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F. Settlement records

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  • 2nd Circuit

    In the Second Circuit, settlement negotiations and draft agreements "do not carry a presumption of public access" because "[t]he judge cannot act upon these discussions or documents until they are final, and the judge may not be privy to all of them.” Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 142 n.4 (2d Cir. 2016); see also United States v. Glens Falls Newspapers, Inc., 160 F.3d 853, 857 (2d Cir. 1998) (concluding that “the presumption of access to settlement negotiations, draft agreements, and conference statements is negligible to nonexistent”); United States v. Glens Falls Newspapers, 160 F.3d 853, 858 (2d Cir. 1998). Though settlement materials may be presumed access, the Second Circuit has held that they may remain sealed when needed for fair and efficient resolution of cases. See, e.g., United States v. Glens Falls Newspapers Inc., 160 F.3d 853 (2d Cir. 1998).

    Applying the experience and logic test where the courts look at whether there is a tradition of openness and whether openness serves a meaningful purpose, the Second Circuit has determined that settlement compliance reports are judicial records subject to a constitutional right of access. This First Amendment right may be overcome with privacy and safety concerns that require sealing. See United States v. Erie County, 2014 WL 4056326 (2d Cir. Aug. 18, 2014).

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  • 4th Circuit

    Settlement agreements not filed with the court are not judicial records to which a right of access attaches. See Stephens v. Cty. of Albemarle, 422 F. Supp. 2d 640, 644 (W.D. Va. 2006) (citing Jessup v. Luther, 277 F.3d 926, 928 (7th Cir. 2002)).

    Settlements that require judicial approval and which are filed with the court constitute judicial records to which the public’s right of access attaches. See Miles v. Ruby Tuesday, Inc., 799 F. Supp. 2d 618 (E.D. Va. 2011) (denying motion to seal FLSA settlement agreement); Stephens v. Cty. of Albemarle, 422 F. Supp. 2d 640, 644 (W.D. Va. 2006) (granting motion to unseal Section 1983 settlement; “The equation changes dramatically when settlement agreements are filed with the court for its approval.”); see also Owino v. IBM Corp., No. 1:12-CV-1041, 2013 WL 2947146, *1 (M.D.N.C. June 14, 2013) (denying motion to seal FLSA settlement agreement; “Courts in recent years have been virtually unanimous in finding that settlements under the FLSA should not be sealed in the ordinary course.”).

    “It is essentially impossible for the public to judge the approval process . . . if the terms of the settlement, and the compensation of counsel, are not spread upon the public record.” Hall v. Beverly Enterprises-W. Virgina, Inc., No. CIV. A. 2:10-0842, 2010 WL 4813307, *2 (S.D. W. Va. Nov. 19, 2010).  Thus, a confidentiality provision in a court approved settlement agreement is “of no effect.” Martin v. Am. Honda Motor Co., 940 F. Supp. 2d 277, 280 (D.S.C. 2013).

    The public’s right of access to judicially approved settlement agreements is not overcome by the public’s disinterest in the specific litigation. See Miles v. Ruby Tuesday, Inc., 799 F. Supp. 2d 618, 623 (E.D. Va. 2011) (“[W]hile it is true that the public’s interest in judicial documents is greater when the case itself is already one of great public attention, the right of access still must be protected even where the case at hand does not appear to be one in which the public has already expressed interest.”).

    A generalized interest in confidential settlements—without more—is insufficient to rebut the common law presumption of public access. Topiwala v. Wessell, No. CIV. WDQ-11-0543, 2014 WL 2574504, *3 (D. Md. June 5, 2014) (granting motion to unseal settlement agreement.).

    In a civil action arising out of an alleged breach of a settlement agreement, the plaintiff’s speculation and conjecture about the harm it will suffer by disclosure was insufficient to justify sealing the agreement. See Monster Daddy LLC v. Monster Cable Prod., Inc., No. CIV.A.6:10-1170, 2010 WL 3885502, *1 (D.S.C. Sept. 29, 2010) (citing Stone v. Univ. of Md. Med. Sys., 855 F.2d 178, 180 (4th Cir.1988)).

