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Winter 2012

Reynolds Courts & Media Law Journal

Electronic C ourt R ecords: Privacy v. Transparency P rivacy and P ublic Access to the C ourts in an E lectronic World:

Common Themes and Diverse Approaches to Policy Development ������������������������������������������������������������� Robert P. Deyling

P leadings, P rivacy

Ethics:

and

Protecting Privacy In Litigation Documents ��������������������� Steven C. Bennett

The Sedona Guidelines:

Best Practices Addressing Protective Orders, Confidentiality & Public Access In Civil Cases ������� The Sedona Conference

Is Mom’s Basement 21 st C entury?:

the

Newsroom

of the

An Analysis of Statutory Protections for Jeffrey G. Purvis and Online News Reporters ������������������������������������������� Benjamin Thomas Greer

“F riends”

and

Family:

Social Media and Electronically Stored Dana C. Hackley and Information in Family Court ��������������������������������������������� Grant H. Hackley

U.S. $13.00

www.courtsandmedia.org


Winter 2012Volume 2, Issue 1

Reynolds Courts & Media Law Journal

donald w. reynolds national center for

COURTS&MEDIA


Reynolds Courts & Media Law Journal Volume 2, Issue 1 Winter 2012

Donica Mensing, Publisher Ben Holden, Editor Eric P. Robinson, Managing Editor Aspen Kuhlman, Jim Cooper, Layout Editors Zanny Marsh, Marketing Director Elizabeth Conner, Copy Desk Chief

Universit y of Nevada Prof. Nancy Rapoport A rizona S tate Universit y Prof. Rick Rodriguez Universit y of M issouri Prof. Charles N. Davis; Heath Hooper Washington and L ee Universit y Prof. Toni Locy

COVER PHOTO: DeSoto County, Mississippi Deputy Court Clerk Joyce Sims surrounded by court records slated to be streamlined by the court joining the Mississippi Electronic Courts pilot program in 2011. Photo copyright Stan Carroll, The Commercial Appeal (Memphis, Tenn.)/CORBIS

Š 2012, Donald W. Reynolds National Center for Courts and Media and the University of Nevada, Reno. All rights reserved. Material in publications of the Donald W. Reynolds National Center for Courts and Media, including our web site, may be copied or downloaded for personal, noncommercial use only. Otherwise, this material may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of the Donald W. Reynolds National Center for Courts and Media, or, in the case of materials owned by third parties, the owner of that content. The opinions expressed in this publication are those of the author(s), and are not necessarily those of the University of Nevada, Reno; the Donald W. Reynolds National Center for Courts and Media; or the Donald W. Reynolds Foundation.

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Affiliated Institutions Universit y of Nevada Donald W. Reynolds School of Journalism, Reno William S. Boyd School of Law, Las Vegas National Judicial C ollege A rizona S tate Universit y Walter Cronkite School of Journalism and Mass Communication C onference

of

C ourt P ublic I nformation O fficers

Universit y of M issouri University of Missouri School of Law Missouri School of Journalism

Board of Editors Hon. William Dressel, President, National Judicial College Stewart Cheifet, University of Nevada Charles Davis, University of Missouri Toni Locy, Washington and Lee University Nancy B. Rapoport, University of Nevada Rick Rodriguez, Arizona State University Christina Wells, University of Missouri

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Call for Papers The Reynolds Courts and Media Law Journal is seeking legal and scholarly articles on the interaction of the courts and the media, and the impact and implications of this interaction.  Examples of possible article topics include, but are not limited to: • • • • •

Media access to court proceedings (including cameras, new media in the courtroom) Conflicts between First Amendment and Sixth Amendment principles and values Impact of social and new media on court proceedings Process and implications of online access to court records and proceedings Analysis of specific examples and cases of court-media conflict situations

Judges, attorneys, journalists and professors are invited to submit (via e-mail) ideas, proposals or drafts for articles of up to 30,000 words (including text and footnotes).  The journal is published both in print and online. Electronic submissions in Microsoft Word format strongly preferred. Blue Book or Association of Legal Writing Directors (ALWD) legal citation format is strongly preferred; other social science citation formats are also accepted, but citations must be in footnotes, not endnotes or parentheticals Submissions, ideas and questions should be sent to courtsandmedia@unr.edu.

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Reynolds Courts & Media Law Journal Contents

Electronic Court Records: Privacy v. Transparency����������� 11 Privacy and Public Access to the Courts in an Electronic World: Common Themes and Diverse Approaches to Policy Development  Robert P. Deyling ������������������������������������������������������������������������������������� 5

Pleadings, Privacy and Ethics: Protecting Privacy In Litigation Documents  Steven C. Bennett������������������������������������������������������������������������������������� 25

The Sedona Guidelines: Best Practices Addressing Protective Orders, Confidentiality & Public Access In Civil Cases  The Sedona Conference ������������������������������������������������������������������������� 47

Is Mom’s Basement the Newsroom of the 21st Century?: An Analysis of Statutory Protections for Online News Reporters  Jeffrey G. Purvis and Benjamin Thomas Greer��������������������������������� 107

“Friends” and Family: Social Media and Electronically Stored Information in Family Court  Dana C. Hackley and Grant H. Hackley �������������������������������������������� 137 Letter from the Director����������������������������������������������������������������������������������

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Authors��������������������������������������������������������������������������������������������������������������� 3 For Further Reading������������������������������������������������������������������������������������� 153 Board of Editors �������������������������������������������������������������������������������������������� 155 Reynolds Courts & Media Law Journal

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(1906-1993)

D onald W. R eynolds

M

edia entrepreneur D onald W orthington R eynolds was born in 1906 and spent his childhood in Oklahoma City often “hawking” copies of the Oklahoma News at the railroad depot. He soon realized the newspaper business was in his blood, and set his sights on the University of Missouri’s School of Journalism, working at a meat packing plant to pay for his studies. Upon graduation in 1927, Mr. Reynolds worked in a variety of newspaper-oriented positions. He purchased and then sold his first newspaper, using the proceeds to launch the Donrey Media Group. During World War II, Mr. Reynolds served as the officer in charge of the Pacific and London editions of YANK. He received the Legion of Merit, Purple Heart and Bronze Star before being honorably discharged in 1945 as a major. After the war, Mr. Reynolds expanded his business, ultimately owning one of the nation’s largest privately held media companies. Upon Mr. Reynolds’ death in 1993, the Donrey Media Group was sold, resulting in a substantial bequest from the Reynolds estate to provide for the Donald W. Reynolds Foundation to continue his philanthropy, focusing on journalism; aging and quality of life; cardiovascular research; and general nonprofit programs in the states of Arkansas, Nevada and Oklahoma. These grants often include a capital component, reflecting Mr. Reynolds’ life-long passion for building. The Donald W. Reynolds National Center for Courts and Media and the Reynolds Courts & Media Law Journal are both funded by the Foundation.

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Donald W. Reynolds National Center for Courts and Media

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he Donald W. Reynolds National Center for Courts and Media is a national center for research and scholarship on the interaction between the courts and the media, particularly the conflicts between free speech rights under the First Amendment and the fair trial rights of the Sixth Amendment. By providing a forum for debate and discussion of the inherent tension between an independent judiciary and the freedoms of speech and of the press, and Center’s goals are to propose solutions to these conflicts, and to help judges and journalists develop insight into their respective roles in safeguarding American democracy and freedom. The Center is funded by the Donald W. Reynolds Foundation. In its research, publications and programs, and through its affiliations with the National Judicial College and the Donald W. Reynolds School of Journalism at the University of Nevada, Reno, the Center works with a wide variety of individuals with roles in the courts and the media, as well as observers of their interactions. These include judges, court clerks, court information officers and current and future attorneys; current and future journalists, editors and other creators of media content; and academics, organizations and other observers concerned with these issues. By working with these various stakeholders, the Center hopes to give the judiciary a better understanding of and appreciation for the vital role played by the media in establishing an informed citizenry, while also allowing journalists and other content creators to better understand and appreciate the judiciary’s ethical and legal obligations to ensure the fundamental fairness of court proceedings. More journalists also need to realize their First Amendment freedoms exist solely because judges interpret the Constitution to protect freedom of the press. And more judges need to realize that their independence rests on the public’s confidence in the fundamental fairness and integrity of the judicial system; a trust that is directly dependent on the information the public receives from the media.

A

s part of this effort, the Center is pleased to publish the Reynolds Courts & Media Law Journal, which highlights legal and scholarly articles on the interaction between the courts and the media, and the impact and implications of this interaction. By helping to reduce the conflict between the independent judiciary and the free press, the Reynolds Center seeks to promote and reinforce both of these crucial pillars of our democratic society.

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National Advisory Council The National Advisory Council is the administrative oversight unit for the Center. It is composed of both the judiciary and the media, print and electronic. The Council sets the focus of the Center and establishes its policies. Floyd Abrams—Partner, Cahill Gordon & Reindel LLP, New York, N.Y. Hon. Janet Berry—Judge, District Court, Second Judicial District, Reno, Nev. Walter H. Bush—Shareholder, Carlton Fields, Atlanta, Ga. Dave Busiek—News Director, KCCI-TV, Des Moines, Iowa William L. Winter—Dean, Reynolds School of Journalism, University of Nevada, Reno, Nev. Lucy A. Dalglish—Executive Director, Reporters’ Committee for Freedom of the Press, Arlington, Va. Linda C. Deutsch—Legal Affairs Reporter, The Associated Press, Los Angeles, Cal. Hon. William F. Dressel—President, The National Judicial College, Reno, Nev. Mark Hinueber—General Counsel, Stephens Media Group, Las Vegas, Nev. Hon. Richard A. Jones—Judge, U.S. District Court, Seattle, Wash. Warren L. Lerude—Professor, Reynolds School of Journalism, University of Nevada, Reno, Nev. Samuel S. Lionel—Shareholder, Lionel, Sawyer & Collins, Las Vegas, Nev. Karole Morgan-Prager—Vice President, General Counsel & Corporate Secretary, McClatchy Newspapers, Inc., Sacramento, Cal. Kelli L. Sager—Partner, Davis Wright Tremaine, LLP, Los Angeles, Cal. Alexander M. Sanders, Jr.—former Chief Judge, South Carolina Court of Appeals (retired), President Emeritus, College of Charleston, Charleston, S.C. David A. Sellers­—Assistant Director of Public Affairs, Administrative Office of the U.S. Courts, Washington, D.C. Dave Tomlin—Legal Counsel, The Associated Press, New York, N.Y. Barbara Wall—VP & Associate General Counsel, Gannett Co. Inc., McLean, Va.

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From The National Judicial College

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n the evolving world of court privacy rules in the Internet era, several articles in this edition address the court’s challenge to balance privacy rights with public transparency. Fortunately, as this analysis notes, model rules are being promulgated and refined to guide courts/ judges in making decisions in this challenging area. For the in-between or gray area, judges should be guided by case law and our American tradition that transparency creates a presumption in favor of openness, particularly where such transparency fosters confidence in the integrity of the courts. The article by Richard Deyling in this issue specifically notes the “paradox” of the task faced by state committees charged with balancing privacy rights with First Amendment concerns. For those judges whose courts have not yet been provided express guidance, we offer Deyling’s article, as well as the Sedona Guidelines – both the main opinion, and the “dissent.” This issue also includes other articles examining the impact that electronic documents are having on the courts. Remember that even among the justices of our nation’s Supreme Court, five brilliant legal minds often see an issue one way, while four equally brilliant thinkers see things quite the opposite. One can only ask that you thoughtfully consider and weigh the issue. William Dressel President, National Judicial College

From The Reynolds School of Journalism

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ouldn’t it be great to have a group of smart, thoughtful professionals bridge the gap between the arcane new rules put out by American courts and the regular people governed by those rules? Well, there are. They’re called journalists. The journalist’s mission is to help the public unravel and understand government at all levels. For instance, in a divorce case, if you are interested in keeping embarrassing, personal information private, you need to understand who gets to decide whether and upon what criteria some material is released and some kept private. The public has a right to know what these rules are and how they are applied. Journalists are often the only ones with the incentive and means to tell them. And to my journalist friends out there, I know you are beset by budget cuts, furloughs and shrinking circulations. Who has the time to wrestle with the arcane court rules of your state to get the right answer to the public’s questions? My response is, if you do not, then who? Contact your state Supreme Court’s public information officer and determine who sits on the local rules committee. Take that person on background and have them walk you through the state of your state’s “privacy v. transparency” debate in the age of the Internet. Then explain what you’ve learned to your readers and viewers. You’ll generate plenty of audience conversation with that reporting. We in the news and information business live to shed light on these important First Amendment-impacting rules so that the public will know. Examining such novel questions is what we’ve always done – even when the answers aren’t quite clear. Donica Mensing Acting Dean Reynolds School of Journalism and Center for Advanced Media Studies

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L etter F rom

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the

D irector

his edition of the Reynolds Courts & Media Law Journal makes clear that courts no longer are the mere repositories of litigants’ filed data. In the age of the Internet, courts now “push” or publish the information out to the public, frequently with turnaround time that would have been unthinkable half a generation ago. The question then becomes, now that courts are indeed publishers, how fully should they choose to make the information in their files available to the public? Social Security numbers? Street addresses of participants? How about financial data in divorce cases? Steven C. Bennett in this edition raises the question of the modern lawyer’s responsibility to guard against disclosure of clients’ statutorily protected private information in the age of the Web. But further, should courts or state bar associations impose liability for failing to protect such privacy interests? Is the claim a negligence tort, legal malpractice, or a little of both? And what is the standard for liability? Is the issue different if the lawyer merely fails to exercise due care than if he is sloppy or reckless? Surely an “oops” isn’t enough for the inadvertently disclosing lawyer. Close watchers of America’s “privacy v. transparency” policy debate will be familiar with the 2007 Sedona Conference Working Group and the reccomendations it produced. Despite an eventual disagreement on what the panel’s conclusions would be, both the “majority” opinion and the minority group advanced honest, public policy minded positions that are worthy of review and serious analysis. We print both in this issue of the Journal. Another article in this issue, written by Robert P. Deyling, frames the fundamental issue this way: “At its core, the question is whether the courts should ‘publish’ case files on the Internet, rather than simply making files available for public review at courthouses…” –Each of the articles in this edition of the Journal wrestle with these and related issues regarding electronic records in court, which are some of the most challenging courts and media issues of our day. Ben Holden

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Preface

Electronic Court Records: Privacy v. Transparency

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t’s not news that the Internet has brought vast changes to the way we access and process information. The courts have been part of this process for more than a decade.1 Virtually every federal court and most state courts now have web pages where they post both general information from the court, as well as more technical material such as court forms, rules and decisions. And many also make their dockets available for online viewing, either for a fee or at no cost.2

But this increasingly easy access to court records is not without problems. The end of the “practical obscurity” that paper records in scattered court clerks’ office represented can have implications for the privacy of litigants, particularly in sensitive cases. At the urging of United States District Court Judge Brent McKnight, in 2004 The Sedona Conference tackled these questions by assembling a panel of judges and attorneys to focus on these questions and formulate a set of best practices guidelines on protective orders, confidentiality and public access to court records in civil cases. After almost three years of work, the group – known as Working Group 2 (WG2) –issued its guidelines, reprinted in full in this issue of the Reynolds Courts & Media Law Journal. In general, they provide for broad public access – including online access – to case proceedings and materials, including dockets and trial exhibits, with the ability to block such access in compelling circumstances. The guidelines were not issued without controversy. Nineteen of the WG2 participants resigned from the group, and issued their own dissenting statement of “opposing views.” This second document, which is also published in this issue, asserts that there is a lack of consensus on these issues, and questions the need for a set of guidelines at this time. The “opposing views” document also takes issue with several specific provisions of the guidelines. Two of the articles in this issue update and continue the discussion over the guidelines. Steven C. Bennett examines the emerging issue of protecting privacy in court documents that are destined to be available online, discussing new court rules requiring redaction of

1. See Center for Democracy & Technology, A Quiet Revolution in the Courts: Electronic Access to State Court Records (Aug. 2002), https://www.cdt.org/publications/020821courtrecords.shtml (surveying availability of online access to court documents in 2002). 2. For an updated compilation of such sites, see Law Library Resource eXchange (LLRX), LLRX Court Rules, Forms and Dockets, updated Jan. 2011, http://www.llrx.com/courtrules/. Reynolds Courts & Media Law Journal

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Electronic Court Records: Privacy v. Transparency private identifying information such as Social Security numbers. Robert Deyling, meanwhile, examines the various approaches that different courts have taken toward online access to court documents. Other articles in this issue look at how courts use and access electronic information in the course of litigation. Benjamin Thomas Greer and Jeffrey G. Purvis explore how reporters’ shield statutes protecting journalists from having to reveal confidential sources in many circumstances apply to citizen journalists and others who use new online media. And Dana Hackley and Grant Hackley examine how electronic information – including social media postings, Twitter messages, and the like – have been used in family court proceedings. The Internet has changed the procedures and practices of numerous institutions of both the private and public sectors, and the courts are not immune. The articles in this issue look at some the direct, “on the ground” effects that the ubiquity of electronic, webbased information has on the courts and their work. Eric P. Robinson Managing Editor

