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California

Open Courts Compendium

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Author

Kelli L. Sager
Rochelle L. Wilcox
DAVIS WRIGHT TREMAINE LLP
865 S. Figueroa, Suite 2400
Los Angeles, California 90017

With thanks to 
Davis Wright Tremaine attorneys
Jake Freed
Cydney Freeman
Dan Laidman
Diana Palacios

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I. Introduction: Access rights in the jurisdiction

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A. The roots of access rights

In NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999), the California Supreme Court held that California Code of Civil Procedure § 124 establishes a presumption of access to court proceedings. Its analysis was driven largely by U.S. Supreme Court cases finding a First Amendment right of access to criminal proceedings. The California Supreme Court held that, “in general, the First Amendment provides a right of access to ordinary civil trials and proceedings, that constitutional standards governing closure of trial proceedings apply in the civil setting, and that section 124 must, accordingly, be interpreted in a manner compatible with those standards.” Id. at 1212.

California Code of Civil Procedure § 124 provides that “[e]xcept as provided in Section 214 of the Family Code or any other provision of law, the sittings of every court shall be public.” In addition, California Rule of Court, Rule 2.550, requires court records to be open to the public, unless confidentiality is required by law. Rule 2.551 provides the procedure for parties to follow to request sealing. Appendix 1 of the Trial Court Records Manual contains a complete list of court records designated confidential by statute or rule. See id., available at www.courts.ca.gov/documents/trial-court-records-manual.pdf.

In addition, California courts have recognized a common law right of access to judicial documents once they are filed for consideration by the court. See Estate of Hearst, 67 Cal. App. 3d 777, 782-783, 136 Cal. Rptr. 821 (1977). The California Supreme Court has recognized a common law right of access to all public records, which includes records that are not within the scope of California’s Public Records Act. Sander v. State Bar of California, 58 Cal. 4th 300, 304, 314 P.3d 488, 165 Cal. Rptr. 3d 250 (2013) (“under the common law right of public access, there is a sufficient public interest in the information contained in the [State Bar] admissions database such that the State Bar is required to provide access to it if the information can be provided in a form that protects the privacy of applicants and if no countervailing interest outweighs the public’s interest in disclosure”).

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B. Overcoming a presumption of openness

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C. Procedural prerequisites to closure

In NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999), the Court held that two things must occur before a court can close a civil or criminal proceeding. “First, a trial court must provide notice to the public of the contemplated closure” by a request made in open court or a public filing “reasonably in advance of the determination.” Id. at 1217. “Second, before substantive courtroom proceedings are closed or transcripts are ordered sealed, a trial court must hold a hearing and expressly find that (i) there exists an overriding interest supporting closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the over-riding interest.” Id. at 1217-1218.

California Rule of Court, Rule 2.551, adopts essentially the same requirements to seal a court record.

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II. Procedure for asserting right of access to proceedings and records

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A. Media standing to challenge closure

California courts have recognized that the media have standing to challenge orders closing court proceedings and sealing court records. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999) (recognizing that press has standing to challenge orders closing court proceedings and sealing court records); Estate of Hearst, 67 Cal. App. 3d 777, 782, 136 Cal. Rptr. 821 (1977) (same).

Media organizations are entitled to notice and a hearing before a typical court proceeding is closed. In California state court, a trial court must provide notice of closure either by the formal announcement that a hearing on closure will be held or by publicly docketing a written filing requesting closure. The court then must hold a hearing before it can close proceedings, and the media may participate if they are adversely affected. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999).

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B. Procedure for requesting access in criminal cases

Media organizations are entitled to notice and a hearing before a typical court proceeding is closed. In California state court, a trial court must provide notice of closure either by the formal announcement that a hearing on closure will be held or by publicly docketing a written filing requesting closure. The court must then hold a hearing before it can close proceedings, and the media may participate if they are adversely affected. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999).

With regard to records, the California Rules of Court, Rule 2.551(h), provides that “[a] party or member of the public may move, apply, or petition, or the court on its own motion may move, to unseal a record.” (Emphasis added.) That rule also provides that a “[n]otice of any motion, application, or petition to unseal must be filed and served on all parties in the case.” Id. This rule applies in criminal cases. Alvarez v. Superior Court, 154 Cal. App. 4th 642, 647, 64 Cal. Rptr. 2d 854 (2007).

In practice, members of the media or others requesting access to sealed documents have attempted to unseal records in an ongoing matter by filing informal letter requests, formal motions, or both. See Mercury Interactive Corp. v. Klein, 158 Cal. App. 4th 60, 70, 70 Cal. Rptr. 3d 88 (2007) (both); Sorenson v. Superior Court, 219 Cal. App. 4th 409, 420-422, 161 Cal. Rptr. 3d 794 (2013) (same, in a closed matter). The media also may be allowed to participate as amici in proceedings addressing sealing questions. Overstock.com, Inc. v. Goldman Sachs Group, Inc., 231 Cal. App. 4th 471, 489, 180 Cal. Rptr. 3d 234 (2014). In Overstock, the Court of Appeal disapproved of formal third-party intervention by the media. Id.; see also Mary R. v. B. & R. Corp., 149 Cal. App. 3d 308, 315, 196 Cal. Rptr. 871 (1983) (affirming denial of motion to intervene to seek unsealing of court records because it related to an ancillary matter). Compare In re Marriage of Burkle, 135 Cal. App. 4th 1045, 1050, 37 Cal. Rptr. 3d 805 (2006) (noting that trial court granted non-party media entities’ motion to intervene to seek unsealing of records).

One California court has also stated that a media member could initiate an original proceeding in a reviewing court, by way of a petition for writ of mandate, to “compel the lower court to unseal records that were improperly sealed.” Although procedurally unusual, a media litigant who brings a successful writ original petition may be able to obtain an award of attorney’s fees “under suitable circumstances.” Savaglio v. Wal-Mart Stores, Inc., 149 Cal. App. 4th 588, 603, 57 Cal. Rptr. 3d 215 (2007).

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C. Procedure for requesting access in civil matters

Media organizations are entitled to notice and a hearing before a typical court proceeding is closed. In California state court, a trial court must provide notice of closure either by the formal announcement that a hearing on closure will be held or by publicly docketing a written filing requesting closure. The court must then hold a hearing before it can close proceedings, and the media may participate if they are adversely affected. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999).

With regard to records, the California Rules of Court provide that “[a] party or member of the public may move, apply, or petition, or the court on its own motion may move, to unseal a record.” Cal. Rules of Court, Rule 2.551(h) (emphasis added). That rule also provides that a “[n]otice of any motion, application, or petition to unseal must be filed and served on all parties in the case.” Id. This rule applies in civil cases. See Mercury Interactive Corp. v. Klein, 158 Cal. App. 4th 60, 70 Cal. Rptr. 3d 88 (2007). Because circumstances may change in a case, sealing orders are subject “to continuing review and modification by the trial judge who sits in the same judicial proceeding.” In re Marriage of Nicholas, 186 Cal. App. 4th 1566, 1569, 113 Cal. Rptr. 3d 629 (2010).

In practice, members of the media or others requesting access to sealed documents have attempted to unseal records in an ongoing matter by filing informal letter requests, formal motions, or both. See Mercury Interactive, 158 Cal. App. 4th 60, 70, 70 Cal. Rptr. 3d 88 (2007) (both); Sorenson v. Superior Court, 219 Cal. App. 4th 409, 420-422, 161 Cal. Rptr. 3d 794 (2013) (same, in a closed matter). The media also may be allowed to participate as amici in proceedings addressing sealing questions. Overstock.com, Inc. v. Goldman Sachs Group, Inc., 231 Cal. App. 4th 471, 489, 180 Cal. Rptr. 3d 234 (2014). In Overstock, the Court of Appeal disapproved of formal third-party intervention by the media. Id.; see also Mary R. v. B. & R. Corp., 149 Cal. App. 3d 308, 315, 196 Cal. Rptr. 871 (1983) (affirming denial of motion to intervene to seek unsealing of court records because it related to an ancillary matter).

One California court has also stated that a media member could initiate an original proceeding in a reviewing court, by way of a petition for writ of mandate, to “compel the lower court to unseal records that were improperly sealed.” Although procedurally unusual, a media litigant who brings a successful writ original petition may be able to obtain an award of attorney’s fees “under suitable circumstances.” Savaglio v. Wal-Mart Stores, Inc., 149 Cal. App. 4th 588, 603, 57 Cal. Rptr. 3d 215 (2007).

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D. Obtaining review of initial court decisions

“Sealing or unsealing orders may be appealable as collateral orders if they are self-executing ‘as the last word by a California trial court on the matters at issue.’” In re Marriage of Nicholas, 186 Cal. App. 4th 1566, 1573 n.3, 113 Cal. Rptr. 3d 629 (2010); see also Mercury Interactive Corp. v. Klein, 158 Cal. App. 4th 60, 76, 70 Cal. Rptr. 3d 88 (2007) (holding that order unsealing court records was appealable). If the order does not meet this standard, review may be available, in the court of appeal’s discretion, by a writ petition under Code of Civil Procedure §§ 1067-1110b. The court may issue a writ if petitioner demonstrates that it has no “plain, speedy, and adequate remedy at law,” other than the relief sought in the petition.