    Where the litigants seek judicial approval of a settlement, their interest in maintaining the confidentiality of the terms of the settlement is weak. See Stephens v. Cty. of Albemarle, 422 F. Supp. 2d 640 (W.D. Va. 2006) (granting motion to unseal Section 1983 settlement agreement).

    The fact of judicial approval, the government being a party to the settlement, the absence of an improper purpose of the requesting party and the failure to comply with mandatory sealing procedures are all factors that weigh against overcoming the public’s right of access to a judicially approved settlement agreement. See Stephens v. Cty. of Albemarle, 422 F. Supp. 2d 640 (W.D. Va. 2006).

    Protecting a minor’s privacy interests and medical information has been held a sufficient interest to overcome the public’s right of access to judicially approved settlements. See Mears v. Atl. Se. Airlines, Inc., No. 5:12-CV-613-F, 2014 WL 5018907 (E.D. N.C. Oct. 7, 2014) (granting motion to seal minors’ medical records submitted in connection with motion to approve wrongful death settlements and to redact the financial terms in the settlement agreements).

    A private settlement agreement becomes a judicial record to which a right of access attaches if the agreement is filed with the court in connection with a stipulation of dismissal.  In such instances, “the parties are always free to choose not to file the terms of their settlement with the court.” Washington v. Bruraker, No. 3:02-cv-00106, 2015 WL 6673177, *7 (W.D. Va. Mar. 29, 2015) (citing Bank of Am. Nat. Tr. & Sav. Ass'n v. Hotel Rittenhouse Assocs., 800 F.2d 339 (3d Cir. 1986)).

    When a private settlement agreement is filed in connection with a motion to enforce the settlement, the parties may have a compelling interest in maintaining the confidentiality of terms not germane to the decision whether to enforce the settlement. See Copeland v. Dapkute, No. 8:17-cv-01566, 2018 WL 5619672, *9 (D. Md. Oct. 30, 2018) (citing Johnson v. City of Baltimore Dev. Corp., No. CIV.A. GLR-11-2174, 2013 WL 3934022, *4-5 (D. Md. July 29, 2013)).

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  • 5th Circuit

    Once a settlement agreement is filed in district court, it becomes a judicial record and thus is presumptively accessible to the media and the public. Sec. & Exch. Comm’n v. Van Waeyenberghe, 990 F.2d 845, 849 (5th Cir. 1993). In certain circumstances, particularly those involving public entities, the process of creating a settlement is itself newsworthy and thus implicates First Amendment concerns. Davis v. Capital City Press, 78 F.3d 920, 929 (5th Cir. 1996).

    The right of access to judicial records is greater than a simple right to the information in the records. Sec. & Exch. Comm’n v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993). Therefore, merely providing the media with details and information about what transpired in court proceedings or settlements is not equivalent to allowing access to the actual records themselves. Id.

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  • 7th Circuit

    When a district court sealed documents relating to the litigants’ settlement pursuant to their request, a newspaper's “presumptive right to access was implicated, and [it] should have been allowed to intervene for the limited purpose of challenging the district court's order.” Jessup v. Luther, 227 F.3d 993, 997 (7th Cir. 2000) (remanding for determination of access right).  On appeal after remand, the Seventh Circuit held that the newspaper was entitled to a copy of the settlement agreement that was in the court files under seal.  The court observed that “[o]rdinarily . . ., settlement agreements, like most arbitration awards and discovery materials, are private documents . . ., not judicial records . . ., because the parties will file a stipulation of dismissal pursuant to which the suit will be dismissed without further ado or court action,” and the settlement agreement “will then have the identical status as any other private contract.” Jessup v. Luther, 277 F.3d 926, 928 (7th Cir. 2002).

    However, in Jessup, the settlement agreement “was submitted to and approved by the judge and a copy deposited in the files of the court and then ordered sealed. . . . Whatever the rationale for the judge's participation in the making of the settlement in this case, the fact and consequences of his participation are public acts. . . .The public has an interest in knowing what terms of settlement a federal judge would approve and perhaps therefore nudge the parties to agree to.”  Id. at 929.  “[T]he district court's files now contain a document that reflects input by a federal judge, and so the document is presumptively a public document. . . . [N]either the magistrate judge nor any of the parties has given us any reason to think the presumption might be rebutted in this case.”  Id. at 929-30.

