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.

• Author: Carpinello, George F.

It has been over a decade since the adoption of New York's Rule relating to the sealing of court records. (1) In that time, a substantial body of law has developed interpreting and applying the rule pertaining to the sealing of court records. Now is a particularly appropriate time to undertake a review of that decisional law because New York courts have entered the age of electronic filing. The first tentative steps allowing parties to file all their papers electronically have been undertaken on an experimental basis in the Commercial Divisions of the New York State Supreme Court, and this practice is about to be expanded to a number of other courts. Eventually, the New York State Office of Court Administration hopes to implement electronic filing in most trial courts in the state.

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.

1. 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.

2. 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.

   1. 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...