an official part of the court file," even though there was no requirement that the document actually be filed in the court. (65) The court noted that the document aided the court in the performance of important judicial functions, including assisting the court in evaluating the case and in facilitating the court's participation in any plea negotiations. (66) The court therefore denied the motion. (67)
B. The Importance of the Parties' Privacy Interest
New York courts are more inclined to grant a sealing order when the information sought to be sealed touches upon matters traditionally treated confidentially, such as information relating to minors, (68) intimate details of a marriage arising in a matrimonial proceeding, (69) personal medical records, (70) trade secrets, (71) and confidential business information or financial details, (72) which typically are not disclosed to the public. Courts also routinely seal information relating to physician peer review panels, the proceedings of which are exempt from disclosure pursuant to Education Law section 6527(3). (73) The rule has also been used to seal privileged attorney work product information that has been submitted to the court for in camera review. (74)
A typical case illustrating the court's solicitude towards minors is In re Twentieth Century Fox Film Corp., (75) in which an action was commenced in surrogate court to approve a film contract for eleven-year-old film star, Macaulay Culkin. The proceeding was brought pursuant to Section 35.03 of the New York State Arts and Cultural Affairs Law, which provides a procedure whereby performing contracts may be entered into by infants and approved by the court so as to preclude the infant from later disaffirming the contracts on the ground of infancy. (76) Although the surrogate court had refused to seal the record, (77) the appellate division reversed that decision.
The appellate division recognized that the surrogate court acts as a representative of the public in protecting the infant and that "the public therefore has a particular interest in overseeing the court's handling of this important duty." (78) However, the court pointed out that, in order to adequately perform its function, the court needed the parties to disclose very private financial information and business arrangements. (79) "If such information were to be made public as a matter of course in order to permit a contract to receive the benefits of [section] 35.03, the prospect of such disclosure would undoubtedly have a chilling effect on the willingness of those who would otherwise wish to contract with infants." (80) The court also noted that revealing the terms of the contract could place a party who is seeking to contract with infants at a competitive disadvantage. (81)
However, courts have also emphasized that the mere fact that the information is 'embarrassing' is not enough to justify a sealing order, (82) even in the absence of public interest in the subject matter of the litigation. (83) Moreover, the fact that the information pertains to a celebrity is generally not a sufficient reason to seal the record. (84) Courts also will decline to seal a file when a movant-party claims that the information disclosed in the record will subject that party to criminal prosecution (85) or potential additional civil liability. (86)
There is substantial disagreement among New York courts as to whether the disclosure of personal or business financial information constitutes good cause to seal a court record. In several cases, courts have held that the disclosure of such information does constitute good cause and justifies sealing in the absence of a specific showing that disclosure of such information is a legitimate issue of public interest or concern. (87)
For example, in a brief decision issued soon after the adoption of rule 216.1, but not citing the rule, the First Department affirmed an order of the supreme court sealing the record to the extent that it reflected an accounting of the various interests of partners in a major Wall Street law firm. (88) The court found that plaintiff failed to show how putting a dollar amount on each partner's interest in the firm "is necessary to facilitate public discussion of policy issues identified by plaintiff, such as the financing and management of law firms." (89) The court concluded that plaintiff had failed to show "'any legitimate public concern, as opposed to mere curiosity.'" (90)
Similarly, another court found that an internal dispute within a law firm constituted a purely private matter with "minimal public interest." (91) The court sealed the record, noting that,
litigants ought not be required to wash their dirty linen in public and subjected to public revelation of embarrassing material where no substantial public interest is shown and where the material may have been inserted into court documents for the sole purpose of extracting a settlement of the action. (92)
In yet another case concerning a law firm, the Supreme Court of New York County held that motion papers should be sealed when they disclosed a law firm's insurance coverage for malpractice. (93) The court found that the defendant law firm's interest "in keeping their financial arrangements confidential has been recognized as good cause especially where, as here, plaintiff has failed to show 'any legitimate public concern, as opposed to mere curiosity." (94)
A cynic might argue that judges naturally sympathize with the privacy concerns of attorneys while failing to show a similar solicitude for the privacy interests of other litigants. However, in a case involving a dispute among employee shareholders of a privately-held investment corporation, the court held that the shareholders' earnings constituted "private information" that "is the kind of information our society has traditionally regarded as personal and confidential." (95) The court found that defendants succeeded in demonstrating a "real necessity" for a sealing order. (96) Against this need, the court found that there was no specific public interest in the action, per se. (97)
Many other courts, however, have held that disclosure of personal financial information does not constitute good cause--even in the complete absence of public interest in the information. (98) This has been a virtually universal rule in surrogate's court cases in which the assets of the estate must be filed with the court. (99) The routine disclosure of such personal information, however, has caused at least one surrogate's court to express concern over this apparent invasion of privacy and has urged further study of the issue. (100)
To the extent that files can be easily redacted--which appears to be increasingly likely with the advent of electronic filing--there seems to be little legitimate need for the disclosure of private financial information. Moreover, with the availability of search engines, electronic filing can cause concrete and significant harm through the disclosure of tax returns, social security numbers, bank account balances, and the like. (101) Certainly, in most cases, the public's oversight of the court system can be accomplished without the public possessing knowledge of specific monetary amounts held or claimed by the litigants.
There are, of course, exceptions. For example, where the performance of a fiduciary is at issue and the public has a legitimate concern as to whether excessive fees have been charged by a guardian or administrator, the amount of such fees typically should not be sealed. (102) In general, however, there seems to be no need for the disclosure of such information.
Where allegations of wrongdoing are made against, or personal information is disclosed about, individuals or entities that are not parties to the action, the court is more solicitous of the privacy interests involved and much more inclined to grant the sealing order. (103) This is appropriate given the fact that such non-parties typically will have little or no opportunity to rebut the allegations and to defend their reputation within the proceeding. (104) Indeed, the third parties may not even be aware of the attempt to publicly disclose private information about them and therefore may be unable to protect their interests. Thus, the court has a particular responsibility to protect the interests of such non-litigant third parties. (105)
Finally, although concerns about pretrial publicity and the danger of tainting the jury pool arise more frequently in criminal cases, those considerations are not entirely absent from civil cases, especially where the subject matter of the proceeding is of intense public interest. Thus, courts have found good cause to seal motion papers filed with the court where disclosure of the underlying information contained in the papers might prejudice either or both parties' right to a fair trial. (106)
C. The Public's Interest in the Underlying Information
Where the litigation raises issues of public importance, such as where allegations are made concerning professional misconduct or creation of a public hazard, the New York courts almost never grant a sealing motion. (107) An interesting balancing took place in Coopersmith v. Gold, (108) a case in which a psychiatrist was accused of having improper sexual relations with a patient. Prior to trial, the court sealed the motion papers disclosing various accusations against the defendant in order to protect the anonymity of certain witnesses and to avoid tainting the jury pool. (109) Plaintiff sought to introduce at trial the testimony of other individuals who also claimed to have had sexual relations with the defendant. (110) The court excluded that testimony. (111) The jury returned a verdict in favor of the defendant. (112) After the trial, the local newspapers sought to unseal portions of the record, including information concerning the other female patients. (113) The court noted that defendant had a heavy burden to show that the records should not be unsealed as a matter of course in light of the fact that the original reasons for sealing had become moot with the rendering of a trial verdict. (114) Further, the court noted that the press had already reported extensively on the allegations against the defendant, including allegations that he might have had sexual relations with other patients. (115) Finally, the court noted that the defendant-psychiatrist "practices in a highly regulated profession and female patients ought to be aware of the serious allegations made so that they may make an intelligent decision to become or continue as a patient." (116) The court therefore unsealed the record. (117)
Courts also rarely grant sealing orders when the litigation relates to the performance of public officials. (118) To some extent, of course, the media can elevate a matter to one of public interest merely by reporting on it. Courts are reluctant--and are particularly ill-suited--to make judgments as to what news stories are worthy of public discussion. (119) Thus, the practical reality is that the press, to a significant degree, determines what matters can be sealed and what cannot. Yet, New York courts have not hesitated to find that "mere curiosity" about the assets or private lives of the rich and famous or lurid details of criminal acts are not a legitimate matter of public concern. (120)
One recurring issue is whether the terms of a settlement should be publicly disclosed. As noted above, settlement agreements, particularly those involving sensitive materials, are not routinely filed with the court. (121) However, they are occasionally filed, most typically in cases in which the court must approve the terms of the settlement, as in cases involving infant plaintiffs. (122) Defendants, especially those faced with numerous actions involving the same product or conduct, argue with some force that disclosing the amount of a settlement places the defendant in a seriously compromised position with regard to other plaintiffs that have brought or might bring similar actions. (123) A publicly disclosed settlement amount becomes a floor for all future negotiations (124) or may encourage other potential plaintiffs to sue. (125) Moreover, sealing of the amount of settlement, as opposed to evidence of wrongdoing per se, does not seriously impair the public's ability to learn of hazards to public health or safety. (126) Finally, courts recognize that nondisclosure of the terms of settlement is often a major factor in expediting settlement negotiations. (127)
Recently, the adoption of a local court rule for the United States District Court of South Carolina, prohibiting the sealing of the terms of any settlement agreement filed with the court, became the subject of public comment. (128) The apparent justification for the rule, as articulated by the chief judge in press reports, is that "'[s]ome of the early Firestone tire cases were settled with court-ordered secrecy agreements that kept the Firestone tire problem from coming to light until many years later.... Arguably, some lives were lost because judges signed secrecy agreements regarding Firestone tire problems.'" (129)
It is not obvious, however, that non-disclosure of the terms of a settlement--as opposed to the sealing of the entire record--conceals life-threatening hazards from the public. In New York, every complaint must be filed with the court. (130) Moreover, as a matter of practice, the parties should file a stipulation of discontinuance so that the clerk may close the file. (131) Thus, in New York, in which an action is brought alleging a defective product and that case is settled, it becomes a matter of public record. The amount paid in settlement is not typically disclosed. While that number may be indicative of the strength of a plaintiffs claim (or the defendant's fear of further publicity should the matter go to trial), it is not clear that disclosure of the settlement amount, with its resulting prejudice to defendants, is necessary to properly alert the public of product defects and health hazards.