    “If though it is part of the judicial record the settlement is made without any court action,” i.e., approval, “there will rarely be a good reason to require that its terms be made public, because making them public would not reveal anything about judicial activity.”  Goesel v. Boley Int’l (H.K.) Ltd., 738 F.3d 831, 834 (7th Cir. 2013) (Posner, J., in chambers).  “[F]or the most part settlement terms are of potential public interest only when judicial approval of the terms is required, or they become an issue in a subsequent lawsuit, or the settlement is sought to be enforced. . . . In all such cases the presumption of a right of public access to court documents should apply.”  Id.

    “Calling a settlement confidential does not make it a trade secret, any more than calling an executive's salary confidential would require a judge to close proceedings if a dispute erupted about payment (or termination). Many a litigant would prefer that the subject of the case . . . be kept from the curious (including its business rivals and customers), but the tradition that litigation is open to the public is of very long standing.”  Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000) (in dispute over breach of settlement agreement, blanket sealing of record and closure of proceedings was improper); accord Herrnreiter v. Chicago Housing Auth., 281 F.3d 634, 637 (7th Cir. 2002).

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  • 8th Circuit

    There appears to be no Eighth Circuit case law discussing the right of access to civil settlement records.

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  • Alabama

    Alabama courts do not appear to have specifically addressed this issue, but absent settlement records being filed with, interpreted or enforced by an Alabama court, the right of access that is generally applicable to judicial records would not apply.

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  • Arizona

    No published decisions.

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  • Arkansas

    If the parties to a lawsuit wish to enter an agreement and keep it secret, they may agree upon a settlement and file a motion to dismiss litigation between them. Arkansas Best Corp. v. Gen. Elec. Capital Corp., 317 Ark. 238, 247, 878 S.W.2d 708, 712 (Ark. 1994). In that situation, the settlement remains their private business. Id. If, however, they wish to make the settlement a court record and seek the imprimatur of a court, then it becomes the public’s business. Id.

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  • California

    Although settlement discussions are confidential, settlement terms as presented to the court are subject to the presumption of access, and the burden is on the movant to demonstrate that serious injury would occur absent sealing. See Copley Press, Inc. v. Superior Court, 63 Cal. App. 4th 367, 370, 74 Cal. Rptr. 2d 69 (1998) (reversing trial court; holding that newspaper was entitled to access to sealed court records to learn the amount of a settlement reached between school insurer and a minor student sexually assaulted at school); see also Wild, Carter & Tipton v. Yeager, No. F070631, 2017 WL 4564230, *3-4 (Cal. Ct. App. 2017) (unpublished) (“the mere deprivation of the right to enforce a contractual obligation is not, without an additional showing of serious harm, sufficient to override the public’s right of access to the courts”) (internal citation and quotations omitted) (unsealing records surrounding settlement agreement); Bhaktivedanata Book Trust Int’l, Inc. v. Int’l Society for Krishna Consciousness, Inc., No. B209982, 2010 WL 685320, *4 (Cal. Ct. App. 2010) (unpublished) (“courts have also recognized that mere agreement between parties is not enough to seal court records and the parties must show some serious injury that would occur absent a sealing order”). One Court of Appeal made clear that “a settlement agreement which had a confidentiality provision could not be sealed unless there was a showing of serious injury which would result from public disclosure.” Huffy Corp. v. Superior Court, 112 Cal. App. 4th 97, 106, 4 Cal. Rptr. 3d 823 (2003).

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  • Colorado

    The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) expressly applies to “all electronically filed (e-filed) or served (e-service) documents in accordance with the rules of the Supreme Court . . . .” (Section 4.00.)  In general, all “[i]nformation in the court record is accessible to the public,” and “court record” is broadly defined.  (Section 3.03(a); Section 4.10.)  The Public Access Policy restricts access to records in certain types of cases or to certain documents, absent a contrary court order.  (Section 4.60.)

