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New state rules presume court records are open to the public

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    NMU         CALIFORNIA         Secret Courts         Nov 2, 2000    

New state rules presume court records are open to the public

  • New judicial rules require judges to ponder the First Amendment before sealing court records to public view, but the rules do not do away with confidential settlement agreements.

The California Judicial Council voted on Oct. 27 to adopt new rules spelling out when judges may seal court records. Under the new rules, all court records are presumptively open to the public, unless there is an “overriding interest” which would justify sealing the records. The rules were intended to conform to the California Supreme Court’s ruling in NBC Subsidiary v. Superior Court.

NBC Subsidiary was a well-publicized case involving Sondra Locke’s breach of contract claim against Clint Eastwood. The trial court closed the proceedings, but the state Supreme Court found that the public has a right of access to civil proceedings.

Patrick O’Donnell, the council staff member who proposed the changes, told reporters the rules were intended to ensure that judges apply a First Amendment standard when considering whether to seal a record. The rules are part of the new and amended California Rules of Court that apply to all state courts effective Jan. 1, 2001.

The new rules do not prevent the court from sealing records considered confidential by law, such as certain family law documents. The new rules also do not prohibit confidential settlements. However, a proposal before the judicial council committee would, if enacted, limit confidential settlements.

The practice of using confidential settlements has received widespread attention recently due to the Firestone tire recall. Numerous lawsuits were filed against Firestone alleging its tires were faulty, caused serious injuries and death. Firestone settled most of the lawsuits and the settlement agreements contained “secrecy” clauses that prevented the parties or the lawyers from telling the public about the alleged defects. The propriety of the confidential settlements has been called into question because the tire-maker issued a recall of its product and a congressional investigation has questioned the extent of the company’s knowledge of the defective tires. Legislators argue that lives could have been saved if the public had known about the problems earlier.

In California, state Sen. Adam Schiff (D-Burbank) proposed legislation to bar confidential settlements in lawsuits where public safety is at risk. However, neither the legislature nor the court rules have banned secret settlements, partially due to concerns that such rules would inhibit settlements altogether.

Thomas Burke, a media lawyer with Davis Wright Tremaine in San Francisco, rejected the notion that public access to documents would somehow hinder the justice system. “I don’t see more lawsuits or fewer settlements coming out of this, but I think you’re going to have the opportunity to know a lot more about what’s going on when companies are sued.”

(Proposed rules of court numbers 12.5, 243.1-243.4; Proposed amendment to rule 55; Proposed repeal of rules 855 and 859) AG

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