Ironically, the South Carolina rule does not require disclosure of the settlement amount or the fact that the parties kept the matter confidential. (132) The rule only forbids sealing of settlement agreements filed with the court. (133) Thus, in South Carolina federal court, as in the New York courts, the terms of the settlement may be delineated in a private agreement between the parties that is never filed with the court. Should the parties seek court approval of the settlement, however, and wish to have the settlement embodied in a court order, such a document obviously must be filed with the court. Once a settlement agreement is filed with the court, it becomes a "court record" subject to rule 216.1. (134) Clearly, the rule gives New York courts sufficient discretion to refuse to seal such an agreement when the court perceives that the subject matter of the litigation is a matter of legitimate public interest (135) or when it reflects involvement by the court. (136) Thus, in the final analysis, a blanket rule such as that adopted by South Carolina, does not provide significantly more protection for the public than the New York rule, and any marginal benefit may well be outweighed by the inflexibility resulting from a blanket, across-the-board rule. (137)
D. The Use of Public Dissemination as a Litigation Tactic
Where the court believes that one of the parties is using the threat of public disclosure for tactical purposes, such as to extort a settlement, it is much more willing to grant a sealing order. (138) "If one side to a controversy threatens to or does disclose private or sensitive information in which the public has no interest, the court must consider whether that litigant is seeking to use this means to harm the adversary and so induce a settlement." (139)
The federal courts in the Second Circuit take a slightly different approach, allowing the trial court to consider the motives of the parties only "insofar as they bear on the veracity of the parties' asserted positions." (140) However, the Second Circuit has also cautioned that the parties' motives "are not to become the focal point of the assessment of a motion to seal." (141)
The First Department has recently suggested a different approach for dealing with pleadings that make scandalous but unsubstantiated allegations against adversaries. In Liapakis v. Sullivan, (142) the court refused to seal the record despite plaintiffs allegations of unethical and criminal conduct against former partners because of the "clear public interest in such allegations." (143) The court noted, however, that "sanctions could be awarded should it be shown that plaintiffs allegations of unethical and criminal conduct are materially false or were made merely to harass or injure defendants or gain some leverage in the instant litigation." (144)
E. The Timing of the Request to Seal
Courts are clearly more comfortable in resolving a sealing motion when such a motion comes at the end of the litigation, after there is an adjudication of the facts alleged in the various papers. (145) When a court is required to make a sealing decision at an early stage in the case and there is no substantiation of allegations, the court is more reluctant to allow the allegations to see the light of day. (146) With cases in which there is a strong public interest in the subject matter of the litigation, however, New York courts have refused to seal the records--even in the early stages of the litigation--believing that the public has a right to follow every aspect of the case and to learn of the accusations even before they are proven. (147)
F. Reliance Upon a Previously Entered Confidentiality Order
Courts are naturally reluctant to unseal records that have been filed with the court pursuant to a previously issued confidentiality order. (148) Parties may allow broad and sweeping disclosure of confidential information in the case at hand--such as trade secrets--and sensitive financial information of interest to competitors, with the assurance that such information will be treated confidentially. (149) Parties and their counsel need a reasonable assurance that representations concerning confidentiality will be honored. However, reliance on a broad, standard umbrella confidentiality agreement--even if embodied in an order--will rarely be considered to be reasonable since such umbrella orders are entered into for the convenience of the parties and for the court to avoid document-by-document disputes. (150) Such stipulations and orders rarely prevent the unsealing of documents that the court finds are not legitimately treated as confidential. (151)
III. DEVELOPMENT OF PROCEDURES IMPLEMENTING RULE 216.1
The courts have answered a number of procedural questions raised by the adoption of rule 216.1, including the standing of non-parties to challenge a sealing order, (152) the method and nature of judicial fact-finding necessary before an order on sealing is entered, (153) and the appealability of a sealing order. (154)
New York courts have uniformly allowed the public and the press an opportunity to be heard before ruling on a sealing motion. Such an opportunity is granted without the need for a formal motion to intervene. (155) Indeed, formal intervention would be inappropriate since a person or entity seeking access to the court records per se would not meet any of the tests of N.Y. CPLR [subsection] 1012 or 1013. (156) The movant merely seeks to vindicate the public's right of access and oversight. (157)
Routinely, the trial courts appear to be determining sealing motions on the papers without the necessity for evidentiary hearings. (158) Thus, New York has avoided the satellite litigation that has occurred in other states which have enacted rules with regard to the public's access to court records. (159)
Because documents are presumptively open to the public upon filing, parties seeking to preserve the confidentiality of information contained in pleadings or motion papers might be well advised to seek a sealing or confidentiality from the court before the papers are filed. (160) When a sealing order has been entered and a non-party seeks to lift the order, the appropriate vehicle appears to be a motion to vacate pursuant to CPLR 5015(a), providing notice to all parties to the action. (161) Where a non-party seeking access to court documents inadvertently moves to intervene instead of to vacate the sealing order, the court should ignore the defect and convert the motion to intervene to one to vacate. (162)
On occasion, parties who have lost motions to seal records have sought to maintain the privacy of the information therein by seeking permission from the court to remove individual records from the file. (163) Those efforts have proven unsuccessful, since they obviously would have the effect of circumventing the Rule and preventing public access to the information. (164)
In some counties, sealing orders create practical problems for the clerk's office. In federal court, where the volume of cases is much less, the clerks routinely seal portions of the record. (165) In high volume state courts, the only practical means of effectuating a sealing order may be to seal the entire file. (166) Because such umbrella sealing is inconsistent with the purpose of the rule, courts have adopted the technique of ordering the parties to file papers in redacted form. (167) In cases of significant public interest, in which confidential information is routinely exchanged in papers before the court, the court may have to appoint a special referee or master to oversee the redaction process. (168)
Such an approach was adopted in Danco Laboratories, Ltd. v. Chemical Works of Gedeon Richter, Ltd., (169) which involved a dispute over the manufacture of the controversial "morning-after" abortion pill, RU-486. The supreme court issued an order sealing the entire record, finding that trade secrets were revealed in the record and that the physical safety of those involved in the development of the drug would be threatened if their identities were disclosed. (170) The appellate division modified the sealing order and remanded the order to the lower court, directing the appointment of a special referee to entertain related motions as they arose to redact trade secret information and the identity of involved individuals. (171)
With the advent of electronic filing, redaction will obviously be easier. Parties will have the technical ability to file a full record with the court and to provide the public with a substantially complete record with all private information redacted. Further, upon a motion to seal, the court will have the ability to redact, word-by-word, any information it deems to be legitimately confidential. (172)
Orders granting or denying motions to seal the court record are immediately appealable by interlocutory appeal to the appellate division. (173) Although the sealing decision is obviously discretionary, the Appellate Divisions appear to give little deference to a trial court's weighing of the various factors, in part because there are usually no determinations of credibility involved (174) and because the courts have an institutional interest in ensuring that public access to court records is maintained. (175)
IV. RULE 216.1 AND ELECTRONIC FILING
Electronic filing is currently offered as a voluntary option in the Commercial Divisions of the Supreme Court in New York and Monroe Counties. (176) It is soon to be expanded to the Commercial Divisions in Albany, Nassau, Suffolk and Westchester counties. (177) In addition, it is also offered in the New York County Supreme Court for tax certiorari claims, and is about to be introduced for such claims in the Supreme Court in Monroe, Westchester and Suffolk counties. Lastly, it is used for cases brought in the New York Court of Claims that are defended by the Albany Trial Bureau of the Attorney General. (178) In addition to electronic filing, New York courts are increasingly scanning court files electronically thereby providing immediate electronic access to the public. (179)
Electronic filing will turn court records into a massive data bank, opening all the information filed in every action instantaneously to the world. The New York court system is currently struggling with the issue of whether filings made electronically should be freely accessible on the Internet or whether access should be limited to the court and the parties. The federal Bankruptcy Court for the Southern District of New York has adopted a policy of open access, allowing anyone who subscribes to the court's website to obtain instantaneous access to all filed documents. (180) The filing system, which is mandatory, appears to be operating smoothly.
The experimental and voluntary system in the Commercial Division in New York County, in contrast, has not been met with widespread acceptance. One of the reasons articulated by attorneys is concern about the perceived invasion of the privacy of the parties. The New York State Office of Court Administration has promulgated rules whereby a party electronically filing papers with the court may designate the papers as "secure" if they contain important confidential information, such as the names of minors, Social Security numbers, medical records, identifying numbers of financial accounts, home addresses, trade secrets and the like. (181) Such files are electronically tagged and are not available for on-line access, but may be viewed in hard copy form at the clerk's office. (182) Significantly, virtually all electronic filings made in the Commercial Division have been designated as "secure" filings. (183)
There is something incongruous about a rule which provides for complete public access to court records, but only to those with the fortitude to travel to the county clerk's office and to wade through the clerk's files. Yet, the new rule has the advantage of allowing access to those members of the public who are truly interested in the particular proceedings, while withholding sensitive information from those searching the Internet merely for the purpose of obtaining background information on individuals for solicitation or other purposes not directly related to the public's interest in supervision of judicial process. A similar rule has been proposed by an advisory committee created by the Conference of Chief Justices and the Conference of State Court Administrators. (184) A more narrowly tailored approach, however, would be to allow parties to obtain electronic access to sensitive documents in redacted form. (185) Such redaction could be implemented automatically by the party making the filing. Any dispute over the extent of the redaction could then be resolved by the court.
Electronic filing dramatically increases the ability of a party to misuse the rule for tactical advantage. For example, a party could electronically file motion papers which contained massive amounts of private information, thereby releasing that information to the Internet without the adversary having an opportunity to seek an appropriate sealing order from the court. While the potential for that abuse currently exists, it obviously would be magnified once filings are automatically made accessible on the Internet. The Chief Judge's Commission on Public Access to Court Records is contemplating a rule that would provide for a time lag between filing the document and actually placing the document on-line. (186) This would allow parties an opportunity to seek appropriate court leave before the document becomes publicly available.
With minor modifications, such as those discussed above, the rule can and should survive into the electronic age. The Internet is an important democratizing influence because it provides the general public with access to important sources of information independent from the information it receives from controlled channels of communication. There is no reason why this important tool should not be applied to the third branch of government. At the same time, the courts should recognize that, in striking the balance between the parties' privacy and the public interest in access, they must take into account the fact that court records will receive much broader distribution with the advent of electronic filing. The beauty of the rule, of course, is that it gives the courts--under the rubric of the "good cause" standard--the flexibility to take this new fact into account.
Rule 216.1 appears to be working as its drafters intended. It has taken the decision as to whether to seal a record away from the parties and has helped to insure that the courts, sua sponte, weigh the interests of the public's qualified right of access to court records against the parties' interest in privacy. Through numerous decisions, the courts have begun to articulate the factors that are necessary for a good cause determination under the Rule. With the advent of electronic filing, the need to protect the litigants' legitimate privacy interests will increase dramatically. At the same time, however, electronic filing will give the courts a greater ability to redact sensitive information, thereby providing greater public access to information of legitimate public concern.
(1) The New York Rule became effective on March 1, 1991. N.Y. COMP. CODES R. & REGS. tit. 22, [section] 216.1 (1996).
(2) The rule does not apply to criminal proceedings but has occasionally been cited in criminal cases for guidance. See, e.g., People v. Hodges, 657 N.Y.S.2d 857, 859 n.3 (Sup. Ct. 1997) (citing section 216.1 in deciding to allow press access to a voluntary-disclosure form filed with the court, which contained defendant's confession).
(3) Tit. 22, [section] 216.1. The rule reads in its entirety as follows:
[section] 216.1 Sealing of court records. (a) Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties. Where it appears necessary or desirable, the court may prescribe appropriate notice and opportunity to be heard. (b) For purposes of this rule, "court records" shall include all documents and records of any nature filed with the clerk in connection with the action. Documents obtained through disclosure and not filed with the clerk shall remain subject to protective orders as set forth in CPLR 3103(a).
(4) See George F. Carpinello, Public Access to Court Records in Civil Proceedings: The New York Approach, 54 ALB. L. REV. 93, 101 n.43 (1989) (noting that Chief Judge Wachtler was originally solicited by Bert Bauman, First Vice President of the New York State Trial Lawyers' Association, to adopt a rule that would prohibit the sealing of records as a condition of settlement and that would require courts to find good cause before granting a motion to seal a record).
(5) See id. at 93-96 (explaining the various rules in other states that were enacted based on the belief that sealing court records violates public policy).
(6) See id. at 99.
(7) See id. at 99-100.
(8) Id. at 99.