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III. Access to criminal proceedings

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A. In general

The standard for closure announced in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999), applies in criminal proceedings. See People v. Lucas, 60 Cal. 4th 153, 261, 333 P.3d 587, 177 Cal. Rptr. 3d 378 (2014) (citing NBC Subsidiary standard in a criminal case); People v. Martinez, 226 Cal. App. 4th 759, 766, 172 Cal. Rptr. 3d 320 (2014) (noting that NBC Subsidiary analyzed “both civil and criminal” access cases). Thus, to support closure or sealing in a criminal case, a trial court must find “(i) that there exists an overriding interest supporting closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the overriding interest.” NBC Subsidiary, 20 Cal. 4th at 1218; see also id. at 1181. This standard applies to all “substantive” proceedings, regardless whether they are held in court or in chambers. Id. at 1215-1216.

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B. Pretrial proceedings

Pretrial proceedings are presumed open, as the “right of access applies to preliminary hearings as conducted in California.” Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 10, 104 S. Ct. 2735 (1986). In NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999), the California Supreme Court held that California Code of Civil Procedure § 124 establishes a presumption of access to court proceedings. Its analysis was driven largely by U.S. Supreme Court cases finding a First Amendment right of access to criminal proceedings. Thus, its analysis applies to criminal proceedings.

Courts generally may close proceedings or seal records only if they hold a hearing and expressly find, on the record or in a written order, that sealing is warranted under the NBC Subsidiary four-factor test. 20 Cal. 4th at 1218. The parties’ agreement is insufficient. See H.B. Fuller Co. v. Doe, 151 Cal. App. 4th 879, 891, 60 Cal. Rptr. 3d 501 (2007) (reversing sealing order based on parties’ stipulation). See also In re Marriage of Nicholas, 186 Cal. App. 4th 1566, 1568-1569, 113 Cal. Rptr. 3d 629 (2010) (constitutional right of access applies to family court cases; restrictions to protect children’s privacy must meet “overriding interest” standard); In re Marriage of Burkle, 135 Cal. App. 4th 1045, 1063, 37 Cal. Rptr. 3d 805 (2006) (same). But see In re Marriage of Candiotti, 34 Cal. App. 4th 718, 722, 40 Cal. Rptr. 2d 299 (1995) (sealing personal information, driving records and criminal history where dissemination would harm children); Oiye v. Fox, 211 Cal. App. 4th 1036, 1068-1070, 151 Cal. Rptr. 3d 65 (2012) (sealing medical records of alleged victim of sexual molestation).

California courts have declined to recognize any constitutional or common law right of access to grand jury proceedings or materials, which generally are kept confidential. See Daily Journal Corp. v. Superior Court, 20 Cal. 4th 1117, 1128-1129, 979 P.2d 982, 86 Cal. Rptr. 2d 623 (1999) (trial court had no authority to release grand jury materials except as provided by statute). However, a statute creates a right of access to some grand jury materials following an indictment. See Cal. Penal Code § 938.1(b).

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C. Criminal trials

California recognizes a right to public trial that extends through closing arguments under both the federal and state constitutions. See People v. Woodward, 4 Cal. 4th 376, 382, 841 P.2d 954, 14 Cal. Rptr. 2d 434 (1992). In NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999), the California Supreme Court held that California Code of Civil Procedure § 124 establishes a presumption of access to court proceedings. Its analysis was driven largely by U.S. Supreme Court cases finding a First Amendment right of access to criminal proceedings. Thus, its analysis applies to criminal proceedings.

Courts generally may close proceedings or seal records only if they hold a hearing and expressly find, on the record or in a written order, that sealing is warranted under the NBC Subsidiary four-factor test. 20 Cal. 4th at 1218. The parties’ agreement is insufficient. See H.B. Fuller Co. v. Doe, 151 Cal. App. 4th 879, 891, 60 Cal. Rptr. 3d 501 (2007) (reversing sealing order based on parties’ stipulation). A temporary closure in order to maintain court security may be permissible. Woodward, 4 Cal. 4th at 383-386. See also In re Marriage of Nicholas, 186 Cal. App. 4th 1566, 1568-1569, 113 Cal. Rptr. 3d 629 (2010) (constitutional right of access applies to family court cases; restrictions to protect children’s privacy must meet “overriding interest” standard); In re Marriage of Burkle, 135 Cal. App. 4th 1045, 1063, 37 Cal. Rptr. 3d 805 (2006) (same). But see In re Marriage of Candiotti, 34 Cal. App. 4th 718, 722, 40 Cal. Rptr. 2d 299 (1995) (sealing personal information, driving records and criminal history where dissemination would harm children); Oiye v. Fox, 211 Cal. App. 4th 1036, 1068-1070, 151 Cal. Rptr. 3d 65 (2012) (sealing medical records of alleged victim of sexual molestation).

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D. Post-trial proceedings

In NBC Subsidiary (KNBC-TV) v. Superior Court, the California Supreme Court held that all “substantive” proceedings in California court are presumptively open. 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999).

Courts generally may close proceedings or seal records only if they hold a hearing and expressly find, on the record or in a written order, that sealing is warranted under the NBC Subsidiary four-factor test. 20 Cal. 4th at 1218. The parties’ agreement to seal is insufficient. See H.B. Fuller Co. v. Doe, 151 Cal. App. 4th 879, 891, 60 Cal. Rptr. 3d 501 (2007) (reversing sealing order based on parties’ stipulation). A temporary closure in order to maintain court security may be permissible. People v. Woodward, 4 Cal. 4th 376, 383-386, 841 P.2d 954, 14 Cal. Rptr. 2d 434 (1992). See also In re Marriage of Nicholas, 186 Cal. App. 4th 1566, 1568-1569, 113 Cal. Rptr. 3d 629 (2010) (constitutional right of access applies to family court cases; restrictions to protect children’s privacy must meet “overriding interest” standard); In re Marriage of Burkle, 135 Cal. App. 4th 1045, 1063, 37 Cal. Rptr. 3d 805 (2006) (same). But see In re Marriage of Candiotti, 34 Cal. App. 4th 718, 722, 40 Cal. Rptr. 2d 299 (1995) (sealing personal information, driving records and criminal history where dissemination would harm children); Oiye v. Fox, 211 Cal. App. 4th 1036, 1068-70, 151 Cal. Rptr. 3d 65 (2012) (sealing medical records of alleged victim of sexual molestation).

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E. Appellate proceedings

The California Supreme Court has held “that substantive courtroom proceedings in ordinary civil cases are presumptively open.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999). Although the Court in NBC Subsidiary addressed access to trial proceedings, nothing in NBC Subsidiary or its progeny suggests that the presumption of openness is limited to trials. In McNair v. Nat’l Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 29, 183 Cal. Rptr. 3d 490 (2015), the Court of Appeal applied the NBC Subsidiary four-factor test to pre-trial papers lodged as part of the appellate record, and denied a request to seal. Id. at 39. It follows that the same presumption of openness should apply to appellate proceedings.

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IV. Access to criminal court records

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A. In general

In NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999), the California Supreme Court held that California Code of Civil Procedure § 124 establishes a presumption of access to court proceedings. Its analysis was driven largely by U.S. Supreme Court cases finding a First Amendment right of access to criminal proceedings. Thus, its analysis applies to criminal court records. Appendix 1 of the Trial Court Records Manual contains a complete list of court records designated confidential by statute or rule. See id., available at www.courts.ca.gov/documents/trial-court-records-manual.pdf.  See also Weaver v. Superior Court, 224 Cal. App. 4th 746, 749-750, 168 Cal. Rptr. 3d 864 (2014) (in discussion of California Public Records Act, court held that district attorney’s copies of judicial records, including charging documents, were public records).

California Rules of Court, Rules 2.550 and 2.551, set forth the procedures to obtain a sealing order. Courts may seal records only if they hold a hearing and expressly find, on the record or in a written order, that sealing is warranted under the NBC Subsidiary four-factor test. 20 Cal. 4th at 1218. The parties’ agreement to seal is insufficient. See H.B. Fuller Co. v. Doe, 151 Cal. App. 4th 879, 891, 60 Cal. Rptr. 3d 501 (2007) (reversing sealing order based on parties’ stipulation). See also In re Marriage of Nicholas, 186 Cal. App. 4th 1566, 1568-1569, 113 Cal. Rptr. 3d 629 (2010) (constitutional right of access applies to family court cases; restrictions to protect children’s privacy must meet “overriding interest” standard); In re Marriage of Burkle, 135 Cal. App. 4th 1045, 1063, 37 Cal. Rptr. 3d 805 (2006) (same). But see In re Marriage of Candiotti, 34 Cal. App. 4th 718, 722, 724, 34 Cal. Rptr. 2d 299 (1995) (sealing personal information, driving records and criminal history where dissemination would harm children); Oiye v. Fox, 211 Cal. App. 4th 1036, 1068-1070, 151 Cal. Rptr. 3d 65 (2012) (sealing medical records of alleged victim of sexual molestation).

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B. Arrest records

Under Penal Code § 1524(a)(6), a search warrant includes arrest warrants.  In turn, Penal Code § 1534(a) provides that a warrant expires in 10 days and “[t]hereafter, if the warrant has been executed, the documents and records shall be open to the public as a judicial record.” However, the court has discretion to seal warrants and probable cause affidavits to protect the criminal investigation and the defendant’s right to a fair trial. See People v. Jackson, 128 Cal. App. 4th 1009, 27 Cal. Rptr. 3d 596 (2005); People v. Hobbs, 7 Cal. 4th 948, 873 P.2d 1246, 30 Cal. Rptr. 2d 651 (1994); see also Weaver v. Superior Court, 224 Cal. App. 4th 746, 749-750, 168 Cal. Rptr. 3d 864 (2014) (in discussion of California Public Records Act, court held that district attorney’s copies of judicial records, including charging documents, were public records).