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  • District of Columbia

    D.C. courts have not explicitly addressed this issue, although the D.C. Circuit has held that “[t]o the extent a First Amendment right to post-judgment civil records exists, it does not exceed…the traditional common law right.”  In re Reporters Committee for Freedom of Press, 773 F.2d 1325, 1339 (D.C. Cir. 1985).

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  • Florida

    Post-trial records are encompassed by Barron and Florida’s constitutional right of access to court records. Such records may only be closed consistent with Florida Rule of Judicial Administration 2.420. Under Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988), to overcome the strong presumption of openness in civil proceedings, including post-trial records, a proponent of closure must satisfy a three-prong test. The first prong requires a proponent to show that closure is necessary: “(a) to comply with established public policy set forth in the constitution, statutes, or case law; (b) to protect trade secrets; (c) to protect a compelling government interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matter protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” Id. at 118. For privacy concerns, “it is generally the content of the subject matter rather than the status of the party that determines whether a privacy interest exists” that permits closure. Id. However, the privacy interest can be negated where “the content of the subject matter directly concerns a position of public trust held by the individual seeking closure.” Id. Second, the court must find that no reasonable alternatives exist to reach the desired result. Id. Finally, if no reasonable alternative exists then the court must ensure that the means and the least restrictive necessary to accomplish the goal. Id. See also Fla. R. Jud. Admin. 2.420(c)(9).

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  • Georgia

    Settlement agreements filed with a court are inherently public documents and are available for public inspection in accordance with Rule 21 unless the harm otherwise resulting to a person’s privacy interest clearly outweighs the public interest. Atlanta Journal v. Long, 258 Ga. 410, 415 (1988). In Long the Supreme Court of Georgia rejected the argument that the public interest in promoting private settlements before trial justifies limiting public access to pre-judgment court records. See also City of Helen v. White County News, 1996 WL 787416, 25 Media L. Rep. 1123 (White County Super. Ct. 1996) (settlement documents relating to police chief’s civil rights suit against city are public records under state open records act; confidentiality provision is void as against public policy).

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  • Idaho

    Settlement agreements involving public entities are public record.  Cowles Publ’g Co. v. Kootenai Cty. Bd. of Cty. Comm’rs, 144 Idaho 259, 265, 159 P.3d 896 (2007).  However, “records of any risk retention or self-insurance program prepared in anticipation of litigation or for analysis of or settlement of potential or actual money damage claims against a public entity and its employees or against the industrial special indemnity fund” are not subject to disclosure.  Idaho Code § 74-107(11).  “These records shall include, but are not limited to, claims evaluations, investigatory records, computerized reports of losses, case reserves, internal documents and correspondence relating thereto. At the time any claim is concluded, only statistical data and actual amounts paid in settlement shall be deemed a public record unless otherwise ordered to be sealed by a court of competent jurisdiction.”  Id.

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  • Indiana

    Settlement records open to public access unless Administrative Rule 9(G) excludes them. Ind. Admin. Rule 9(D)(1). However, parties may enter into private settlement agreements that they deem confidential.

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  • Iowa

    Settlement agreements are typically not filed in Iowa state court because a party can voluntarily dismiss a case without court order until ten days prior to the date of trial under the Iowa Rules of Civil Procedure. Therefore, most settlement agreements will not be filed with the court or subject to a right of access. However, settlement agreements involving governmental entities are generally subject to public access. See Iowa Code § 22.13 (2018). In Des Moines Sch. Dist. v. Des Moines Register, the Iowa Supreme Court held that a settlement reached between the school board and a former principal must be made public under Iowa public records law. 487 N.W.2d 666 (Iowa 1992).

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  • Kansas

    Kansas law allows a court to seal or redact records only after finding that a safety, property, or privacy interest “outweighs the strong public interest” in having access to information.  K.S.A. 60-2617(d).