(9) The public's qualified right of access to court records and proceedings is derived from the First Amendment of the U.S. Constitution, New York's comparable constitutional provision, and the common law. The First Amendment gives the public a qualified right of access to those judicial proceedings in which 1) the public has traditionally been given access and 2) in which public access "plays a significant positive role in the functioning of the particular process in question." Press-Enter. Co. v. Super. Ct. of Cal. for the County of Riverside, 478 U.S. 1, 8 (1986); see also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980) (noting in dicta that "historically both civil and criminal trials have been presumptively open"); id. at 599 (Stewart, J., concurring) (noting that the Anglo-American legal system presumes that trials shall be public); Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 23 (2d Cir. 1984) (recognizing First Amendment right of access to trials but denying petitioners' request to televise the trial because the First Amendment has not been extended to include television access as a protected interest); see also Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070-71 (3d Cir. 1984) (recognizing that to limit the public's access to civil trials, the government must show an important governmental interest and that there is not a less restrictive way to serve that interest); Johnson Newspaper Corp. v. Melino, 564 N.E.2d 1046, 1048-49 (N.Y. 1990) (recognizing substantial federal case law that implies a First Amendment right of access to civil judicial proceedings but holding that there was no per se First Amendment right to attend administrative hearings that traditionally have been held under the seal of confidentiality). A similar qualified right has been recognized pursuant to Article I, Section 8 of the New York Constitution. Coopersmith v. Gold, 594 N.Y.S.2d 521, 526 (Sup. Ct. 1992).
Under the common law, the public has a qualified right of access to all documents filed with the court. Nixon v. Warner Communications Inc., 435 U.S. 589, 597-99 (1978) (holding "that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents" and assuming, arguendo, that the qualified common law right of access applied to the Nixon tapes); United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) (recognizing the common-law right of public access to judicial documents); Newsday v. Sise, 518 N.E.2d 930, 933 n.4 (N.Y. 1987) (implicitly recognizing the common-law right of access, but holding that it does not apply to documents not fried with the court); People v. Burton, 597 N.Y.S.2d 488, 491 (App. Div. 1993) (noting that "New York recognizes ... a common-law right of access" to court documents); People v. Hodges, 657 N.Y.S.2d 857, 860 (Sup. Ct. 1997) (discussing the "presumption" of the common-law right of access and its application to public, non-confidential documents in the court file); see also In re Newsday, Inc., 895 F.2d 74, 79 (2d Cir. 1990) (recognizing common-law right of access to documents filed in criminal proceeding). For a general discussion of the constitutional and common-law underpinnings of the public's right of access and the functional role that access plays, see Kathleen K. Olson, Courtroom Access After 9/11: A Pathological Perspective, 7 COMM. L. & POL'Y, 461 (Autumn 2002).
The public right of access also has a statutory basis. See N.Y. JUD. LAW [section] 4 (McKinney 2002) (requiring the sittings of courts to be public); N.Y. JUD. LAW [section] 255-b (McKinney 1983) (requiring court docket books to be public); N.Y. PUB. OFF. LAW [subsection] 84-90 (McKinney 2001) (enacting the Freedom of Information Act which acknowledges that people have a right to know the governmental decision-making process and to review the document records that lead to the decision).
(10) See Coopersmith, 594 N.Y.S.2d at 530; Carpinello, supra note 4, at 98.
(11) Carpinello, supra note 4, at 98.
(12) Coopersmith, 594 N.Y.S.2d at 530 (citations omitted).
(13) See N.Y. COMP. CODES R. & REGS. tit. 22, [section] 216.1 (1996) (ordering the court to provide a written finding of good cause when sealing court records); see also Danco Labs, Ltd. v. Chem. Works of Gedeon Richter, Ltd., 681 N.Y.S.2d 751, 751-52 (App. Div. 1998) (remanding back to trial court for issuance of a written decision detailing the underlying grounds for a finding of "good cause" in accordance with rule 216.1); see also In re Conservatorship of Brownstone, 594 N.Y.S.2d 31, 32 (App. Div. 1993) (reversing a lower court decision sealing court records because the court failed to specify in writing the reason for its order).
(14) See Danco Labs Ltd., 711 N.Y.S.2d at 422-23 (directing the supreme court to redact confidential information rather than seal the entire record); Aetna Cas. and Sur. Co. v. Certain Underwriters at Lloyd's, London, 676 N.Y.S.2d. 734, 738 (Sup. Ct. 1998) (noting that the sealing of court records will be considered on a case-by-case basis, depending on the existence of confidential information and whether collateral estoppel purposes are relevant); People v. Caruso, 2002 W.L. 83703 at * 5 (N.Y. Sullivan County Ct. Jan. 9, 2002) (denying a motion to seal the record but ordering redaction of portions of the record); see also Encyclopedia Brown Prods., Ltd. v. Home Box Office, Inc., 26 F.Supp. 2d 606, 614 (S.D.N.Y. 1998) (stating that sealing should be avoided in favor of public access whenever possible, therefore, redaction is a preferred method to ensure confidentiality where a court determines the necessity). Sometimes, of course, redaction is not practical since the confidential information is interspersed throughout the entire record, and redaction would render a review of the record meaningless. See John C. v. Martha A., 592 N.Y.S.2d 229, 235-36 (New York City Ct. 1992) (sealing the entire court record because redaction would not be effective to maintain the necessary confidentiality since the entire record contains confidential and embarrassing information).
(15) In re Will of Hofmann, 727 N.Y.S.2d 84, 85 (App. Div. 2001).
(16) See, e.g., Griffin v. Scudder, Stevens, & Clark, Inc., N.Y.L.J., June 28, 1991, at 22 (Sup. Ct. 1991) (balancing the legitimate public interest in the subject matter of the litigation with the "significant and concrete harm" caused by public access to the record); United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995) (balancing the presumption of access to court records against the role of the material in the court's Article III functions).
(17) See, e.g., Encyclopedia Brown Prods., Ltd., 26 F.Supp. 2d at 614-15 (refusing to seal the entire record where an edited and redacted judicial record would serve both the confidentiality interests of the defendant and conform to the presumption of access to such records).
(18) See Griffin, N.Y.L.J., June 28, 1991, at 22.
(19) See id.
(20) See id. (insisting that public confidence in the court system depends on open court proceedings); see also Ewerse v. Elghanayan, N.Y.L.J., Aug. 3, 1993, at 22 (Sup. Ct. 1993) (holding that a desire to avoid embarrassment is not sufficient to overcome the "presumption of openness" and succeed in a motion to seal court records).
(21) Griffin, N.Y.L.J., June 28, 1991, at 22 (explaining that low public interest in a case does not remove the good cause requirement to overcome the "presumption of openness" of court proceedings, although it does constitute a factor to be considered); see also Estate of Goldman, N.Y.L.J., January 2, 1992, at 22 (Sur. Ct. 1992) (noting that a showing of "real harm" is a strict prerequisite to the court's consideration of a sealing order).
(22) When the rule was first proposed, its "good cause" standard was criticized as providing insufficient guidance for a court in determining whether to seal the records before it. See Michael Hoenig, A New Rule on Sealing Court Records?, 204 N.Y.L.J., July 27, 1990, at 3 (1990) (questioning the "'fuzziness'" of the then-proposed rule's "'good cause'" standard). However, that does not appear to have been a significant problem since, as expected, the courts have begun to articulate the factors that are necessary in a good cause determination. See, e.g., infra, notes 23-28 and accompanying text.
(23) See United States v. Amodeo, 71 F.3d 1044, 1050 (2nd Cir. 1995) (explaining that when documents have little or no impact on a court's decision, the right to access is diminished).
(24) See Aetna Cas. and Sur. Co. v. Certain Underwriters at Lloyd's, London, 676 N.Y.S.2d 734, 738 (Sup. Ct. 1998) (finding that documents relating to a confidential settlement agreement should remain sealed where agreement concerned a third party).
(25) See Dawson v. White & Case, 584 N.Y.S.2d 814, 815 (App. Div. 1992) (holding that plaintiff did not demonstrate that disclosure of financial information concerning defendant's partners and clients would benefit a relevant and legitimate public interest).
(26) See In re Estate of Hofmann, 729 N.Y.S.2d 821, 826 (Sur. Ct. 2001) (expressing that one of the purposes of the anti-sealing rule was to curtail the disfavored practice where sealing constituted a condition of settlement because such a practice curtails the goal of court openness).
(27) See Coopersmith v. Gold, 594 N.Y.S.2d 521, 530 (Sup. Ct. 1992) (ruling that although the defendant received a favorable jury verdict concerning allegations of sexualizing the doctor-patient relationship, the record would not remain sealed, because tainting the jury was no longer an issue).
(28) See United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995) (declining to require the full disclosure of documents because redaction was ordered to protect confidential informants).
(29) See N.Y. COMP. CODES R. & REGS. tit. 22, [section] 216.1(b) (1996).
(30) Id; see also Newsday v. Sise, 518 N.E.2d 930, 933 n.4 (N.Y. 1987) (finding no common-law right of access to the identity of jurors since records disclosing names and addresses of jurors "have not been entered into evidence or filed in court and are, therefore, not public judicial records").
Although the rule applies only to material filed with the clerk in connection with an action, an argument for public access could be made with regard to documents that are not technically in the clerk's file but which have been shown to the court and were relied upon by the court in making its determination. Compare FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 412-13 (1st Cir. 1987) (holding that documents shown to the court which are material and relevant to the matters sub judice were court records to which the presumption of public access applied), with Pansy v. Borough of Stroudsburg, 23 F.3d 772, 781-82 (3d Cir. 1994) (holding that documents submitted to the court, such as exhibits or settlement agreements, which are returned to the parties after the case is closed, are no longer judicial documents and are not subject to public disclosure).
(31) N.Y. COMP. CODES R. & REGS. tit. 22, [section] 216.1(b) (1996).
(32) Carpinello, supra note 4, at 110.
(33) See id. at 113 (noting that N.Y. CIV. PRAC. L. & R. 3103 is "designed to regulate the process of disclosure of information to adverse parties, rather than disclosure to the public at large").
(34) Discovery materials have traditionally fallen outside the scope of public information.
[P]retrial depositions and interrogatories are not public components of a civil trial. Such proceedings were not open to the public at common law and, in general, they are conducted in private as a matter of modern practice. Much of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action. Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984) (citations omitted); Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312-13 (11th Cir. 2001) (holding that discovery materials which were submitted to the court during discovery motions are not judicial records and a public right of access does not apply to such documents); see also United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1999) (emphasizing that the presumption of access does not apply to documents that play an insignificant part in the court's "Article III duties"). "Unlimited access to every item turned up in the course of litigation would be unthinkable." Id. at 1048; Byrnes v. Empire Blue Cross Blue Shield, 2000 W.L. 60221, at * 6 (S.D.N.Y. Jan. 25, 2000) (holding that, unlike materials presented to the court such as motion papers, there is no presumption against the sealing of discovery materials, and even a minimal showing of harm can lead to a sealing of the record unless there is a legitimate interest in preventing the sealing). See Laurie Kratky Dore, Secrecy by Consent: The Use and Limits of Confidentiality in the Pursuit of Settlement, 74 NOTRE DAME L. REV. 283, 327-71 (1999) (recognizing distinction between court records and discovery materials). See generally Carpinello, supra note 4, at 115 n.129 (listing numerous cases that highlight the distinction between documents that carry a presumption of public access and documents such as discovery materials that do not).
(35) See Seattle Times Co., 467 U.S. at 33 n.19.
