E. Trial records
“[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’s, 435 U.S. 589, 597 (1978) (footnote omitted). The Second Circuit recognizes that there exists a presumption of access to court records which is entitled to great weight if a party submits the document to the court for purposes of adjudication. Lugosch v. Pyramid Co., 435 F.3d 110, 114 (2d Cir. 2006). Although the Supreme Court has not addressed the constitutional presumption in civil cases, the Second Circuit has held that the First Amendment "does not distinguish between criminal and civil proceedings," but rather "protects the public against the government's arbitrary interference with access to important information." Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 164 (2d Cir. 2013).
The public’s First Amendment right of access applies to exhibits offered into evidence at a civil trial. See Level 3 Commc'ns, LLC v. Limelight Networks, Inc., 611 F. Supp. 2d 572, 579 (E.D. Va. 2009); see also U.S. Dist. Ct. Rules E.D. Va., Local Civil Rule 5(H) (“Trial exhibits, including documents previously filed under seal, and trial transcripts will not be filed under seal except upon a showing of necessity demonstrated to the trial judge.”).
Without deciding the source of the right of access, a district court in the Fourth Circuit held that the public’s right of access extends to demonstrative exhibits used in a hearing on a motion to dismiss. See Rambus, Inc. v. Infineon Techs. AG, No. CIV.A. 3:00-cv-524, 2005 WL 1081337 (E.D. Va. May 6, 2005).
If jury instructions are recited in open court, they are “judicial records” to which a First Amendment right of access attaches. Benedict v. Hankook Tire Co. Ltd., 323 F. Supp. 3d 747, 760 (E.D. Va. 2018).
If no effort is made to prevent dissemination of confidential information at trial, the right to claim that trial materials containing that information should be sealed is waived. See Benedict v. Hankook Tire Co. Ltd., 323 F. Supp. 3d 747, 760–61 (E.D. Va. 2018); see also RegScan, Inc. v. Bureau of Nat. Affairs, Inc., No. 1:11-cv-1129, 2012 WL 2994075, *8 (E.D. Va. July 19, 2012) (denying motion to seal settlement communications) (“If the confidentiality of particular communications was so important as now to warrant retroactively redacting additional information that has been in the public domain for months, then Defendant should have asserted its privilege and objected to Plaintiff's original Motion to Enforce Settlement, as opposed to waiving the privilege by responding with its own version of events and no mention of privilege or confidentiality.”).
The Fifth Circuit has recognized a common-law right to inspect and copy judicial records, but that right is not absolute and will generally only apply to “original records.” Pratt v. Dennis, 511 F.3d 483, 485 (5th Cir. 2007). Audiotapes which constitute original records may be obtained, but back-up tapes of a stenographer’s transcript do not constitute original records and may only be obtained if there is reason to doubt the accuracy of the stenographer’s transcript. Id.
The media has no constitutional right to trial exhibits beyond that enjoyed by the public. Belo Broad. Corp. v. Clark, 654 F.2d 423, 427 (5th Cir. 1981).
The Seventh Circuit recognizes a First Amendment and common law right to access records submitted into evidence in open court. See In re Continental Illinois Sec. Litig., 732 F.2d 1302 (7th Cir. 1984); Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir. 1994).
“Once the evidence has become known to the members of the public, including representatives of the press, through their attendance at a public session of court, it would take the most extraordinary circumstance to justify restrictions on the opportunity of those not physically in attendance at the courtroom to see and hear the evidence, when it is in a form that readily permits sight and sound reproduction.” In re Continental Illinois, 732 F.2d at 1313 (quoting United States v. Myers, 635 F.2d 945, 952 (2d Cir.1980)) (where “courtroom was open to the public, the witnesses repeatedly referred to the contents of the Report and excerpts from the Report were quoted by counsel in open court,” litigant’s impression that protective order “would shield the Report from the presumption of access, even when it was introduced into evidence and relied on to make a decision” was “legally incorrect”); see also Fort Wayne Journal-Gazette v. Baker, 788 F. Supp. 379, 387 (N.D. Ind. 1992).