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Authors Steven C. Bennett  (“Pleadings, Privacy and Ethics: Protecting Privacy In Litigation Documents”) is a partner in the New York offices of Jones Day. His practice focuses on domestic and international commercial litigation and arbitration. He is chair of the Firm’s e-Discovery Committee, and co-founded the Sedona Conference Working Group on International E-Discovery. He teaches a course on conflicts of law at Hofstra Law School and co-teaches a course on advanced civil procedure (e-discovery) at New York Law School. He is a qualified arbitrator for the American Arbitration Association and the CPR Institute. He is the author of two books: Arbitration: Essential Concepts (2002) and A Privacy Primer for Corporate Counsel (2009). His column, “Computer Law,” has appeared in the New York State Bar Association Journal since 2009. Robert Deyling  (“Privacy and Public Access to the Courts in an Electronic World: Common Themes and Diverse Approaches to Policy Development”) is Assistant General Counsel at the Administrative Office of the United States Courts. Before coming to the Administrative Office in 1995, Bob was a Supreme Court Fellow in 1994-95, a staff attorney for the U.S. Court of Appeals for the District of Columbia Circuit from 1991-94, and an associate with the Washington law firm Crowell and Morning from 1987-91. He holds a B.A. degree from Stanford University and a J.D. degree from New York University School of Law. Benjamin Thomas Greer  (“Is Mom’s Basement The Newsroom Of The 21st Century?: An Analysis Of Statutory Protections For Online News Reporters”) is a special deputy attorney general for the California Department of Justice Office - Office of the Attorney General and the New American Senior Research Fellow at the San Joaquin College of Law. He was formerly a research attorney for the California District Attorneys’ Association and has published extensively in the field of criminal justice. His scholarship has primarily focused on statutory construction and judicial interpretation; articles include Judges Going Rogue: Constitutional Implications When Mandatory Firearm Restrictions Are Removed From Domestic Violence Restraining Orders, forthcoming in the Wisconsin Journal of Law, Gender & Society (2012); When a Threat is Not a Threat: Why Persons Who are Deaf or Hard of Hearing are Left Unprotected by California Penal Code Section 422 and How the Courts Could Rectify It, 45 Val. U. L. Rev. 1297 (2011); What is the Value of Slave Labor?: Why Fair Market Value Should Not be the Benchmark for Criminal Restitution for Victims of Human Trafficking, 31 N. Ill. U. L. Rev. 553 (2011); and Market Share Liability Shouldn’t Die: Proposed Application to Agricultural Pesticides and the Need to Refine the Apportionment of Liability, 17 San Joaquin Agric. L. Rev. 85 (2008). Dana Hackley  (“‘Friends’ and Family: Social Media and Electronically Stored Information in Family Court”) is a doctoral candidate studying Communications Media and Instructional Technology at Indiana University of Pennsylvania. In her first year of study, Dana won the John P. Murtha Institute for Homeland Security scholarship and assisted in the creation of an internationally award winning video game that teaches undergraduates the perils of plagiarism. The game is also the subject of a chapter co-authored by Dana in the book, Let the Games Begin!, now available through Neal-Schuman. Dana also currently works as a media event assistant for NASA’s Digital Learning Network, a recruitment coordinator for NASA’s CyGaMEs and teaches journalism courses at Robert Morris University. She previously worked as a Visiting Assistant Professor and Broadcaster in Residence at Point Park University. Prior to entering academia, Dana worked as a national and local television news producer. In 2004, she produced live reports from Iraq on the war. She received an M.S. in Communications and Information Systems from Robert Morris University and a B.A. in Journalism from the University of Maryland, College Park.

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Authors (continued) Grant Hackley  (“‘Friends’ and Family: Social Media and Electronically Stored Information in Family Court”) is an associate in the Pittsburgh office of Burleson LLP, practicing in the field of oil and gas law. Additionally, he has a broad range of experience in complex tort litigation, corporate counseling and family law. Grant graduated from the University of Maryland, College Park, with a B.S. in Physiology & Neurobiology, and obtained his J.D. from the University of Pittsburgh School of Law, where he served as Editor-in-Chief of the University of Pittsburgh Law Review. During and after law school, Grant clerked for judges of the Pennsylvania Commonwealth Court and Pennsylvania Supreme Court. Grant has often used social media in his practice to obtain or discover relevant information about adverse parties, and considers its use critical to the modern law practice. Jeffrey G. Purvis  (“Is Mom’s Basement the Newsroom of the 21st Century?: An Analysis of Statutory Protections for Online News Reporters”) is the James K. and Carol Sellars Herbert Professor of Constitutional Law at San Joaquin College of Law, where he teaches constitutional law and various constitutional law electives. He is also chairperson of the Faculty Committee and Faculty Chair, and is chair of the Curriculum Committee. Professor Purvis co-hosts “Valley Views on the Law,” a weekly radio broadcast examining legal issues, with special emphasis on those affecting the Central Valley of California. He is also a partner in Purvis and Elder, LLP, a law firm focusing on criminal defense and constitutional law issues. He earned his B.A. with honors from University of California at Davis in 1976, and a J.D. in 1980 from the University of California at Davis, where he was a member of the Order of the Coif.

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Privacy and Public Access to the Courts in an Electronic World:

Common Themes and Diverse Approaches to Policy Development Robert P. Deyling1

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ince the late-1990s, the growing use of electronic filing and document imaging technology has made it possible for courts to offer broad public access to electronic dockets and case files through the Internet — if they choose to do so. The final chapter of the 2007 Sedona Guidelines on Confidentiality & Public Access, entitled “Privacy and Public Access to the Courts in an Electronic World,” concluded that it was “too soon to identify best practices” in this area.2 At the same time, the 2007 Guidelines sketched several emerging policy trends and suggested a set of core privacy and access policy principles that should, in the opinion of the Sedona Working Group, balance unlimited public access to court records against the corresponding need to protect privacy, confidentiality, and intellectual property interests.3 1. Mr. Deyling was a member of the Working Group that developed the March 2007 Sedona Guidelines on Confidentiality and Public Access. The observations in this article are based on his participation since 2001 in the “National Conference on Privacy and Public Access to Court Records,” an important gathering for members of the court policy committees drafting rules on public access to court records, jointly produced by the William and Mary Law School Center for Legal and Court Technology and the National Center for State Courts. Eight such conferences, which typically involve judges and court officials from 20 to 30 states and the federal judiciary, as well as national experts on these issues drawn from academia, the media, and the private sector, have been held since 2001. Proceedings of the most recent conference held Nov. 3-4, 2011, are available at http://www.legaltechcenter.net/education/conferences/8th-conference-on-privacy-public-access-to-court-records/conference-documents/. The author is particularly grateful to William and Mary Professors Fredric Lederer and Rebecca Green for their sponsorship of the conference and dialogue on these issues. Any opinion expressed here is the author’s, and is not intended to represent the opinion or policy of the Administrative Office of the United States Courts. 2. The Sedona Guidelines: Best Practices Addressing Protective Orders, Confidentiality & Public Access in Civil Cases 58-59 (March 2007) [hereinafter Sedona Guidelines]. The complete Guidelines and commentary are reprinted in this issue, and are also available online at http://www.thesedonaconference.org/ content/miscFiles/publications_html?grp=wgs120. 3. Id.

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Privacy and Public Access to the Courts in an Electronic World

In recent years, despite apparent agreement on several basic assumptions about the rights of access to court documents, court policymakers have reached dramatically different conclusions about how to implement those rights in the electronic era.4 Many questions remain unanswered, and no uniform approach has emerged. Case files that are, or eventually will be, completely open for remote electronic review in one state’s court system may be completely closed to remote access in another. What has emerged is a patchwork quilt of court access rules and policies, where different approaches to implementing the same principles can lead to very different policy results. These variations in access policy suggest that wide policy divergence will persist for the immediate future. This article reviews past trends and recent developments in policy, law and scholarship related to privacy and public access to electronic court records. The article identifies several common themes in court policy development and pose questions for the future. The article concludes that the policy trends and core principles identified in the 2007 Guidelines are, for the most part, still relevant but that the underlying questions are essentially unresolved. At the same time, I believe that judges, lawyers and academics alike are more aware of the tensions between public access and personal privacy than ever before, and are working toward solutions that seek to equitably balance the interests at stake.

P ublic Access

to Case F iles , Paper and E lectronic efore the advent of electronic case files, the traditional common-law based right to “inspect and copy”5 court files depended on physical presence at a courthouse. The inherent difficulty of obtaining and distributing paper case files effectively insulated litigants and third parties from most harm — actual or perceived — that might result from misuse of private or proprietary information provided in connection with a court proceeding. The Supreme Court has referred to the inherent difficulty of gathering and disseminating public records in paper form as “practical obscurity.”6 The pre-Internet era case most commonly linked to the principle of practical obscurity is United States Department of Justice v. Reporters Committee for Freedom of the Press, in which the Court recognized “the vast difference between the public records that might be found after a diligent search of courthouse files, county archives and local police stations throughout the country and a computerized summary located in a single clearinghouse of information.”7 It is the concept of practical obscurity, and its significant erosion as many public records have become available on the Internet, that animates the policy debate about electronic court records. There is a heightened awareness of the impact that broad public access to electronic case files may have on personal privacy and the litigation process. Some court policymakers have suggested that some types of court case files contain private or sensitive information that should be protected from unlimited public disclosure and dissemination in the new electronic environment.8

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4. For examples of this, see pp. 11-17, infra. 5. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) (holding that there is a common law right “to inspect and copy public records and documents, including judicial records and documents.”) 6. See United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 762, 780 (1989). 7. Id. at 780. 8. See especially, C onference of C hief Justices a nd C onference of S tate C ourt A dministr ators , P ublic A ccess to C ourt R ecords: CCJ/COSCA G uidelines for Policy D evelopment by S tate C ourts (Oct. 2002), available at http://www.jmijustice.org/publications/ccj-cosca-guidelines-forpublic-access-to-court-records/at_download/file. The Guidelines have served as the basis for access policy development in several states. For a complete explanation of the process leading to the develop-

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Guidelines and Statutes on Case File Access These concerns were a key factor in the development of the Guidelines for Public Access to Court Records in state court systems. Those Guidelines, published in 2002 by the Conference of Chief Justices and the Conference of State Court Administrators after extensive study and public comment, were based on five main premises:9 • Court records are presumptively open to public access; • The decision to grant public access to a court record should not depend on whether the court record is in paper or electronic form, although the manner of providing that access may vary; • The nature of the information in some court records suggests that remote public access to the information in electronic form may be inappropriate, even though public access at the courthouse is maintained; • The nature of the information in some court records is such that all public access to the information should be precluded, unless authorized by a judge; • Public access policies should be clear, consistently applied, and not subject to interpretation by individual court officials. At the federal level, this point of view was particularly evident in the E-Government Act of 2002.10 Section 205 of the Act requires the Supreme Court to prescribe uniform rules for the federal court system, “to protect privacy and security concerns relating to electronic filing of documents and the public availability … of documents filed electronically.” In 2007, Federal Rule of Civil Procedure 5.2 was promulgated in response to that mandate. This rule requires redaction of certain personal information from court filings;11 places limitations on remote access to electronic files of Social Security appeals and immigration cases;12 and allows courts to order additional redactions or limitations on electronic access “for good cause.”13 The Reporters Notes on the 2007 adoption of Rule 5.2 succinctly summarizes the view that electronic access to civil case files can exacerbate personal privacy concerns: “It is electronic availability, not the form of the initial filing, that raises the privacy and security concerns addressed in the E-Government Act.”14 ment of the Guidelines, and for a copy of the Guidelines themselves, see M artha S teketee & A l a n C arlson, D eveloping CCJ/COSCA G uidelines for P ublic A ccess to C ourt R ecords: A National P roject to A ssist S tate C ourts , (Oct. 2002), available at http://contentdm.ncsconline.org/cgibin/showfile.exe?CISOROOT=/accessfair&CISOPTR=210. See also M artha S teketee & A l a n C arl son , P ublic A ccess to C ourt R ecords: I mplementing the CCJ/COSCA G uidelines: F inal P roj ect R eport (Oct. 2005), available at www.it.ojp.gov/docdownloader.aspx?ddid=1535 (reporting on initial implementation of the CCJ/COSCA Guidelines, with extensive guidance on the need to educate lawyers and the public, and a focus on the special access issues arising in the family court context). 9. Id. at 1. 10. E-Government Act of 2002, Pub. L. No. 107-357, 116 Stat. 2899 (Dec. 17, 2002), codified at 44 U.S.C. § 3501 note. 11. The rule requires that filings include only the last four digits of Social Security and taxpayer identification numbers; the year of an individual’s birth; the initials of a minor; and the last four digits of financial account numbers. Fed. R. Civ. P. 5.2(a). Exceptions to the redaction requirements are in Fed. R. Civ. P. 5.2(b). 12. Fed. R. Civ. P. 5.2(c). 13. Fed. R. Civ. P. 5.2(e). 14. Fed. R. Civ. P. 5.2 (Reporters Notes). See also R eport of the Judicial Conference Committee on Court

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Public Files, Private Information Depending on the type of case, court files routinely contain “private, sensitive, or proprietary information such as medical records, employment records, financial information, tax returns, Social Security numbers and other personal identifying information, as well as customer lists, business plans, research data and other proprietary business information.”15 Electronic case file systems make it possible for courts to provide public access to such information through the Internet, 24-hours-a-day, from virtually any location. Sensitive information in a case file, unless sealed or otherwise protected from disclosure, can be made available for downloading, storage and printing. There is potentially great commercial value in certain personal information in case files. Yet, it is both impossible, and indeed inappropriate, to promise litigants the same expectation of privacy in court records that may apply to other information divulged to the government. The judicial process depends on the disclosure of all relevant facts, either voluntarily or involuntarily, to allow the judge or jury to make informed decisions. In bankruptcy cases, for example, a debtor must disclose a Social Security number or taxpayer ID and other financial information that is required to administer the case, and to permit creditors to assert their rights. Similarly, in many types of civil and criminal cases — for example, those involving personal injuries, criminal allegations, or the right to certain public benefits — case files often must contain sensitive personal information for the judicial process to function. To a certain extent, litigants must expect to abandon a measure of their personal privacy at the courthouse door. These circumstances place into conflict two important policy considerations: 1. Information held by government generally should be available to allow for effective public monitoring of government functions; 2. Certain private or sensitive information in government files may require protection from indiscriminate disclosure.

Access Rulings in the Pre-Internet Era Both of these considerations are evident in pre-Internet era case law concerning public access to court records. It is clear that public court records should be accessible to allow for effective public monitoring of the judicial system.16 In numerous cases the federal courts, including the A dministration and Case Management on Privacy and Public Access to Electronic Case Files (“Judicial Conference Privacy Policy”) (as amended, December 2006), available at http://www.privacy.uscourts. gov/Policy.htm. 15. S edona G uidelines , supra note 2, at 55. The Guidelines observed that some recent court rules on access to electronic records, for example Fed. R. Civ. P. 5.2, address only issues of personal privacy and do not extend similar rule-based protections to business confidences or proprietary information. The Guidelines authors noted that many members of the working group expressed strong concern for the protection of such information, and that viewpoint was reflected throughout the Guidelines. However, the Working Group also acknowledged that there is a special role for rulemaking in the area of personal privacy, because well-developed common law doctrines of business confidentiality and proprietary information are often unknown or unavailable to private citizens. Id., n.8. 16. The common law right, and the presumption of public access to court records in particular, “allows the citizenry to monitor the functioning of our courts, thereby insuring quality, honesty, and respect for our legal system.” In re Continental Illinois Securities Litigation, 732 F.2d 1303, 1308 (7th Cir. 1984). Public observation of the judicial process also serves to “diminish possibilities for injustice, incompetence, perjury, and fraud,” and to give the public “a more complete understanding of the judicial system and a better perception of its fairness.” Republic of the Philippines v. Westinghouse Electric Corp., 949 F.2d 653, 660 (3d Cir. 1991) (citing earlier cases and history of common law right).