(36) Amodeo, 71 F.3d at 1048 (stating that "the temptation to leave no stone unturned in the search for evidence material to a judicial proceeding turns up a vast amount of not only irrelevant but also unreliable material"). The Second Circuit's decision in Amodeo is a substantial retreat from its earlier decision in In re "Agent Orange" Product Liability Litigation, 821 F.2d 139, 146 (2d Cir. 1987), in which the Second Circuit held that there was a statutory right to public access to discovery materials produced in litigation. For a criticism of In re "Agent Orange" see Carpinello, supra note 4, at 111-12.
(37) See N.Y. CIV. PRAC. L. & R. 3101(a) (McKinney 1991) (providing for "full disclosure of all evidence material and necessary in the prosecution or defense of an action") (emphasis added); Seattle Times Co., 467 U.S. at 35 (noting that the government has a substantial interest in preventing the release of irrelevant yet harmful information); Allen v. Crowell-Collier Publ'g Co., 235 N.E.2d 430, 432-33 (N.Y. 1968) (holding that disclosure rules of the N.Y. CPLR should be liberally interpreted so as to assist counsel in preparation of trial and to reduce the delay in trial).
(38) See Amodeo, 71 F.3d at 1050 (stating that "[d]ocuments that play no role in the performance of Article III functions, such as those passed between the parties in discovery, lie entirely beyond the presumption's reach").
(39) Carpinello, supra note 4, at 97 & n.23 (noting that the role that the judicial system plays in society is so essential that the public should be able to know what occurs in the courts).
(40) N.Y. CIV. PRAC. L. & R. [section] 304 (McKinney Supp. 2003) (stating that an action can commence in New York with the filing of a summons and complaint or summon with notice).
(41) N.Y. CIV. PRAC. L. & R. 3217 (McKinney Supp. 2003); N.Y. COMP. CODES R. & REGS. tit. 22, [section] 202.28 (1995); Carpinello, supra note 4, at 109.
(42) See Carpinello, supra note 4, at 109.
(43) See id. at 110.
(44) See, e.g., N.Y. COMP. CODES R. & REGS. tit. 22, [section] 600.10(b)(vii) (2001) (allowing in the First Judicial Department for exhibits to be omitted from the record on appeal by stipulation of the attorneys). The rules of the Bankruptcy Court for the Southern District of New York state that unless ordered by the court, exhibits shall not be filed with the clerk and shall remain in the attorney's custody. See Bankr. S.D.N.Y. LBR 9072-1. Furthermore, at the end of the court's jurisdiction of the case, the clerk has the discretion of disposing of any filed exhibits that are unclaimed after 30 days. Id.
(45) N.Y. CIV. PRAC. L. & R. [section] 5526 (McKinney 1995).
(45) See United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995) (stating that most information will fall somewhere on a continuum ranging from matters directly affecting a case to matters that are irrelevant).
(47) N.Y. CIV. PRAC. L. & R. [section] 3116(b) (McKinney Supp. 2003).
(48) N.Y. CIV. PRAC. L. & R. [section] 3116(b) could be read to imply that the deposition is to be filed under seal and is not to be accessible to the public. See Lisa C.-R. v. William R., 635 N.Y.S.2d 449, 452 (Sup. Ct. 1995) (adopting such an interpretation). The rule states that the officer taking the deposition shall "securely seal the deposition" and either file or mail it to the court clerk hearing the case. See N.Y. C.P.L.R. [section] 3116(b) (McKinney Supp. 2003). It further provides that "[t]he deposition shall always be open to the inspection of the parties." Id. However, the issue of public access to the deposition was probably not in the minds of the drafters. This rule was derived in part from former rules 130 and 131 under the Civil Practice Act. See Preliminary Report of the Advisory Committee on Practice and Procedure, N.Y. LEG. DOC. NO. 6(b) at 143-44 (1957) [hereinafter Preliminary Report]. Rule 131, which dealt with depositions out of state, provided for the sealing of the deposition, its mailing to the clerk and its opening upon receipt by the clerk. Id. The sealing language was apparently carried over, but the committee apparently did not find it necessary to specifically refer to the opening by the clerk. There is no discussion of the issue of public access in the Committee's report. Id. But see infra note 51 (providing cases which address the issue of the public's right to deposition testimony).
(49) See Preliminary Report, at 143-44 (falling to mention public access as a purpose for requiring filing).
(50) The Federal Rule of Civil Procedure 5(d) was amended in 1980 to eliminate the requirement that discovery materials, including deposition transcripts, be filed with the court. See FED. R. CIV. P. 5(d), Notes of Advisory Committee on 1980 Amendments. The rule now prohibits the filing of most discovery materials except upon order of the court. See FED. R. CIV. P. 5(d). Virtually all districts now have such a local rule and the filing of discovery materials, including depositions transcripts, is almost never required or allowed. See Carpinello, supra note 4, at 114-15.
(51) Consistent with this position are a number of decisions by New York courts prohibiting the press or the public from actually attending pretrial depositions. See, e.g., Scollo v. Good Samaritan Hosp., 572 N.Y.S.2d 730, 732 (App. Div. 1991) (prohibiting the press from being present at a pretrial deposition because, among other things, it might hinder the investigation); Westchester Rockland Newspapers, Inc. v. Marbach, 413 N.Y.S.2d 411, 413 (App. Div. 1979) (denying press access because irrelevant and inadmissible evidence may arise); In re Estate of Lehner, 665 N.Y.S.2d 835, 837 (Sur. Ct. 1997) (refusing to allow the press access to a pretrial deposition because it is not considered a "sitting" of the court); Lisa C.-R, 635 N.Y.S.2d at 452 (precluding public access to pretrial disclosure materials in matrimonial action based on Domestic Relations Law Section 235); Occidental Chem. Corp. v. Flacke, 453 N.Y.S.2d 570, 571 (Sup. Ct. 1982) (dismissing the Commissioner's contention on combining depositions and the hearing because depositions may not be open to the public without permission).
The issue of whether the press should be given access to a transcript of a deposition appears to be a closer issue. Although providing a copy of the transcript is clearly less disruptive to the discovery process than allowing the press to be present at the deposition, it is not at all clear why the press should be given access to deposition transcripts which are not used by the court in the adjudicative process, in the absence of a clear public interest. In Westchester, the majority not only prohibited the press from attending the deposition, but also affirmed the trial court's order prohibiting the distribution of the deposition transcripts until the admissibility of the testimony was determined. 413 N.Y.S.2d at 413. Justice Shapiro dissented, stating that: "I see no reason why this case should be treated differently from any other by imposing a restriction on what may be done with the testimony." Id. (Shapiro, J., dissenting). The assumption underlying Justice Shapiro's comment is that, in the ordinary course, parties are free to distribute discovery materials and deposition testimony to the public, at any time, in the absence of a protective order. One might well question why this should be so, given the fact that parties and witnesses are compelled to submit to questioning under oath prior to trial solely for the purpose of enabling the parties to prepare for trial. See supra note 37 and accompanying text (discussing the main use of depositions prior to trial); see also Liebman & Charme v. Lanzoni, 624 N.Y.S. 752, 754 (City Ct, 1995) (stating that the court has the authority to prohibit distribution of a tape or transcript to the media, but denying motion to do so based on a failure to show actual risk of discovery materials being "widely disseminated to the public"); Compare Bal v. Hughes, 1995 WL 244757 at * 1 (S.D.N.Y. Apr. 26, 1995) (granting order precluding press access to deposition but not forbidding distribution of deposition transcript to the press), with Greater Miami Baseball Club, Ltd. v. Selig, 955 F. Supp. 37, 40 (S.D.N.Y. 1997) (unsealing transcript of deposition because transcript was presented to, and considered by, the court on a motion to dismiss). See generally Carpinello, supra note 4, at 112-13 (noting that both the federal and New York rule are "designed to regulate the process of disclosure of information to adverse parties, rather than disclosure to the public at large").
(52) See In re Anderson Kill & Olick, P.C., N.Y.L.J., March 31, 1997, at 29 (Sup. Ct. 1997) (denying the request to seal the court records, instead favoring the public's right to have information); see also Greater Miami Baseball Club, 955 F. Supp. at 40 (providing media access to deposition transcript that was submitted to the court on a motion to dismiss).
(53) 44 F.3d 141 (2d Cir. 1995); 71 F.3d 1044 (2d Cir. 1995).
(54) In resolving the issue of public access, the Second Circuit stated: We think that the mere filing of a paper or document with the court is insufficient to render that paper a judicial document subject to the right of public access. We think that the item filed must be relevant to the performance of the judicial function and useful in the judicial process in order for it to be designated a judicial document. Amodeo, 44 F.3d at 145.
(55) See Amodeo, 71 F.3d at 1049.
(56) See Gannett Co. v. De Pasquale, 372 N.E.2d 544, 547-48 (N.Y. 1977) (recognizing that public access to court proceedings helps to ensure accountability and that the courts operate in a fair and effective manner), aff'd, 443 U.S. 368 (1979).
(57) While recognizing the need for accountability, the Amodeo court stated that "[t]he presumption of access is based on the need for federal courts, although independent--indeed, particularly because they are independent--to have a measure of accountability and for the public to have confidence in the administration of justice." Amodeo, 71 F.3d at 1048. The court also noted that "the weight to be given the presumption of access must be governed by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts." Id. at 1049. In a refinement of the Amodeo standard, the Eleventh Circuit has held that the mere fact that discovery materials are submitted to the court on a discovery motion, as opposed to a substantive motion such as a motion for summary judgment, does not elevate those documents to the level of judicial records for which there is a common law right of access. See Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312-13 (11th Cir. 2001); see also United States v. Glens Falls Newspapers, Inc., 160 F.3d 853, 857 (2d Cir. 1998) (finding that access to settlement negotiations and draft settlement documents "has no value to those monitoring the exercise of Article III judicial power by the federal courts").
(58) See Amodeo, 71 F.3d at 1047.
(60) Id. at 1051.
(61) Id. at 1053. The Court allowed other portions to be disclosed because there was a marginal expectation of privacy in those portions and there was significant public interest in the subject matter of the litigation. See id.
(62) N.Y. COMP. CODES R. & REGS. tit. 22, [section] 216.1 (1996).
(63) See id. (stating that courts shall weigh the public as well as the private interests to determine if good cause has been shown); Amodeo, 71 F.3d at 1049 (reasoning that an adjudication should be subject to public scrutiny).
(64) 657 N.Y.S.2d 857 (Sup.Ct. 1997).
(65) Id. at 858-59.
(66) See id. at 859.
(67) See id. at 862 (noting that although access is permitted to the confession, photocopying or reproducing the document is prohibited).
(68) See In re Twentieth Century Fox Film Corp., 601 N.Y.S.2d 267, 268, 270 (App. Div. 1993) (reversing the surrogate court's decision and sealing the records regarding the proceeding to confirm a motion picture contract for the eleven-year old actor Macaulay Culkin, because to disclose such records would create a "chilling effect on the willingness of those who would otherwise wish to contract with infants").
(69) The New York Legislature and the courts have long treated matrimonial issues as a special case, requiring that matrimonial records be sealed and remain confidential. See N.Y. DOM. REL. LAW [section] 235 (McKinney 1999) (requiring court personnel to keep matrimonial pleadings secret); Shiles v. News Syndicate Co., 261 N.E.2d 251,256 (N.Y. 1970) (holding that section 235 of the Domestic Relations Law is controlling as to the issue of disclosure in a matrimonial action involving libel and invasion of privacy); Danziger v. Hearst Corp., 107 N.E.2d. 62, 64 (N.Y. 1952) (recognizing longstanding court rules that prohibit access to evidence submitted in a matrimonial action); Lisa C.-R. v. William R., 635 N.Y.S.2d 449, 452 (Sup. Ct. 1995) (holding that there is no presumption of access in matrimonial cases).
