Civil suits kept under wraps

Federal courts across the country have procedures that keep civil suits hidden from public view. When an entire case is sealed, federal courts will either keep these cases off the public docket or place them on the docket with a case number and pseudonym.

When a case is entirely sealed, court clerks will not disclose any information about the case, even to the parties of the lawsuit.

"It's quite frustrating because [the parties] aren't only sealing it from the public, they are sealing it from themselves. So when attorneys call up to find out about the status of their case, for example, if their motion has been granted, we can't tell them. If a case is sealed, we won't even confirm or deny that the case exists," said Sonia Van Camp, a docket clerk for the Northern District of Texas.

How often federal courts seal cases remains a mystery. The number of secret cases varies from jurisdiction to jurisdiction and many courts refused to reveal how many cases are kept off the docket or hidden by pseudonyms. As of June 2003, the Middle District of Georgia had 33 secret civil cases pending, the Northern District of Florida had seven secret civil cases pending, the Western District of Arkansas and the Eastern District of Wisconsin each had two secret civil cases pending, and the Districts of North Dakota and South Dakota did not have any secret civil cases pending. Many federal courts would not say how many cases they had, and the Administrative Office of the U.S. Courts does not monitor the number of secret cases filed in federal courts across the country.

"Each federal court is an animal unto itself," said Terry Vaughn, operations manager for the Eastern District of New York.

Vaughn would not describe the types of cases that are sealed. However, he did acknowledge that if a potential investor asked the court whether a company had been sued and the case was sealed, the investor would never know.

"If the case is sealed, nothing is available," Vaughn said.

When asked to describe what types of cases may be sealed, Kathryn Brooks, division manager for the Northern District of Indiana, described a situation in which a doctor filed a lawsuit, but requested leave of court to proceed by another name and to seal the case, which was granted. As a result, that case would proceed in secret.

Even in state courts, reporters have discovered secret dockets. In California, Greg Moran, a court reporter for the San Diego Union-Tribune, discovered that the superior court in San Diego allowed cases to be kept off the books, including a few normal civil actions that did not appear on the docket. Among the secret cases was one involving two biotech companies, Moran said.

"It was an eye-opening thing for us to see that you could go to court and no one would ever know," he said.

Court reporters reveal secrets of success

Even judges and attorneys were surprised by discovery of secret dockets in their jurisdictions.

"I can assure that probably the majority of our judges didn't know about this [secret docket] until they read it in the papers," testified Chief Justice William J. Sullivan before Connecticut's Judiciary Committee. "And I never ran into it in the 19 years as a trial judge. And five years on the Appellate."

Rep. Robert Farr, a member of the Judiciary Committee and an attorney who has handled more than 1,000 divorce cases, said that he never requested his cases be put on secret dockets.

"I never even knew the court had the authority to do that," he told the Judiciary Committee.

So if members of the legal profession didn't know about secret dockets, what tipped reporters off that cases weren't appearing on the public docket?

"It doesn't sort of jump out as an obvious situation because there are parts of cases that are sealed," Scheffey said. He discovered Connecticut's secret docket by talking with people who knew the legal system, including attorneys.

Scheffey also said that sheriff's deputies knew about cases that did not appear on the public docket. "I got some good tips from sheriff's deputies. I called sheriff's deputies who had served papers initiating divorce," he explained.

In California, Moran noticed that data collection companies were able to go back into the court's file room. After asking the court, he discovered that these data collectors were part of the superior court researcher program, which allows individuals to go back into the file room at set periods of time. Moran applied to the program and after passing a background check was approved to go into the file room.

Moran noticed that every time a case was pulled, a card was put in its place with an explanation. Some of these cards said "sealed" and would identify only the case number and date. Moran wrote down all of the sealed case numbers and went to the computer index to find out more about these cases. When he punched in the case numbers, sometimes the case would come up and sometimes he would get a message that said the case file did not exist at all.

After Moran discovered the secret court files, he requested the case names and numbers of all sealed files. These sealed files are kept under lock and key in filing cabinets inaccessible to the public.

In June, the California Superior Court provided Moran with a chart of 182 cases that have been sealed in San Diego. Moran found that at least 32 of these cases "do not exist" according to the court's computer index.

New court rules effective July 1 now require case numbers and names to be accessible on the electronic court calendar unless confidential by law.

The rule "came about because courts across the state do not currently uniformly maintain information in their calendars, indexes, or registers of actions," wrote Jane Evans, a senior information services analyst for California courts in response to an inquiry about secret dockets.

"That's a good step forward," said Moran. "At the very least we should be able to expect that anyone who uses the court that there would be some record of their action."

Cases cited in this article:

Hartford Courant Co. v. Pellegrino, No. 3:03 CV 0313 (CFD) (D. Conn. filed Feb. 21, 2003).

John Doe v. Connecticut Bar Examining Comm., 818 A.2d 14 (Conn. filed May 12, 2003).

Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984).

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).

United States v. Ochoa-Vasquez, No. 03-11590-DD (11th Cir. 2003).