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Supreme Court, have held that there is a common law right “to inspect and copy public records and documents, including judicial records and documents.”17 The common law right, and the presumption of public access to court records in particular, “allows the citizenry to monitor the functioning of our courts, thereby insuring quality, honesty, and respect for our legal system.”18 The courts have recognized a “strong presumption” in favor of access, holding that only compelling reasons justify denying access to information in a court case file.19 At the same time, the courts have historically recognized an underlying public interest in protecting certain information from indiscriminate public disclosure, especially if that information is not germane to public oversight of the courts. So, despite the strong legal presumption that judicial records are open for public inspection, it The courts have historically is equally clear that access rights are not 20 “absolute.” In 1973, the Supreme Court recognized an underlying public in Nixon v. Warner Communications interest in protecting certain observed that “every court has supervisory power over its own records and files, and information from indiscriminate access has been denied where court files public disclosure, especially if that might have become a vehicle for improper purposes.”21 Later, in the 1989 Reporters information is not germane to Committee case, the Court defined the pubpublic oversight of the courts. lic’s interest in reviewing public records as “shedding light on the conduct of [a] Government agency or official,”22 rather than acquiring information about a particular private citizen. The Court also noted “the fact that an event is not wholly private does not mean that an individual has no interest in limiting disclosure or dissemination of the information.”23

Developing Policies

for E lectronic A ccess gainst this backdrop of case law — and as it has become possible to provide electronic access to court records — two rather extreme policy positions have emerged and have informed recent policy debates on this issue. One position advocates open access with few limits and is often referred to by the shorthand expression, “public is public.” This position assumes that the medium in which case files are stored should not affect the presumption that there is a right of public access.

A

17. Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978). 18. In re Continental Illinois Securities Litigation, 732 F.2d 1303, 1308 (7th Cir. 1984). 19. See, e.g., United States v. Beckham, 789 F.2d 401, 409-15 (6th Cir. 1986) (trial court “must set forth substantial reasons for denying” access to its records); and F.T.C. v. Standard Financial Management Corp., 830 F.2d 404, 408-10 (1st Cir. 1987) (the burden of overcoming the presumption of open judicial records is on the party seeking to maintain the court records in camera). 20. 435 U.S. at 596-97. 21. 435 U.S. at 596. The decision to deny public access involves a balance between the presumption in favor of access, on the one hand, and the privacy or other interests that may justify restricting access. These interests include the possibility of prejudicial pretrial publicity, the danger of impairing law enforcement or judicial efficiency, and the privacy interests of litigants or third parties. See United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997); United States v. Amodeo, 71 F.3d. 1044, 1047-50 (2d Cir. 1995). 22. 489 U.S. at 773. 23. 489 U.S. at 770.

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The Reporters Committee for Freedom of the Press, for example, has argued that promoting unlimited electronic access to court records “aids not only journalists but also concerned citizens and advocacy organizations, helping to ensure public safety and increasing confidence in the government’s actions.”24 By this analysis, current mechanisms for protecting privacy and confidentiality — primarily protective orders and motions to seal on a case-by-case basis — are adequate even in the new electronic environment. Some have This position assumes that also suggested that the focus for court access policies should be on determining whether unrestricted Internet access to information in court files should be considcourt case files undoubtedly would ered “public” in any medium — electronic or paper — rather than on limiting access to compromise privacy at some such information simply because it is now level and could increase the risk available in electronic format.25 At the opposite end of the policy spectrum, a of personal harm to litigants or second position focuses on the relative obscuriothers whose private information ty of paper as compared to electronic files. This appears in the files. position assumes that unrestricted Internet access to court case files undoubtedly would compromise privacy at some level and could increase the risk of personal harm to litigants or others whose private information appears in the files. The Privacy Rights Clearinghouse, for example, has argued that unlimited Internet access to court case files could lead to an increase in identify theft, risks to personal safety, loss of “social forgiveness,” increased discrimination, secondary commercial uses of public information, destruction of reputations and a diminished willingness by individuals to use the courts.26 It is difficult, of course, to demonstrate or predict how court files may be used for “improper” purposes in the new electronic environment, or how likely it is that Internet access to court records will lead to the undesirable consequences cited by privacy advocates. But the advocates suggest that the key to developing electronic access policies is not the ability to predict the frequency of abuse, but rather the assumption that even a few incidents could cause great personal harm.27 They also focus on the compulsory nature of much information disclosure in litigation, which they suggest may justify enhanced protection of personal privacy interests.28 In this view, the courts should explicitly recognize, in rules and policies on public access to court records, that there is an expectation of “practical obscurity” that will be eroded through the development of electronic case files and public access to those files on the Internet. 24. R eporters Committee for Freedom of the Press, Electronic Access to Court R ecords, (Spring 2007). 25. See C ommission on P ublic A ccess to C ourt R ecords , R eport to the C hief Judge of the S tate of New York ((Feb. 25, 2004), http://www.nycourts.gov/ip/publicaccess/Report_PublicAccess_CourtRecords.pdf [hereinafter New York R eport], at 5-7. 26. Beth Givens, Public Records on the Internet: The Privacy Dilemma, The P rivacy R ights C learing house (March 2006), available at https://www.privacyrights.org/ar/onlinepubrecs.htm. 27. See, e.g., Grayson Barber, Personal Information in Government Records: Protecting the Public Interest in Privacy, 25 St. Louis U. Public L. R ev. 63 (2006), available at http://www.graysonbarber.com/pdf/ SLU_PubLRev_2006.pdf. See also Helen Nissenbaum, Privacy as Contextual Integrity, 79 Wash. L. R ev. 1 (2004) (focusing on the need to recognize and account for the “contextual integrity” of public court records, and positing it as “as an alternative benchmark for privacy, to capture the nature of challenges posed by information technologies.”). 28. See Barber article, supra note 27, at 72.

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C ommon Themes in the Development of C ourt Rules and Policies on Privacy and P ublic Access to C ourt R ecords

C

ourt systems across the United States have responded to the growing debate about privacy issues by taking a fresh look at their rules and policies on public access to court records. Most of the state court systems have completed this process, while others have formed committees that continue to study the issues.29 Not surprisingly, the resulting rules and public access policies do not follow a uniform approach, and they generally avoid the extreme policy positions outlined above. Instead, recently developed court policies tend to adopt a pragmatic, middle-ground approach, perhaps reflecting the broader public debate over how to balance personal privacy interests against the need for transparency in public institutions. A review of the existing rules and policies reveals a long list of issues that each court system may need to address, whether explicitly or implicitly, in the course of developing a court rule or policy to address access to electronic court records.

Recognizing the importance of the process itself. The transition from paper to electronic records is progressing rapidly, and it requires a new evaluation of a broad array of court procedures related to access to court records. This may entail a re-examination of long-held assumptions about public access to court files in general, whether in paper or electronic form. The committees working in this area recognize the paradox of their task, which is to harmonize a generally open public access system with the new possibility of instant and worldwide Internet access to virtually every document in a court file. With this in mind, most courts have formed rulemaking or policy committees with members drawn from various points of view on privacy and access issues (including the media, the bar, academia, victims’ rights organizations, privacy advocacy groups and litigants). The committees that reviewed these issues in Vermont and New York, for example, included members drawn from many groups beyond the courts.30 Some court systems, however, have preferred to develop their access policies by relying on court rules committees whose membership may only include judges and court administrators.31 In either case, public comment is usually recognized to be a key part of the ruledevelopment process.32

29. I have not found any comprehensive source for the latest information on the many policy and rulemaking committees that are engaged in this issue. In addition to checking official court websites, I suggest reviewing the National Center for State Courts website entitled the “Privacy/Public Access to Court Records Resource Guide,” which includes links to state court rules and policies. See http://www. ncsc.org/Topics/Access-and-Fairness/Privacy-Public-Access-to-Court-Records/Resource-Guide. aspx. Such a survey from 2002 is available. See C enter for D emocr acy a nd Technology, A Q uiet R evolution in the C ourts: E lectronic A ccess to S tate C ourt R ecords: A CDT S urvey of S tate A ctivit y a nd C omments on P rivacy, C ost, E quit y a nd A ccountabilit y (Aug. 2002), http://www. cdt.org/publications/020821courtrecords.shtml. 30. See Admin. Order 40 (Vt. 2000), http://www.vermontjudiciary.org/d-rules/adminorders/ao40.aspx (establishing 11-member Advisory Committee on the Rules for Public Access to Court Records); and New York R eport, supra note 25, at 1. 31. See, e.g., N.D. Sup. Ct. Admin. R. 41 (Access to Court Records), http://www.ndcourts.gov/court/ rules/administrative/ar41.htm and N. D. Sup. Ct. R. 3.4 (Privacy Protection for Filings Made With the Court), http://www.ndcourts.gov/court/rules/NDROC/Rule3.4.htm. 32. See, e.g., Notice Of Public Hearing of the Ad Hoc Court Records Committee, Maryland Court Information Office (Dec. 2000), http://www.courts.state.md.us/access/notice12_00.html.

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Deciding whether to develop rules before, or after, implementing new systems. In the fast-paced world of the Internet, there is considerable pressure on court systems to take advantage of technology to provide broader public access to electronic court files as soon as possible, and to resolve the difficult questions about privacy later. Electronic filing, case management and public access Several access rules recognize can significantly reduce the burden on that the courts, as administrative overworked clerk’s offices, allow the courts entities that collect a vast amount to provide enhanced customer services and lead to major efficiency gains and cost savof sensitive personal information, ings over the long term. Thus, every court have a key role to play in protecting faces a key choice: whether to move forward with electronic case files systems and public the privacy interests of litigants. access to electronic records before engaging in the policy and rulemaking process, or to delay electronic filing and access projects until clear policies have been developed. This choice, in turn, may require consideration of the likelihood that electronic dissemination of court records will cause harm to personal privacy interests.

Considering the courts’ growing role as electronic “publishers” of court files. The mere possibility of providing electronic public access to the broad range of case files may lead some court systems to evaluate the underlying purpose for collecting and maintaining public records. At its core, the question is whether the courts should “publish” case files on the Internet, rather than simply making files available for public review at courthouses, whether in paper or electronic format. In providing remote electronic public access to case files the courts are, whether by intention or by default, becoming more than passive custodians of the court record. Courts are, instead, taking on the more active role of publishers — or disseminators — of the case records. Academic commentators have increasingly suggested that courts should examine this issue,33 including the courts’ role as “repositories” of personal information, and craft access rules that take that role into account.34 The Florida policy committee appears to have accepted this challenge, recommending “consideration of the alternative concept that a court file is not a public common, where anyone is free to post anything, but should instead be understood for what it is: a conduit and repository of information exchanged between parties and the court.”35 33. See, e.g., Amanda Conley, Anupam Datta, Helen Nissenbaum, & Divya Sharma, Sustaining Both Privacy and Open Justice in the Transition from Local to Online Access to Court Records: A Multidisciplinary Inquiry, 71 Md. L. Rev. (forthcoming 2012), available at http://www.legaltechcenter. net/download/conference-documents/8privacyconf/Sustaining%20both%20Privacy%20and%20 Open%20Justice.pdf. In the conclusion of this article, the authors suggest that the courts should explicitly recognize that “court records are valuable because they constitute a repository of useful information about people.” Id. at 50. Acknowledging that the question is not settled, they argue that “should it be judged legitimate for court records to function as repositories, the next urgent matter would be to articulate the courts’ responsibilities as creators of databases of personal information.” Id. 34. Id. 35. S upreme C ourt of F lorida , P rivacy, A ccess , a nd C ourt R ecords: R eport a nd R ecommendations of the C ommittee on P rivacy a nd C ourt R ecords , Part 1, at 25 (Aug. 15, 2005), available via http:// www.floridasupremecourt.org/pub_info/index.shtml#Privacy. The Committee continued: “As such, the court file is the responsibility of the court, and the placing of a document into the court’s file is a

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Distinguishing between different forms of electronic access. An examination of recently developed access rules reveals a clear philosophical split on a fundamental question: whether all non-sealed files should be available for remote electronic access or whether some files should only be accessible at the courthouse. Several state court rules limit remote electronic access to certain case types or information. The California rules, for example, bar remote electronic access to family, criminal, mental health, juvenile, guardianship and civil harassment proceedings because of the personal and sensitive nature of the information parties are required to provide to the court. 36 However, the California rules do permit electronic access to these records at the courthouse.37 Similarly, the federal court rules prohibit remote electronic access to certain files, including Social Security and certain immigration case files, but permit access to these same files at the courthouse.38 In contrast, other courts, including those from New York and Maryland, have adopted the default presumption that remote electronic public access, if available at all, should mirror access at the courthouse.39

Considering alternatives to the case-by-case approach to sealing. Court policymaking committees are, at least implicitly, considering whether the reliance on a case-by-case approach to access issues should be reexamined in the context of Internet publication of court records. The underlying policy issue is whether it is prudent to continue to rely on the litigants themselves as the primary means of protecting privacy in the context of case files, by requiring them to redact personal information.40 But the alternative — categorical restrictions on access — contradicts long-standing case law on sealing that requires a case-by-case weighing of the factors that may justify access restrictions.41 This tension has led several courts to propose or implement new categorical restrictions on electronic access, in effect reversing the common law presumption of access. They are doing this either by presumptively sealing certain categories of information, or by restricting remote electronic access to that information. The Federal Rules provide for unlimited public access to Social Security benefits case files at the courthouse, but prohibit remote public access to the same files over the Internet.42 The Minnesota state courts implement a different twist on “courthouse only” access, providing remote public access only to documents and information created or maintained by the courts, such as opinions, orders, and dockets. Under the Minnesota scheme, documents created by the litigants are available at the courthouse.43 privilege subject to appropriate constraint to prevent harmful abuse.” Id. 36. Cal. R. of Ct. 2.500 (Public Access to Electronic Trial Court Records), available at http://www.courtinfo. ca.gov/cms/rules/index.cfm?title=two. 37. Id. 38. Fed. R. Civ. P. 5.2. 39. See Maryland Rules of Procedure, Rule 16-1008 (Electronic Records and Retrieval) (“Subject to the conditions stated in this Rule, a court record that is kept in electronic form is open to inspection to the same extent that the record would be open to inspection in paper form.”) and New York R eport, supra note 30. 40. See supra note 11, for a discussion of the redaction requirements of Fed. R. Civ. P. 5.2(a) and (b). 41. See, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-607 (1982) (When the government attempts to deny the right of public access in order to inhibit the disclosure of sensitive information, “it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest”); and U.S. v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995) (“We believe that the weight to be given the presumption of access must be governed by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts.”). 42. F ed. R. C iv. P. 5.2(c) (providing for remote electronic access in social security appeals and immigration cases only to dockets and court orders and opinions, but not to “any other part of the case file or the administrative record.”). 43. Minnesota Rules of Public Access to Records of the Judicial Branch, Rule 8 (Inspection, Copying,

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Evaluating the adequacy of current privacy protections. Court rulemaking on access to electronic court records usually involves an extensive review of the existing public access regime, coupled with recommendations for potential expansion of the categories of information that should be subject to access restrictions to protect personal privacy.44 Perhaps most importantly, the Perhaps ironically, court systems that Working Group acknowledged have historically closed the types of case that some categories of cases files that are most likely to contain sensitive personal information may face fewer invariably involve information challenges in the transition to an electronic that should be subject to limited public access system. If, for example, paper records in divorce cases are already closed public disclosure. in the paper-based system, there is unlikely to be public pressure to open them in an electronic system. This is the situation with respect to family court records in New York, as explained further below.45 In states that have a stronger common law access tradition or a statutory regime that requires open court files, there will be greater initial legal barriers to protecting personal privacy interests in an electronic access system.

Protecting personal identifying information. Many of the new rules require either the redaction or truncation of personal identifying information such as Social Security numbers, financial account numbers, home addresses, and birthdates. The rules commonly provide a list of the types of information that either: (1) must not be filed in an open court record; or (2) if filed, must be redacted or truncated to protect personal privacy interests. The New Jersey rules, for example, prohibit the parties from filing several types of “confidential personal identifiers” unless such material is required to be filed by statute or court order.46 The rationale for excluding these identifiers from the public case file is two-fold. First, these identifiers have been implicated in the crime of identity theft, which has increased dramatically in recent years as more personal information — sometimes gleaned from public records — is easily accessible on the Internet. Second, several committees studying access to court records have concluded that the presence of many personal identifiers is unnecessary to allow the public to monitor the work of the courts. The report of the New York State Commission on Public Access to Court Records succinctly summarizes this issue: “The Commission accordingly finds that the four specific types of information identified above [Social Security numbers, financial account numbers, names of minor children, and full birth dates] present a risk of potential harm to privacy and the personal security of individuals such that they should not be maintained in public court case records at all.”47

Bulk Distribution and Remote Access), available at http://www.mncourts.gov/Documents/0/Public/ Rules/pub_access_rules_(eff_03-01-2008).pdf. 44. An excellent example of this approach is the Vermont Rules for Public Access to Court Records, available at http://www.michie.com/vermont_print/lpExt.dll/vtrules/a64/c51?fn=documentframe.htm&f=templates&2.0. 45. See infra text accompanying note 77. 46. Rules Governing the Courts of the State of New Jersey, R. 1:38-7(b) (“Public Access to Court Records and Administrative Records”), http://www.judiciary.state.nj.us/rules/r1-38.htm. 47. New York R eport, supra note 30, at 9.