California Rules of Court, Rules 2.550 and 2.551, set forth the procedures to obtain a sealing order. Courts may seal records only if they hold a hearing and expressly find, on the record or in a written order, that sealing is warranted under a four-factor test. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 1218, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999). The parties’ agreement to seal is insufficient. See H.B. Fuller Co. v. Doe, 151 Cal. App. 4th 879, 891, 60 Cal. Rptr. 3d 501 (2007) (reversing sealing order based on parties’ stipulation).

Information regarding contemporaneous police activities, including arrests, also is available under the California Public Records Act. Government Code § 6254(f) provides, in part, that agencies must disclose “[t]he full name, current address, and occupation of every individual arrested by the agency, the individual’s physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.” However, information related to closed investigations is not available. See County of Los Angeles v. Superior Court, 18 Cal. App. 4th 588, 595, 22 Cal. Rptr. 2d 409 (1993). In addition, under Penal Code § 13300, summary criminal history information (“rap sheets”) are exempt from disclosure.

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C. Dockets

California appellate courts have not expressly held that the constitutional presumption of access applies to court dockets. However, given the strong presumption of openness associated with criminal proceedings and records in California, the presumption of access is likely to be extended to the contents of docket sheets, which could be closed only if the requirements of California Rules of Court, Rules 20550 and 2.551 were met. See, e.g., Copley Press, Inc. v. Superior Court, 6 Cal. App. 4th 106, 111, 7 Cal. Rptr. 2d 841 (1992) (holding that the press had a right to inspect the clerk’s “rough minute” books of a trial court; First Amendment provides “broad access rights to judicial hearings and records ... both in criminal and civil cases”).

In addition, California recognizes a presumption of access to all public records, which presumably would extend to dockets. See, e.g., Sander v. State Bar of California, 58 Cal. 4th 300, 304, 314 P.3d 488, 165 Cal. Rptr. 3d 250 (2013) (“under the common law right of public access, there is a sufficient public interest in the information contained in the admissions database such that the State Bar is required to provide access to it if the information can be provided in a form that protects the privacy of applicants and if no countervailing interest outweighs the public’s interest in disclosure”).

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Under Penal Code § 1534(a), “[t]he documents and records of the court relating to the warrant need not be open to the public until the execution and return of the warrant or the expiration of the 10-day period after issuance. Thereafter, if the warrant has been executed, the documents and records shall be open to the public as a judicial record.” However, the court has discretion to seal warrants and probable cause affidavits to protect the criminal investigation and the defendant’s right to a fair trial. See People v. Jackson, 128 Cal. App. 4th 1009, 27 Cal. Rptr. 3d 596 (2005); People v. Hobbs, 7 Cal. 4th 948, 873 P.2d 1246, 30 Cal. Rptr. 2d 651 (1994). The materials obtained pursuant to the warrant are not judicial records subject to public disclosure under Section 1534. Saunders v. Superior Court, 12 Cal. App. 5th Supp. 1, 13, 219 Cal. Rptr. 3d 5 (2017).

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E. Discovery materials

In NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999), the California Supreme Court held that California Code of Civil Procedure § 124 establishes a presumption of access to court proceedings. Its analysis was driven largely by U.S. Supreme Court cases finding a First Amendment right of access to criminal proceedings. However, discovery materials that are not filed with the court as judicial records are not subject to that presumption of access. Saunders v. Superior Court, 12 Cal. App. 5th Supp. 1, 13, 219 Cal. Rptr. 3d 5 (2017) (rejecting newspaper’s request for telephone records obtained pursuant to warrant and disclosed to defendant in discovery).

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F. Pretrial motions and records

In NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999), the California Supreme Court held that California Code of Civil Procedure § 124 establishes a presumption of access to court proceedings. Its analysis was driven largely by U.S. Supreme Court cases finding a First Amendment right of access to criminal proceedings. Thus, its analysis can be applied to criminal court records as well. See, e.g., People v. Connor, 115 Cal. App. 4th 669, 695-96, 9 Cal. Rptr. 3d 521 (2004) (First Amendment applied to probation report). In an unpublished opinion, the California Court of Appeal has unsealed pleadings in a criminal case where “[t]he motion involve[d] facts that are matters of public record and have been the subject of previous media attention.” See Copley Press, Inc. v. Superior Court, No. D039944, 2002 WL 661559, *1 (Cal. Ct. App. 2002) (unpublished).

California Rules of Court, Rules 2.550 and 2.551, provide the procedures to obtain a sealing order. Courts may seal records only if they hold a hearing and expressly find, on the record or in a written order, that sealing is warranted under the NBC Subsidiary four-factor test. 20 Cal. 4th at 1218. The parties’ agreement to seal is insufficient. See H.B. Fuller Co. v. Doe, 151 Cal. App. 4th 879, 891, 60 Cal. Rptr. 3d 501 (2007) (reversing sealing order based on parties’ stipulation). See also In re Marriage of Nicholas, 186 Cal. App. 4th 1566, 1568-1569, 113 Cal. Rptr. 3d 629 (2010) (constitutional right of access applies to family court cases; restrictions to protect children’s privacy must meet “overriding interest” standard); In re Marriage of Burkle, 135 Cal. App. 4th 1045, 1063, 37 Cal. Rptr. 3d 805 (2006) (same). Cf. In re Marriage of Candiotti, 34 Cal. App. 4th 718, 722, 724, 40 Cal. Rptr. 2d, 299 (1995) (sealing personal information, driving records and criminal history where dissemination would harm children); Oiye v. Fox, 211 Cal. App. 4th 1036, 1068-70, 151 Cal. Rptr. 3d 65 (2012) (sealing medical records of alleged victim of sexual molestation).

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G. Trial records

California recognizes a common law right of access to trial records, including the right to copy audiotapes played during the trial. KNSD Channels 7/39 v. Superior Court, 63 Cal. App. 4th 1200, 1204-1205, 74 Cal. Rptr. 2d 595 (1998). California courts also have recognized a constitutional right to access other criminal records, which presumably would extend to trial records and exhibits. E.g., People v. Connor, 115 Cal. App. 4th 669, 695, 9 Cal. Rptr. 3d 521 (2004).

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H. Post-trial records

California courts have recognized a constitutional right of access to probation reports. People v. Connor, 115 Cal. App. 4th 669, 695, 9 Cal. Rptr. 3d 521 (2004). However, under Penal Code § 1203.05, unrestricted access to the complete probation report ends 60 days after judgment is entered or probation ordered (whichever is earlier). If a “subsequent accusatory pleading is filed,” the probation report from an earlier conviction is again available for a 60-day period. After that 60-day period, the report is available only by petition to the trial court, which must evaluate whether any private information should be redacted before it releases either the entire report or a redacted report. Connor, 115 Cal. App. 4th at 696. The trial court also may sua sponte order that a probation report be made available to the public.

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I. Appellate records

California Rules of Court, Rules 8.45 through 8.47, apply to attempts to seal records in the appellate courts. The standard is the same as for trial court records.

If the record was sealed in the trial court, it remains sealed unless the appellate court orders otherwise. If the record was not submitted to the trial court, the party offering it must file a motion to seal. In McNair v. Nat’l Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 29, 183 Cal. Rptr. 3d 490 (2015), the Court of Appeal applied the NBC Subsidiary four-factor test to pre-trial papers lodged as part of the appellate record, and denied a request to seal. Id. at 39.

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J. Other criminal court records issues

California’s right of access extends to records on payment to a defendant’s public attorney. See Copley Press Inc. v. Superior Court, No. D041072, 2003 WL 21055100, *4 (Cal. Ct. App. 2003) (unpublished).

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V. Access to civil proceedings

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A. In general

In NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999), the California Supreme Court held that California Code of Civil Procedure § 124 establishes a presumption of access to court proceedings. Its analysis was driven largely by U.S. Supreme Court cases finding a First Amendment right of access to criminal proceedings. The Court observed that although those decisions were rendered “in the criminal context, the reasoning of these decisions suggests that the First Amendment right of access extends beyond the context of criminal proceedings and encompasses civil proceedings as well.” Id. at 1207. The Court held that “it is clear today that substantive courtroom proceedings in ordinary civil cases are presumptively open” and that statutory law “must be interpreted to preclude closure of proceedings that satisfy” the U.S. Supreme Court’s criteria for openness. Id. at 1217 (internal quotations omitted). It added that “every lower court opinion of which we are aware that has addressed the issue of First Amendment access to civil trials and proceedings has reached the conclusion that the constitutional right of access applies to civil as well as to criminal trials.” Id. at 1208 (internal citations omitted).

This presumption of access is only defeated when a court “hold[s] a hearing and expressly find[s] that (i) there exists an overriding interest supporting the closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the overriding interest.” Id. at 1217-1218.

In response to NBC Subsidiary, the California Judicial Council adopted California Rules of Court, Rules 2.550 and 2.551, entitled “Sealed records” and “Procedures for filing records under seal.” Rule 2.550(c) states that “[u]nless confidentiality is required by law, court records are presumed to be open.” According to the accompanying Advisory Committee Comment, Rules 2.550 and 2.551 provide a standard for sealing civil and criminal records, and are based on NBC Subsidiary. The rules “recognize the First Amendment right of access to documents used at trial or as a basis of adjudication.” Id.

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B. Pre-trial proceedings

The California Supreme Court has held “that substantive courtroom proceedings in ordinary civil cases are presumptively open.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999). Although the Court in NBC Subsidiary addressed access to trial proceedings, nothing in NBC Subsidiary or its progeny suggests that the presumption of openness is limited to trial proceedings. Instead, the Court’s language is sufficiently broad to encompass all phases of civil litigation, from pre-trial through appeal. Courts have applied the presumption of openness to records of pre-trial proceedings, such as materials submitted in connection with a special motion to strike. E.g., McNair v. Nat’l Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 29, 183 Cal. Rptr. 3d 490 (2015). It follows that the same presumption of openness should apply to the proceedings themselves.