The Seventh Circuit has rejected the argument that “only items of evidence are subject to the common law right of access,” noting that the cases “speak of judicial records, not items in evidence” and that “judicial records include transcripts of proceedings, everything in the record, including items not admitted into evidence.” Smith v. U.S. Dist. Ct., 956 F.3d 647 (7th Cir. 1992) (access right applied to memorandum by clerk of court where it was read in part in open court and relied upon by magistrate); accord Carlson v. United States, 837 F.3d 753, 760 (7th Cir. 2016).
The Supreme Court of Arkansas found that the Chancellor erred in sealing the final order in a paternity suit. Arkansas Dep’t of Human Services v. Hardy, 316 Ark. 119, 123, 871 S.W.2d 352, 355 (1994). The court went further and said that secret final orders could defeat the synergy of the peoples’ right and the press’s function, especially in cases in which the State is a party. Id., 871 S.W.2d at 355.
Uniform Superior Court Rule 21 provides that: “all court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth below.” “Superior courts may restrict or prohibit access to court records only if they do so in compliance with the requirements of Rule 21.” In re Motion of the Atlanta-Journal-Constitution, 271 Ga. 436, 437 (1988); see also Green v. Drinnon Inc., 262 Ga. 264, 265 (1992) (affirming an order to produce to newspaper official court reporter’s tape of comments from the bench that were recorded while court was in session); Undisclosed LLC v. State, 807 S.E.2d 393 (Ga. 2017) (a court reporter’s tape of proceedings may not be accessible if there is a filed transcript). See generally Munoz v. Am. Lawyer Media, L.P., 236 Ga. App. 462, 464 (1999) (“Photographic or other exhibits, and a trial record’s printed text, are equally open to public inspection”). The public’s right of access to court exhibits is reinforced by the Georgia Open Records Act, which specifically requires public access to court exhibits by expressly providing that the custodian of such exhibits “shall, upon request” make a copy of them available to the public. O.C.G.A. § 50-18-72(c).
Generally, all records offered or admitted at trial are available for public inspection. I.C.A.R. 32(d)(9). A recent high-profile anti-trust case filed in the federal district court for the district of Idaho highlights the various concerns and tensions of private litigants attempting to seal trial documents and proceedings in an otherwise open judicial proceeding.
In the consolidated cases of Saint Alphonsus v. St. Luke’s Health Sys., Ltd., Case Nos. 1:12-CV-00560-BLW and 1:13-CV-00116-BLW (D. Idaho), antitrust claims were raised by the Federal Trade Commission and a competing hospital concerning St. Luke’s Health System’s purchase of the Saltzer Medical Group. A discovery stipulation was agreed upon by the parties which became a Protective Order, allowing the parties to designate what would be treated as confidential and “attorneys eyes only” (“AEO”). As is typically done, there was no involvement of the trial court in the process of designating AEO documents. Shortly before trial, the discovery order was transformed into a Pretrial Order which allowed the AEO documents to be used at trial as sealed exhibits, redacted depositions and the closure of courtroom proceedings when any reference was made to an AEO document or testimony. Trial began and it soon became apparent that hundreds and thousands of documents were being introduced under seal and the press and public were being escorted from the courtroom on a repeated basis. A coalition of news organizations protested. While the trial judge allowed the media organizations to intervene, he denied their request to unseal the documents already admitted at trial and to open the proceedings. The media appealed to the Ninth Circuit. While that appeal was pending, the underlying trial ended and the court made its ruling in the case. The Ninth Circuit eventually granted the media’s Writ of Mandamus and instructed the trial court judge to make a determination as to whether “compelling reasons exist for the continued sealing of trial materials [both exhibits and testimony] within 120 days.” Thereafter, the trial judge made a step-by-step determination as to what exhibits and trial testimony should be unsealed and/or redacted. He noted a “strong presumption” in favor of access and that a party seeking to seal judicial records must identify “compelling reasons” that outweigh the “public interest in understanding the public process.” Saint Alphonsus, 2014 WL 314472, at *1 (D. Idaho, Jan. 28, 2014) (citing Kamakana v. City & Co. of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006)). This resulted in approximately 506 exhibits/trial testimony being unsealed and approximately 122 exhibits/trial testimony being unsealed but with redactions. Id., Dkt. 511 (filed July 3, 2014).