(70) See In re Application of M.R. & R.R., 582 N.Y.S.2d 644, 646 (Sur. Ct. 1992) (granting motion to seal record on application for court approval of settlement of wrongful death action, finding that the medical records "contain anecdotal items which have not been established as fact and which are potentially embarrassing to the memory of the decedent and his family"); In re Susan A. & Michael A., N.Y.L.J., Aug. 28, 1991, at 24 (Sup. Ct. 1991) (sealing personal injury record and proceeding with anonymous caption in action where petitioner alleges that she was infected with the HIV virus as a result of the negligence of respondent medical hospital); John C. v. Martha A., 592 N.Y.S.2d 229, 235-36 (City Ct. 1992) (sealing the entire court file in landlord/tenant matter because information about respondent's HIV status was interspersed throughout the record); see also Flaherty v. Seroussi, 209 F.R.D. 300, 304 (N.D.N.Y. 2002) (granting a protective order preventing dissemination of personal "medical, educational and other inherently private information concerning individual employees of the City, particularly those who are not parties to the action"). Proceedings brought under Article 81 of the mental Hygiene Law, for the appointment of a committee or guardian for persons in need of such assistance, raise significant privacy issues since the papers routinely contain substantial information relating to the mental and physical condition of the individual. The Legislature has dealt with the issue by including a provision, Mental Health Law [section] 81.14(b), which incorporates the language of rule 216.1. Presumably, a motion to seal such information would be granted absent a strong showing of a need for public access. Indeed, mental health records are required by law to be kept confidential. See N.Y. MENTAL HYG. LAW [section] 33.13 (McKinney 2002). Given the fact that virtually all such files contain sensitive private information, it may be appropriate for the courts to adopt a uniform procedure for the sealing of such medical records absent a motion to unseal for good cause. On the other hand, there is a strong public interest in maintaining public access to all other portions of Article 81 files because of a history of court appointments of guardians through political patronage and of abuse of the position by some of those appointed. See infra, note 102.
(71) See Crain Communications, Inc. v. Hughes, 521 N.Y.S.2d 244, 244-45 (App. Div. 1987) (refusing to unseal settlement agreement because it contained trade secrets--the disclosure of which would place the parties at a commercial disadvantage), aff'd, 539 N.E.2d 1099 (N.Y. 1989).
(72) See Dawson v. White & Case, 584 N.Y.S.2d 814, 815 (App. Div. 1992) (ordering sealing of the record to the extent that it disclosed the accounting of each individual partners' monetary interest in the law firm); Gillian v. Patterson, Belknap, Webb & Tyler, N.Y.L.J., June 20, 1995, at 26 (Sup. Ct. 1995) (ordering sealing of insurance coverage held by law firm).
(73) N.Y. EDUC. LAW [section] 6527(3) (McKinney 1999 & Supp. 2002). See, e.g., Bernholc v. Kitain,
(74) N.Y.S.2d 736 (Sup. Ct. 2002) (sealing court record and prohibiting the plaintiff physician from disclosing information relating to internal peer review and quality management procedures in a defamation action brought against hospital).
(74) See Kelleher v. Union Carbide Corp., N.Y.L.J., Dec. 19, 1997, at 35 (Sup. Ct. 1997).
(75) 601 N.Y.S.2d 267 (App. Div. 1993).
(76) See id. at 268.
(77) See id. at 268-69.
(78) Id. at 269.
(79) See id. at 270.
(81) In re Twentieth Century Fox Film Corp., 601 N.Y.S.2d 267, 270 (App. Div. 1993); see also In re Atlantic Recording Corp., 747 N.Y.S.2d 889, 893 (Sup. Ct. 2002) (ordering the sealing of a record in a contract proceeding dealing with a musical group made up of teenagers, in accordance with In re Twentieth Century Fox Film Corp.).
(82) See In re Will of Benkert, 734 N.Y.S.2d 427 (App. Div. 2001) (refusing to allow the sealing of probate records noting that the "parties' mutual desire to prevent dissemination of inflammatory and embarrassing allegations contained in the record [do not] constitute ... good cause"); see also In re Will of Hofmann, 727 N.Y.S.2d 84, 86 (App. Div. 2001) (refusing to seal an agreement between committees of decedent's person and property, and the executor with regard to attorneys' fees). The court reasoned that "the mere fact that embarrassing allegations may be made against the fiduciaries or their attorneys in opposition to their request for attorneys' fees, even if ultimately found to be without merit, is not sufficient basis for a sealing order." Id. at 86; see also Hoberman v. Brown & Williamson Tobacco Co., N.Y.L.J., Feb. 3, 1998, at 26 (Sup. Ct. 1998) (finding that fear of embarrassment from invoking the Fifth Amendment right did not constitute good cause); Estate of Goldman, N.Y.L.J., Jan. 2, 1992, at 22 (Sur. Ct. 1992) (declining to seal record containing financial information concerning the estate where the estate itself had disclosed some of the information now claimed to be confidential and where some of the information had been extensively discussed in the press); see also S.E.C. v. Oakford Corp., 2001 WL 266996 at * 1 (S.D.N.Y. Mar. 16, 2001) (denying the motion of the New York Stock Exchange to seal the motion against it in which it was alleged that it intentionally withheld documents from discovery). The court reasoned that such allegations are not unusual, and the Exchange is sufficiently robust to endure public exposure of such allegations. Id. at * 2. The court further held that the public interest in access to court records overrides the Exchange's desire to suppress embarrassing criticism. Id.; see also Gumowitz v. First Fed. Sav. & Loan Ass'n of Roanoke, 1994 WL 683431 at * 1 (S.D.N.Y. Dec. 6, 1994) (holding that a non-party witness is not entitled to a protective order sealing from public disclosure the fact that the witness invoked his Fifth Amendment privilege and declined to answer questions during his deposition, even though the fact that he refused to answer the questions may prove to be embarrassing for the witness).
(83) See Weinstein v. Barnett, N.Y.L.J., Mar. 24, 1995, at 29 (Sup. Ct. 1995) (refusing to seal court record despite the fact that "there is no public interest in this proceeding"); Ewerse v. Elghanayan, N.Y.L.J., Aug. 3, 1993, at 22 (Sup. Ct. 1993) (denying defendant's motion in palimony action to seal record to prevent embarrassment to himself and family--the fact that the subject matter is of little legitimate public interest does not constitute good cause). But see Feffer v. Goodkind, Wechsler, Labaton & Rudoff, 578 N.Y.S.2d 802, 804 (Sup. Ct. 1991) (granting motion to seal a record involving an internal dispute of a law firm upon finding that the subject matter was of "minimal public interest" and because the "material may have been inserted into court documents for the sole purpose of extracting a settlement ... action"), aff'd on other grounds, 584 N.Y.S.2d 56 (App. Div. 1992).
(84) See Leibman & Charme v. Lanzoni, 624 N.Y.S.2d 752, 754 (Civ. Ct. 1995) (emphasizing that at a minimum, the moving party must show an actual risk that the information will be widely disseminated to the public).
(85) See Swiss Bank Corp. v. Geecee Exportaciones, Ltda, 688 N.Y.S.2d 539, 540 (App. Div. 1999) (declining to seal transcripts of the defendants' depositions but commenting that defendants could invoke their privilege against self-incrimination if they were concerned about disclosure to criminal authorities).
(86) See Estate of Von Langendorff, N.Y.L.J., Dec. 7, 1993, at 22 (Surr.Ct. 1993) (rejecting petitioner's argument to seal court records for fear of future lawsuits brought by non-parties to the settlement agreement); see also Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1074 (3d Cir. 1984) (holding that the company's failure to obtain a proper permit from the British government for the manufacture of scotch whiskey, although embarrassing and perhaps detrimental to the company's stock value, did not constitute a trade secret sufficient to justify the sealing of transcripts of the court hearing).
(87) See, e.g., Dawson v. White & Case, 584 N.Y.S.2d 814 (App. Div. 1992) (finding that mere public curiosity does not constitute a legitimate public interest to outweigh defendant's interest in keeping financial information private). A number of unpublished decisions have followed Dawson and granted sealing orders in cases involving internal disputes at law firms. See, e.g., Baum v. Haythe & Curley, No. 124026-99 (Sup. Ct. Mar. 20, 2000); Squadron Ellenoff v. Chin, No. 003587-00 (Sup. Ct. Nov. 2, 2000).
(88) See Dawson, 584 N.Y.S.2d at 814.
(89) Id. at 815.
(90) Id. (quoting Crain Communications, Inc. v. Hughes, 521 N.Y.S.2d 244 (App. Div. 1987), aff'd 539 N.E.2d 1099 (N.Y. 1989)).
(91) Feffer v. Goodkind, Wechsler, Labaton & Rudoff, 578 N.Y.S.2d 802, 804 (Sup. Ct. 1991), aff'd on other grounds, 584 N.Y.S.2d 56 (App. Div. 1992).
(92) Id. at 804.
(93) Gillin v. Patterson, Belknap, Webb & Tyler, N.Y.L.J., June 20, 1995, at 26 (Sup. Ct. 1995) (granting motion to seal that portion of motion papers which disclosed a major law firm's professional liability insurance coverage based on the absence of any legitimate public interest in this information).
(94) Id. (quoting Dawson, 584 N.Y.S.2d at 815 (quoting Crain Communications, 521 N.Y.S.2d at 245)).
(95) Griffin v. Scudder, Stevens & Clark, Inc., N.Y.L.J., June 28, 1991, at 22 (Sup. Ct. 1991).
(98) See, e.g., Will of Benkert, 734 N.Y.S.2d 427 (App. Div. 2001) (holding that a stipulation of the parties to prevent disclosure of embarrassing information from the estate proceeding does not satisfy the good cause requirement under rule 216.1); Estate of Havlin, N.Y.L.J., July 11, 1996, at 28 (Sur. Ct. 1996) (determining that a defendant's desire to suppress a settlement amount does not, by itself, constitute "good cause"); Estate of Langer von Langendorff, N.Y.L.J., Dec. 7, 1993, at 22 (Sur. Ct. 1993) (refusing to find good cause where petitioners simply desired to prevent future lawsuits by non-parties to the settlement agreement); Estate of Goldman, N.Y.L.J., Jan. 2, 1992, at 22 (Sur. Ct. 1992) (emphasizing that "[t]o establish good cause, the 'likelihood of significant and concrete harm' is a threshold consideration.... Only after the potential for real harm has been shown will the court consider balancing the public interest in access against the private interest in confidentiality.") (citations omitted).
(99) See N.Y. COMP. CODES R. & REGS. tit. 22, [section] 207.20 (2002) (requiring the fiduciary or the attorney of record to provide a list of assets which make up the gross estate to the court).
(100) See Estate of Wildstein, N.Y.L.J., Jan. 15, 1997, at 28 (Sur. Ct. 1997) (noting a conflict between the mandate of rule 207.20 and other regulations which require that certain filed tax information remain confidential).
(101) See Mark A. Segal, Tax Data Disclosure Under the Freedom of Information Act: Evolution, Issues and Analysis, 9 AKRON TAX J. 79, 93-95 (1992) (noting that the Freedom of Information Act poses particular problems for tax information stored electronically).