    In an interpretation of the Kansas Open Records Act, the Kansas Attorney General has said that a settlement agreement entered into by a city is a public record, and it cannot be confidential.  If a contractual provision attempts to close the conditions of the settlement agreement, it “is void as against public policy.”  Op. Kan. Att’y Gen. No. 93-55 (1993), http://ksag.washburnlaw.edu/opinions/1993/1993-055.htm.  However, the Attorney General acknowledged that settlement agreements involving a city—or specific portions of such settlements—might be exempted from disclosure under KORA's personal privacy exemption, as well as on the basis of “federal or state laws, Supreme Court rules, or other exemptions.”  Id.  Nevertheless, these exemptions should be construed narrowly in light of the state's strong presumption of open public records. See K.S.A. 45-216.

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  • Kentucky

    Kentucky’s seminal case on access to court records, Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988), involved a settlement agreement between county government and county officials and a former police officer who sued them.  The court held that “[t]hese circumstances weigh in favor of requiring the record to be open to public inspection.”  Id. at 130.  Similarly, in Lexington-Fayette Urban Cty. Gov’t v. Lexington Herald-Leader Co., 941 S.W.2d 469 (Ky. 1997), the Kentucky Supreme Court held that Kentucky’s Open Records Act required disclosure of a settlement agreement between a public agency and a private litigant despite the fact that the settlement agreement contained a confidentiality clause.  The Supreme Court reaffirmed that holding in Cent. Ky. News-Journal v. George, 306 S.W.3d 41 (Ky. 2010).

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  • Louisiana

    Such records, if possessed by the Clerk of Court, should be accessible through a Public Records request.

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  • Maine

    In general, the fact of a settlement is usually a matter of public record in that the parties will either file a stipulation of dismissal or motion for dismissal reflecting the fact of settlement. The terms of settlement are typically confidential, unless a settlement agreement is filed with the Court. If a settlement involves a public entity, the settlement agreement may be obtained directly from the entity pursuant to Maine’s Freedom of Access Act, 1 M.R.S.A. § 401 et seq.; settlement agreements with public entities are public records under Maine law. Guy Gannett Pub. Co. v. Univ. of Maine, 555 A.2d 470, 471–73 (Me. 1989).

    The rule governing court approval of minor settlements does not itself provide for confidentiality of settlement records or related proceedings, but motions to seal such proceedings are sometimes filed and rarely challenged.

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  • Maryland

    In Baltimore Sun Co. v. Mayor & City Council of Baltimore, 755 A.2d 1130 (Md. 2000), the Maryland Court of Appeals considered whether a court could close the courtroom while the terms of a civil settlement agreement were placed on the record. The Court found that “[t]he common law rule that court proceedings, records, and documents are open to the public is fully applicable in Maryland except to the extent that the principle has been modified by legislative enactments or decisions by this Court.” Id. at 1135. Recognizing the “‘public’s right of open access to courtrooms’ as well as the ‘right to inspect and copy judicial records and documents,’” and finding no countervailing provision in any state statute or rule that would allow the court to close the proceedings, the court held that the trial court had erred in closing the proceedings and sealing the records of the settlement. Id. at 1136 (citation omitted). While the issue of courtroom closure was moot, the Court of Appeals ordered that the press be allowed to inspect the record, including the terms of the settlement.

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  • Massachusetts

    Massachusetts’ highest court, the Supreme Judicial Court, has affirmed a denial of access to an impounded settlement agreement where that agreement involved discovery information that was “intensely personal,” and the parties were not public figures and had a reasonable expectation of privacy in the material. See H.S. Gere & Sons, Inc. v. Frey, 509 N.E.2d 271, 273–74 (Mass. 1987) (conducting impoundment analysis before the Uniform Rules on Impoundment Procedure went into effect, although considering similar factors). In Frey, the Supreme Judicial Court noted with approval that the trial court judge “did not rely on the fact that the parties had agreed that the case would remain impounded.” Id. at 273. See also Unif. R. Impound. P., Rule 7(b) (“Agreement of all parties, interested nonparties, or other persons in favor of impoundment shall not, in itself, be sufficient to constitute good cause.”).

