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Case Law Update: Filing Documents in Court Under Seal

Posted Tuesday, February 5, 2013 by Christopher L. Thayer

alt textIn a recent Washington Supreme Court decision, Bennett v. Britton, et al, the Court sought to clarify the circumstances wherein documents filed with the court could be sealed. Article I, Section 10 of the Washington Constitution provides that, “Justice in all cases shall be administered openly, and without unnecessary delay.” As a result, in general, documents filed in a court proceeding are generally presumed to be subject to public disclosure. However, consistent with the Supreme Court’s prior decisions, “not all records are subject to this constitutional demand,” noting that documents that are obtained through the discovery process may be sealed for “good cause” to protect sensitive personal and financial information. It is only when the documents are “part of the administration of justice” that Article I, Section 10 is applicable.

Once a party has shown “good cause” a Protective Order may be entered, providing that the information be filed under seal. However, once the document(s) become part of the “administration of justice”, a stricter disclosure standard applies, consistent with the Washington Constitution. If this stricter disclosure standard applies, there is a 5 part test wherein the trial court is supposed to scrutinize whether the document can still be sealed in light of Article I, Section 10. In Bennett, the Court sought to clarify just what documents are considered necessary for the “administration of justice”. The filing of the document as an exhibit in support of a motion does not necessarily cause that document to qualify for this standard. The relevant standard is whether the document becomes “part of the court’s decision making process.” Thus, the document must be relevant to the merits of the underlying motion, and the Court must actually render a decision. In Bennett, certain arguably confidential documents had been filed with the trial court in response to a motion, but the matter was settled before the trial judge rendered any decision. The question was whether these documents should be subject to disclosure; and the Court in Bennett held that, because no decision was rendered, that these documents were not presumptively public under the Washington Constitution.

For the typical litigant in a civil dispute, it is important to have a discussion with your attorney about the possible confidentiality or sensitivity of any of the information that may be disclosed during the discovery process. Where appropriate, it may be necessary to file a Protective Order to protect the confidentiality of the information. As the Bennett decision makes clear, however, even information which is filed under seal pursuant to a Protective Order, may nonetheless be subject to public disclosure if they are relevant and “part of the court’s decision making process”. This should be part of your discussions and consideration before proceeding with any litigation.

For more information, contact Christopher Thayer at (206) 805-1494.

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