(102) See In re Will of Hofmann, 727 N.Y.S.2d 84, 86 (App. Div. 2001) (refusing to seal documents filed by the executors of the estate objecting to a request for payment of attorneys' fees filed by the decedent's fiduciaries and their attorneys, noting particularly that "the propriety of acts of fiduciaries and their attorneys ... are matters of legitimate public concern"); see also In re Leopold, 664 N.Y.S.2d 323, 324 (App. Div. 1997) (reversing the surrogate's court's decision to seal motion papers which recited services performed and fees charged by the former attorneys for the preliminary executrix of the estate).
The courts' role in appointing fiduciaries has received considerable public scrutiny after numerous press reports appeared that indicated that such appointments were being made as a result of political patronage and that certain fiduciaries were abusing their positions. See Susan Saulny, New Court Rules Address Patronage in Appointments, N.Y. TIMES, Dec. 3, 2002, at B3 (mentioning a report released by Chief Justice Judith S. Kaye which "basically depicted a jobs program for politically connected lawyers who drained the estates of the vulnerable clients that they were appointed to represent" and detailing new court rules specifically enacted to counter the abuse of the appointment program); Daniel Wise, OCA Issues New Rules Tightening Ban on Fiduciary Appointments by Judges, 228 N.Y.L.J., Dec. 3, 2002, at 1 (2002) (explaining that the new court rules represent the state court system's response to "a public perception of favoritism" in the appointment program).
(103) See Weinstein v. Barnett, N.Y.L.J., Mar. 24, 1995, at 29 (Sup. Ct. 1995) (denying a motion to seal but advising the parties that the court would seal the record if the parties introduced matter "impinging on the privacy of the third party"--plaintiffs former husband); Griffin v. Scudder, Stevens & Clark, Inc., N.Y.L.J., June 28, 1991, at 22 (Sup. Ct. 1991) (taking into consideration that the complaint that defendants sought to seal contained information concerning the finances of over ninety individuals who were not parties to the action in reaching its decision to grant the sealing motion); Fields v. Buterman, N.Y.L.J., Oct. 29, 1990, at 25 (Sup. Ct. 1990) (refusing cross-motions by the parties--both of whom were physicians--to seal the records which contained cross-accusations of criminal and unprofessional conduct, but ordering the parties to file redacted copies of their papers omitting the names of their patients); see also United States v. Amodeo, 71 F.3d 1044, 1047-48 (2d Cir. 1995) (reversing the lower court's decision which ordered the release of a redacted version of a sealed investigative report in opposition to the non-party law firm which had provided information for the report). The court in Amodeo reasoned that the report "either would provide little meaningful information to the public because the redactions [were] so extensive or might ... cause the confidential sources to be identified." Id. at 1048. The court was particularly concerned that it would subject the non-party law firm "to the public airing of accusations." Id. See also Flaherty v. Seroussi, 209 F.R.D. 300, 308 (N.D.N.Y. 2002) (granting a protective order with regard to non-parties' medical, educational and financial information).
(104) See, e.g., Amodeo, 71 F.3d at 1051 ("[A] court may consider whether the nature of the materials is such that there is a fair opportunity for the subject to respond to any accusations contained therein.").
(105) The Second Circuit articulated the court's responsibility as follows:
[T]he privacy interests of innocent third parties as well as those of defendants that may be harmed by disclosure of the ... material should weigh heavily in a court's balancing equation.... The job of protecting such interests rests heavily upon the shoulders of the trial judge, since all the parties who may be harmed by disclosure are typically not before the court.
In re New York Times, 828 F.2d 110, 116 (2d Cir. 1987).
(106) See Coopersmith v. Gold, 594 N.Y.S.2d 521, 523-24 (Sup. Ct. 1992) (sealing motion papers prior to trial on the ground that release of the information could taint the jury pool or lead to the identification of witnesses). The court unsealed the records after the jury verdict was rendered. Id. at 530.
(107) See Liapakis v. Sullivan, 736 N.Y.S.2d 675, 676 (App. Div. 2002) (refusing to seal a file where plaintiff made allegations of unethical and criminal conduct against former law partners); Hoberman v. Brown & Williamson Tobacco, N.Y.L.J., Feb. 3, 1998, at 26 (Sup. Ct. 1998) (refusing to seal the transcript of a witness invoking his Fifth Amendment privilege because the file concerned "the public's need for information with regard to the potentially grave health problems associated with tobacco use"); In re Anderson Kill & Olick, P.C., N.Y.L.J., Mar. 31, 1997, at 29 (Sup. Ct 1997) (denying a request to seal motion papers which contained excerpts of transcripts discussing the processing of insurance claims relating to environmental pollution); Friedman v. Penzer, N.Y.L.J., Aug. 26, 1996, at 31 (Sup. Ct. 1996) (refusing to seal record where allegations of emotional abuse and "brainwashing" were made against a Rabbi); Fields, N.Y.L.J., Oct. 29, 1990, at 25 (refusing to seal a record involving dissolution of a medical practice because of the criminal allegations between the parties). The court in Field explained that:
The doctors decided to charge each other with criminal and gross unethical conduct ... As a consequence of electing this approach they exposed conduct which can have an adverse impact on a large segment of the public. The public not only has a right to know, it has a need to know.... Only a public airing of the cross accusations will afford these women ... the opportunity to make a conscious and knowing decision regarding future care by these men in face of the serious allegations of misconduct.
Id. But see Anonymous v. Anonymous, 744 N.Y.S.2d 659, 659-61 (Sup. Ct. 2002) (allowing defendant--the operator of a cafeteria in which plaintiff was allegedly "brutally assaulted"--to proceed anonymously because the allegations were as yet unproven and they could adversely affect defendant's business and his interest in a fair trial); Colabelli v. Estate of Neisinger, No. 94-1448 (Sup. Ct. Dec. 29, 1999), available at http://www.courts.ny.us (on file with the author).
(108) 594 N.Y.S.2d 521 (Sup. Ct. 1992).
(109) Id. at 523.
(110) Id. at 525.
(114) See id. at 530.
(115) See id.
(117) Id. See also Fields v. Buterman, N.Y.L.J., Oct. 29, 1990, at 25 (Sup. Ct. 1990) (citing the then-proposed rule 216.1 of the Uniform Rules for Trial Courts, the court denied a request to seal records in a dispute involving the dissolution of an obstetrics and gynecology practice where accusations of sexual abuse and falsified insurance claims were leveled, noting "that the right of the public to be informed of the allegations in these papers far outweighs the rights of the parties.").
(118) See, e.g., Marisol A. v. Giuliani, 1997 WL 630183, at * 4-5 (S.D.N.Y. Oct. 10, 1997) (refusing the City of New York's request to temporarily prohibit the release of a report on the performance of a child welfare agency pending trial on the merits, based on defendant's failure to show good cause to rebut the strong presumption of access arising from the report's likelihood "to play an important role in the Court's Article III function" and from the strong public interest in "both the parties and the subject matter of this litigation"); Flaherty v. Seroussi, 209 F.R.D. 300, 304 (N.D.N.Y. 2002) (holding, in an action for wrongful termination of a city employee, that the defendant city was not entitled to a protective order preventing dissemination of city records absent "some critical, overriding considerations which strongly mitigate against dissemination notwithstanding the public availability of such records," which the court determined the city failed to demonstrate).
(119) See United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995) ("[A]ssessing the motives of journalists risks self-serving judicial decisions tipping in favor of secrecy. Where access is for the purpose of reporting news, moreover, those interested in monitoring the courts may well learn of, and use, the information whatever the motive of the reporting journalist."); see also United States v. Martin, 746 F.2d 964, 969 (3d Cir. 1984) (stating that "[e]stimates of a case's public significance will inevitably vary among segments of the community, not to mention from judge-to-judge").
(120) See Crain Communications, Inc. v. Hughes, 521 N.Y.S.2d 244, 245 (App. Div. 1987) (concluding that petitioner failed to show a legitimate public interest, "as opposed to mere curiosity, to counterbalance the strong public interest in encouraging the settlement of private litigation and the resultant prejudice to the settling parties, which would ensue from disclosure of trade secret information"), aff'd, 539 N.E.2d 1099 (N.Y. 1989); see also Gannett Co. v. De Pasquale, 372 N.E.2d 544, 550 (N.Y. 1977) (declining to open the suppression hearing in a criminal action--which posed a potential impact on defendant's right to a fair trial--because the "mere curiosity" of the public does not outweigh the defendant's rights), aff'd, 443 U.S. 368, 394 (1979); In re Application of M.R. & R.R., 582 N.Y.S.2d 644, 646 (Sur. Ct. 1992) (finding that public interest in the amount of a settlement in a wrongful death action "seem[ed] limited to mere curiosity").
(121) See supra notes 41-42 and accompanying text.
(122) See N.Y. C.P.L.R. [subsection] 1207-08 (requiring a motion to be made to the court for approval of a settlement involving an infant, which must include an affidavit setting forth the terms of the settlement).
(123) See Bank of America Nat'l Trust & Sav. Ass'n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 351 (3d Cir. 1986) (Garth, J., dissenting) (explaining that a defendant's settlement of one case, if made public, could significantly affect their ability to settle related cases); In re Franklin Nat'l Bank Sec. Litig., 92 F.R.D. 468, 470 (E.D.N.Y. 1981) (recalling that the settlement was sealed in part to avoid having its terms affect other disputes).
(124) See, e.g., In re New York County Data Entry Worker Prod. Liab. Litig., 616 N.Y.S.2d 424, 428 (Sup. Ct. 1994) (recognizing that defendants would rather proceed to trial than "broadcast to all potential plaintiffs how much they might be willing to pay") (quoting Bank of America Nat'l Trust & Say. Ass'n, 800 F.2d at 351-52 (Garth, J. dissenting)); In re Franklin Nat'l Bank Sec. Litig., 92 F.R.D. at 470 (mentioning that the secrecy of the original "settlement pattern" was considered vital so that it did not affect other litigation), aff'd, 677 F.2d 230 (2d Cir. 1982). But see Estate of Havlin, N.Y.L.J., July 11, 1996, at 28 (Sur. Ct. 1996) (denying petitioner's request to seal the amount of the settlement of a claim against the estate as they did not show "good cause").
(125) See Jessup v. Luther, 277 F.3d 926, 928 (7th Cir. 2002) (observing that if terms were favorable to defendant's employee other employees might be encouraged to sue). But see Estate of Langer von Langendorff, N.Y.L.J., Dec. 7, 1993, at 22 (Sur. Ct. 1993) (holding that "[p]etitioners' assertion that confidentiality is necessary to prevent lawsuits against the estate by former employees of decedent's business who were not parties to the settlement agreement does not constitute a showing of good cause").
(126) In re Application of M.R. & R.R., 582 N.Y.S.2d, 644, 646 (Sur. Ct. 1992) (granting petitioner's motion to seal court records in a wrongful death claim because disclosure of the particular settlement amount would be of no benefit to the public and would serve only to embarrass the decedent and family); Dore, supra note 34, at 398-99 (emphasizing that, absent an "unusual and compelling need," pubic policy favors keeping settlement agreements confidential because the disclosure of the specific terms of a settlement in a private action "will not advance any legitimate public interest"). But see Colabelli v. Estate of Neisinger, No. 94-1448 (Sup. Ct. Dec. 29, 1999) (sealing the settlement agreement so as to prevent embarrassment to physicians who settled a medical malpractice action but continued to deny liability) (on file with the author).