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C. Trials

The seminal California Supreme Court case on open access to civil proceedings, NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999), addressed the question of whether, in a jury trial, the trial court had properly “issued orders excluding the public and the press from all courtroom proceedings held outside the presence of the jury, and sealing the transcripts of those proceedings.” It was in this civil trial context that the California Supreme Court announced the rule that “substantive courtroom proceedings in ordinary civil cases are presumptively open.” Id. at 1217; see also In re Marriage of Burkle, 135 Cal. App. 4th 1045, 1070, 37 Cal. Rptr. 3d 805 (2006) (“The First Amendment provides a right of access to court records in divorce proceedings, just as in other ordinary civil cases”). Certain types of trials, however, such as involuntary conservatorship proceedings, may be closed. See, e.g., Sorenson v. Superior Court, 219 Cal. App. 4th 409, 416, 161 Cal. Rptr. 3d 794 (2013) (finding that there is no presumptive right of access to trials in involuntary conservatorship proceedings under California’s Lanterman-Petris-Short Act, because such proceedings are not “ordinary civil trials and proceedings”).

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D. Post-trial proceedings

The California Supreme Court has held “that substantive courtroom proceedings in ordinary civil cases are presumptively open.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999). Although the Court in NBC Subsidiary addressed access to trial proceedings, nothing in NBC Subsidiary or its progeny suggests that the presumption of openness is limited to trial proceedings. Instead, the Court’s language is sufficiently broad to encompass all phases of civil litigation proceedings, from pre-trial through appeal. Courts have applied the presumption of openness to records of appellate proceedings, such as materials lodged as part of the record on appeal. See McNair v. Nat’l Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 29, 183 Cal. Rptr. 3d 490 (2015). It follows that the same presumption of openness should apply to the post-trial proceedings.

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E. Appellate proceedings

The California Supreme Court has held “that substantive courtroom proceedings in ordinary civil cases are presumptively open.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 980 P.2d 337, 364 (Cal. 1999). Although the Court in NBC Subsidiary addressed access to trial proceedings, nothing in NBC Subsidiary or its progeny suggests that the presumption of openness is limited to trials. In McNair v. Nat’l Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 29, 183 Cal. Rptr. 3d 490 (2015), the Court of Appeal applied the NBC Subsidiary four-factor test to pre-trial papers lodged as part of the appellate record, and denied a request to seal. Id. at 39. It follows that the same presumption of openness should apply to appellate proceedings.

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VI. Access to civil records

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A. In general

In NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999), the California Supreme Court held that California Code of Civil Procedure § 124 establishes a presumption of access to court proceedings. Its analysis was driven largely by U.S. Supreme Court cases finding a First Amendment right of access to criminal proceedings. The Court observed that although those decisions were rendered “in the criminal context, the reasoning of these decisions suggests that the First Amendment right of access extends beyond the context of criminal proceedings and encompasses civil proceedings as well.” Id. at 1207.

Courts routinely have applied NBC Subsidiary to records in civil cases. As one Court of Appeal explained, “[t]he constitutional right of public access to, and the presumption of openness of, documents submitted at trial or as a basis for adjudication in ordinary civil cases are designed to protect the integrity of our judicial system. Public access to such documents plays an important and specific structural rule in the conduct of civil proceedings.” McNair v. Nat’l Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 39, 183 Cal. Rptr. 3d 490 (2015) (internal citations omitted). “Substantive courtroom proceedings in ordinary civil cases, and the transcripts and records pertaining to these proceedings are presumptively open.” Id. at 31 (citations and internal quotations omitted). Openness, however, “is a presumption; it is not an absolute.” Id.

California Rules of Court, Rules 2.550 and 2.551, provide the procedures to obtain a sealing order. Courts may seal records only if they hold a hearing and expressly find, on the record or in a written order, that sealing is warranted under the NBC Subsidiary four-factor test. 20 Cal. 4th at 1218. The parties’ agreement to seal is insufficient. See H.B. Fuller Co. v. Doe, 151 Cal. App. 4th 879, 891, 60 Cal. Rptr. 3d 501 (2007) (reversing sealing based on parties’ stipulation). See also In re Marriage of Nicholas, 186 Cal. App. 4th 1566, 1568-1569, 113 Cal. Rptr. 3d 629 (2010) (constitutional right of access applies to family court cases; restrictions to protect children’s privacy must meet “overriding interest” standard); In re Marriage of Burkle, 135 Cal. App. 4th 1045, 1063, 37 Cal. Rptr. 3d 805 (2006) (same). But see In re Marriage of Candiotti, 34 Cal. App. 4th 718, 722, 724, 40 Cal. Rptr. 2d 299 (1995) (sealing personal information, driving records and criminal history where dissemination would harm children); Oiye v. Fox, 211 Cal. App. 4th 1036, 1068-1070, 151 Cal. Rptr. 3d 65 (2012) (sealing medical records of alleged victim of sexual molestation).

The First Amendment presumption of openness does not “apply to discovery motions and records filed or lodged in connection with discovery motions or proceedings.” Mercury Interactive Corp. v. Klein, 158 Cal. App. 4th 60, 68, 70 Cal. Rptr. 3d 88 (2007). That Court explained that “[p]ublic access to a discovery document that is not considered or relied on by the court in adjudicating any substantive controversy does nothing” to promote the rationales for access to civil court records. Id. at 96; see also id. at 105 (finding no right of access to the exhibits attached to a civil complaint, “where they consisted of discovery material that was not admitted at trial or used as a basis of the court’s adjudication of a substantive matter”). See also Appendix 1, Trial Court Records Manual, available at www.courts.ca.gov/documents/trial-court-records-manual.pdf (providing a complete list of court records designated confidential by statute or rule).

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B. Dockets

California appellate courts have not expressly decided whether the constitutional presumption of access applies to civil court dockets. However, given the strong presumption of openness associated with civil proceedings and records in California, the presumption of access is likely to be applied to the contents of docket sheets, which could be closed only if the requirements of California Rules of Court, Rules 20550 and 2.551 were met. See. e.g., Copley Press, Inc. v. Superior Court, 6 Cal. App. 4th 106, 111, 7 Cal. Rptr. 2d 841 (1992) (holding that the press had a right to inspect the clerk’s “rough minute” books of a trial court; First Amendment provides “broad access rights to judicial hearings and records ... both in criminal and civil cases”).

In addition, California recognizes a presumption of access to all public records, which presumably would extend to dockets. See, e.g., Sander v. State Bar of California, 58 Cal. 4th 300, 304, 314 P.3d 488, 165 Cal. Rptr. 3d 250 (2013) (“under the common law right of public access, there is a sufficient public interest in the information contained in the admissions database such that the State Bar is required to provide access to it if the information can be provided in a form that protects the privacy of applicants and if no countervailing interest outweighs the public’s interest in disclosure”).

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C. Discovery materials

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D. Pre-trial motions and records

The presumption of access to civil court records applies to pretrial motions and records submitted to courts “as a basis for adjudication in ordinary civil cases.” McNair v. Nat’l Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 39, 183 Cal. Rptr. 3d 490 (2015) (denying request to seal materials submitted in connection with a special motion to strike); see also In re Providian Credit Card Cases, 96 Cal. App. 4th 292, 308-310, 116 Cal. Rptr. 2d 833 (2002) (affirming order unsealing records submitted with class certification motion).

The presumption does not “apply to discovery motions and records filed or lodged in connection with discovery motions or proceedings.” Mercury Interactive Corp. v. Klein, 158 Cal. App. 4th 60, 68, 70 Cal. Rptr. 3d 88 (2007). “Public access to a discovery document that is not considered or relied on by the court in adjudicating any substantive controversy does nothing” to promote the rationales for access to civil court records. Id. at 96; see also id. at 105 (finding no right of access to the exhibits attached to a civil complaint, “where they consisted of discovery material that was not admitted at trial or used as a basis of the court’s adjudication of a substantive matter”); Overstock.com, Inc. v. Goldman Sachs Group, Inc., 231 Cal. App. 4th 471, 500, 180 Cal. Rptr. 3d 234 (2014) (“The public’s right of access to court records exists only” as to materials that are “relevant to the contentions advocated by the proffering party” and “does not extend to irrelevant materials submitted to the court out of laziness in reviewing and editing evidentiary submissions, or worse, out of a desire to overwhelm and harass an opponent”) (emphasis in original).

However, California does not treat all discovery material as presumptively private. Code of Civil Procedure § 2025.570 provides that “unless the court issues an order to the contrary, a copy of the transcript of the deposition testimony … shall be made available by the deposition officer to any person requesting a copy, on payment of a reasonable charge set by the deposition officer.” It establishes the procedures for requesting access, including notice to the parties to afford them an opportunity to obtain a protective order. See also Board of Trustees of Calif. State Univ. v. Superior Court, 132 Cal. App. 4th 889, 901, 34 Cal. Rptr. 3d 82 (2005) (in light of the statute, “depositions are ordinarily not documents that the parties would reasonably envision would not be made available to persons or entities outside the litigation”); City of Los Angeles v. Superior Court (1996) 41 Cal. App. 4th 1083, 1085-1086, 49 Cal. Rptr. 2d 35 (depositions in possession of City Attorney’s office were public records subject to disclosure under the California Public Records Act).