    In Gleba v. Daimler Chrysler Corp., No. 98230, 2001 WL 1029678 (Mass. Super. Aug. 6, 2001), the trial court declined to impound records of a settlement between a car manufacturer and a plaintiff whose deceased spouse had died due to the car’s allegedly defective door latch.  The court reasoned that “such an impoundment order would serve as a secrecy mechanism that conceals information of harmful products or practices from the public and function[s] as a claim avoidance and claim management tool.”  Id. at *3.  Even though the parties had agreed to the proposed impoundment order, the court concluded that such an order would be “abusive to the Court and to the public. . . .” Id.

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  • Minnesota

    The Minnesota Supreme Court has held that there is no constitutional right of access to settlement documents or the transcripts of settlement hearings that have been sealed by the court. Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 204 (Minn. 1986). The court, however, recognized that there is a common law presumption in favor of granting the public access to the documents filed with the court. Id. at 205; see also Bohnen v. Dorsey & Whitney, LLP, 45 Media L. Rep. 1881 (Minn. Dist. Ct. Hennepin County 2017). Therefore, a party who seeks to restrict access to settlement documents and transcripts of settlement hearings filed with the court must show that there are “strong countervailing reasons why access should be restricted.” Schumacher, 392 N.W.2d at 205–06; Nelson v. Bremer Trust, N.A., 44 Media L. Rep 2367, 2370, 2373 (Minn. Dist. Ct. Hennepin County 2016). “Absent such a showing, a court may not restrict access to settlement documents and transcripts that have been filed with the court.” Schumacher, 392 N.W.2d at 206; see also Nelson, 44 Media L. Rep at 2373 (“When a court is charged with the duty to review the terms of a settlement, that settlement is not automatically entitled to any more confidentiality than a judge’s decision or jury’s verdict embodying the same terms.”).

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  • Mississippi

    Under Mississippi law, settlement agreements may be protected from the reach of Public Records Act requests. See Estate of Cole v. Ferrell, 163 So. 3d 921 (Miss. 2012) (trial court, relying on Public Records Act, abused its discretion in denying motion to preserve confidentiality of settlement agreement reached in wrongful death action against motor vehicle manufacturer).

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  • Montana

    Settlement records of civil cases in which a governmental entity is a party are open unless the court determines some individual privacy right clearly exceeds the merits of public disclosure.  § 2-9-303 MCA.  Settlement records of civil cases involving only private litigants are rarely filed with the court.  The only record will be an order of dismissal reflecting a settlement of the case.

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  • Nebraska

    Settlement agreements filed with the court or approved by the court should be publicly available. Most private party settlements are not filed or judicially approved, and Nebraska law does not prohibit them from containing confidentiality clauses.

    Neb. Rev. Stat. § 84-713 (Reissue 2014) effective September 3, 2010, requires public entities (except the State) to maintain a public, written record of all settled claims. Any settlement by a public entity, except the State, with financial consideration in excess of $50,000 or 1% of the entity’s budget, whichever is less, must be approved at an open meeting.

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  • Nevada

    Provided that settlement records do not have the effect of concealing a public hazard, a court may seal records which contain confidential terms of a settlement agreement of the parties.  SRCR 3(4)-(5); cf. Civil Rights for Seniors v. AOC, 129 Nev. 752, 313 P.3d 216 (2013) (holding that Foreclosure Mediation Program (FMP) records are not subject to disclosure); 2013 Nev. Op. Att'y Gen. No. 08 (Dec. 27, 2013) (reports submitted to Board of Medical examiners which contain confidential civil malpractice settlement amounts are public records which must be open to public inspection).

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  • New Hampshire

    Settlement records, like other court records filed with the court, are subject to the right of access discussed in “Overcoming a presumption of openness” above.