(127) See Goffner v. Kluger, N.Y.L.J., Aug. 3, 1995, at 21 (Sup. Ct. 1995) (sealing affidavit that contained a stipulation of settlement for discontinuing and settling shareholder's derivative action, based on the belief that disclosure would reveal confidential business information and would discourage future settlement agreements); In re New York County Data Entry Worker Prod. Liab. Litig., 616 N.Y.S.2d at 428 (declining a motion of non-settling defendants to unseal the terms of the settlement agreement between plaintiff and settling defendant, because maintaining confidentiality of the agreement was necessary to encourage settlements), aff'd, 635 N.Y.S.2d 641 (App. Div. 1995); In re Application of M.R. & R.R., 582 N.Y.S.2d at 646 (stating that reasonable settlements which eliminate unnecessary litigation may be resisted if the defendants are unclear whether they will be afforded confidentiality); see also United States v. Glens Falls Newspapers, Inc., 160 F.3d 853, 857-58 (2d Cir. 1998) (noting that "settlement negotiations in this case would be chilled to the point of ineffectiveness if draft [settlement] materials were to be made public"); Hasbrouck v. BankAmerica Hous. Servs., 187 F.R.D. 453, 462 (N.D.N.Y. 1999) (recognizing the importance of confidentiality in promoting settlements, to ensure protection of settlers from possible embarrassment, undue burden or expense).
(128) See D.S.C. LOC. CIV. R. 5.03(c) as amended Nov. 1, 2002, ("No settlement agreement filed with the court shall be sealed pursuant to the terms of this Rule.") available at http://www.scd.uscourts.gov/Rules/Aug2001/all2001.pdf; Adam Liptak, Judges Seek to Ban Secret Settlements in South Carolina, N.Y. TIMES, Sept. 2, 2002, at A1 (noting that several federal trial judges wanted to ban secret legal settlements as they make the court "complicit in hiding the truth").
(129) See Liptak, supra note 128 at A1 (quoting Chief Judge Joseph F. Anderson Jr. of the United States District Court).
(130) N.Y. CIV. PRAC. L. & R. [section] 304 (McKinney 2003).
(131) See N.Y. CIV. PRAC. L. & R. [section] 3217 (McKinney 2003).
(132) See D.S.C. LOC. CIV. R. 5.03 (2002).
(133) See id. at 5.03(c).
(134) See Jessup v. Luther, 277 F.3d 926, 929 (7th Cir. 2002) (insisting that although a private settlement agreement, which the parties do not file with the court is not a judicial document, the presumption of access prevails where "the agreement was submitted to and approved by the judge and a copy deposited in the files of the court and then ordered sealed.") The court in Jessup reached this conclusion by reasoning that public knowledge of the kind of settlement terms that satisfy a federal judge might facilitate future settlement negotiations. See id.
(135) See, e.g., Bank of America Nat'l Trust and Sav. Ass'n. v. Hotel Rittenhouse Assocs., 800 F.2d 339, 345 (3d Cir. 1986) (refusing to seal settlement agreement where the parties could have executed the agreement and filed merely a stipulation of discontinuance with the court but chose instead to file the agreement with the court and invoke the court's jurisdiction over its interpretation).
(136) See, e.g., Jessup, 277 F.3d at 929 (finding that the settlement agreement was a judicial document because it was filed with the court and reflected involvement in the settlement process by the district judge).
(137) Indeed, one may well wonder why the South Carolina federal court felt it necessary to adopt a blanket rule since Local Civil Rule 5.03, prior to its recent amendment, clearly placed a burden upon a party seeking to seal any document in the court record to explain specifically why "less drastic alternatives to sealing will not afford adequate protection" and to expressly justify such sealing under established Fourth Circuit case law. D.S.C. LOC. CIV. R. 5.03(A)(3) (2002). Further, the rule specifically required that the clerk had to provide public notice of any motion to seal in the manner directed by the court. D.S.C. LOC. CIV. R. 5.03(B). Thus, even before the amendment of the Rule, judges had the power to deny a motion to seal a settlement agreement that, in the opinion of the trial judge, concealed a public hazard.
(138) See, e.g., In re Atlantic Recording Corp., 747 N.Y.S.2d 889, 893 (Sup. Ct. 2002) (criticizing counsel for disclosing motion papers to the media after the court had ordered the records sealed and noting that such conduct further evidences the attempts by applicants to use public pressure instead of legal and negotiating expertise to arrive at a settlement); Lisa C.-R. v. William R., 635 N.Y.S.2d 449, 453 (Sup. Ct. 1995) (granting motion enjoining dissemination of videotape of deposition in matrimonial action because such dissemination would seem to serve no purpose other than that of a tactical threat); Weinstein v. Barnett, N.Y.L.J., Mar. 24, 1995, at 29 (Sup. Ct. 1995) (noting the court's concern that the unsealing of the records would be used by the defendant to gain a tactical edge over the plaintiff, and stressing that "[t]he 'public interest' in open files should not be used as an offensive weapon by the parties"); Feffer v. Goodkind, Wechsler, Labaton & Rudoff, 578 N.Y.S.2d 802, 804 (Sup. Ct. 1991) (granting a sealing motion in litigation involving internal dispute of law firm in part because of the court's suspicion that certain material may have been included only to create pressure to settle), aff'd on other grounds, 584 N.Y.S.2d 56 (App. Div. 1992).
(139) Griffin v. Scudder, Stevens & Clark, Inc., N.Y.L.J., June 28, 1991, at 22 (Sup. Ct. 1991).
(140) Encyclopedia Brown Prods., Ltd. v. Home Box Office, Inc., 26 F. Supp.2d 606, 611 (S.D.N.Y. 1998).
(141) Id. at 611 n.2 (citing United States v. Amodeo, 71 F.3d 1044, 1050).
(142) 736 N.Y.S.2d 675 (App. Div. 2002).
(143) See id. at 676 (finding that defendants failed to show that damage to their reputations outweighed public interest).
(145) See United States v. Amodeo, 71 F.3d 1044, 1051 (pointing out the need, when making a disclosure decision, to consider whether or not the information has been verified).
(146) See id. at 1052-53 (examining the report at issue and stating that because part I of the report contained unsworn accusations and enough redactions to render it unintelligible, it was appropriate to have it remain sealed, while part 2 was appropriate for unsealing because it only had one redaction and "little unverifiable hearsay").
(147) See, e.g., Liapakis, 736 N.Y.S.2d at 676 (refusing to seal the court record despite allegations of unethical and criminal conduct, but allowing for sanctions in future cases if such allegations were "materially false" or made merely for harassment or tactical purposes); Fields v. Buterman, N.Y.L.J., Oct. 29, 1990, at 25 (Sup. Ct. 1990) (refusing to seal motion papers alleging criminal and grossly unethical conduct against physicians because the parties, "[h]aving freely engaged in such serious accusations," do not have the right to shield their medical practices from such accusations through a sealing motion); see also Friedman v. Penzer, N.Y.L.J., Aug. 26, 1996, at 31 (Sup. Ct. 1996) (refusing to seal record in which allegations of emotional abuse and "brainwashing" were made against a rabbi even though the court had not yet determined the truthfulness of the allegations).
(148) See Carpinello, supra note 4, at 106 n.72; see also S.E.C. v. Thestreet.com, 273 F.3d 222, 229-31 (2d Cir. 2001) (reaffirming the "extraordinary circumstance or compelling need" standard against unsealing and holding that where documents are not "judicial documents"--i.e., documents not expressly relied upon by the court--and where the documents have been produced pursuant a confidentiality agreement or order, there is a presumption against public access); F.D.I.C. v. Ernst & Ernst, 677 F.2d 230, 232 (2d Cir. 1982) ("Once a confidentiality order has been entered and relied upon, it can only be modified if an 'extraordinary circumstance' or 'compelling need' warrants the requested modification."). But see Pub. Citizen v. Liggett Group, Inc., 858 F.2d 775, 791-92 (let Cir. 1988) (stating that where a party seeking a modification of an order shows a significant change in the circumstances that prompted the protective order--such as a dismissal on the merits--a less restrictive standard applies).
(149) See Thestreet.com, 273 F.3d at 230 (noting that the absence of enforceable protective orders would stifle testimony from witnesses relying on such orders and destroy opportunities for settlement between parties relying on the orders); see also Amodeo, 71 F.3d at 1052 (noting that reports containing information regarding confidential informants would not be made if accessible to the public).
(150) See Liggett Group, Inc., 858 F.2d at 790-91 (rejecting the party's reliance on a pretrial protective order maintaining confidentiality of discovery materials because such a broad umbrella order was designed to facilitate discovery and to avoid any interference with the parties' right to a fair trial and therefore parties did not have a right to rely upon such an order remaining in place after the trial).
(151) See United States v. Parke-Davis, 210 F.R.D. 257, 260-61) (D. Mass. 2002) (relying upon First Circuit case law to the effect that there is a qualified First Amendment right to access to discovery materials, the court modified its previously-issued protective order which prohibited the parties from using discovery materials for purposes other than the prosecution of the action, and noted that despite the parties' reliance upon the broad protective, those "[p]arties operating under a blanket protective order cannot rely on an unreasonable expectation that such an order will never be altered"); Greater Miami Baseball Club, L.P. v. Selig, 955 F. Supp. 37, 39 (S.D.N.Y. 1997) (stating that "the fact that the deposition was designated confidential under the protective order [was not] entitled to any weight" because in entering into a protective order, the parties have "left for another day" the issues of "whether the material really should be kept from public view"); In re Will of Hoffmann, 727 N.Y.S.2d 84, 85 (App. Div. 2001) (refusing to seal terms of settlement with regard to attorneys' fees paid to fiduciaries despite the parties' prior agreement that the documents would be treated confidentially based on the court's reasoning that, "any expectation of privacy was clearly dependent upon the Surrogate, who is bound by the provisions of 22 N.Y.C.R.R. [section] 216.1 mandating against sealing of court records except upon a written finding of good cause").
(152) See Danco Labs., Ltd. v. Chem. Works of Gedeon Richter, Ltd., 681 N.Y.S.2d 751, 751 (App. Div. 1998) (modifying the order, thus allowing a non-party media company to intervene in an action to vacate an order sealing the record); Coopersmith v. Gold, 594 N.Y.S.2d 521, 530 (Sup. Ct. 1992) (granting the newspaper's motion to vacate an order sealing a court record in a medical malpractice action).
(153) See Weinstein v. Barnett, N.Y.L.J., Mar. 24, 1995, at 29 (Sup. Ct. 1995) (deciding that the court would only consider a confidentiality order if the privacy of a non-litigant third party becomes threatened); Griffin v. Scudder, Stevens & Clark, Inc., N.Y.L.J., June 28, 1991, at 22 (Sup. Ct. 1999) (listing factors that were considered by the court when deciding whether a sealing order should be granted, such as the avoidance of dissemination of libel, slander and trade secrets, if the case involves public figures, and if there is a likelihood of a new harm if the record is not sealed).
(154) See, e.g., In re Twentieth Century Fox Film, Corp., 601 N.Y.S.2d 267, 270 (App. Div. 1993) (granting appellant's motion to overturn surrogate's court denial of a motion to seal the records based on law, facts, and the "exercise of discretion").
(155) See Coopersmith, 594 N.Y.S.2d at 525-26.
(156) See N.Y. CIV. PRAC. L. & R. [subsection] 1012-13 (McKinney 1997). These sections of the CPLR grant parties the right to intervene in actions that affect their rights or interests. Once a party, the intervenor has access to court records, thus rendering Rule 216.1 unnecessary.