A presumption of openness applies to trial records in civil cases under the Kansas Open Records Act, 45-215 et seq., as implemented by the Kansas Judicial Branch. See Kansas Judicial Branch, Administrative Order No. 156, Administration of the Kansas Open Records Act, http://www.kscourts.org/kansas-courts/supreme-court/administrative-orders/Admin-order-156.pdf .
Trial records are presumed open unless sealed by the court. The Nevada Rules for Sealing and Redacting Court Records promulgated by the Nevada Supreme Court provide that “[a]ll court records in civil actions are available to the public, except as otherwise provided in these rules.” SRCR 1(3). For purposes of this rule, the term “court record” includes, but is not limited to any document, information, exhibit, or other thing that is maintained by a court in connection with a judicial proceeding; and any index, calendar, docket, register of actions, official record of the proceedings, order, decree, judgment, minute, and any information in a case management system created or prepared by the court that is related to a judicial proceeding. SRCR 2(2).
Rule 1-079 NMRA dictates that “court records are subject to public access unless sealed by order of the court or otherwise protected from disclosure under the provisions of this rule.” Because “court record” is defined as “all or any portion of a document, paper, exhibit, transcript, or other material filed or lodged with the court, and the register of actions and docket entries used by the court to document the activity in a case,” it follows that trial records are allowed the same presumption to public access. As such, trial records shall be open to the public absent statutory exclusion, see NMSA 1978 § 32A-58(C); NMSA 1978 § 24-1-15(J); NMSA 1978 § 24-2B-5.1(B); NMSA 1978 § 40-11A-625, or a court order to the contrary. The order must set forth the court’s findings that:
“(a) the existence of an overriding interest that overcomes the right of public access to the court record;
(b) the overriding interest supports sealing the court record;
(c) a substantial probability exists that the overriding interest will be prejudiced if the court record is not sealed;
(d) the proposed sealing is narrowly tailored; and
(e) no less restrictive means exist to achieve the overriding interest.”
Rule 1-079. The order shall require the sealing of the record only to the extent necessary. Id. The order shall further specify who is authorized to have access to the sealed court record and a date or event upon which it expires or shall explicitly state that the order remains in effect until further order of the court. The order shall specify any person or entity entitled to notice of any future motion to unseal the court record or modify the sealing order. Id.
The district court is given broad discretion in determining whether good cause has been shown, and reversal is permitted only for an abuse of discretion. Id. An abuse of discretion occurs only if the decision goes against the logic and effect of the facts and circumstances of the case. Id. “A district court's denial of a motion to seal is reviewed for an abuse of discretion.” Fred Loya Ins. Co. v. Swiech, 2018-NMCA-022, ¶ 16, 413 P.3d 530, 534.
In Fred Loya Ins. Co., the New Mexico Court of Appeals found an abuse of discretion by the trial court in that court’s denial of the appellants’ motion to seal the appellee’s motion for sanctions. 2018-NMCA-022, ¶ 25. There, the sanctions motion included confidential communications pertaining to an earlier settlement conference. The appellate court’s analysis hinged on the New Mexico Mediation Procedures Act, which bars disclosure of all mediation communications. Id. Because the appellee presented no evidence below of any exception to the Act that might encompass the motion for sanctions, the district court abused its discretion in denying the motion to seal. Id.
Evidence, even if previously sealed, is subject to a presumption of openness when it is introduced at trial. See R.W. v. Hampe, 626 A.2d 1218, 1224 (Pa. Super. 1993) (denying patient’s request that record of her psychiatric malpractice case be sealed and that she be referred to by initials alone).