Michael Atkins reports on an interesting development that could have a real effect on certain widespread litigation practices if it were to spread: A federal District Judge denying entry of a stipulated confidentiality order. Wrote the court:

There is a strong presumption of public access to the court’s files and records which may be overcome only on a compelling showing that the public’s right of access is outweighed by the interests of the public and the parties in protecting files, records, or documents from public view. . . . [P]arties seeking an order to seal any documents must provide a specific description of particular documents or categories of documents they seek to protect and a clear statement of the facts justifying a seal and overcoming the strong presumption in favor of public access.

Michael notes that this appears to be part of a trend in all courts in Washington. Clearly, there is no right or wrong to this policy, but it is, for sure, a policy decision and one that ought to be debated. There are two possible approaches:

  • Do we say that the cost of using the courts as playground to work out your business disputes — even though you have a constitutional or statutory right to do so — is that privacy for matters short of what the law deems legitimately confidential is presumptively relinquished?
  • Or, rather, if both parties agree to shield a category of information, and there is no necessary public interest in that information — in contrast to family law matters or, of course, criminal proceedings — does the presumption of privacy, or even confidentiality, lie with the parties themselves, absent a specific showing to the contrary?

I vote for the second option, even though I believe clients spend an excessive amount of time and money obsessing over “secrets” no one cares about. So what? It’s not as if allowing such stipulations costs the public anything other than the information itself. That’s information the public presumably was doing just fine without and which it could never know but for the litigation. To the contrary, such a policy may serve to lighten the public burden in terms of what does and does not get filed.

My caveat: I see where a court would, however, and perhaps should, insist on some degree of disclosure when material otherwise under seal is relied upon in rendering an opinion. It is at the level of judicial decision-making (“unpublished” or otherwise) that the public interest in judicial proceedings crystallize. The idea of a court making a ruling based on stealth facts not apparent from its written opinion is, as they say, “troubling.” This is of course an idealization of how judicial opinions are rendered, and most of us have seen this sausage made with quite a few less ingredients than a full set of facts — stipulated, secret or salted.

Short of those necessary links, however, I say let the parties keep their own secrets, and let the courts endorse their agreements to do so — short of an indication of fraud or a cognizable public interest to the contrary — and stay out of the way.

Originally posted 2012-11-16 11:34:34. Republished by Blog Post Promoter

By Ron Coleman

I write this blog.

3 thoughts on “Don’t ask me to keep your secrets”
  1. It may very well do so, Martin, yes. Good point. On the other hand, you have to pay for arbitration, which can really add up. There are perceived to be very few other advantages, but this could end up being one — at least in Washington State.

  2. I prefer the former approach. The courts are a public good. From a Libertarian perspective the court’s role as the final arbiter of property disputes is possibly the most important role of government. The potential for overuse of this public good, resulting in a “tragedy of the commons” (http://www.econlib.org/library/Enc/TragedyoftheCommons.html) is a real possibility, which we should be vigilant in avoiding. If justice delayed is justice denied, then clogging up the courts with stuff that arbitration can solve should be discouraged.

    How to discourage this use though is hard. Charging monetary tolls for use of the court would limit its value as a public good, as those unable to pay would have no recourse to enforce their rights. Here though is a good opportunity to charge the wealthy litigant more than the pauper, via the disclosure of private matters except in unusual circumstances, which ought “cost” the wealthy more than the poor.

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