Confidentiality in Civil Proceedings: Public Access Versus Litigants' Privacy
| Publication year | 1993 |
| Pages | 2237 |
1993, October, Pg. 2237. Confidentiality in Civil Proceedings: Public Access Versus Litigants' Privacy
The issue of confidentiality in civil proceedings raises many questions. These include: (1) whether the public interest is a consideration when private parties in a civil action agree to confidentiality of discovery documents; (2) what test is appropriate under the common law or the First Amendment for public access to court records; (3) to what degree a judge should weigh the public policy favoring dispute resolution and judicial economy in considering the sealing of a settlement agreement; and (4) whether reforms are needed to limit the secret settlements to which the government is a party.
This article discusses the views of various legal authorities on the appropriate balancing of the public interest versus litigants' privacy. It includes a brief survey of federal and state case law on issues relating to confidentiality in discovery and in settlement agreements, as well as a summary of proposed legislative and rules changes.
American courts have long recognized that decisions concerning access to court records are in the discretion of the trial judge.(fn1) Protective orders and sealing of court records and settlements have become an increasingly common practice in civil lawsuits. The standards and rules for approving confidentiality are the current focus of lively debate among lawyers, judges, business and industry representatives, legislators, media and public interest groups.
Legal scholars and jurists differ dramatically regarding the issue of confidentiality. One eminent law professor argues that confidentiality in civil proceedings is essential to accomplish the fundamental goals of the justice system and that substantive rights to privacy and private property are jeopardized by the dissemination of litigation materials. In his opinion, courts are not designed to be "information ombudsmen":
The rulemakers who crafted our broad discovery regime ... never intended the rights of privacy or confidentiality to be destroyed in the public interest.(fn2) In testimony in 1992 before a subcommittee of the House Judiciary Committee, a federal judge in Colorado took the opposite view. He stated that "[j]udges and courts are rightly suspect when they engage in secrecy" and that he does not issue orders sealing a settlement agreement because "the court is public, and, ipso facto, any judicial act of mine is public."(fn3)
At the 1992 Colorado Judicial Conference, lawyers, judges and media representatives participating in a Socratic dialogue sponsored by the Colorado Freedom of Information Council exhibited a similarly wide spectrum of views on confidentiality issues.(fn4) Media representatives on the panel argued that the current practice regarding protective orders and the sealing of settlements, especially in products liability and toxic cases, too often neglects the public interest.(fn5)
A defense attorney disagreed, citing numerous examples of private parties being compelled to reveal information during discovery that is personally embarrassing, irrelevant or highly prejudicial. He stated, "The regulatory process is out there to protect the public. . . . [T]he courts are here to solve private disputes."(fn6)
Judges on the panel generally agreed that crowded dockets place constant pressure on them to approve confidential settlement agreements and discourage any proactive judicial role. Commenting on the standard in the current federal and state rules that requires balancing private rights and public access, one judge called for "a presumption one way or another so judges know what to do. . . . I would have a presumption of openness."(fn7)
While there are existing federal and state precedents for nonparty or public access to court records in criminal cases, only in the last decade have media and public interest groups intervened to challenge confidentiality orders in civil actions.(fn8) In general, the challenges have been in cases involving public health or safety on the grounds of (1) a common law right to inspect and copy judicial records; (2) the constitutional right under the First Amendment to public scrutiny
of judicial proceedings; and (3) the policy mandate (to government agencies) of the Freedom of Information Act ("FOIA").(fn9) However, courts have held that the FOIA does not apply to court orders.(fn10)
In Nixon v. Warner Communications, Inc.,(fn11) the U.S. Supreme Court acknowledged the existence of a common law right to inspect and copy judicial records, but did not recognize a general common law right of access to discovery materials. In addition, the Supreme Court has not specifically recognized a First Amendment right to pretrial discovery materials or to the terms of settlements in civil trials. In Seattle Times Co. v. Rhinehart,(fn12) the Court did not eliminate...
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