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Separating public from private. Some rules include a new approach — one that builds on technology — to segregate sensitive information on special forms, whether paper or electronic, so that public access can be restricted in appropriate situations. The Washington state courts, for example, require parties in family law cases to use a “confidential information form” to provide the court with financial account numbers, Social Security numbers, income tax information, telephone numbers and birth dates of children. In Washington, these forms will be sealed in both the paper and electronic file system.48 The Minnesota rules allow litigants to protect certain “restricted identifiers” by filing them on a similar form. That form, although not technically sealed, “will not be accessible to the public.”49 Minnesota’s rules also requires litigants to submit “financial source documents” — including tax returns, wage stubs, credit card statements and check registers — with a special cover sheet designated as “Sealed Financial Source Documents.” The cover sheet will be accessible to the public, but the listed documents will not be available for public access unless the court orders otherwise.

Courts are taking responsibility for their own filing and data collection practices. Several access rules recognize that the courts, as administrative entities that collect a vast amount of sensitive personal information, have a key role to play in protecting the privacy interests of litigants. Court docketing practices, for example, have a significant bearing on privacy protections. Many personal identifiers appear on the docket itself, either in the caption, docket entries, or other required elements of the docket. The collection and public display of this information is a matter in the control of the courts. Most of the new court rules affirm that public court dockets should be available in electronic access systems, but some states have taken steps to protect personal privacy in the context of court dockets. With this in mind, the California rule specifies the elements of case dockets and court calendars that may be made available electronically, specifically excluding most personal identifiers, as well as other items that may raise privacy concerns such as victim and witness information, age, gender and ethnicity.50 Some rules explicitly recognize that courts control the information they create, and therefore the courts may reasonably assume that remote public access to court-created documents is less likely to harm privacy interests than access to documents filed by litigants. For this reason, the Minnesota and Texas plans provide remote electronic access to records created by the court but prohibit remote electronic access to documents initially created by litigants.51 Commentary to the Minnesota rule explains that this significant restriction on electronic public access is “the only practical method of ensuring that necessary redaction will occur.”52 48. Washington State Courts, “Confidential Information Form,” (Form WPF DRPSCU 09.0200), available at http://www.courts.wa.gov/forms/?fa=forms.contribute&formid=13. 49. Minnesota General Rules of Practice, 313.02. 50. Cal. Ct. R. 2.507 (“Electronic access to court calendars, indexes, and registers of actions”) available at http://www.courts.ca.gov/documents/title_2.pdf. 51. See Minnesota Rules of Public Access, available at http://www.mncourts.gov/Documents/0/Public/Rules/pub_access_rules_(eff_03-01-2008).pdf; and Texas Judicial C ouncil , P ublic A ccess to C ourt C ase R ecords in Tex as: A R eport With R ecommendations 20 (August 2004), http://www. courts.state.tx.us/tjc/pdf/Final%20Public%20Access%20Council%20Report.pdf. 52. Minnesota Rules of Public Access, R. 8 (Advisory Committee Comment), available at http://www. mncourts.gov/Documents/0/Public/Rules/pub_access_rules_(eff_03-01-2008).pdf.

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Other courts are exploring methods to stem the flow of sensitive information into case files in the first place. The methods include reminding attorneys to be cautious about the sensitive information they include in court filings, changing court rules to reduce the amount of sensitive information that the courts request from the parties and giving litigants explicit notice that case files are available for public access on the Internet. The Florida courts refer to this concept as promoting the creation of a “controlled file” through the use of “minimization strategies” that are designed to reduce the amount of extraneous personal information in court files.53

Considering limits on bulk access to court records. Many state court policies and rules address the topic of access to “bulk” or “compiled” case file data. Such policies usually distinguish between bulk access to public information, which is generally permitted if it does not burden the court, and bulk access to confidential or non-public case file information, which is allowed only subject to significant restrictions. Several state court rules attempt to restrict bulk access to public information by allowing access only to one case at a time on the electronic systems. In Missouri, for example, case records that identify a person are available “only by inquiry of a single case or by accessing any public index.”54 Some state court have rules specifying that such data will only be made available to certain entities, for certain defined purposes, and pursuant to agreements to refrain from certain uses of the records obtained.55 In the Washington rule, as is typical of other bulk data rules, recipients of bulk data are prohibited from using court records for commercial purposes.56

Making lawyers and litigants responsible for protecting privacy interests. Most of the new rules require the participants in the litigation process to understand how court records are maintained on the Internet and require attorneys to take steps to protect private information from indiscriminate disclosure. Some courts also have adopted procedures to inform litigants, attorneys and the public that court documents will be available to anyone upon request, unless sealed or otherwise protected, and that case files may be posted on the Internet. The emphasis is on making the litigants responsible for the material they file, so that court clerks are not in the position of reviewing filings for compliance with new privacy rules.57 The Washington rule, for example, notes that “the responsibility 53. S upreme C ourt of F lorida , P rivacy, A ccess , a nd C ourt R ecords , supra note 35, at 22-27. (“The Committee urges the Supreme Court to consider a strategy made up of three components, each designed to curtail, or minimize, the inclusion of personal information in court files that is unnecessary for purposes of adjudication and case management.”). 54. Mo Ct. Operating R. 2.04 (“Access to Case Records”), http://www.courts.mo.gov/page.jsp?id=1028. 55. See Wash. Gen’l R. 31(g) (“Bulk Distribution of Court Records”), available at http://www.courts. wa.gov/court_rules/?fa=court_rules.display&group=ga&set=GR&ruleid=GAGR31 (providing that bulk records will only be provided pursuant to a “dissemination contract,” and that “the use of court records, distributed in bulk form, for the purpose of commercial solicitation of individuals named in the court records is prohibited”). See also Mo. Ct. Operating R. 2.10 (“Requests for Bulk Distribution of Court Records”) (providing that bulk distribution of court records may only be provided with the approval of the state judicial records committee, and that “under no circumstances shall bulk distribution of court records be made for commercial gain”), http://www.courts.mo.gov/page.jsp?id=1028. 56. Wash. Gen’l R. 31(g)(3). 57. See, e.g., In Re: Implementation Of Committee on Privacy and Court Records Recommendations— Amendments to the Florida Rules of Civil Procedure; the Florida Rules of Judicial Administration; the Florida Rules of Criminal Procedure; the Florida Probate Rules; the Florida Small Claims Rules; the Florida Rules of Appellate Procedure; and the Florida Family Law Rules of Procedure, No. SC08-2443,

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for redacting … personal identifiers rests solely with counsel and the parties.”58

The Sedona Working Group’s A ssessment A pproaches to P ublic Access Rules

of the

M ain

I

n its 2007 Guidelines, the Sedona Working Group identified 16 “common features” of public access rules that the Working Group believed would be consistent with the other core principles in the Guidelines.59 Many of those features are present in the state and federal policies that have been developed since the Guidelines were released. Perhaps most importantly, the Working Group acknowledged that some categories of cases invariably involve information that should be subject to limited public disclosure and concluded that “in those cases, exclusion of such information from pleadings — or the redaction of such information as mandated in several court rules — will be necessary to protect litigants’ privacy interests while minimally intruding upon the public’s qualified right of access to judicial records.”60 Again, that key principle is evident in recently developed policies on access to electronic court records. Beyond these general principles, the Working Group observed that rules and policies on public access to court records appeared to follow four basic policy approaches, and concluded that it was “too soon to identify best practices in this area,” but that “it is helpful to assess how the new public access rules are consistent — or not — with the principles articulated in these Guidelines.”61 It is worth reviewing these four general approaches and the Working Group’s assessment of them.

1. Open electronic access, with minimal limits. Under this approach, the litigant has the obligation to protect private or confidential information by seeking to seal court records or by other self-help mechanisms such as redaction or refraining from filing such information unless absolutely necessary. The Working Group suggested that this approach, while consistent with the law as it developed before the advent of electronic case filing and potential Internet access to court records, does not take into account the shifting role of courts from “custodians” of records to “publishers,” and engages in no examination of its consequences or desirability. The Working Group observed that this approach would be unlikely to provide adequate protections for private or proprietary information in court records.62 This approach, close to the extreme “public is public” view described earlier, has been evident in many court systems’ policy papers, and most new court access rules profess to a desire for open access regardless of the medium in which files are maintained. Nonetheless, the details of the rules show that limits on electronic access are certainly more than minimal, with many rules excluding broad categories of information or case types from remote electronic access.

at 3 (Fla. Nov. 3, 2011), available at http://www.floridasupremecourt.org/decisions/2011/sc08-2443. pdf (noting that “to avoid the electronic dissemination of sensitive personal information unnecessary to court proceedings, both attorneys and pro se litigants must be vigilant to file only authorized documents that comply with the requirements adopted here … [C]ontinual education and a change in mindset for all those involved in the litigation process are necessary for these rules to work as intended.”). 58. Wash. Gen’l R. 31(e)(2) (“Access to Court Records”), available at http://www.courts.wa.gov/court_ rules/?fa=court_rules.display&group=ga&set=GR&ruleid=GAGR31. 59. S edona G uidelines , supra note 2, at 60-61. 60. Id. at 60. 61. Id. at 58. 62. Id. at 58.

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2. Generally open electronic access, coupled with more significant limits on remote electronic public access. The Working Group observed that some courts have adopted a middle ground that generally allows remote electronic public access, but at the same time places significant limits on the types of cases — or categories of information — that courts may make available electronically.63 These courts recognize that there are practical and policy reasons to be cautious about Perhaps more satisfactory answers electronic public access, especially in the short term future during the period of transition to those questions will emerge as from paper to electronic court files. As with courts gain further experience approach No. 1 above, the obligation to protect with electronic court records and personal privacy, confidentiality or proprietary information is largely left to individual litigants electronic public access systems. with little or no independent assistance from the court. The Working Group viewed this approach as more balanced than approach No. 1 but suggested that it may still fall short of providing appropriate protections for private and confidential information in court records.64 As discussed supra, many court systems have adopted rules that reflect this general approach to public access. Those courts declare case files to be open to public disclosure regardless of the medium in which they are maintained. At the same time, those courts also exempt from remote access certain types of information (especially personal identifying information) and/or certain types of case files (most commonly, family law cases).

3. Electronic access only to documents produced by the courts. A third group of courts permits remote access to documents created by the court, such as dockets and court orders, but does not permit remote access to documents created by the parties. Although only a few courts have adopted this approach, those courts justify it as the best way to ensure privacy protection.65 The Working Group noted that while this approach appears to provide significant protections for private and confidential information submitted by the litigants as part of the court record, it does not appear to allow the public to conduct sufficient oversight of the courts.66 In many cases, it is important to review pleadings and other litigant-filed elements of the case file in order to effectively evaluate a court’s decision and orders.

4. Systematic reevaluation of the content of the public case file, combined with limited access to electronic files. The Working Group suggested that a fourth broad policy approach would be to systematically review the elements of the public case file with the policy goal of better accommodating personal privacy interests in the context of electronic court records.67 If feasible, the ideal would be to limit the filing of extraneous personal or confidential information in public court files, a strategy referred to in a Florida court report as “minimization.”68 Where such information must be filed, these courts would provide expanded protections before moving forward with electronic public access systems.

63. Id. at 58-59. 64. Id. at 59. 65. See supra text accompanying notes 5152. 66. S edona G uidelines , supra note 2, at 59. 67. Id. 68. S upreme C ourt of F lorida , P rivacy, A ccess ,

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Despite its difficulty and the lack of systems that have adopted it, the Working Group viewed this as a promising approach because it focuses on limiting the filing of information that arguably should not be in the public case file, and on sealing or otherwise limiting public access to information that is truly private or confidential.69 Only the Florida courts have publicly embraced this idea, in the report issued in 2005.70 Nonetheless, it is clear that other court systems have taken this concept into account in crafting new public access rules, as many of those rules focus on keeping sensitive, private information out of case files unless necessary to the underlying dispute. The Federal Rules, for example, are intended to implement a Judicial Conference policy that permits electronic public access, “provided that certain ‘personal data identifiers’ are not included in the public file.”71

A R eflection

on

Unresolved L egal

and

Policy Issues

The Difficulty of Adopting Court Online Access Rules It is not possible to catalog all the recent twists and turns in state court policy development, but a few examples serve to illustrate how difficult the policy choices can be, and why many issues remain to be resolved in the future. In 2007, the Montana courts adopted comprehensive “Rules for Privacy and Access to Court Records in Montana.”72 Those rules were the end point of a months-long public process set in motion when the Montana Supreme Court appointed a Privacy and Access Task Force. The task force included a broad cross-section of state-holders from the courts, the public, affected government agencies, the bar and the media. The Montana Rules, patterned after the guidelines adopted by the state Conference of Chief Justices in 2002, stated that court records would be presumed to be open but that the right of individual privacy guaranteed in the Montana Constitution would require the protection of certain private information in court records. Notably, however, the rules — like many such rules — left the burden of protecting such information to motions filed by litigants and attorneys. In practice, however, many litigants were confused by the new rules and were effectively unable to protect their privacy interests.73 In 2010, the state law librarian and director of Montana Legal Services filed a petition with the state Supreme Court, suggesting a suspension of the rules, or immediate amendments to protect privacy interests. 74 They asserted that change was needed because sensitive information — especially information about children in family law matters — could find its way to the Internet and could be used to harm children. The Supreme Court agreed. After considering public comments on the 2010 petition, the Court issued an order suspending the entire set of rules and, apparently going back to the drawing board, to develop a new rule.75 69. S edona G uidelines , supra note 2, at 59. 70. S upreme C ourt of F lorida , P rivacy, A ccess , a nd C ourt R ecords , supra note 35. See supra text accompanying note 35. 71. See Fed. R. Civ. P. 5.2 (2007 Adoption commentary) (citing the Judicial Conference Privacy Policy, available at www.privacy.uscourts.gov/Policy.htm). 72. See In the Matter of Amending the Rules for Public Access and Privacy to Court Records in Montana, No. AF 06-0377 (Mont. June 24, 2008), available at http://supremecourtdocket.mt.gov/view/AF%20 06-0377%20Rule%20Change%20--%20Order?id={73D46187-DE84-4746-A56C-05D93004B066}. 73. Id. 74. See In The Matter Of Temporarily Suspending The Rules For Privacy And Public Access To Court Records In Montana, No. AF 06-0377 (Supreme Court of Montana, September 14, 2011), available at http:// supremecourtdocket.mt.gov/view/AF%2006-0377%20Other%20--%20Order?id={9D33F3334838-4ED4-9302-6EB4EFA01640}. 75. Id.

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In the New York courts, the chief judge appointed a blue-ribbon Commission on Public Access to Court Records in 2002. The commission, chaired by prominent First Amendment attorney Floyd Abrams, issued its report in 2004, concluding that “the rules and conditions of public access to court case records should be the same whether those records are made available in paper form at the courthouse or electronically over the Internet.”76 The commission simultaneously noted, with approval, that transcripts in family court cases were not, and should never be, made available to the public.77 Moreover, the commission called for the exclusion or truncation of narrow categories of personal information from case files, including birth dates, names of minor children, financial account numbers and Social Security numbers.78 Six years later, no new court rules had been adopted to implement the commission’s recommendations. In 2011, a New York court rules committee made recommendations to amend the state rules on civil practice to require confidentiality of personal identifying information, arguing that its proposal should be adopted because “as the court system enters the electronic age, courthouse papers are increasingly accessed by internet services and personal information is of increasing interest to identity thieves.”79 The categories of information defined to be “personal identifying information” in the new proposal go far beyond the 2004 commission’s guidance. The list includes, for example “medical diagnosis or billing codes,” electronic signature data or unique biometric data such as a fingerprint, voice print, retinal image or iris image,” telephone numbers, driver’s license numbers and mother’s maiden name.80 A third example, drawn from the Maryland court system, illustrates how internal court efforts to analyze these issues can lead to calls for a more thorough and inclusive policy development process. In 2000, the chief judge of the Maryland Court of Appeals appointed a committee — including only judges and court officials — to develop a draft policy on public access to court records. That “ad hoc” committee observed that there was no “uniform guidance” for court employees to follow in responding to requests for court records. In particular, the committee expressed concern about “the constantly growing list of users of electronic access to the courts’ databases, including commercial vendors of background checks, without the implementation of privacy protocols.”81 These concerns led the committee to propose a new policy that would have generally limited a requester to access “no more than ten records at a time” at a courthouse.82 The draft policy also limited requests for electronic “data compilations,” requiring all such requests to include “the affiliation or association of the person” requesting data, an explanation of the “intended use” of the data, and a statement about “to whom the data will be distributed or disclosed.”83

76. New York R eport, supra note 30, at 1. 77. Id. at 7. 78. Id. 79. R eport of the A dvisory C ommittee on C ivil P r actice to the C hief A dministr ative Judge of the C ourts of the S tate of New York (Jan. 2011), http://www.nycourts.gov/ip/judiciaryslegislative/2011CivilPractice-ADV-Report.pdf, at 32-33. 80. Id. at 34. 81. R eport of the A d Hoc C ommittee on P ublic A ccess to C ourt I nfor mation (Maryland, Feb. 7, 2001) (hereinafter M aryl a nd R eport), available at http://www.courts.state.md.us/access/report. html. 82. A d Hoc Court R ecords Committee, Draft: Judiciary Policy on Public Access to R ecords §§ III(B)(2) (Maryland, Dec. 2000), available at http://www.courts.state.md.us/access/draftpolicy.html. 83. “Id. §§ III(B)(2) and III(G)(2).