(157) See People v. Santiago, 712 N.Y.S.2d 244, 247-48 (County Ct. 2000). The court allowed representatives of the media to appear in front of them to challenge the constitutionality of New York's ban on cameras in the courtroom. See id. at 248. The court allowed the media standing to make these arguments even though they were not proper intervenors within the meaning of the New York Civil Practice Law and Rules. See id. at 247. "Asking to be heard on their request to enter and act in the courtroom, the press may not be acting as 'intervenors' in the CPLR sense. Perhaps inartfully worded, asking to 'intervene' is essentially a request of the Court, involving a case pending before it, for direction on how the Judge shall control his/her own courtroom procedures." Id. But see Danco Labs., Ltd., 681 N.Y.S.2d at 751-52 (reversing the supreme court's denial of motion of non-party newspaper to intervene and remanding the matter back to supreme court only to the extent to allow for an expedited de novo determination under rule 216.1); Pub. Citizen v. Liggett Group, Inc., 858 F.2d 775, 783 (1st Cir. 1988) (recognizing that intervention pursuant to Rule 24 is the proper procedural mechanism whereby third parties may challenge court protective orders in the Fifth Circuit); In re NASDAQ Market-Makers Antitrust Litig., 164 F.R.D. 346, 351 (S.D.N.Y. 1996) (noting that the Second Circuit court has held that Rule 24 is the proper means for a non-party to seek access to judicial proceeding information).
(158) See, e.g., Danco Labs, Ltd., 681 N.Y.S.2d at 751 (remanding matter to Supreme Court for determination of sealing motion "upon written submissions").
(159) Texas Rule of Civil Procedure 76(a) provides that court records may not be sealed except upon a showing of a "specific, serious and substantial interest which clearly outweighs" the "presumption of openness" and "any probable adverse effect that sealing will have upon the general public health or safety." TEX. R. CIV. P. 76(a). The Rule further provides that no record may be sealed except upon general public notice and a factual hearing held in open court. Id. Since the Rule's adoption in 1990, it has generated significant satellite litigation. See Robert C. Nissen, Note, Open Court Records in Products Liability Litigation Under Texas Rule 76a, 72 TEX. L. REV. 931, 953 (1994).
(160) See In re Anderson Kill & Olick, P.C., N.Y.L.J., Mar. 31, 1997, at 29 (Sup. Ct. 1997) (denying request to seal motion papers which contained excerpts of deposition transcripts relating to an environmental hazard and noting that while deposition transcripts are not normally subject to rule 216.1, the transcripts became presumptively open to public access upon filing; "[t]he obvious precaution is to apply for a sealing order before filing").
(161) See Crain Communications, Inc. v. Hughes, 539 N.E.2d 1099, 1100 (N.Y. 1989) (allowing petitioner to seek relief from the sealing order via a motion to vacate under CPLR 5015(a)); Coopersmith v. Gold, 594 N.Y.S.2d 521, 526 (Sup. Ct. 1992) (deferring to CPLR 5015(a) instead of delving "deeply in the murky waters of procedure and jurisdiction" concerning the sealing orders in an action where a verdict has been rendered); Carpineno supra note 4, at 105 n.70 (describing how access to previously sealed documents will be given to a non-party).
(162) See Coopersrnith, 594 N.Y.S.2d at 526.
(163) See In re Greenfield, Stein & Senior, L.L.P., N.Y.L.J., June 25, 1998, at 38 (Sur. Ct. 1998) (discussing an executrix's motion to remove from the court file documents concerning legal fees after a sealing order was reversed for failure to show good cause).
(164) See id. (denying motion made pursuant to 22 N.Y.C.R.R. [section] 207.8 to remove documents from the file after the Appellate Division reversed the Surrogate's Court's order sealing the same documents and stating "[i]t seems inconceivable that one court rule, to wit, [section] 216.1, would require a showing of good cause to seal court records, whereas another court rule, i.e. [section] 207.8 would, without more, authorize the permanent removal of court records by merely a written consent of the court made upon request"); see also People v. Sullivan, 640 N.Y.S.2d 714, 720 (County Ct. 1996) (denying request by prosecution to remove documents from the file despite both parties' consent because "[i]f such [an] un-filing were permitted, then every non-mandatory filing of a judicial document could escape press access by a timely and convenient removal of the document from the Court file").
(165) See, e.g., S.E.C. v. TheStreet.com, 273 F.3d 222, 224-25 (2d Cir. 2001) (affirming an order granting access to certain portions of two transcripts); United States v. Amodeo, 44 F.3d 141, 147 (2d Cir. 1995) (finding it "proper for a district court ... to edit and redact a judicial document in order to allow access to appropriate portions").
(166) See Griffin v. Scudder, Stevens & Clark, Inc., N.Y.L.J., June 28, 1991, at 22 (Sup. Ct. 1991) (noting that "[u]nfortunately, sealing in our courthouse is, for administrative reasons, strictly an all-or-nothing thing"). Prior to the First Department's decision in Dance Labs., Ltd. v. Chem. Works of Gedeon Richter, Ltd., 711 N.Y.S.2d 419 (App. Div. 2000), the New York County Clerk would seal only entire files. However, after the Dance decision, the clerk adopted the practice of sealing portions of a case file upon order of the court. Those portions of the file that are ordered sealed are actually impounded and placed in a secure area separate from the files accessible to the public. The clerk does this to avoid inadvertent or unauthorized disclosure of sealed material. See Letter from Hon. John F. Werner, Chief Clerk and Executive Officer, Supreme Court of the State of New York, New York County, to author (December 2, 2002) (on file with author).
(167) See Fields v. Buterman, N.Y.L.J., Oct. 29, 1990, at 25 (Sup. Ct. 1990) (ordering the parties to file redacted papers with the clerk omitting the names of the party-physicians' patients and to provide unredacted copies of the papers to the judge).
(168) See Danco, 711 N.Y.S.2d at 425 (hoping that by appointing a referee to entertain motions concerning confidential information the court could stay focused on the trial itself).
(169) 711 N.Y.S.2d 419 (App. Div. 2000).
(170) See id. at 423.
(171) See id. at 425-26.
(172) At the present time, New York courts do not have the ability to redact electronically-filed documents. See Letter from John F. Werner, Chief Clerk & Executive Officer, Supreme Court of the State of New York, New York County Courthouse, to author (Feb. 19, 2003) (on file with the author). Moreover, they do not currently have the capability of electronically sealing a file from public view while allowing access to counsel in the action. See Letter from John F. Werner, Chief Clerk & Executive Officer, Supreme Court of the State of New York, New York County Courthouse, to author (Mar. 27 2003) (on file with the author). However, where a party electronically files its papers, it may designate the document as "secure" or confidential and may limit access of the documents to court personnel and the parties. See NEW YORK STATE UNIFIED COURT SYSTEM, PERSONAL SECURITY, FILE AS A "SECURE DOCUMENT"?, http://fbem.courts.state.ny.us/servelets/ucs/itd/ef/servlet/ PersonalSecurityServlet? (last visited Feb. 27, 2003) (accessed by author using personal user identification number) (on file with the author).
(173) Carpinello, supra note 4, at 107 & nn.78-79.
(174) See People v. Burton, 597 N.Y.S.2d 488, 491-92 (App. Div. 1993) (noting that decision to grant or deny access to public documents "rarely involves credibility determinations and, thus, is fully subject to review on appeal as to whether the sealing court properly identified and weighed all relevant factors" (noting United States v. Martin, 746 F.2d 964, 967 (3d Cir. 1984))).
(175) See Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978) (noting that citizens keep a "watchful eye" on public agencies through access to public documents including judicial records); In re Providence Journal Co., 293 F.3d 1, 9 (1st Cir. 2002) (recognizing the public's common-law right to access of judicial documents arising from the important role such access plays in the public monitoring of the court system). See generally Carpinello, supra note 4, at 108 (mentioning that even though "[a] ruling on a motion to seal would involve a matter of discretion" an appellate court may and will "substitute its own judgment for that of the trial court" given the importance of public access to court records).
(176) See THE COMMERCIAL DIVISION OF THE STATE OF NEW YORK, ELECTRONIC FILING OVERVIEW, available at http://www.courts.state.ny.us/comdiv/e_filing.htm (last visited Mar. 22, 2003) (on file with the author).
(177) See ADMINISTRATIVE ORDER OF THE CHIEF ADMINISTRATIVE JUDGE OF THE COURTS, at [section] 202.5-b(a)(ii), available at http://fbem.courts.state.ny.us/ef/AdminRules.html (on file with the author).
(178) See id., at [section] 202.5-b(a), available at http://fbem.courts.state.ny.us/ef/AdminRules.html (on file with the author).
(179) See Letter from John F. Werner, Chief Clerk & Executive Officer, Supreme Court of the State of New York, New York County Courthouse, to author (Feb. 19, 2003) (on file with the author).
(180) See generally U.S. BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, DOCUMENT FILING SYSTEM, available at https://ecf.nysb.uscourts.gov/ (on file with the author).
(181) See ADMINISTRATIVE ORDER OF THE CHIEF ADMINISTRATIVE JUDGE OF THE COURTS, at [section] 202.5-b(e)(4)(iii), available at http://fbem.courts.state.ny.us/ef/AdminRules.html (on file with the author).
(182) See id.
(183) See Letter from Robert C. Meade, Jr., Esq., Deputy Chief Clerk & Director of the Commercial Division, Supreme Court of the State of New York, New York County Courthouse, to author (Feb. 26, 2003) (on file with the author).
(184) MARTHA WADE STEKETTE & ALAN CARLSON, THE JUSTICE MANAGEMENT INSTITUTE AND THE NATIONAL CENTER FOR STATE COURTS, DEVELOPING CCJ/COSCA GUIDELINES FOR PUBLIC ACCESS TO COURT RECORDS: A NATIONAL PROJECT TO ASSIST STATE COURTS, See. 4.50 at 39-44 (Oct. 18, 2002), available at http://www.courtaccess.org/modelpolicy/18Oct2002FinalReport.pdf (on file with the author). The authors also suggest--as an alternative to the limited access rule--allowing remote electronic access only through a subscription service, whereby individuals seeking access would have to register, disclosing identifying information. See id. at 41-42. The assumption underlying such a proposal is that identified subscribers would be less inclined to misuse information. See id. at 42. Another alternative suggestion is to provide remote electronic access to only one case at a time, presumably thereby preventing the aggregation of information or key-word searches. See id. at 39.
(185) As noted above, New York courts currently do not have the capacity of redacting electronically fried documents. Thus, the burden is on the parties to file in redacted form. See Letter from John F. Werner, Chief Clerk & Executive Officer, Supreme Court of the State of New York, New York County Courthouse, to author (Feb. 19, 2003) (on file with the author).
(186) See Letter from John F. Werner, Chief Clerk & Executive Officer, Supreme Court of the State of New York, New York County Courthouse, to author (Feb. 19, 2003) (on file with the author). See generally Press Release, Commission to Examine Future of Court Documents on the Internet (Apr. 24, 2002), available at http://www.courts.state.ny.us/pr2002_07.html (on file with the author).
George F. Carpinello *
* George F. Carpinello is a partner in the firm of Boies, Schiller & Flexner, LLP and is Chair of the New York State Advisory Committee on Civil Practice, which originally drafted the New York Rule on Sealing of Court Records, 22 N.Y.C.R.R. [section] 216.1 (1996). The opinions expressed herein are soley those of the author and do not necessarily reflect the views of the Advisory Committee or of the New York Office of Court Administration. The author wishes to acknowledge the research assistance provided by Robert Tietjen, an associate with the firm of Boies, Schiller & Flexner, LLP.
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|Author:||Carpinello, George F.|
|Publication:||Albany Law Review|
|Date:||Jun 22, 2003|
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