Any party seeking to prevent access to a transcript, or to preclude another party from releasing records disclosed in discovery, must show “good cause,” i.e., that the order is necessary to protect against “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” Cal. Code Civ. Proc. § 2025.420(b). The “burden is on the party seeking the protective order to show good cause for whatever order is sought.” Fairmont Ins. Co. v. Superior Court, 22 Cal. 4th 245, 255, 991 P.2d 156, 92 Cal. Rptr. 2d 70 (2000). “Courts frequently consider the public interest when determining whether good cause exists for a protective order.” Westinghouse Electric Corp. v. Newman & Holtzinger, P.C., 39 Cal. App. 4th 1194, 1208, 46 Cal. Rptr. 2d 151 (1995); see also Stadish v. Superior Court, 71 Cal. App. 4th 1130, 1145-1146, 84 Cal. Rptr. 2d 350 (1999) (setting aside protective order and directing trial court to consider public interest in evaluating whether party showed good cause). Disclosure will be ordered, even as to private records, if the public interest is sufficient. In re The Clergy Cases I, 188 Cal. App. 4th 1224, 116 Cal. Rptr. 3d 360 (2010) (ordering disclosure of psychiatric and other confidential records of priests accused of sexual abuse). “Good cause” must be shown with specificity as to each particular document. People v. Superior Court, 248 Cal. App. 2d 276, 281, 56 Cal. Rptr. 393 (1967).

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E. Trial records

The presumption of access to records in ordinary civil cases applies to trial records. The seminal California Supreme Court case on open access to civil proceedings, NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999), addressed the question of whether, in a jury trial, the trial court had properly “issued orders . . . sealing the transcripts of those proceedings.” Finding a presumptive right of access to those trial transcripts, the Supreme Court affirmed a lower court ruling mandating “that transcripts of those hearings be made available to the public or journalists.” Id. at 1188.

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F. Settlement records

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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G. Post-trial records

California appellate courts have not considered whether the constitutional presumption of access applies to civil post-trial records. However, California courts have applied the presumption of access to court records in all other phases of civil litigation. See, e.g., McNair v. Nat’l Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 29, 183 Cal. Rptr. 3d 490 (2015) (mandating access to pre-trial papers lodged as part of an appellate record). Thus, the presumptive right of access should apply to civil post-trial records, so long as those records are substantive and “submitted as a basis for adjudication.” Id. at 39.

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H. Appellate records

The presumption of access to civil court records applies to appellate records. See, e.g., McNair v. Nat’l Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 183 Cal. Rptr. 3d 490 (2015) (mandating access to pre-trial papers lodged as part of an appellate record).

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I. Other civil court records issues

Access to all types of civil court records should be presumed in California, provided they are “submitted at trial or as a basis for adjudication in ordinary civil cases.” McNair v. Nat’l Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 39, 183 Cal. Rptr. 3d 490 (2015).

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VII. Jury and grand jury access

Following the United States Supreme Court’s decision in Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S. Ct. 2735 (1984), California courts have recognized a First Amendment-based right of access to jury selection proceedings and questionnaires. E.g., Pantos v. City and County of San Francisco, 151 Cal. App. 3d 258, 262-263, 198 Cal. Rptr. 489 (1984). California limits the disclosure of jurors’ personal identifying information, but provides a procedure for seeking that information by petition. See Cal. Code Civ. Proc. § 237.

Jury selection is presumptively open to the public and press. Ukiah Daily Journal v. Superior Court, 165 Cal. App. 3d 788, 791, 211 Cal. Rptr. 673 (1985). The presumption can only be overcome if the trial court makes express findings that closure is necessary to preserve an overriding interest, and the closure order is narrowly tailored. Id. General concerns about potential jurors being less candid, or being influenced by the statements of other potential jurors, are not a sufficient overriding interest. Id. at 792-793.

California courts have declined to recognize any constitutional or common law right of access to grand jury proceedings or materials, which generally are kept confidential. See Daily Journal Corp. v. Superior Court, 20 Cal. 4th 1117, 1128-1129, 979 P.2d 982, 86 Cal. Rptr. 2d 623 (1999) (trial court had no authority to release grand jury materials except as provided by statute). However, a statute creates a right of access to some grand jury materials following an indictment. See Cal. Penal Code § 938.1(b).

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A. Access to voir dire

Jury selection is presumptively open to the public and press. Ukiah Daily Journal v. Superior Court, 165 Cal. App. 3d 788, 791, 211 Cal. Rptr. 673 (1985). The presumption can only be overcome if the trial court makes express findings that closure is necessary to preserve an overriding interest, and the closure order is narrowly tailored. Id. General concerns about potential jurors being less candid, or being influenced by the statements of other potential jurors, are not a sufficient overriding interest. Id. at 792-793.

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B. Juror identities, questionnaires and other records

The names of jurors “shall be made available to the public upon request unless the court determines that a compelling interest,” such as “protecting jurors from threats or danger of physical harm,” requires that the information be kept confidential. Cal. Code Civ. Proc. § 237. See also Pantos v. City and County of San Francisco, 151 Cal. App. 3d 258, 262-263, 198 Cal. Rptr. 489 (1984) (list of qualified jurors is a judicial record, presumed open to public access).

In a criminal case, trial jurors’ names, addresses, and phone numbers are sealed after a verdict, although any person may petition a court for access on a showing of good cause. Id. § 237(a). If no jurors object and the court finds no compelling reason for non-disclosure, it must release the information, but if a juror is unwilling to be contacted, the petition must be denied. Id. § 237(d).

Juror questionnaires are presumptively public under the First Amendment, although juror names and contact information must be redacted and sought by petition pursuant to Code of Civil Procedure § 237. See Bellas v. Superior Court, 85 Cal. App. 4th 636, 639, 645, 102 Cal. Rptr. 2d 380 (2000). The contents of the questionnaires must be disclosed unless the trial court finds sealing is necessary to preserve an overriding interest, and the sealing order is narrowly tailored. Id. See also Copley Press, Inc. v. Superior Court, 228 Cal. App. 3d 77, 84-85, 278 Cal. Rptr. 443 (1991); Lesher Communications v. Superior Court, 224 Cal. App. 3d 774, 777-778, 274 Cal. Rptr. 154 (1990).

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C. Grand jury proceedings and records

California courts do not recognize a First Amendment or common law right of access to grand jury proceedings, transcripts, or other materials. See Daily Journal Corp. v. Superior Court, 20 Cal. 4th 1117, 1132, 979 P.2d 982, 86 Cal. Rptr. 2d 623 (1999); Alvarez v. Superior Court, 154 Cal. App. 4th 642, 652, 64 Cal. Rptr. 3d 854 (2007).

Additionally, grand juries are prohibited from releasing their materials to the public. See McClatchy Newspapers v. Superior Court, 44 Cal. 3d 1162, 1167, 751 P.2d 1329, 245 Cal. Rptr. 774 (1988). Courts also lack the inherent power to disclose grand jury materials. See Daily Journal Corp., 20 Cal. 4th at 1128, 979 P.2d 982, 86 Cal. Rptr. 2d 623; Goldstein v. Superior Court, 45 Cal. 4th 218, 228-230, 195 P.3d 588, 85 Cal. Rptr. 3d 213 (2008).

The secrecy of grand jury proceedings extends to ancillary proceedings such as motions to quash grand jury subpoenas. See Los Angeles Times v. Superior Court, 114 Cal. App. 4th 247, 7 Cal. Rptr. 3d 524 (2003). Such proceedings must be closed and records sealed “to the extent necessary to prevent disclosure of matters occurring before the grand jury.” Id. at 251.

However, there is a qualified statutory right of access to grand jury transcripts after an indictment has been returned. See Cal. Pen. Code § 938.1(b). The transcripts shall be open to the public 10 days after delivery to the defendant or defendant’s attorney, unless a “court determines that there is a reasonable likelihood that making all or any part of the transcript public may prejudice a defendant’s right to a fair and impartial trial.” Id.; see also Cal. Pen. Code § 929 (authorizing, with the approval of the presiding judge, the release of “evidentiary material, findings, and other information relied upon by, or presented to, a grand jury for its final report in any civil grand jury investigation provided that the name of any person, or facts that lead to the identity of any person who provided information to the grand jury, shall not be released”).

Courts evaluating whether there is a “reasonable likelihood” of prejudice under Section 938.1 consider the “same factors pertinent to a change of venue motion: the size of the potential jury pool and the nature and extent of the publicity,” as well as whether there are reasonable alternatives to sealing. Press-Enterprise v. Superior Court, 22 Cal. App. 4th 498, 503-505, 27 Cal. Rptr. 2d 708 (1994).

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D. Interviewing jurors

Code of Civil Procedure § 237 establishes the procedure to obtain juror identities. Under Section 237(a)(1), “[t]he names of qualified jurors drawn from the qualified juror list for the superior court shall be made available to the public upon request unless the court determines that a compelling interest … requires that this information should be kept confidential or its use limited in whole or in part.” The statute directs the court to give notice to jurors, who may request that their identities not be disclosed, and requires release if the petition is supported by “good cause” and no compelling interests support continue sealing.

Although courts may have some authority to limit parties and attorneys from contacting jurors, the First Amendment prohibits such restrictions on the press. See Contra Costa Newspapers, Inc. v. Superior Court, 61 Cal. App. 4th 862, 867-868, 72 Cal. Rptr. 2d 69 (1998). Journalists may attempt to interview jurors, and a “juror may speak or remain silent as he or she desires.” Id. at 868.

