E. Trial records
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.”).
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).
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).