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Public comment on the Maryland committee’s proposal was swift and mainly negative, with “a vast amount of unfavorable comment” coming from private detectives, commercial data compilers, vendors of criminal background checks and tenant histories, and the media.84 This led the chief judge to appoint an “expanded task force” to reassess the draft policy.85 That new task force included a broad variety of interests, including representatives of commercial data compilers and vendors, the media, the state Department of Public Safety, the legislature and privacy groups.86 The newly formed Maryland task force studied the issues and, in stark contrast to the earlier committee that included only judges and court officials, concluded that public access should not be “conditioned on the reason for the request or the intended use of the records.”87 The earlier draft policy’s limits on requests for bulk and compiled data were eliminated, and the new committee recommended against requiring requesters to state any reason to gain access to compilations of court records.88 Bringing the process to completion, these principles were adopted in 2004 in the comprehensive Maryland Rules on access to court records.89

The Courts’ Conondrums These examples illustrate that the courts are still struggling with many thorny legal and policy questions. Perhaps more satisfactory answers to those questions will emerge as courts gain further experience with electronic court records and electronic public access systems. Some questions may ultimately require answers in case law; others may be suitable for legislative solutions. Among the issues that likely will arise, several stand out as particularly important and also potentially difficult to address: 1. How should, or how will, the jurisprudence of privacy develop to respond to the fundamentally changed context of public access in the Internet era? Will courts accept new arguments for sealing records based on the changing nature of public access? How will the likelihood of harm affect this calculus? These questions will be particularly difficult to answer because there is currently little case law addressing the informational privacy interests of litigants or others in public court records. Existing case law, to the extent that it treats these questions, addresses them in the context of motions to seal specific documents, and the standards for sealing do not address how the courts should balance the need for public scrutiny against the new reality of unlimited access and the loss of the “practical obscurity” of court records. 2. How will courts interpret the new rules on public access to court records? Will the exclusion of personal identifiers from court records become the norm, upheld by the courts as a necessary counterbalance to the phenomenon of Internet dissemination of public records? Will the exclusion of such information from the record have any negative consequences for the courts, litigants, or the public? 84. See Maryland R eport, supra note 81, at n. 53, and David Abrams, Advocates Fear New Court Rules Court Close Public Records, Capital News Service (Nov. 17, 2000), http://www.journalism.umd.edu/ cns/wire/2000-editions/11-November-editions/001117-Friday/RecordsWritethru_CNS-UMCP.html. 85. See Maryland Judiciary, Court Records Task Force Expanded (press release, Dec 21, 2000), available at http://www.courts.state.md.us/access/pr12-21-00.html. 86. Id. 87. F inal R eport of the C ommittee on A ccess to C ourt R ecords at 9 (Maryland Judiciary 2002), available at http://www.courts.state.md.us/access/finalreport3-02.pdf. 88. Id. 89. See Md. R. Pro. 16-1001 - 16-1011 (Access to Court Records).

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3. Will distinctions between remote electronic access and access at the courthouse be tenable over the long term? As “remote” becomes a necessary component of “access,” can these distinctions withstand judicial scrutiny? Put another way, how will courts address new access restrictions that are short of sealing, but which clearly affect the access/privacy balance, making it harder to review court documents if those documents are deemed to include sensitive information? Will “courthouse only” access be viewed as a denial of access that violates the common law presumption, or will it be viewed as a logical – and constitutionally legitimate – restriction on the place and manner of providing public access? 4. Will courts uphold rules or court policies that discriminate among requesters, favoring one type of use over another? The U.S. Supreme Court provided a partial answer in the case Los Angeles Police Dept. v. United Reporting Publishing Corp.,90 which The key questions that were involved a First Amendment challenge to a California statute that limited public access identified in the 2007 Sedona to arrestees’ addresses. The statute allowed Guidelines, and many others noted access for “scholarly, journalistic, political, governmental ... or investigation purposes,” here, remain unresolved. but prohibited access that would be used for commercial purposes. In the course of holding that the statute was not subject to a facial challenge, the Court noted that the state “could decide not to give out arrestee information at all without violating the First Amendment.”91 In United Reporting, the Supreme Court confirmed that the government has wide latitude in deciding whether to make information subject to public access in the first instance. The case also appears to ratify legislative decisions to provide special access to government information for certain groups (for example, researchers or the press) while denying access for commercial purposes.92 The case does not, however, resolve the more difficult question regarding whether use limitations are enforceable once information has been put on the public record without clear pre-access restrictions or conditions. 5. Will courts continue to rely on litigants as the primary means of protecting privacy and confidentiality in the context of case files? Judges, as a general matter, do not raise privacy or confidentiality issues on their own. Instead, privacy and confidentiality issues that might be asserted in the course of litigation historically have been addressed on a case-by-case basis, so that if a litigant does not challenge the entry of sensitive information into the record, it will be entered without further inquiry.

90. 528 U.S. 32 (1999). 91. Id. at 40. 92. The U.S. Supreme Court distinguished United Reporting in its recent decision in Sorrell v. INS Health, 131 S. Ct. 2653, 2665, 180 L.Ed.2d 544 (2011), in which the majority held that a Vermont law, which barred disclosure of prescription data for marketing purposes, violated data mining firms’ free speech rights. (“Here, unlike in United Reporting, we do have ‘a case in which the government is prohibiting a speaker from conveying [non-government] information that the speaker already possesses.’”).

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6. What are the legitimate areas for categorical restrictions on public access to court records? Will categorical access restrictions move beyond a narrow band of personal identifiers, or will they come to include traditionally private information such as medical records, or employment records? I believe that some of the new court rules show a clear shift away from the presumption of openness, towards a presumption of closure in limited situations that involve certain sensitive categories of information. The rules take this approach because, in the paper system, the consequences of making a disclosure mistake were more limited. In an electronic environment the harm that can result from unlimited dissemination cannot be undone easily. There may be a greater need in the electronic context to presume that certain information will be closed — or not available on the Internet — and to open it for public review only when a sufficient showing is made that dissemination will not cause harm. 7. How can courts provide open access to court records, but at the same time protect the most vulnerable participants in the process: such as the victims and witnesses in criminal cases, the abused spouse and others who do not have a lawyer to file a motion to seal on their behalf? The future may bring court challenges to unlimited public access filed by victims, witnesses and other third parties to lawsuits. 8. What is the role of “use limitations” in the court records context? Like the California law at issue in the United Reporting case, should courts attempt to prescribe accepted uses of court records, while explicitly forbidding other uses? The Supreme Court has been reluctant to place restrictions on the use of public record information, instead suggesting that government policies intended to protect privacy should address how information is collected and maintained in the first place. In Cox Broadcasting Corporation v. Cohn, for example, the Court noted that “[if] there are privacy interests to be protected in judicial proceedings, the [government] must respond by means which avoid public documentation or other exposure of private information.”93 9. Will courts rely on access filters, such as user fees and user identification requirements, as a way to minimize potential harm from unlimited public access to court case files? Although fees and identification requirements to use public access systems are not often mentioned in court rules, some courts have noted that the very existence of these access barriers may discourage certain uses of public records. The report accompanying the federal court privacy policy, for example, notes that “remote electronic access will be available only through the [federal court public access] system which requires registration … and the use of a log in and password. This creates an electronic trail which can be retraced in order to determine who accessed certain information if a problem arises.”94 10. Can technology help to resolve these questions? How can courts develop technical methods to restrict access to the type of private information that many new access rules seek to protect, while at the same time preserving public access to the vast majority of information in court records? Although technology certainly plays a role in the overall answers to many of the questions raised in this article, technology and its promise cannot be a substitute for making the difficult policy choices about what should and should not be presumptively subject to unlimited public access. 93. 420 U.S. 469, 495 (1975). 94. See Report of the Judicial Conference Committee on Court Administration and Case Management on Privacy and Public Access to Electronic Case Files, available at http://www.privacy.uscourts.gov/ Policy.htm.

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11. How can courts answer these questions in a manner that promotes statewide, if not national, consistency? Is inconsistency in courts’ approaches to these issues a legal problem, or a legislative issue in search of a national answer?

C onclusion

A

s these questions suggest, the courts have only begun to address privacy and confidentiality issues that arise as court files are made accessible on the Internet. The federal courts and many state court systems have developed policies or court rules that seek to balance the competing interests of public access and personal privacy. These policies and rules recognize that case files may contain sensitive personal, confidential or proprietary information that may require special protection in the context of Internet access. Nonetheless, the key questions that were identified in the 2007 Sedona Guidelines, and many others noted here, remain unresolved.

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Pleadings, Privacy and Ethics: Protecting Privacy In Litigation Documents Steven C. Bennett1

T

he federal courts (and some state courts) have adopted new rules regarding protection of private information in public pleadings.2 These rules generally establish a mechanism for the redaction or sealing of private information, without specifying any method of enforcement of the obligation to protect private information in pleadings and other court filings. This article suggests that the rules of legal professional responsibility should take account of this obligation, so as to make clear that counsel involved in court proceedings must accept a duty to protect the privacy of their own clients, and of other individuals who may be affected by public filing of pleadings containing private information. The article first briefly reviews the history of the right to privacy in the United States, noting that, although the doctrine has some constitutional underpinnings, most U.S. privacy rights derive from statutes or the common law. It then outlines circumstances under which privacy concerns may affect the scope and form of discovery in U.S. proceedings. The article then considers the ethical obligations of counsel in discovery, and, in particular, the obligation of counsel to address privacy concerns. The next part summarizes developments leading to the recent rule changes regarding protection of private information in public court documents. Finally, this article concludes (in part using an analogy to the discovery context) that counsel should have an ethical obligation to protect privacy as part of the public filing of pleadings and other court documents.

1. The views expressed are solely those of the author, and should not be attributed to the author’s firm, or its clients. Rebekah Binger, Sarah Chapman and Anja Havedal-Ipp, associates at the firm, assisted in the preparation of this article. 2. See generally Peter A. Winn, Judicial Information Management in an Electronic Age: Old Standards, New Challenges, 2009 F ed. C ts . L. R ev. 2 (July 2009) (summarizing history of development of standards); Peter A. Winn, Online Court Records: Balancing Judicial Accountability and Privacy in an Age of Electronic Information, 79 Wash. L. R ev. 307 (2004) (reviewing the historical balance between public access to judicial records, versus impacts on judicial administration).

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Pleadings, Privacy and Ethics

A Brief History

of the R ight to P rivacy he notion that individuals have a right to privacy is not a new development, yet, this is not a right expressly protected in the U.S. Constitution. Instead, the right of privacy receives protection from various sources, including scattered clauses of the Constitution and its amendments, various statutes, and the common law.

T

Constitutional and Common Law The modern American definition of privacy as the “right to be let alone” was explained at length by future Supreme Court Justice Louis Brandeis and Samuel Warren in 1890.3 Their seminal article, “The Right to Privacy,” focused on the technological and business developments of the day — such as instantaneous photographs and the growth of press and newspaper enterprises — as methods by which the details of private lives could be publicly disseminated. The authors urged that the law should evolve to respond to such technological and social changes, and their article laid the groundwork for the concept of informational privacy, that is, control over information about oneself.4 This “right to be let alone” gradually developed, even though no specific right to privacy is enumerated in the U.S. Constitution. The Supreme Court has construed provisions in the Bill of Rights and the Fourteenth Amendment to provide some protection to a variety of elements of individual privacy.5 For example, the liberty guaranteed in the Constitution6 has been construed to protect a person from unwarranted government intrusion into a dwelling or other private place,7 and the Supreme Court has observed that “liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”8 These constitutionally based privacy rights apply only to protect an individual from a government actor infringing upon the individual’s rights: they do not apply to private actors.9 As a result, while legislation and regulations developed by the government can be important sources of privacy protection, private arrangements and contracts also play a role. Even though the Supreme Court has expanded and extended the notion of privacy under the Constitution, not all laws allowing for dissemination of private information necessarily violate the constitutional right to privacy. In Whalen v. Roe, the Supreme Court held that a New York law that required the recording of names and addresses of all persons who obtained certain prescription drugs — drugs for which there was both a lawful and unlawful market — with such records sent to a centralized computer file, did not violate any right

3. Samuel Warren & Louis Brandeis, The Right to Privacy, 4 H arvard L. R ev. 193 (1890). 4. Id. at 211. 5. While the constitution’s amendments apply directly only to the federal government, See Barron v. Baltimore, 32 U.S. 243, 247-48 (1833), the Supreme Court has applied many of them to state and local government through the language of the Fourteenth Amendment. See Gitlow v. New York, 268 U.S. 652, 666 (1925). 6. See U.S. C onst., P rea mble , A mends . 4 & 5, See also U.S. Const., A mend. 14, §1 (“… nor shall any State deprive any person of life, liberty, or property, without due process of law;”) 7. See, e.g., Boyd v. United States, 116 U.S. 616, 630 (1886). 8. Lawrence v. Texas, 539 U.S. 558, 562 (2003). 9. United States v. Jacobsen, 466 U.S. 109, 113 (1984) (discussing the search and seizure provisions of the Fourth Amendment, noting that “[t]his Court has … consistently construed this protection as proscribing only governmental action; it is wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.’” (quoting Walter v. United States, 447 U.S. 649, 662 (Blackmun, J., dissenting)).

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of privacy protected by the Fourteenth Amendment.10 On its face, the Court held, the New York program did not interfere with constitutionally protected fundamental rights (such as the right to choose methods of contraception), and requiring such disclosure to representatives of the State did not amount to an impermissible invasion of privacy.11 The Court also noted that the “remote possibility” of unwarranted disclosures was not a sufficient basis to invalidate the entire patient-identification program.12

Federal Statutes Although many U.S. privacy rights find their roots in the Constitution and common law, many modern statutes also address various types of privacy protection. The government has the right to collect personal data and use such data for specific purposes, and generally, this right is accompanied by a statutory duty to avoid unwarranted disclosures of such information. For example, the landmark 1974 Federal Privacy Act provides privacy The notion that individuals have protection by preventing misuse of records 13 by federal agencies. Government agencies a right to privacy is not a new must follow certain procedures in the coldevelopment, yet, this is not a lection and disclosure of records containing 14 right expressly protected in the personal information, and the Privacy Act also gives individuals the right to review, and U.S. Constitution. an opportunity to amend, the contents of their records.15 A companion to the Privacy Act is the Freedom of Information Act, 16 which provides a process by which every person may request access to federal agency records or information,17 and regulates third-party access to government records, including records containing personal information.18 These two statutes reflect the tension in privacy law – a desire to protect individuals from unwarranted disclosure of information, while at the same time generally granting liberal access to government information. Many federal statutes extend privacy rights to consumers and customers. The Financial Privacy Act of 1978, for example, protects certain financial records from disclosure.19 Under this statute, if a government agency wishes to disclose personal financial informa-

10. 429 U.S. 589, 603–04 (1977). In a 2011 case, the Supreme Court held in a 6-3 decision that Vermont’s prescription privacy law, which barred disclosure of prescription data for marketing purposes, violated data mining firms’ free speech rights. Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 180 L.Ed.2d 544 (2011). The majority held that the Vermont statute “burdened a form of protected expression that it found too persuasive,” while at the same time, “left unburdened those speakers whose messages are in accord with [the state’s] own views. This the State cannot do.” 131 S.Ct. at 2672. The Court suggested that a more privacy-protective statute might have withstood Constitutional scrutiny, writing “the State might have advanced its asserted privacy interest by allowing the information’s sale or disclosure in only a few narrow and well-justified circumstances.” Id. at 2668. 11. Id. at 600, 602. 12. Id. at 601–02. 13. 5 U.S.C. § 552a(b), (i). 14. 5 U.S.C. § 552a(b), (e). 15. 5 U.S.C. § 552a(d). 16. 5 U.S.C. § 552. 17. 5 U.S.C. § 552(a)(1), (4). 18. 5 U.S.C. § 552(b)(6), (7)(C). 19. 12 U.S.C. § 3401, et seq.