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VIII. Proceedings involving minors

California courts have declined to recognize a First Amendment-based right of public access to juvenile court proceedings and records. See San Bernardino County Dep’t of Public Social Servs. v. Superior Court, 232 Cal. App. 3d 188, 205, 283 Cal. Rptr. 332 (1991). However, the California Welfare & Institutions Code provides a qualified statutory right of access, which the Legislature intended to encourage press coverage of juvenile proceedings. Brian W. v. Superior Court, 20 Cal. 3d 618, 623, 574 P.2d 788, 143 Cal. Rptr. 717 (1978) (discussing Welf. & Inst. Code § 676). Juvenile court judges have discretion to allow public and press access to particular proceedings or records on a case-by-case basis. In re A.L., 224 Cal. App. 4th 354, 358, 168 Cal. Rptr. 3d 589 (2014). See also Appendix 1, Trial Court Records Manual, available at www.courts.ca.gov/documents/trial-court-records-manual.pdf (providing a complete list of court proceedings and records designated confidential by statute or rule).

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A. Delinquency

Under Welfare & Institutions Code § 676, delinquency hearings generally are closed to the public, with three exceptions: (1) when the minor and a parent or guardian requests an open hearing; (2) when the court exercises its discretion to admit persons it “deems to have a direct and legitimate interest in the particular case or the work of the court,” which can include the press; or (3) when the minor is charged with one of the serious criminal offenses listed in the statute, including murder, arson, armed robbery, rape, kidnapping, carjacking, etc. Id. § 676(a).

Where a juvenile is charged with one of the enumerated serious criminal offenses from Welfare & Institutions Code § 676(a), “courts have given a broad reading to the public’s right to attend the hearings.” KGTV Channel 10 v. Superior Court, 26 Cal. App. 4th 1673, 1679 n.4, 32 Cal. Rptr. 2d 181 (1994) (detention hearing for a juvenile charged with murder); see also Cheyenne K. v. Superior Court, 208 Cal. App. 3d 331, 332, 256 Cal. Rptr. 68 (1989) (competency hearing for juvenile charged with murder); Brian W. v. Superior Court, 20 Cal. 3d 618, 626, 574 P.2d 788, 143 Cal. Rptr. 717 (1978) (fitness hearing; murder and other crimes); Tribune Newspapers West, Inc. v. Superior Court, 172 Cal. App. 3d 443, 446, 221 Cal. Rptr. 673 (1985) (fitness hearing; bank robbery).

A court can close a hearing that is otherwise open under Welfare & Institutions Code § 676(a) if the minor “establishes a reasonable likelihood of substantial prejudice to the right to receive a fair and impartial trial.” KGTV Channel 10, 26 Cal. App. 4th at 1684-1685.

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B. Dependency

Under Welfare & Institutions Code § 346, dependency hearings generally are closed to the public, with two exceptions: (1) when a parent or guardian requests an open hearing and the minor consents; or (2) when the court exercises its discretion to admit persons it “deems to have a direct and legitimate interest in the particular case or the work of the court.” The Legislature adopted the qualified right of access to encourage press coverage of juvenile proceedings. See Brian W. v. Superior Court, 20 Cal. 3d 618, 623, 574 P.2d 788, 143 Cal. Rptr. 717 (1978). “[P]roceedings are private until such time as the judge or referee exercises its discretion to admit a member of the public.” In re A.L., 224 Cal. App. 4th 354, 367, 168 Cal. Rptr. 3d 589 (2014).

Members of the press or public must “seek admission to the presumptively private hearing from the judge or referee, who exercises his or her discretion, balancing the competing interests, based on the unique facts of the case.” In re A.L., 224 Cal. App. 4th at 368. Courts “may properly consider such factors as the age of each child, the nature of the allegations, the extent of the present and/or expected publicity and its effect, if any, on the children and on family reunification.” San Bernardino County Dep’t of Public Social Servs. v. Superior Court, 232 Cal. App. 3d 188, 207, 283 Cal. Rptr. 332 (1991).

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C. Other proceedings involving minors

Under Welfare & Institutions Code § 827, juvenile court records are generally confidential. However, the statute permits access by anyone “who may be designated by court order of the judge of the juvenile court upon filing a petition.” Id. § 827(a)(1)(P). This provision allows for press access on a case-by-case basis, in which the court balances the interests of the minors and other parties to the proceeding against the need for disclosure. See In re Keisha T., 38 Cal. App. 4th 220, 239-40, 44 Cal. Rptr. 2d 822 (1995); Cal. Rules of Court, Rule 5.552(e). See also Appendix 1, Trial Court Records Manual, available at www.courts.ca.gov/documents/trial-court-records-manual.pdf (providing a complete list of court records designated confidential by statute or rule). “Under appropriate circumstances, a juvenile court may order the release of juvenile court records to the press.” City of Eureka v. Superior Court of Humboldt County, 1 Cal. App. 5th 755, 762, 205 Cal. Rptr. 3d 134, 138 (2016) (citing In re Keisha T., 38 Cal. App. 4th at 236) (ultimately holding that video of police arresting minor was not a confidential personnel record protected from disclosure).

To request access to juvenile court records, a member of the press must file a petition with the court, and the minor and other interested parties must be given notice and an opportunity to be heard. In re Keisha T., 38 Cal. App. 4th at 240. The petitioner must identify the specific records being sought and the purpose of the request, and follow certain notification procedures. See Cal. Rules of Court, Rule 5.552(c)-(d).

For delinquency records, when a petition is sustained for one of the serious criminal offenses listed in Welfare & Institutions Code § 676(a), documents including the charging petition, minutes of the proceeding, and orders of adjudication and disposition are public. See id. § 676(d). However, the juvenile court can prohibit access at the request of a probation officer or any party to the proceeding if the judge concludes that harm to a minor, victim, witness, or the public from disclosure outweighs the benefits of public access. See id. § 676(e).

When a child who was under the jurisdiction of the juvenile court dies, there is a presumption of public access to the child’s case files. See Cal. Welf. & Inst. Code § 827(a)(2). “Thus, where the child whose records are sought has died, no weighing or balancing of interests is required; the files shall be released unless there is a showing that release of the juvenile case file or any portion thereof is detrimental to the safety, protection, or physical, or emotional well-being of another child who is directly or indirectly connected to the juvenile case that is the subject of the petition.” In re Elijah S., 125 Cal. App. 4th 1532, 1542-1543, 24 Cal. Rptr. 3d 16 (2005) (internal quotations omitted); see also Pack v. Kings County Human Servs. Agency, 89 Cal. App. 4th 821, 107 Cal. Rptr. 2d 594 (2001) (affirming order denying access to records because redaction would not sufficiently protect privacy interests of living child). Members of the press seeking such records must bring petitions according to the procedures set forth in the statute. See Cal. Welf. & Inst. Code § 827(a)(2); Cal. Rules of Court, Rule 5.553.

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D. Prohibitions on photographing or identifying juveniles

The press has a constitutional right to report lawfully obtained information, including the names and likenesses of juveniles obtained through court proceedings. See KGTV Channel 10 v. Superior Court, 26 Cal. App. 4th 1673, 1682, 32 Cal. Rptr. 2d 181 (1994). Juvenile courts can close proceedings entirely or limit how attorneys identify the parties in court, but they cannot preclude the press from reporting on information disclosed during an open proceeding, or restrict the media’s newsgathering and reporting outside of court. Id.; see also San Bernardino County Dep’t of Public Social Servs. v. Superior Court, 232 Cal. App. 3d 188, 206-207, 283 Cal. Rptr. 332 (1991) (juvenile court could not condition access on restrictions of the press’ right to publish lawfully obtained information and gather information outside of court).

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E. Minor testimony in non-juvenile courts

The presumptive First Amendment right of access applies to ordinary civil and criminal court proceedings and records. See NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999). Accordingly, any restrictions on access, including access to proceedings involving minors, must meet constitutional requirements, including a showing of an overriding interest and narrow tailoring. See In re Marriage of Nicholas, 186 Cal. App. 4th 1566, 1568-1569, 113 Cal. Rptr. 3d 629 (2010) (constitutional right of access applies to family court cases; restrictions to protect children’s privacy must meet “overriding interest” standard); In re Marriage of Burkle, 135 Cal. App. 4th 1045, 1063, 37 Cal. Rptr. 3d 805 (2006) (same).

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IX. Special proceedings

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A. Tribal Courts in the jurisdiction

The California courts’ website, www.courts.ca.gov, provides information regarding Tribal/State Programs, at http://www.courts.ca.gov/programs-tribal.htm. The available information includes a California Tribal Courts Directory, by Tribe and by County, available at http://www.courts.ca.gov/14400.htm. Each Tribal Court maintains its own rules of procedure; most of them expressly address the question of access. E.g., Rules 1.5(A), 1.13(D), Shingle Springs Band Of Miwok Indians, Tribal Court Rules Of Court, Approved 10/9/2015, available at http://shinglespringsrancheria.com/ssr/wp-content/uploads/documents/tribal-court/Tribal%20Court%20Rules.pdf (establishing general presumption of access to Tribal Court records and proceedings); Rules 5(C) & (D), 12(D), Karuk Tribe Rules of Court and Civil Procedure, Adopted 9/1/2016, available at http://www.karuk.us/images/docs/court/Rules%20of%20Court%20and%20Civil%20Procedure%202016.pdf (strictly limiting access to Tribal Court records but establishing presumption of access to trials).