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  • New Mexico

    With respect to settlements that resolve claims against New Mexico agencies, the agreements can be obtained only following the expiration of a confidentiality period and upon request under the Inspection of Public Records Act. As of June 20, 2019, however, Governor Michelle Lujan Grisham’s administration announced an intention to publish settlements online as soon as allowable by law: either 180 days after the settlement is reached or the department closes the claim administratively. Dan McKay, NM to Start Posting Legal Settlements Online, Albuquerque Journal (June 20, 2019, 10:47 PM), https://www.abqjournal.com/1331040/nm-to-start-posting-legal-settlements-online.html. Otherwise, the New Mexico Mediation Procedures Act, NMSA 1978, Section 44-7B-4, sets forth that “all mediation communications are confidential, and not subject to disclosure and shall not be used as evidence in any proceeding.” 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.​

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  • North Carolina

    SeeN.C.G.S. 132-1.3 (settlements made by or on behalf of public agencies, public officials, or public employees): no judge may "order or permit the sealing of any settlement document in any proceeding described [in N.C.G.S. 132-1.3(a)] except on the basis of a written order concluding that (1) the presumption of openness is overcome by an overriding interest and (2) that such overriding interest cannot be protected by any measure short of sealing the settlement. Such order shall articulate the overriding interest and shall include findings of fact that are sufficiently specific to permit a reviewing court to determine whether the order was proper." N.C.G.S. 132-1.3(b). Settlement documents in any proceeding against an agency of North Carolina government or its subdivisions are public records, except in medical malpractice actions against hospitals. See also Goldsmith v. Henderson County Bd. of Pub. Ed., 2003 WL 23341192 at *4 (N.C. Super. 2003) (granting newspaper's motion to require filing of parties' settlement, noting that N.C.G.S. 132-1.3 specifically provides that settlement agreements involving public agencies shall not be confidential).

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  • North Dakota

    Unless required to be filed with the court, settlement records in civil proceedings are typically confidential, unless otherwise disclosed by the parties.

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  • Pennsylvania

    The Pennsylvania Superior Court has noted that the public and press have a presumptive right to access settlement agreements filed with the court. Stenger v. Lehigh Valley Hosp. Ctr., 554 A.2d 954, 960 (Pa. Super. 1989) (citing Bank of Am. Nat’l Tr. & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 342-43 (3d Cir. 1986)). Similarly, a Pennsylvania Common Pleas Court has held that a plaintiff’s petition for approval of a settlement is presumptively open. Korczakowski v. Hwan, 68 Pa. D. & C. 4th 129 (Lackawanna Cty. C.C.P. Sept. 23, 2004). The court reasoned that because the petition is filed with the court, it is a public judicial record and is subject to a presumption of openness.

    In Storms v. O’Malley, the Superior Court affirmed the trial court’s denial of a physician’s motion to seal the record in a medical malpractice case that resulted in a settlement. 779 A.2d 548, 570 (Pa. Super. 2001). The Superior Court held that the policy interest in encouraging settlements (which the physician argued could be facilitated by keeping records of settled cases confidential) was not sufficient to rebut the presumption of openness. Id.

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  • Utah

    No Utah authority specifically addresses access to settlement records.

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  • Vermont

    Although many settlement agreements are not filed with the court and thus, do not become part of the court’s records, if settlement agreements require court approval or are entered into by a public entity, they will become publicly available.  For example, class action settlement agreements must receive court approval, see V.R.C.P. Rule 23(e), as do settlement agreements involving the distribution of wrongful-death proceeds.  See 14 V.S.A. § 1492; see also In re Estate of Simonds, No. 51-1-13, 2013 Vt. Super. LEXIS 1, *3-4 (Vt. Super. Ct. January 23, 2013) (holding that a private confidentiality agreement between parties is not in itself sufficient to overcome the presumption that a petition for approval of wrongful-death settlement presented to the court is publicly available). Similar case law holds that public entities cannot override the Vermont Public Records Act through a contract or settlement agreement. See e.g., Katz v. S. Burlington Sch. Dist., 2009 VT 6, ¶ 7, n.2, 970 A.2d 1226, 1228 (Vt. 2009) (noting that case law supports the view that a school district’s separation agreement and general release with its former superintendent is a public record subject to disclosure); Hoffman v. S. Burlington Sch. Dist., No. 1069-11-15, 2015 Vt. Super. LEXIS 96, *6 (Vt. Super. Ct. Dec. 10, 2015) (“a contract or settlement agreement cannot override the Public Records Act").

