South Carolina Lawyer
Vol. 13, No. 6, Pg. 26.
Sealed documents & protective orders in district court
26Sealed documents & protective orders in district courtBy Virginia L. Vroegop27How to go about filing documents under seal in civil cases has been a subject of some debate and much frustration for a good number of years in the District of South Carolina. The subject of debate has been how best to comply with the dictates of In re Knight Publishing Co., 743 F.2d 231 (4th Cir. 1984), and its progeny, which require compliance with specific procedures before sealing records or closing a courtroom. The corresponding frustration has resulted from the wide variation of procedures adopted by individual judges in an effort to comply with the dictates of Knight.
The district has attempted to resolve both problems through the adoption of Local Civil Rule 5.03, DSC, which establishes mandatory procedures for the sealing of records. See rule text at end of article. This article will guide the reader through the reasons for and requirements of this relatively new Local Civil Rule. While neither Rule 5.03 nor this article are expressly directed to criminal proceedings, Knight did, itself, relate to a criminal matter. Thus, the same underlying concerns are present, and similar procedures should probably be followed, even if not yet expressly required by the Local Criminal Rules. There are, however, additional considerations in criminal matters which are beyond the scope of this article. See Bell v. Jarvis, 236 E3d 149 (4th Cir. 2000) (discussing Sixth Amendment right to public trial in a criminal matter).
So why the rule?
Judicial proceedings and records are generally entitled to a presumption in favor of public access. See Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180-81 (4th Cir. 1988) (applying Knight ruling to a civil action). The degree of protection afforded to litigants andrecords depends on whether the public's right to access derives from the First Amendment guarantee or simply from the common law presumption. Controlling precedent on this issue requires that a court follow specific procedures prior to closing a proceeding or sealing documents to ensure that the public is properly afforded its right to access. Those procedures include providing the public with notice and an opportunity to object. If the court ultimately determines that sealing is appropriate, it must place the reasons for its decision on the record. Those reasons must be supported by specific findings, including the reasons for rejecting alternatives to sealing. Notably, the Knight requirements exist regardless of the parties' consent to the sealing, as they are intended to protect the public interest, not merely that of the litigants.
How was compliance with Knight handled before Local Civil Rule 5.03?
Prior to adoption of Local Civil Rule 5.03, and absent direction from the assigned judge, the clerk of court would normally accept documents in the form submitted. Thus, a document which a party submitted forfiling under seal automatically received that protection unless the court, another litigant or some member of the public challenged the manner of filing. While this procedure was time-efficient on the front end, and allowed for resolution of any challenges before an appeal might be taken, it did not satisfy the letter of Knight. It also ignored the long-term inefficiencies of maintaining documents under seal and encouraged excessive and often unnecessary sealing of judicial documents.
Some, but not all, of the district's judges required some post-filing procedure to determine whether the document could remain under seal. In some cases, these requirements were established by a standard order issued at the outset of the case, and in others, by order issued upon the filing of a sealed document. At least one judge issued a standard order at the outset of each case requiring review before a document could...