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B. Probate

California recognizes a right of access to probate court files. See Estate of Hearst, 67 Cal. App. 3d 777, 784, 136 Cal. Rptr. 821 (1977). The court explained there that “[a]bsent strong countervailing reasons, the public has a legitimate interest and right of general access to court records, one of special importance when probate involves a large estate with on-going long-term trusts which reputedly administer and control a major publishing empire.” Id. The court remanded to the trial court to conduct a balancing of interests, explaining that “[i]f indeed it were established that beneficiaries of the Hearst trusts would be placed in serious danger of loss of life or property as a consequence of general public access to the Hearst probate files, then the court would have the power to protect the beneficiaries’ interests by temporarily denying public access to those files, in that protection of beneficiaries is one of the justifications for court jurisdiction over a testamentary trust.” Id. at 784-785. See also Appendix 1, Trial Court Records Manual, available at www.courts.ca.gov/documents/trial-court-records-manual.pdf (providing a complete list of court records designated confidential by statute or rule).

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C. Competency and commitment proceedings

Commitment proceedings historically have been closed; thus, California courts do not recognize a right of access. See Sorenson v. Superior Court, 219 Cal. App. 4th 409, 161 Cal. Rptr. 3d 794 (2013). However, commitment proceedings under the Sexually Violent Predators Act (Cal. Welf. & Inst. Code, § 6600 et seq.), are subject to the presumption of access—because they often are based in part on criminal conduct—so long as steps are taken to protect any confidential information that is disclosed in the proceeding. People v. Dixon, 148 Cal. App. 4th 414, 428-430, 56 Cal. Rptr. 3d 33 (2007). See also Appendix 1, Trial Court Records Manual, available at www.courts.ca.gov/documents/trial-court-records-manual.pdf (providing a complete list of court records designated confidential by statute or rule).

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D. Attorney and judicial discipline

Attorney and judicial discipline matters initially are resolved by the State Bar Court. “The State Bar is subject to the State Bar Act (Bus. & Prof. Code, § 6000 et seq.), which contains numerous statutes that make various of its activities and records public and others confidential. (See Bus. & Prof. Code, § 6000 et seq.) It is also subject to rules adopted by its governing body ….” Sander v. State Bar of California, 58 Cal. 4th 300, 310, 314 P.3d 488, 165 Cal. Rptr. 3d 250 (2013) (footnote, citations omitted).

Rules 5.9 through 5.16 of the Rules of Procedure of the State Bar of California address access to discipline records and proceedings. They establish a presumption of access except in limited circumstances (such as settlement conferences and moral character proceedings). A motion to seal must be “supported by specific facts showing that a statutory privilege or constitutionally protected interest exists that outweighs the public interest in the proceeding.” Id. R. 5.12(B). In addition, under Rule 5.16(A), “[a] public State Bar Court proceeding may be photographed, recorded, or broadcast only on written order of the hearing judge or, if pending in the Review Department, the Presiding Judge. A request must be in the form approved by the Executive Committee and submitted to the hearing judge or Review Department at least five days before the proceeding.” But see Chronicle Publ’g Co. v. Superior Court, 54 Cal. 2d 548, 573-574, 354 P.2d 637, 7 Cal. Rptr. 109 (1960) (complaints to State Bar not resulting in disciplinary action privileged, where confidentiality furthered State Bar’s interest in encouraging citizens to provide information and attorneys’ interests in avoiding publication of unfounded complaints weighed against disclosure).

Disciplinary matters are subject to review by the California Supreme Court or a California Court of Appeal under Business & Professions Code §§ 6082 and 6083. See In re Rose, 22 Cal. 4th 430, 438-441, 993 P.2d 956, 93 Cal. Rptr. 2d 298 (2000) (discussing procedural rules related to attorney discipline). The First Amendment and common law presumptions of access apply to appellate proceedings. Cal. R. Ct., Rule 8.45, et seq. (standards and procedures to seek closure or sealing of appellate proceedings or records).

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E. Immigration proceedings

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F. Other proceedings

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X. Restrictions on participants in litigation

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A. Media standing to challenge third-party gag orders

California courts have not expressly addressed media standing to challenge gag orders. However, one court recognized the right of a third party to challenge a gag order because of its interest in the case. Mary R. v. B. & R. Corp., 149 Cal. App. 3d 308, 196 Cal. Rptr. 871 (1983). Another court found standing to challenge a gag order in an unpublished opinion. Dixon v. Superior Court, 2007 WL 4227248, 36 Media L. Rep. 1505, *11-12 (Cal. Ct. App. 2007) (citing Craemer v. Superior Court, 265 Cal. App. 2d 216, 218 n.1, 71 Cal. Rptr. 193 (1968); In re Application of Dow Jones & Co., 842 F.2d 603, 607 (2d Cir. 1988)).

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B. Gag orders on the press

Gag orders on the press are presumptively invalid and subject to constitutional strict scrutiny. Freedom Communications, Inc. v. Superior Court, 167 Cal. App. 4th 150, 153, 83 Cal. Rptr. 3d 861 (2008); S. Coast Newspapers, Inc. v. Superior Court, 85 Cal. App. 4th 866, 869-870, 102 Cal. Rptr. 2d 487 (2000); KGTV Channel 10 v. Superior Court, 26 Cal. App. 4th 1673, 1679, 32 Cal. Rptr. 2d 181 (1994); KCST-TV Channel 39 v. Municipal Court, 201 Cal. App. 3d 143, 146, 246 Cal. Rptr. 869 (1988).

Even in connection with juvenile proceedings, a court may not restrict the press’s right to investigate and publish information it lawfully obtained. San Bernardino County Dep’t of Public Social Servs. v. Superior Court, 232 Cal. App. 3d 188, 206, 283 Cal. Rptr. 332 (1991).

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C. Gag orders on participants

Gag orders on trial participants are unconstitutional unless “(1) the speech sought to be restrained poses a clear and present danger or serious and imminent threat to a protected competing interest; (2) the order is narrowly tailored to protect that interest; and (3) no less restrictive alternatives are available.” Hurvitz v. Hoefflin, 84 Cal. App. 4th 1232, 1241-1242, 101 Cal. Rptr. 2d 558 (2000). See also San Francisco Unified School Dist. ex rel. Contreras v. First Student, Inc., 213 Cal. App. 4th 1212, 1238, 153 Cal. Rptr. 3d 583 (2013); Maggi v. Superior Court, 119 Cal. App. 4th 1218, 1225, 15 Cal. Rptr. 3d 161 (2004). This rule applies even when a media company is a party to the case. Freedom Communications, Inc. v. Superior Court, 167 Cal. App. 4th 150, 83 Cal. Rptr. 3d 861 (2008).

In Steiner v. Superior Court, 220 Cal. App. 4th 1479, 1482, 164 Cal. Rptr. 3d 155 (2013), the court held that an order requiring plaintiff’s attorney to remove information from her website regarding prior verdicts in similar cases was an unconstitutional prior restraint even under the lesser standard for commercial speech.

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D. Interviewing judges

California’s Code of Judicial Ethics, Canon 3B(9), prohibits judges from making “any public comment about a pending or impending proceeding in any court” or making “any nonpublic comment that might substantially interfere with a fair trial or hearing.” The Advisory Committee Commentary explains that this prohibition extends through any appellate proceedings until final disposition of the matter. The Commentary also explains that “[a]lthough this canon does not prohibit a judge from commenting on cases that are not pending or impending in any court, a judge must be cognizant of the general prohibition in Canon 2 against conduct involving impropriety or the appearance of impropriety.”

In addition, under Canon 3B(10), “[a] judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding, but may express appreciation to jurors for their service to the judicial system and the community.”

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XI. Other issues

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A. Interests often cited in opposing a presumption of access

Police officer privacy: Under Cal. Pen. Code § 832.7(a), “[p]eace officer ... personnel records ... or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.” Under these statutes, a court must consent to discovery of peace officer personnel records, and those records retain their confidentiality, prohibiting the moving party from further disseminating or disclosing them. Alford v. Superior Court, 29 Cal. 4th 1033, 1042-1043, 63 P.3d 228, 130 Cal. Rptr. 2d 672 (2003). In an unpublished decision, the California court of appeal rejected a newspaper’s request for Pitchess information it believed had been introduced in the adjudication of the case, noting that under Alford, “even had Pitchess motion materials been released to the defendant, they remain confidential as to all others, including the prosecution, and could not be introduced as evidence. They could be used only to develop otherwise admissible evidence.” Copley Press, Inc. v. Superior Court, No. D041072, 2003 WL 21055100, *6, 35 Media L. Rptr. 1598 (Cal. Ct. App. 2003) (unpublished).

However, judicial records are not exempt merely because they might, at some point in the future, be involved in a disciplinary proceeding. City of Eureka v. Superior Court, 1 Cal. App. 5th 755, 764, 205 Cal. Rptr. 3d 134 (2016) (dashcam videos made in the course of an arrest are not confidential personnel records and may be released to the public even if the “police department might eventually use the videos to evaluate whether to initiate disciplinary proceedings against a peace officer”).

Contracts and bylaws: The parties’ agreement to seal a record or close a proceeding is insufficient to justify secrecy. See H.B. Fuller Co. v. Doe, 151 Cal. App. 4th 879, 891, 60 Cal. Rptr. 3d 501 (2007) (reversing sealing order based on parties’ stipulation). In McNair v. National Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 183 Cal. Rptr. 3d 490 (2015), the Court of Appeal rejected an argument that disclosure would prejudice the NCAA’s interest in maintaining a confidential investigatory process, holding that the organization’s bylaws, which promised confidentiality in investigations, were not binding on the court.

Trade secrets: Portions of a transcript or other judicial records may be sealed in order to protect confidential trade secrets, if the information is proprietary and contains comparatively little value to the general public. Richardson v. Mylan, Inc., 2011 WL 837148 (S.D. Cal. Mar. 9, 2011).