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tion provided to the agency, the individual affected must be provided notice and must authorize disclosure.20 The Federal Trade Commission Act (“FTCA”) helps makes sure that companies keep the promises they make to consumers about privacy.21 Under Section 5 of the FTCA, a company that fails to implement necessary security protection of a consumer’s personal information may be prosecuted, as such failures may be considered “unfair” or “deceptive” practices.22 Another statute, Title V of the Gramm-Leach-Bliley Act (“GLBA”) (the Financial Modernization Act of 1999) also sets forth guidelines that restrict the use of consumer information by financial institutions and non-affiliated third parties to whom they transfer such information.23 Another example of consumer protection for private information appears in the Fair Credit Reporting Act (“FCRA”), 24 enforced by the Federal Trade Commission, which governs how credit reports may be maintained and used. An extension of the FCRA appears in the Consumer Credit Reporting Reform Act of 1996,25 which attempts to provide even greater privacy protections to consumers. Individuals also enjoy various statutory privacy rights with regard to their health and medical treatment. One of the most widely known statutes that protect health information is the Health Insurance Portability and Accountability Act (“HIPAA”).26 Privacy regulations issued by the Department of Health and Human Services under HIPAA give patients control over use of their protected health information.27 Additionally, health plans and health care providers must obtain a patient’s consent for use and disclosure of protected information in connection with treatment, payment and health care operations.28 Other statutes have been enacted in response to use of the Internet and the new ways that information can be collected online. The Children’s Online Privacy Protection Act of 1998, (COPPA), for example, gives parents control over information collected from their children online and permits parents to control how such information is used.29 Many characteristics of an individual are also afforded statutory protection from privacy invasions. The Equal Credit Opportunity Act restricts inquiries into a credit applicant’s sex, race, color, religion, or marital status.30 The Equal Employment Opportunity Act restricts collection and use of information that could result in employment discrimination on the basis of race, sex, religion, national origin and a variety of other characteristics.31 Similarly, the Fair Housing Act restricts the collection and use of information that could result in housing discrimination on the basis of race, sex, religion, national origin and a variety of other factors.32

20. Id. 21. 15 U.S.C. §§ 41-58. 22. 15 U.S.C. § 45. 23. 15 U.S.C. §§ 6801-09. 24. 15 U.S.C. § 1681, et seq. 25. 15 U.S.C. § 1681s-2. 26. Pub. Law No. 104-191, 110 Stat. 1936, §§ 262, 264. 27. 45 C.F.R. §§ 160.101, et seq. 28. 45 C.F.R. § 164.506. 29. 15 U.S.C. §§ 6501 et seq., 16 C.F.R. § 312. 30. 29 U.S.C. §1025. 31. 42 U.S.C. § 2000e. 32. 42 U.S.C. §§ 3604-05.

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State Provisions Among the states, there is no single way to define or implement an individual’s right to privacy. Some states expressly recognize a right to privacy in their state constitutions. For example, California’s state constitution provides: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”33 In other states, court decisions have established a constitutional right of privacy.34 Another source for the right to privacy can be found in tort law, which is also statespecific. In torts, privacy has generally been classified into four distinct torts: appropriation, unreasonable intrusion upon the plaintiff’s seclusion or solitude, public disclosure of private facts and false light in the public eye.35 The tort of appropriation is “an invasion of privacy whereby one person takes the name or likeness of another” for commercial gain.36 A similar concept is the “right of publicity.”37 The tort of intrusion upon seclusion involves any “highly offensive invasion of another person’s seclusion or private life.”38 This type of intrusion can include peeping into a person’s home, wire-tapping telephones and obtaining bank balance information without permission. Public disclosure of private facts is “the public revelation of some aspect of a person’s private life” without a legitimate public purpose.39 The disclosure is actionable in tort “if the disclosure would be highly objectionable to a reasonable person.”40 Some examples include publication of documents relating to medical treatment or sexual relations or photographs of a person in the confines of his or her own home. Finally, false light liability, in an invasion of privacy claim, is “a plaintiff’s allegation that the defendant attributed to the plaintiff views that he or she does not hold and placed the plaintiff before the public in a highly offensive and untrue manner.”41

33. Cal. Const. art. I, § 1; see also Montana Const. art. II, § 10 (“The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”). 34. For example, Georgia does not specifically mention privacy in its constitution, but the Georgia Supreme Court has “expressly recognized that Georgia citizens have a “liberty of privacy” guaranteed by the Georgia constitutional provision that declares that no person shall be deprived of liberty except by due process of law.” See Powell v. State, 270 Ga. 327, 329 (Ga. 1998) (citations omitted). 35. See R estatement (2 d) of Torts §§ 652A-652I. 36. Bl ack ’s L aw D ictionary 110 (8th ed. 2004). Almost all states have accepted this tort, while the remaining states have not yet considered it. See, generally, M edia L aw R esource C enter , E mploy ment L ibel a nd P rivacy L aw 2011 (2011). 37. See R estatement (3 d) of Unfair C ompetition §§ 46-47 (1995). The distinction is that appropriation protects against “injury to personal feelings,” while the right of publicity protects against unauthorized commercial exploitation of a person’s name or face. As a practical matter, celebrities generally sue under the right of publicity, while ordinary citizens sue to protect their appropriation privacy rights. 38. Bl ack ’s L aw D ictionary 829 (7th ed. 1999). This tort has been accepted in almost every state, although rejected in some. See, generally, M edia L aw R esource C enter , supra note 38. 39. Bl ack ’s L aw D ictionary 497 (8th ed. 2004). 40. Id. 41. Bl ack ’s L aw D ictionary 636 (8th ed. 2004). Only about two-thirds of the states have accepted this tort. But several states have rejected it because of its similarity to a claim for defamation. See, generally, M edia L aw R esource C enter , supra note 38.

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Ethical and Other Sources Another source for privacy rights arises from the obligations of certain professionals, which protects the confidentiality of disclosures made to a doctor, an attorney or a religious official such as a priest. These rights to confidential communications in certain types of relationships are based on ethics codes. Violations of the confidentiality of communications can put a professional’s license at risk and possibly rise to the level of a tort. Other sources of privacy protection include evidence codes — at both the federal and state level. In a legal proceeding, certain privileges can be invoked to prohibit the introduction of confidential communications disclosed in protected relationships. The existence of these privileges varies from state to state.42

Privacy Limits on Discovery Although not enacted as part of a comprehensive code for protection of private information, U.S. discovery doctrine generally permit courts to impose limits on discovery based on concerns for privacy. These potential limits on discovery emerge from a variety of rules and judicial opinions. For example, the U.S. Supreme Court has held, “to survive a motion to dismiss [and thus gain access to the discovery process], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”43 In Ashcroft v. Iqbal, the Court extended that pleading standard to all federal civil actions.44 If the complaint is deficient, the complainant is not entitled to discovery.45 Thus, the Rules do not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”46 Further, courts may grant a motion to stay discovery if a motion to dismiss is filed, where “discovery may be especially burdensome and costly to the parties.”47 In fact, “[t] he Court premised its holding in [Twombly] on the policy against a ‘plaintiff with a largely groundless claim be[ing] allowed to take up the time of a number of other people, with the right to do so representing an in terrorem increment to the settlement value.’”48 The Court furthered this policy in its Twombly decision, indicating that a district court was “justified in insisting on some specificity in the pleading in [a]…case before proceeding with potentially massive and expensive discovery.”49 Thus, “a defendant should not be burdened with the heavy costs of pretrial discovery that are likely to be incurred in a complex case unless the complaint indicates that the plaintiff’s case is a substantial one.”50 42. Other potential claims of privilege can sometimes be invoked to protect the privacy of an individual involved in a legal proceeding, e.g., the marital privilege, joint-defense privilege, journalist’s privilege, psychotherapist-patient privilege, accountant-client privilege, and the privilege against self-incrimination. 43. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 44. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1953 (2009) (“Our decision in Twombly expounded the pleading standard for ‘all civil actions,’ and it applies to antitrust and discrimination suits alike.”) 45. See id. at 1954 (“Because respondent’s complaint is deficient under Rule 8, he is not entitled to discovery, cabined or otherwise.”) 46. Id. at 1950. 47. See Coss v. Playtex Products, No. 08 C 50222, 2009 WL 1455358, 2009 U.S. Dist. LEXIS 42933, at *3 and 9 (N.D. Ill. 2009) (“The court may grant a motion to stay discovery for a number of reasons, including the filing of a motion to dismiss. Stays are often deemed appropriate where…discovery may be especially burdensome and costly to the parties.”… “If the complex case is one susceptible to the burdensome and costly discovery contemplated by [Twombly] and Iqbal, the district court should limit discovery once a motion to dismiss for failure to state a claim has been filed.”) 48. Id. at *4-5. 49. Id. at *5. 50. Beck v. Dobrowski, 559 F.3d 680, 682 (7th Cir. 2009) (Posner, J.). See also Coss, 2009 U.S. Dist.

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The Federal Rules of Civil Procedure, moreover, specifically contemplate limitations on discovery related to “burden,” which may include privacy concerns. Rule 26(b)(2)(C)(iii) requires courts to limit the frequency or extent of discovery when “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the Some states expressly recognize case, the amount in controversy, the parties’ resources, the importance of the issues at a right to privacy in their stake in the action, and the importance of the state constitutions. discovery in resolving the issues.”51 Advisory Committee notes to the Rules expressly reference “privacy” as a burden concern.52 And courts have held that “the word ‘burden’ applies to the adverse consequences of the disclosure of sensitive, albeit unprivileged, material,” including “risks to …privacy.”53 Thus, courts may use a burden analysis to limit discovery when the burden of the infringement on an individual’s privacy caused by the discovery outweighs the likely benefits of discovery.54 Additionally, FRCP 26(c)(1) provides that a court may, for good cause, issue a protective order limiting discovery that would cause annoyance, embarrassment, oppression, or undue burden or expense for a party or person.55 The U.S. Supreme Court in Seattle Times Co. v. Rhinehart held that the “good cause” standard of FRCP 26(c)(1) is satisfied if a protective order serves to curb abuse stemming from discovery.56 The Court in Seattle Times explained how protective orders might be used to protect privacy: It is clear from experience that pretrial discovery by depositions and interrogatories has a significant potential for abuse. This abuse is not limited to matters of delay and expense; discovery also may seriously implicate privacy interests of litigants and third parties. The Rules do not distinguish between public and private information. Nor do they apply only to parties to the litigation, as relevant information in the hands of third parties may be subject to discovery. There is an opportunity, therefore, for litigants to obtain — incidentally or purposefully — information that not only is irrelevant but if publicly released could be damaging to reputation and privacy. The government clearly has a substantial interest in preventing this sort of abuse of its processes.57

In addition to these provisions of the Federal Rules of Civil Procedure, certain specific state and federal laws may set forth specific standards for protective orders to protect information covered by a federal privacy law or regulation.58

LEXIS 42933, at *8 (“Post Iqbal, the policy against burdensome discovery in complex cases during the pendency of a motion to dismiss holds fast.”) 51. F ed. R. C iv. P. 26(b)(2)(C)(iii). 52. See F ed. R. C iv. P. 34, Advisory Committee Notes (1970) (“Protection may be afforded to claims of privacy or secrecy,” pursuant to F ed. R. C iv. P. 26(c)). 53. Bennett v. Kingsbridge Heights Rehabilitation Care Center, No. 07 Civ. 9456 (LAK), 2009 WL 3294301, at *3 (S.D.N.Y. 2009). 54. See, e.g., Labrew v. City of New York, No. 07 Civ. 4641 (DAB)(DFE), 2009 WL 3747165, at *1 (S.D.N.Y 2009) (“Pursuant to Fed.R.Civ.P. Rule 26(b)(2)(C)(iii), I hereby determine that the privacy burden of the proposed discovery outweighs its likely benefit.”). See also Stampf v. Long Island Railroad Co., No. 07-CV-3349 (SMG), 2009 WL 3628109, at *2 (E.D.N.Y. 2009) (“The burden of producing the discovery sought by plaintiff would be substantial … the nature of the material is such that its production would invade the privacy of Mr. Jackson.”) 55. See F ed. R. C iv. P. 26(c)(1) (“The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense…”). 56. 467 U.S. 20, 34 (1984). 57. Id. at 34-35 (1984). 58. For example, regulations implementing the Health Insurance Portability and Accountability Act of

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Rule 26(b) grants federal courts the authority to limit the scope of discovery. A court may grant a party’s request to avoid discovery of electronically stored information when the information is not reasonably accessible, or may “specify conditions” (including a shifting of costs) for the discovery.59 Under Rule 26(b)(2)(C), a court “must limit” the “frequency or extent of discovery” if it makes any of the following determinations: (1) first, that the discovery is unreasonably cumulative or duplicative, or could be obtained from another source more easily; (2) that the party seeking discovery has already had ample opportunity to obtain the information in question through discovery; or (3) that the burden or expense of the proposed discovery outweighs the likely benefit or the amount in controversy.60 Similarly, American courts may also employ several tools beyond the procedure rules to protect trade secrets during the discovery process. In Hope for Families & Community Services, Inc. v. Warren, for example, plaintiffs sought production of information in a gambling regulation dispute, which the defendants objected to, arguing that the materials contained trade secrets about the company’s competitive practices.61 The judge chose a middle path by limiting the discovery request but nonetheless ordering production of documents containing trade secrets, relying on a previously entered protective order to maintain the secrecy of the documents.62 The court in Opperman v. Allstate New Jersey used a similar limiting order when an interested third party opposed the plaintiff’s request to access the third party’s proprietary software, which had been used by the defendant.63 The court ordered the third party to provide an accessible version of the software to the plaintiff, but entered a confidentiality order as a means of limiting access to and use of the software.64 In other recent instances, U.S. courts have been more deferential to parties seeking to protect trade secrets during the discovery process. In a class action lawsuit stemming from unsolicited advertisements faxed by the defendant to the plaintiffs, the plaintiffs sought production of defendant’s database, which contained telephone numbers for each of the individuals solicited.65 The defendants opposed production of the database, arguing that it contained customer information that was protectable as a trade secret. The court agreed and denied the plaintiffs’ motion to compel.66 In other recent cases, courts granted deference to the party seeking protection of its trade secrets.67

1996 (“HIPAA”) set forth terms for such an order. See 45 C.F.R. §164.512(e)(1)(v) (“a qualified protective order means, with respect to protected health information requested under paragraph (e)(1)(ii) of this section, an order of a court or of an administrative tribunal or a stipulation by the parties to the litigation or administrative proceeding that: (A) Prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and (B) Requires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding.”) 59. F ed. R. C iv. P. 26(b)(2)(B), 60. F ed. R. C iv. P. 26(b)(2)(C), 61. 250 F.R.D. 653, 660-61 (M.D. Ala. 2008). 62. Id. at 662. 63. 2008 U.S. Dist LEXIS 95738, at *3-6 (D.N.J. Nov. 24, 2008). 64. Id. at 12-13. 65. Hypertouch, Inc. v. Superior Court, 128 Cal.App.4th 1527, 27 Cal. Rptr. 3d 839, 841 (Cal. Ct. App. 2005). 66. Id. Later in the course of the case, the plaintiffs learned that the defendants had destroyed a separate database, which contained a list of all the phone numbers that had contacted the company to request it stop sending faxes. At that point, the judge ordered the defendant to use its database to contact those individuals who had requested that they not receive any further faxes, in order to invite them to join the class. 67. Containment Technologies Group v. Am. Soc’y of Health Sys. Pharmacists, 2008 U.S. Dist. LEXIS

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Ethical Obligations of Counsel in Discovery Although lawyers owe a duty of zealous advocacy to their clients, this duty must co-exist with, and not undermine, a concomitant duty to the court to ensure that the process of adjudication is fair, efficient, and cost-effective.68 Thus, as one significant recent judicial opinion noted: A lawyer who seeks excessive discovery given what is at stake in the litigation, or who makes boilerplate objections to discovery requests without particularizing their basis, or who is evasive or incomplete in responding to discovery, or pursues discovery in order to make the cost for his or her adversary so great that the case settles to avoid the transaction costs, or who delays the completion of discovery to prolong the litigation in order to achieve a tactical advantage, or who engages in any of the myriad forms of discovery abuse that are so commonplace is, as Professor Fuller observes, hindering the adjudication process, and making the task of the “deciding tribunal not easier, but more difficult,” and violating his or her duty of loyalty to the “procedures and institutions” the adversary system is intended to serve. Thus, rules of procedure, ethics and even statutes make clear that there are limits to how the adversary system may operate during discovery.69

An attorney’s status as an “officer of the court” connotes a duty to the public as a whole to conduct litigation in general (and discovery in particular) with an eye toward efficiency and fairness, rather than merely for the all-out benefit of the client.70 In discovery, in the federal court system, this requirement is embodied in a specific procedure rule. Rule 26(g) of the Federal Rules of Civil Procedure provides that every discovery disclosure or request must be signed by an attorney, and that an attorney’s signature constitutes a certification that: “to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry,” the disclosure is complete, or that the discovery request is consistent with the rules of procedure and “not interposed for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation” and “neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.”71 Further, if a lawyer’s certification violates Rule 26(g) “without justification,” the court may impose an “appropriate sanction,” which may include expenses and attorney’s fees “caused by the violation.”72 Relying on these specific provisions of the Rules, federal courts have noted that sanctions might be required where lawyers participate in abuse of the discovery process.73

80688, at *2 (S.D. Ind. Oct. 10, 2008); Daimler Truck N. Am. LLC v. Younessi, 2008 U.S. Dist. LEXIS 86022 at *13-14 (W.D. Wash. June 20, 2008). 68. See ABA Model R. of Prof. Conduct 3.3, Comment (duty of candor toward tribunal qualified by “the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process”). 69. Mancia v. Mayflower Textile Serv. Co., 253 F.R.D. 354, 363 (D. 2008). The reference is to Professor Lon L. Fuller’s article, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353 (1978), quoted earlier in the decision. See also In re Rosenthal, Civ. Action No. H-04-186, 2008 WL 983702, at *11 (S.D. Tex. Mar. 28, 2008) (attorney’s failure to reveal his client’s deletion of relevant e-mail documents violated provisions of the Texas Disciplinary Rules of Professional Conduct). 70. See Eugene R Gaetke, Lawyers as Officers of the Court, 42 VAND. L. REV. 39, 43 (1989); W. Bradley Wendel, Rediscovering Discovery Ethics, 79 M arquette L. R ev. 895 (1996). 71. F ed. R. C iv. P. 26(g)(1)(B)(ii)-(iii). 72. F ed. R. C iv. P. 26(g)(3). 73. Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D.Md. 2008) (sanctions appropriate because, if the lawyer had “made a reasonable inquiry, [as the Rule requires] and discovered facts that demonstrated the burdensomeness or excessive cost of the discovery request, he or she should have disclosed them in the objection … with particularity, on pain of waiver”); Metro. Opera Ass’n, Inc. v. Local 100, 212 F.R.D. 178, 221 (S.D.N.Y. 2003) (finding that mandatory sanctions must be imposed under Fed.