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  • Virginia

    Settlement agreements submitted to the court for approval are judicial records subject to the presumption of openness to the public. See Perreault v. The Free Lance-Star, 276 Va. 375, 387, 666 S.E.2d 352, 358 (2008). In Virginia, the terms of a settlement of a wrongful death claim must be approved by the court. Seeid.; Va. Code § 8.01-55.  Likewise, an agreement to reduce the amount of a lien held by the Commonwealth for medical services rendered must be approved by the court, and the court’s reasons set forth in a written order. See Kwang Li (Jo) Chan v. Commonwealth, 92 Va. Cir. 122, 2015 WL 13567760 (Augusta Cir. Ct. July 28, 2015); Va. Code § 8.01-66.9.

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  • Washington

    No Washington court has held specifically that the public’s right of access to court proceedings and records extends to records of settlement. A settlement agreement that has been submitted to the court for approval, or that is otherwise filed with the court, should be subject to the same constitutional right of access as any other court record. Dreiling v. Jain, 151 Wn.2d 900, 915, 93 P.3d 861, 870 (2004). Settlement agreements involving public agencies may be available under the Public Records Act, if requested from an agency party.  See Yakima Newspapers, Inc. v. City of Yakima, 77 Wn. App. 319, 324, 890 P.2d 544 (1995).

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  • West Virginia

    As set forth above, both the West Virginia Constitution and statutes provide a presumptive right of public access to court records.  See “Access to civil records/In general” above.  This rule applies to settlement records.  See State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W.Va. 611, 520 S.E.2d 186, 191 (1999). The United States District Court for the Southern District of West Virginia also has recognized that settlement agreements are presumptively open under the First Amendment and the common law. Harper v. Elk Run Coal Co., No. 11-cv-305, 2012 WL 1999429 (S.D. W.Va. June 4, 2012).  

    However, most civil settlements between private parties are not put into court records, and therefore there is no public right of access.  On the other hand, if the settling entity is a public body in West Virginia, the settlement documents are subject to public access and disclosure under the West Virginia Freedom of Information Act even if the settlement documents are not part of the court file; in such circumstances, the request for the settlement records must be made to the custodian of records of the public body that was a party to the settlement.  Other types of civil case settlements that are required to be made public through a court approval are settlements involving minors and the estates of a deceased person, and class action settlements.

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  • Wisconsin

    See Journal/Sentinel, Inc. v. School Bd. of School Dist. of Shorewood, 186 Wis. 2d 443, 521 N.W.2d 165 (Wis. App. 1994):

    Furthermore, if the school board’s argument were accepted, public scrutiny of most if not all settlement agreements involving government would be barred – promises of confidentiality would then be de rigueur.  This would effectively end-run the openness mandated by Wisconsin’s public-records law, and the presumption of access.  If a lawsuit cannot be settled unless its terms are kept secret, the case will go to trial, where, absent special circumstances, public access is the rule.

    The presumption that public records in Wisconsin are open to the public is not outweighed by whatever benefits may have accrued to the public as the result of the Shorewood District’s promise to Moore that the terms of the settlement would not be disclosed to the public.

    See C.L. v. Edson, 140 Wis. 168, 409 N.W.2d 417 (Wis. App. 1987):

    The original parties first argue that because they are private individuals, there is no compelling public interest in disclosing the sealed [settlement] documents.  The presumption favoring disclosure reflects public interests that are independent of the parties’ status as private persons.

    Moreover, sec. 807.10, requiring judicial review of settlements involving minors, represents a legislative mandate for scrutiny.  This mandate is better served when the public can monitor judicial supervision of minor settlements.

    The parties have failed to show that the public’s interest in encouraging settlements overcomes the strong presumption favoring disclosure of court documents.

    We conclude that the circuit court correctly weighed the considerations presented by the original parties in deciding that the public interest in disclosure outweighed any need for secrecy.

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  • Wyoming

    There is no case law in Wyoming regarding settlement records. It is presumed that settlements with public entities are open for public inspection as the Wyoming Supreme Court has ruled that any document respecting the expenditure of public funds must be “expressly textual.” Houghton v. Franscell, 870 P.2d 1050 (Wyo. 1994). There is no express exemption in the Public Records Act for settlement agreements.

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