On the other hand, telemarketing scripts and sales pitches could not be considered trade secrets, because they were necessarily disclosed to customers. Thus, the court rejected an attempt to keep these documents under seal. In re Providian Credit Card Cases, 96 Cal. App. 4th 292, 296, 116 Cal. Rptr. 2d 833 (2002).

Privacy: Privacy interests in confidential financial information may be sufficient to justify redaction and even limited sealing of court documents. For example, privacy interests of third-party bank clients justified the sealing of some summary judgment exhibits in Overstock.com, Inc. v. Goldman Sachs Group, Inc., 231 Cal. App. 4th 471, 505, 180 Cal. Rptr. 3d 234 (2014) (holding that “confidential financial information in question in this case implicates significant privacy interests” because it was third-party bank client information). The court explained that this information was “of scant, if any, relevance to plaintiffs’ summary judgment opposition, and the public’s understanding of the adjudicative process is not enhanced by the disclosure of this confidential financial information.” Id. at 509-510. In contrast, the records of two bank clients (both already publicly identified with the defendant), which were relevant to the summary judgment decision, were not ordered sealed. Id. Similarly, in Universal City Studios, Inc. v. Superior Court, 110 Cal. App. 4th 1273, 1284, 2 Cal. Rptr. 3d 484 (2003), the Court ordered documents with redacted financial information to be unsealed, as the redactions removed any danger of prejudice to commercial interests. However, information such as bank or brokerage account numbers and social security numbers were allowed to be redacted. Id. at 1570. See also In re Marriage of Burkle, 135 Cal. App. 4th 1045, 1065-1066, 1070, 37 Cal. Rptr. 3d 805 (2006) (noting that press agreed that litigants have a privacy interest in their bank account and Social Security numbers, while holding that, in general, the First Amendment provides a right of access to court records in divorce proceedings); In re Marriage of Candiotti, 34 Cal. App. 4th 718, 722, 40 Cal. Rptr. 2d 299 (1995) (sealing personal information, driving records and criminal history where dissemination would harm children); Oiye v. Fox, 211 Cal. App. 4th 1036, 1068-1070, 151 Cal. Rptr. 3d 65 (2012) (sealing medical records of alleged victim of sexual molestation).

In H.B. Fuller Co. v. Doe, 151 Cal. App. 4th 879, 892, 60 Cal. Rptr. 3d 501 (2007), the court rejected the conclusory argument that “some unspecified statements” in posted Internet messages were “private” or “confidential.”

Public figures’ privacy interests are reduced compared to the interests of private people. Thus, in Gilbert v. Nat’l Enquirer, Inc., 43 Cal. App. 4th 1135, 1147, 51 Cal. Rptr. 2d 91 (1996), the court vacated the entry of a preliminary injunction that would have prohibited the ex-husband of an actress from repeating allegedly defamatory statements about her relationships and substance abuse. The court relied in part on the fact that the actress previously had sought media attention, including attention related to her personal relationships, noting that public figures “must tolerate some criticism as the price of living in a free society.” Id.

Minor privacy interests: When a school district settled with a student who had been sexually assaulted, the press could unseal court records revealing the amount of the settlement, because release of the amount itself presented no danger to the student’s privacy or well-being and the “settlement amount is not a trade secret, within a privilege, or likely to place anyone in clear and present danger of attack.” Copley Press, Inc. v. Superior Court, 63 Cal. App. 4th 367, 376, 74 Cal. Rptr. 2d 69 (1998) (quotation marks omitted). However, trial courts may redact or seal particular documents to protect private information concerning an overriding privacy interest, including matters pertaining to the custody and visitation of minor children. In re Marriage of Nicholas, 186 Cal. App. 4th 1566, 1568-1569, 113 Cal. Rptr. 3d 629 (2010) (citing NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999); In re Marriage of Burkle, 135 Cal. App. 4th 1045, 37 Cal. Rptr. 3d 805 (2006)).  See also In re Marriage of Candiotti, 34 Cal. App. 4th 718, 722, 40 Cal. Rptr. 2d 299 (1995) (sealing personal information, driving records and criminal history where dissemination would harm children); Oiye v. Fox, 211 Cal. App. 4th 1036, 1068-1070, 151 Cal. Rptr. 3d 65 (2012) (sealing medical records of alleged victim of sexual molestation).

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B. Cameras and other technology in the courtroom

Under California Rule of Court 1.150, courts have the discretion to approve or deny a media request to photograph, videotape or record a proceeding. Unless the media can show good cause, it must request an order allowing recording at least five days in advance of a hearing. California Judicial Form MC-500 should be used to seek the order. The rule includes a list of 19 factors to be considered by a court in deciding whether to allow access. Knowingly violating this rule, including by recording any part of a court proceeding without authorization of the court, can subject a violator to sanctions or citation for contempt. People v. Brown, No. B248333, 2014 WL 3895561, *3 (Cal. Ct. App. 2014) (unpublished) (reversing sanctions award against a supervising attorney who requested that another attorney videotape testimony but did not know that the recording attorney would record without seeking permission from court).

The media has the right to access and copy audiovisual evidence that was entered into evidence during trial. See KNSD Channels 7/39 v. Superior Court, 63 Cal. App. 4th 1200, 1204-1205, 74 Cal. Rptr. 2d 595 (1998).

In People v. Dixon, 148 Cal. App. 4th 414, 440, 56 Cal. Rptr. 3d 33 (2007), the court of appeal held that the trial court failed to apply the proper standard in evaluating the media’s request to televise the proceedings and, specifically, in failing to give adequate consideration to the factors listed in Cal. Rules of Court, rule 1.150 when it granted the media’s request to televise or videotape the proceedings. The court held that although the public and the press might have a First Amendment right to attend the proceedings, the press did not have a constitutional right to have a camera in the courtroom. The error, however, was harmless because defendant could not show that the media’s intrusion affected the jury’s determination that he satisfied the criteria for recommitment.

If the media has been permitted to record proceedings, the court may not thereafter impose a blanket order that requires the media to obtain approval before the footage can be broadcast. That is, a judge may not normally “become the editor of a television station’s news broadcasts of a previously recorded judicial proceeding.” KFMB-TV Channel 8 v. Municipal Court, 221 Cal. App. 3d 1362, 1368, 271 Cal. Rptr. 109 (1990).

The Court of Appeal held that the requirement that photographers forego showing pictures of juvenile suspects in farmworker beatings was an unconstitutional prior restraint. S. Coast Newspapers, Inc. v. Superior Court, 85 Cal. App. 4th 866, 873, 102 Cal. Rptr. 2d 487 (2000). Although the Court of Appeal acknowledged that due process was a possible concern, the Court was “unconvinced on this record that there is a substantial probability that, absent the prior restraint, the witnesses’ in-court identifications of the defendants would be based on photographs seen in the newspapers rather than their observations of the perpetrators at the crime scene.” Id.

Because the court had the power to bar photography of a proceeding, it was not an unconstitutional prior restraint for the court to refuse to return a confiscated roll of film. Marin Independent Journal v. Municipal Court, 12 Cal. App. 4th 1712, 16 Cal. Rptr. 2d 550 (1993).

The California Supreme Court now webcasts all arguments live on its websites.

Liveblogging and tweeting from the courthouse will be governed by any applicable local rules regarding courtroom access and use of electronic devices in court. The media has liveblogged parts of at least one California Superior Court murder trial, that of Hans Reiser. See https://www.wired.com/2008/03/liveblog-hans-r/. If you are interested in liveblogging from a courthouse, it may help to contact the court for guidance or to obtain permission to use an electronic device in the courtroom.

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C. Tips for covering courts in the jurisdiction

The California state court system is a familiar three-level system. The Superior Courts have general jurisdiction over most criminal and civil actions, and they are organized by county. In certain counties, specific types of cases may be heard by specialized trial court divisions, including those that deal with probate, juvenile, or family matters. The California Courts of Appeal are the intermediate appellate courts that hear appeals directly from the Superior Court; there are six districts of the Court of Appeal, and several divisions within the First, Second and Fourth District. The Supreme Court of California is the court of last resort in California. It has a limited docket that consists mostly of cases it has chosen to accept for decision. All death penalty cases are automatically appealed directly to the California Supreme Court.

The website www.courts.ca.gov includes a listing of all courts, through the links along the left side of the page. The “California Judicial Branch Fact Sheet” is available at http://www.courts.ca.gov/documents/California_Judicial_Branch.pdf.

The courts in Los Angeles County have seen many high-profile cases, but a high-profile trial or proceeding can occur anywhere. If there is significant media interest in a particular case, it may be helpful to:

  • Develop a Media Plan that will establish reasonable and adequate guidelines for newsgathering and dissemination;
  • Cooperate internally with other media organizations and with the government or other parties in distributing information;
  • Lessen the burden on overworked courthouse staff as much as possible by cooperating on pooling arrangements and list-serves;
  • Be flexible about seating arrangements, including helping to arrange for an annex or overflow room if there are not enough seats in the courtroom;
  • Respectfully but firmly assert the press’s right of access to proceedings and documents as necessary.

More specific guidance can be found in Rochelle L. Wilcox, When the Media Come to Town: Protocols and Practices, MLRC Bulletin, Jan. 2005, at 143. In addition, the MLRC Newsgathering Committee, Defense Counsel Section, published a Model Media Decorum Order for High Profile Cases & Supporting Memorandum in January 2011. See http://www.medialaw.org/model-briefs-a-practice-guides.

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