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From the Spring 2009 issue of The News Media & The Law, page 33. A coalition of media groups has…

From the Spring 2009 issue of The News Media & The Law, page 33.

A coalition of media groups has asked the Tennessee Supreme Court to review a decision to seal records related to a Nashville nursing home fire that killed 16 people. If the court accepts the case, it could clarify when the public may see discovery documents that are filed for a judge’s consideration.

A deadly fire

The case, In re NHC-Nashville Fire Litigation, stems from a 2003 fire at a Nashville nursing home. Sixteen people died and many more were injured in the blaze, in part because the building lacked sprinklers.

The lawsuits, brought that year by 32 victims, were shrouded in secrecy from the beginning — with the court entering a series of “blanket” protective orders keeping court records secret. Gannett Company’s The Tennessean intervened and pushed for public access.

But the fight over access to the documents began in earnest on March 24, 2006, when the nursing home’s owner, National HealthCare Corp. (“NHC”) asked the court to decide the issue of punitive damages. NHC submitted documents in support of its motion, including affidavits and discovery responses from the plaintiffs. Though the documents were filed in support of its request for summary judgment, NHC filed them under seal and the court kept them from public view.

In fact, NHC asked the court to approve a new procedure whereby all discovery documents would be filed under seal, and could then be considered for unsealing later. The court agreed, ordering that “[a]ll such filings shall be made under seal initially,” with challenges to secrecy delayed until “the related court proceedings on the motion or hearing for which the documents are filed.”

The court said the new rule was adopted by agreement of all parties, though The Tennessean’s attorneys were not in the courtroom. The trial court did not hold a hearing on whether the documents should be sealed until Dec. 8, 2006 — seven months after the first of them were filed. The court then unsealed nearly all of the discovery documents, but by then it had already granted in part NHC’s motion for partial summary judgment, and the parties had settled the lawsuits.

Conflicting traditions

In deciding to keep all filed discovery records secret for seven months without a hearing, the trial court highlighted a key tension in public access to discovery records.

In State v. Drake and related cases, the Tennessee Supreme Court has laid out a detailed test for evaluating whether court proceedings may be closed to the public, said Alan D. Johnson of Willis & Knight, PLC, who represents The Tennessean. By contrast, “there has been no decision in Tennessee that addresses how to handle sealing records filed with the court.”

This gap in state law is exacerbated by the different ways courts treat different types of discovery. Courts across the country have found no First Amendment-based right of access to unfiled discovery documents. This is in part because these documents have not traditionally been open to the public. Beyond that, many courts have seen secrecy as necessary to encourage parties to turn over sensitive, but potentially relevant, information.

The analysis changes, though, when discovery records are filed with the court, as NHC’s summary judgment records were. Court records, including discovery documents filed for the court’s consideration, are presumed to be open for public review. Most courts to consider the issue have agreed with the U.S. Court of Appeals in New York (2nd Cir.) in In re New York Times Co., a 1987 case involving corruption charges against a member of Congress. The Second Circuit held that judicial documents may be sealed only “if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”

Moreover, the First Amendment requires contemporaneous access to judicial documents, as the U.S. Court of Appeals in Chicago (7th Cir.) made clear in Grove Fresh Distributors, Inc. v. Everfresh Juice Co. In that case, where newspapers sought to unseal records relating to alleged adulteration and misbranding of orange juice, the Seventh Circuit found that “access should be immediate and contemporaneous” because “[e]ach passing day may constitute a separate and cognizable infringement of the First Amendment.”

Appealing the order

Though the trial court in NHC eventually released nearly all the filed discovery documents, The Tennessean still appealed the sealing order. “The real motivation at that point was to clarify and establish the law in Tennessee,” Johnson said.

On appeal, the Tennessee Court of Appeals agreed with The Tennessean that “[a] number of courts have determined that sealing documents filed in connection with a dispositive motion” — meaning a motion that asks the court to decide one or more claims — “requires a compelling reason.” But the court instead relied on Ballard v. Herzke, a 1996 Tennessee Supreme Court decision that allowed for blanket protective orders over “raw” discovery — discovery documents that were not used as evidence or attached to a motion, but were filed simply because rules required all discovery to be deposited with the court clerk.

The appellate court found that the Ballard decision “clearly contemplated the need at times for a ‘blanket’ protective order.” It concluded that in light of Ballard “we cannot say that the trial court abused its discretion by establishing a protocol under which documents were initially filed under seal, with a procedure for promptly receiving and resolving objections to unsealing the specific documents.”

The court added that neither the length of the delay before a hearing was held, nor the fact that the court decided the summary judgment motion before ruling on the sealed documents, was impermissible.

Seeking a standard

After the intermediate appeals court decision, The Tennessean asked the Tennessee Supreme Court to review the case. It noted that the Drake case laid out a strict constitutional test that must be followed “when a party seeks closure of a court or other restrictive order[s] are sought.”

But rather than apply that constitutional test, the paper argued, the trial court issued a blanket sealing order for all documents filed in connection with NHC’s motion for summary judgment. In relying on Ballard, the paper argued, the lower court failed to “recognize the significance of the distinction between raw discovery filed with the clerk and the documents in this case which were presented to the trial judge for the purpose of adjudicating issues on the merits.”

A coalition of media organizations also filed a friend-of-the-court brief in support of The Tennessean’s request to review the case. The coalition, represented by Douglas R. Pierce of King & Ballow, included the Reporters Committee for Freedom of the Press, Tennessee Association of Broadcasters, The Tennessee Coalition for Open Government, The Tennessee Press Association, and the Associated Press.

The coalition noted the extraordinary public interest in the case, arguing that “it is difficult to imagine a court order more antithetical to the American tradition of open records than a blanket order keeping secret information vital to the safety of some of Tennessee’s most vulnerable citizens.”

It also highlighted the cost of long delays in releasing court documents, relying on a decision from the U.S. Court of Appeals in New York (2nd Cir.) in Lugosch v. Pyramid Co. of Onondaga.

That court, hearing two newspapers’ request to unseal documents in a corporate dispute, found that documents filed in connection with a dispositive motion “are judicial documents to which a presumption of immediate access applies under both the common law and the First Amendment.”

Johnson hopes the Supreme Court will agree.

“I am a firm believer that access delayed is access denied,” he said. “What is news today is not necessarily news seven months from now.”