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Cooperation in Discovery In addition to these specific ethics and civil procedure provisions regarding an attorney’s professional obligations in the discovery process, commentators have suggested a general need for cooperation in the discovery process, to promote “open and forthright information sharing, dialogue (internal and external), training, and the development of practical tools to facilitate cooperative, collaborative, transparent discovery.”74 These principles are summarized in the Sedona Conference Proclamation on Cooperation,75 which has received the endorsement of many state and federal judges.76 The Proclamation suggests that if participants in the legal system act cooperatively in the fact-finding process, more cases will be resolved on their merits more efficiently and fairly.77 It also cites Rule 26(f) of the Federal Rules of Civil Procedure, which calls on attorneys to “attempt[] in good faith” to agree on a discovery plan, and to discuss various issues that may affect the plan.78 In this view, cooperation not only serves the needs of the judicial system but also can help identify and resolve potential problems early in the litigation process, thus reducing delays and burdens on the parties.79 The recent high-profile case of Qualcomm Inc. v. Broadcom Corp.,80 in which a federal magistrate judge imposed $8.5 million in sanctions and referred to the state bar six attorneys who unreasonably failed to respond to requests to produce electronically stored information, illustrates just how seriously courts have come to treat the ethical obligations of counsel in discovery matters.81 The Qualcomm decision also raised the related issue of failing to act in good faith, suggesting that, if the client does not permit the lawyer to proceed in good faith, the lawyer’s ultimate duty must be to withdraw from the case.82

R. Civ. P. 26(g) when a party’s participation in discovery “was in no way ‘consistent with the spirit and purposes of Rules 26 through 37,’ . . . .”); Qualcomm, Inc. v. Broadcom Corp., No. 05CV1958-B (BLM), 2008 WL 66932, at *13 n.9 (S.D. Cal. Jan. 7, 2008), vacated in part, No.05CV1958-RMB (BLM), 2008 WL 638108 (S.D. Cal. Mar. 5, 2008) (noting that Rule 26(g) “ imposes liability upon the attorney who signed the discovery request or response”). 74. The Sedona Conference, The Sedona Conference Cooperation Proclamation, 10 SEDONA CONF. J. 331, 331 (Supp. 2009). 75. This document, issued in 2008, is available at http://www.thesedonaconference.org/content/tsc_cooperation_proclamation/proclamation.pdf. 76. See, e.g., William A. Gross Construction Associates, Inc. v. Am. Manufacturers Mutual Ins. Co., 256 F.R.D. 134, 137 (S.D.N.Y. 2009) (requiring cooperation in e-discovery and stating that “[t]his court strongly endorses The Sedona Conference Cooperation Proclamation”); S.E.C. v. Collins & Aikman Corp., No. 07 Civ. 2419(SAS), 2009 WL 94311, at *9 (S.D.N.Y. 2009) (citing the proclamation and directing the parties “to meet and confer forthwith and develop a workable search protocol”); Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D. 350, 359 (S.D.N.Y. 2008). (citing the proclamation for importance of discussing form of production and metadata); Mancia v. Mayflower Textile Serv. Co., 253 F.R.D. 354, 363 (D. 2008) (citing the proclamation and describing the effort as “a laudable goal”). 77. The Sedona Conference, The Case for Cooperation, 10 S edona C onf. J. 339 (Supp. 2009); Stephen G. Breyer, Preface, 10 Sedona Conf. J. i, i (Supp. 2009); Stephen S. Gensler, A Bulls-Eye View of Cooperation in Discovery, 10 S edona C onf. J. 363, 363 (Supp. 2009). 78. See F ed. R. C iv. P. 26(f)(2). 79. See, generally, Steven C. Bennett, How Can Courts Encourage Cooperation in Discovery, 82 N.Y. St. B.J. 27 (2010). 80. Qualcomm, Inc. v. Broadcom Corp., No. 05CV1958-B (BLM), 2008 WL 66932 (S.D. Cal. Jan. 7, 2008), vacated in part, 2008 WL 638108 (S.D. Cal. Mar. 5, 2008). 81. The federal district court subsequently left intact the $8.5 million sanction, but vacated the portion of the order involving the state bar referral to permit the attorneys to introduce additional evidence. Qualcomm, Inc. v. Broadcom Corp., No. 05CV1958-RMB (BLM), 2008 WL 638108 (S.D. Cal. Mar. 5, 2008). 82. In footnote 10 of the original Qualcomm decision, the magistrate judge stated: “Leung’s attorney represented during the OSC hearing that Leung requested a more thorough document search but that

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Privacy Protection for Information in Pleadings The question of confidentiality of records and sealing of court proceedings has arisen for many years, in a number of guises.83 The development of the Internet as a means of research and communication, however, has greatly increased interest in electronic judicial records.84 In September 2001, the Judicial Conference of the United States adopted a policy on privacy and public access to electronic case files, suggesting a need for study of the advantages and disadvantages of such filing.85 In 2002, Congress enacted the EGovernment Act (the “Act”),86 aimed at promoting use of the Internet and other information technologies to provide increased citizen participation in government, and to provide enhanced access to government information, “consistent with laws regarding protection of personal privacy” and other concerns.87 The Act called, among other things, for systems of electronic access to court files, coupled with protection for sensitive information.88

Qualcomm refused to do so. . . . If Leung [the attorney] was unable to get Qualcomm to conduct the type of search he deemed necessary to verify the adequacy of the document search and production, then he should have obtained the assistance of supervising or senior attorneys. If Mammen and Batchelder [the supervising attorneys] were unable to get Qualcomm to conduct a competent and thorough document search, they should have withdrawn from the case or taken other action to ensure production of the evidence.” Qualcomm, 2008 WL 66932 n.10 (citing C al . R. P rof. C onduct 5-220 (a lawyer shall not suppress evidence that the lawyer or the lawyer’s client has a legal obligation to reveal); and C al . R. P rof. C onduct 3-700 (a lawyer shall withdraw from employment if the lawyer knows or should know that continued employment will result in a violation of these rules or the client insists that the lawyer pursue a course of conduct prohibited under these rules)). Attorneys’ ethical obligations do not permit them to participate in an inadequate document search and then provide misleading and incomplete information to their opponents and false arguments to the court. Id.; C al . R. P rof. C onduct 5-200 (a lawyer shall not Seek to mislead the judge or jury by a false statement of fact or law); See also, In re Marriage of Gong and Kwong, 157 Cal. App. 4th 939, 951 (1st Dist. 2007) (“[a] n attorney in a civil case is not a hired gun required to carry out every direction given by the client;” he must act like the professional he is”). 83. See, generally, Robert Timothy Reagan, Sealing Court Records And Proceedings: A Pocket Guide (2010), available at http://cryptome.org/0003/sealing-guide.pdf (reviewing variety of areas in which confidentiality and sealing concerns may arise). 84. See, generally, Lynn M. LoPucki, Court-System Transparency, 94 Iowa L. R ev. 481 (2009) (suggesting that, over past decade, federal courts became world’s most transparent court system, by switching from paper to electronic filing, and providing access to records online); Peter W. Martin, Online Access To Court Records—From Documents To Data, Particulars To Patterns, 53 Vill . L. R ev. 855, 856 (2008) (“What has emerged, like so much that the Internet has brought about, is both startling new and rich with implications.”). 85. See Judicial Conference of the U.S., P roceedings , (Sept./Oct. 2001), at 48-50; see also Guidance for Implementation of the Judicial Conference Policy on Privacy and Public Access to Electronic Criminal Case Files, http://www.privacy.uscourts.gov (summarizing history of research on privacy versus public access issues). For a revised statement of Judicial Conference policy, in light of the new federal rules, See Judicial Conference Policy on Privacy and Public Access to Electronic Case Files (March 2008), http://www.uscourts.gov/RulesAndPolicies/JudiciaryPrivacyPolicy/March2008RevisedPolicy.aspx (“Because of the enactment of the rules, the previous policy is no longer operative except for two portions of the earlier privacy policy that remain in force” regarding criminal case files and redaction of transcripts). 86. P.L. 107-347, 44 U.S.C. § 3501 note. For a brief legislative history of the Act, See C ongressional R e search S ervice , R eauthoriz ation of the E-G over nment A ct : A B rief O verview (May 14, 2008), available at http://www.fas.org/sgp/crs/secrecy/RL34492.pdf. 87. See P.L. 107-347, § 2 (findings and purposes of the Act). 88. Title II of the Act deals with “promotion of electronic government services,” and includes specific provisions regarding the federal courts. Section 205(c)(3) of the Act requires the Supreme Court to prescribe rules “to protect privacy and security concerns relating to electronic filing of documents and the public availability . . . of documents filed electronically.” P.L. 107-347, § 205(c)(3).

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The PACER system,89 started as a pilot program in 1988, and the CM/ECF system,90 first implemented as a pilot program in 1996, both received additional support under the Act. Consistent with the Act, the Judicial Conference of the United States issued a 2006 report recommending the adoption of uniform national policies regarding privacy protection for federal court records.91 The report noted that federal court case files, unless sealed or otherwise subject to restricted access by statute, federal rule or other policy, are presumed to be available for public inspection and copying.92 Indeed, the tradition of public access to federal court case files is rooted in constitutional principles.93 The report noted, however, that “public access rights are not absolute, and courts balance access and privacy interests in making decisions about the public disclosure and dissemination of case files.”94 The report concluded that “[c]ertain types of cases, categories of information, and specific documents may require special protection from unlimited public access[.]”95 On Dec. 1, 2007, amendments to the federal civil, criminal and appellate and bankruptcy rules of procedure, which require that personal identification information be redacted from documents filed with any federal court, took effect.96 The information required to be redacted by these rules differs slightly from the recommendation and includes full Social Security and taxpayer identification numbers, full names of minor children, full financial account numbers, year of an individual’s birth and in criminal cases, home addresses.97 In partial explanation of the new rules, the Judicial Conference noted 89. PACER stands for Public Access to Court Electronic Records. The PACER system, which is used by all federal district courts and circuit courts of appeal except the Court of Appeals for the Federal Circuit, permits citizens to gain access to court records through an internet-based electronic system. See http://www.pacer.gov. 90. CM/ECF stands for Case Management/Electronic Case Files. The CM/ECF system permits attorneys and parties to file and retrieve court documents through an internet-based electronic system. See http://www.uscourts.gov/courtrecords. 91. See R eport of the Judicial C onference C ommittee on C ourt A dministr ation a nd C ase M a nage ment on P rivacy a nd P ublic A ccess to E lectronic C ase F iles (Dec. 2006), available at http:// www.privacy.uscourts.gov/Policy.htm. 92. Id. (citing Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) (holding that there is a common law right “to inspect and copy public records and documents, including judicial records and documents”)). 93. See id. (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575-78 (1980)). 94. Id. (citing Nixon, 435 U.S. at 596 (“[E]very court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes”)). 95. Id. The report recommended special protection for “identifiers” such as Social Security numbers, dates of birth, financial account numbers and names of minor children, and recommended that public access to criminal case records should be restricted. 96. See F ed. R. C iv. P. 5.2: F ed. R. C rim . P. 49.1; F ed. R. A pp. P. 25(a)(5); and F ed. R. Ba nkr . P. 9037. 97. Additional sensitive information may also require protection. See Fed. R. Civ. P. 5.2, Advisory Committee Notes (“It may also be necessary to protect information not covered by the redaction requirement—such as driver’s license numbers and alien registration numbers—in a particular case.”). Bankruptcy provisions recognize several other forms of redaction provisions. Section 107 of the Bankruptcy Code permits motions, by a “party in interest,” to protect trade secrets and confidential information, or to “protect a person with respect to scandalous or defamatory matter” in a document filed in a bankruptcy case. 11 U.S.C. § 107(b); See In re French, 401 B.R. 2965 (Bankr. E.D. Tenn. 2009) (reviewing legislative history of Section 107); see also 10 Collier on Bankruptcy, ch. 107 (2008) (same). Separately, Bankruptcy Code § 332 permits a court to appoint a “consumer privacy ombudsman,” to provide the court with information regarding “personally identifiable information” that may be the subject of a sale or lease in bankruptcy. 11 U.S.C. § 332. In effect, the ombudsman represents the interests of absent third parties (the subjects of the sensitive information). See, generally, Walter W. Miller, Jr. & Maureen A. O’Rourke, Bankruptcy Law vs. Privacy Rights: Which Holds The Trump Card?, 38 Hous. L. R ev. 777 (2001-2002) (outlining problem of consumer information in bankruptcy cases).

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the establishment of the PACER and CM/ECF systems, remarking that, while electronic access to court records provides “significant benefits” to courts, litigants, attorneys and the public, “personal privacy and security implications” arise from “unlimited Internet access to court case files,” as “[m]any federal court case files contain personal and sensitive information that litigants and third parties may be compelled by law to disclose for adjudicatory purposes.”98 The amended federal rules place the onus on counsel and their clients to handle redaction of sensitive or private information in the documents they file.99 Advisory Committee notes to Civil Rule 5.2, for example, state: “The clerk is not required to review documents filed with the court for compliance with this rule. The responsibility to redact filings rests with counsel and the party or non-party making the filing.”100 As the Advisory Committee further noted, “Parties must remember that any personal information not otherwise protected by sealing or redaction will be made available over the Internet. Counsel should notify clients of this fact so that an informed decision may be made on what information is to be included in a document filed with the court.”101 Similarly, the 2006 Judicial Conference Report noted, “Members of the bar must be educated about the policies [on privacy in court documents] and the fact that they must protect their clients by carefully examining the documents that they file in federal court for sensitive, private information and by making the appropriate motions to protect documents from electronic access when necessary.”102

Ethical Obligations of Counsel for Privacy Protection in Pleadings Despite the adoption of amended rules regarding privacy protection in federal court pleadings,103 a number of recent incidents illustrate how easy it may be to fail to protect 98. See Request for Comment on Privacy and Security Implications of Public Access to Certain Electronic Criminal Case File Documents (Fall 2007), http://www.privacy.uscourts.gov/requestcomment.htm. 99. See F ed. R. C iv. P. 5.2; F ed. R. C rim . P. 49.1; and F ed. R. A pp. P. 25(a)(5). 100. F ed. R. C iv. P. 5.2 (Advisory Committee Notes). For a more detailed treatment of Rule 5.2, See generally Mary P. Squiers, Federal Rules of Civil Procedure, Rule 5.2, Privacy Protection for Filings Made With the Court, 1 Moore’s Federal Practice § Sec-5.2 (2010). 101. Id. Additional privacy protection requirements appear in 28 U.S.C. §§ 753, which requires that attorneys in a case (or a self-represented party) review any transcript of proceedings and provide the court reporter with a statement of redactions. Otherwise, the transcript may be filed without redactions. Bankruptcy Rule 9037, like the other amended federal rules, generally provides for redaction of identifying information, except in matters involving forfeiture and some other proceedings. See F ed. R. B a nkr . P. 9037. 102. See R eport of the Judicial C onference C ommittee on C ourt A dministr ation a nd C ase M a nage ment on P rivacy a nd P ublic A ccess to E lectronic C ase F iles (Dec. 2006), supra note 94. 103. Various states have considered, and some have adopted, similar rules regarding confidentiality of information in court filings. See generally Ronald Leighton, Implementation—What Methods, If Any, Can Be Employed To Promote The Existing Rules’ Attempts To Protect Private Identifier Information From Internet Access?, 79 Ford. L. R ev. 45, 56 (2011) (comparing developments in state courts with federal rules). These rules vary widely in their coverage and form. See, e.g., N.Y. Uniform Rules for Trial Courts, Sec. 202.5-b(k) (person making electronic filing may apply for an order to protect “trade secret or other privacy interests”); Gerald Lebovits, E-Filing: Mastering The Tech-Rhetoric, 83 N.Y.S.B.A.J. 64 (May 2011) (summarizing New York rules on electronic filing); RegAlert, 2011 WLNR 13807739 (July 8, 2011) (Texas notice of new appellate rule on redaction); RegAlert, 2011 WLNR 13806940 (July 6, 2011) (Washington notice of proposed rule change regarding redaction); Gary Blankenship, Panel Rewriting Court Filing Confidentiality Rule, 38 Fla. Bar News 14 (June 15, 2011) (Florida revising its rules regarding redaction); RegAlert, 2010 WLNR 23376147 (Nov. 20, 2010) (county court rule in Pennsylvania regarding redaction) Duane Barbati, Courts Apply Privacy Rules,

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privacy in court documents effectively.104 Disclosure of confidential information may result from technology failures,105 deliberate misuse of information106 or inadvertence.107 Indeed, recent studies suggest that thousands of documents may exist in public court records without proper redaction of confidential information.108 Misuse of confidential information, moreover, can produce serious consequences. Access to personal address information by criminals and parties involved in domestic relations quarrels could result in violence, child abduction and other abuse.109 Perhaps less 2010 WLNR 13365240 (July 3, 2010) (noting action by New Mexico Supreme Court regarding redaction of court filings); LegAlert, 2010 WLNR 4160990 (Feb. 22, 2010) (Missouri bill regarding redaction of court filings). 104. See Lisa C. Wood & Marco J. Quina, The Perils Of Electronic Filing And Transmission Of Documents, 22 A ntitrust 91 (Spr. 2008) (noting examples). 105. See, e.g., Blago Redaction Snafu Offers Bad Example Of E-Discovery Practice, http://lextekreport. com/2010/04/28/blago-redaction-snafu-offers-bad-example-of-ediscovery-practice/ m (Apr. 28, 2010) (technical error reveals information redacted from subpoena to President Obama, and noting other examples); Nerino J. Petro, Managing Change: How Law Firms Are Answering The Wake-Up Call, L aw P r actice (July/Aug. 2009), at 32, available at http://www.americanbar.org/publications/ law_practice_home/law_practice_archive/lpm_magazine_articles_v35_is5_pg32.html (noting cases of improper electronic redaction). 106. See Jason Kincaid, The AP Reveals Details of Facebook/ConnectU Settlement With Greatest Hack Ever, Tech C runch . Feb. 11, 2009, http://techcrunch.com/2009/02/11/the-ap-reveals-details-offacebookconnectu-settlement-with-best-hack-ever/. 107. See Debra Cassens Weiss, Cut-and-Paste Reveals Redacted Info on Apple Smartphone Market in Federal Judge’s Opinion, A.B.A. J., Dec. 7, 2011, http://www.abajournal.com/news/article/cut-andpaste_reveals_redacted_info_on_apple_smartphone_market_in_federal_j/ (redacted material in opinion formatted in a way that exposed information); Elizabeth Stong, Implementation—What Methods, If Any, Can Be Employed To Promote The Existing Rules’ Attempts To Protect Private Identifier Information From Internet Access?, 79 Ford. L. R ev. 45, 52 (2011) (“[M]ost of the time this is a situation of staff in an attorney’s office filing a document, with attorney supervision, but not at the level and with the guidance that we would like to See. And so a mistake happens.”); Lisa C. Wood & Marco J. Quina, The Perils of Electronic Filing and Transmission of Documents, 22 ABA A ntitrust 91 (Spr. 2008) (noting examples of confidential information “inadvertently” made available by filing of expert reports, or filing of appellate record, without redaction); Philip J. Favro, New Frontier in Electronic Discovery: Preserving And Obtaining Metadata, 13 B.U. J. S ci . & Tech . 1, 5 (2007) (noting example of inadvertent access to confidential information contained in metadata); Stephen Shankland, Hidden Text Shows SCO Prepared Lawsuit Against BofA, C net , Mar. 4, 2004, http://news.cnet.com/21007344_3-5170073.html (same). 108. See Timothy B. Lee, Studying The Frequency Of Redaction Failures In Pacer, F reedom to Tinker Blog , May 25, 2011, https://freedom-to-tinker.com/blog/tblee/studying-frequency-redaction-failures-pacer (reporting that in survey of 1.8 million PACER records, 2,000 documents used redaction system subject to error; 194 documents contained redaction errors and concluding that, given that PACER contains 500 million documents, “it’s safe to say there are thousands, and probably tens of thousands, of documents in PACER whose authors made unsuccessful attempts to conceal information”); Joe Cecil, Implementation—What Methods, If Any, Can Be Employed To Promote The Existing Rules’ Attempts To Protect Private Identifier Information From Internet Access?, 79 Ford. L. R ev. 45, 46 (2011) (study of 10 million documents reveals 2,900 social security numbers); Letter from Carl Malamud to Hon. Lee H. Rosenthal, Oct. 24, 2008, available at https://public.resource.org/ scribd/7512583.pdf (noting 1,669 redaction failures in 2.7 million documents reviewed). 109. See Joel Reidenberg, General Discussion on Privacy and Public Access to Court Files, 79 Ford. L. R ev. 1, 5 (2011) (noting example of “public safety implications” from access to court information); Rebecca Hulse, From The Courtroom To The Mother’s Womb: Protecting Women’s Privacy In The Most Important Places, 16 Wm . & M ary J. of Women & L . 237 (2010) (discussing potential for domestic violence related to release of private information); Donna Litman, Financial Disclosure On Death Or

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serious, but much more likely, access to confidential information could produce identity theft, unwanted solicitations and other commercial abuses.110 Finally, improper access to information could affect the integrity of the judicial system, deterring citizen participation in the system.111

Sanctions Despite these concerns, the amended federal rules do not establish a specific mechanism to enforce the obligation to redact sensitive information from court documents. Indeed, the Judicial Conference, in its 2006 report presaging the rules amendments, although noting a potential need for an enforcement mechanism,112 indicated that nothing in its recommendations was intended to “create a private right of action[.]”113 Courts considering the matter, moreover, have held that no private right of action arises from the amended federal rules.114 Even without the amended federal rules, a lawyer generally owes an obligation to maintain the confidences and secrets of a client.115 Thus, arguably, a client might assert a claim for malpractice where a lawyer includes confidential information in a court document without the client’s consent.116 Indeed, courts have confirmed that a lawyer might be held liable for malpractice for unauthorized disclosure of confidential client information.117 Divorce: Balancing Privacy Of Information With Public Access To The Courts, 39 S w. L. R ev. 433 (2010), available at http://www.swlaw.edu/pdfs/lr/39_3litman.pdf. 110. See Reidenberg at 5. 111. See id. at 5-6. 112. See R eport of the Judicial C onference C ommittee on C ourt A dministr ation a nd C ase M a nage ment on P rivacy a nd P ublic A ccess to E lectronic C ase F iles (Dec. 2006), supra note 94. (“There was some discussion about the need for a provision in Fed. R. Civ. P. 11 providing for sanctions against counsel or litigants who, as a litigation tactic, intentionally include scurrilous or embarrassing, irrelevant information in a document so that this information will be available on the Internet. The Committee ultimately determined that, at least for now, the current language of Fed. R. Civ. P. 11 and the inherent power of the court are sufficient to deter such actions and to enforce any privacy policy.”). 113. See id. (noting that Report also does not “limit the application of Rule 11,” even though that rule had not been revised as part of the rules amendment). 114. See, e.g., Good v. Khosrowshahi, 296 Fed. Appx. 676, 680 (10th Cir. 2008) (“rules governing procedure in the federal courts do not give rise to private causes of action”) (affirming dismissal of complaint alleging violation of right to privacy by filing family information without redaction); Living Designs, Inc. v. E.I. DuPont De Nemours, 431 F.3d 353, 372 (9th Cir. 2005) (“the Federal Rules of Civil Procedure do not create duties on which an opposing party may base a negligence claim”). 115. A.B.A. Model R. Prof. C onduct 1.6(a) (“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted” for specific purposes enumerated in the rule); See also A.B.A. Model R. Prof. C onduct 1.6(a), Cmt. 2 (“A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. . . . This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to Seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.”). 116. Such a right by clients to pursue malpractice claims for failure to redact sensitive personal information from their filings was suggested by a student commentator, writing before amendment of the federal rules. See Michael Caughey, Keeping Attorneys From Trashing Identities: Malpractice As Backstop Protection For Clients Under The United States Judicial Conference’s Policy On Electronic Court Records, 79 Wash. L. R ev. 407 (2004). 117. See Cameron L. Sabin & Kenneth B. Black, Managing Pandora’s Box: Recognizing And Handling The Privacy Risks Associated With Electronic Access To Court Records, 18 Utah B.J. 6, 11 (Jan./Feb.

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Legal malpractice claims, however, are notoriously difficult to prove.118 Proof of damages for violations of privacy rights may also be difficult.119 Claims by third parties against lawyers, moreover, almost certainly would fail, because lawyers generally do not owe duties to parties other than their own clients.120 To date, it appears, there have been no reported malpractice claims brought against lawyers for failure to redact confidential information in client filings.121 However, several courts in the bankruptcy context have considered (and at least one applied) sanctions for failure to redact sensitive information in court filings.122 Thus, for example, in Newton v. ACC of Enterprise, Inc.,123 the court, recognizing that no private right of action could be derived from Rule 9037 of the Federal Rules of Bankruptcy Procedure or from Section 105 of the Bankruptcy Code, dismissed a complaint for damages based on failure to redact sensitive information. The opinion noted that, despite the ruling on the complaint, “[t]his result does not mean that the court, through the contempt powers of Sec. 105, cannot impose sanctions upon creditors who improperly file papers containing the debtor’s personal identifiers.”124 Indeed, the court noted that it retained “broad powers to craft orders” necessary to carry out the Bankruptcy Code.125 At least two other bankruptcy courts have actually imposed sanctions for a confidentiality violation,126 and another has 2005) (citing cases). 118. See, generally, Joseph H. Koffler, Legal Malpractice Damages In A Trial Within A Trial — A Critical Analysis Of Unique Concepts: Areas Of Unconscionability, 73 M arq. L. R ev. 40, 41 (1989) (“The defendant is the attorney, rather than the person who would have been the defendant in the underlying action. Furthermore, witnesses and records may be difficult to obtain or unavailable and memories may have faded by the time the legal malpractice action is tried.”). 119. See Gary Clayton, Privacy And Security Litigation And Enforcement: Growing Risks For Businesses?, May 2007, http://www.irmi.com/expert/articles/2007/clayton05.aspx (noting that lack of “obvious right of action” for infringement of online privacy, coupled with “difficulty in proving damages” have “limited the litigation” in this area). 120. Thomas Rose, Knowing No Other Duty: Privity, The Myth Of Elitism, And The Transformation Of The Legal Profession, 32 Wake Forest L. R ev. 819, 821 (1997) (noting traditional view that “a lawyer owes no duty to anyone other than the client. Without duty, there is no civil liability to the non-client.”). 121. See Shari Claire Lewis, The Need To Redact Personally Identifiable Data From E-Filings, N.Y.L.J., Aug. 17, 2010, available at http://www.rivkinradler.com/publications.cfm?id=705. 122. See, generally, Thomas R. Dominczyk, Rule 9037: Consequences Of Failure To Redact “Personal Data Identifiers,” 29 A. Bankr. Inst. J. 14 (Apr. 2010); Valorie D. Smith & William F. English, New “Privacy Protection” Rules: Conform And Redact Or You Could Be Sanctioned, Ky. Bench & Bar, May 2010, at 11 (“Recently, at least bankruptcy courts have indicated their willingness to penalize litigants and their attorneys for failing to abide by the redaction requirements of [Bankruptcy] Rule 9037.”). 123. Case No. 07-10781, A.P. 08-1106, 2009 WL 277437 (Bankr. M.D. Ala. Jan. 29, 2009). 124. Id., at *5. 125. See id. (“Sanctions would be appropriate where it was shown that a creditor flaunted the law with knowledge of its proscriptions, failed to take remedial action once violations were discovered, or acted deliberately as oppose to mistakenly or inadvertently.”); See also French v. Am. Gen. Fin. Servs. (In re French), 401 B.R. 295, 314 (Bankr. E.D. Tenn. 2009) (noting that court had power, under 11 U.S.C. § 105(a), to hold a party violating Rule 9037 in contempt of court). At least one commentator suggests a different view of the bankruptcy court’s power. See Margaret Dee McGarity, Privacy And Litigation: Two Mutually Exclusive Concepts, 23 J. A m . A cad. O f M atrimonial L aw yers 99, 106 (2010) (“Neither the federal rules nor the [bankruptcy] statute provide for sanctions when a party files a document that contains another’s protected information. That is good from an attorney’s self interest standpoint, but not much help for a client whose information has been lifted from court records and misused.”). 126. In re Gregg, 2009 Bankr. LEXIS 1484 (Bankr. D.S.C. June 9, 2009) (holding creditor in contempt of court after creditor failed to abide by a court order to redact identifying information regarding in the creditor’s proof of claim filings); In re Williams, No. 08-01245-LA13 (Bankr. S.D. Cal. Nov. 3, 2008)

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issued a show cause order in anticipation of sanctions.127 This judicial sanction power must, of course, be exercised with discretion, to avoid overreaction.128 The amount of sanctions, to date, has been quite limited.129 To date, moreover, courts outside the bankruptcy context do not appear to have exercised their sanctions powers to remedy confidentiality violations.130

Other Remedies If there is to be a change in practice, ensuring closer adherence to requirements for protecting sensitive information, it appears that change must come principally from other sources. In part, the problem may simply be one of sensitization,131 or of legal education.132 Efforts are underway to improve training and court technology to address some of these concerns.133 More creative solutions, such as data “minimization,” aimed at restricting the contents of court records, are also under consideration.134

(imposing cost of fees for motion related to confidentiality breach). 127. In re Greco, 405 B.R. 393 (Bankr. S.D. Fla. May 11, 2009) (court sua sponte ordered creditor’s attorney to show cause as to why she, her firm and her client should not be sanctioned for “impermissible and negligent practice of law” in filing proofs of claims with unredacted personal identifiers). 128. See, e.g., Hanks v. Shinseki, 2010 WL 3000835, at *7 (N.D. Tex. July 28, 2010) (in light of very short time pages were available for public view, court declines to impose sanction of striking defendants’ appendix from record; “[i]Instead, the court admonishes counsel for the defendants to take care that her future filings comply with Rule 5.2(a)”); Barclay v. Pawlak, 2009 WL 4609768, at *2 (D. Conn. Dec. 4, 2009) (declining to impose any sanction on defendants who filed non-redacted documents in violation of Rule 5.2 where the violation was inadvertent and the defendants filed properly redacted documents within one business day of being notified of their error). 129. See Michael G. Doan, $139.95? The Damages You Are Entitled To Against A Creditor That Published Your Social Security Number To The World, http://www.bankruptcylawnetwork.com/62595-appearsto-be-the-new-compensation-for-social-security-number-disclosures-in-proof-of-claims/ (2008) (noting that low sanctions awards render motions for sanctions “economically unfeasible to pursue”). 130. One might expect to See greater concern for confidentiality in the bankruptcy arena, because of the large amount of sensitive financial information that may be exchanged in bankruptcy cases. See Elizabeth Stong, Implementation—What Methods, If Any, Can Be Employed To Promote The Existing Rules’ Attempts To Protect Private Identifier Information From Internet Access?, 79 Ford. L. R ev. 45, 52 (2011) (bankruptcy disclosures for individuals can be “intrusive process”). 131. See Margaret Dee McGarity, Privacy And Litigation: Two Mutually Exclusive Concepts, 23 J. A m . A cad. O f M atrimonial L aw yers 99, 108-09 (2010) (suggesting that lawyers should be “aware that personal information in court records, disclosed unnecessarily, can cause your client harm if used improperly. . . . Encourage opposing counsel to do the same. . . . Protecting personal identifiers, even when not required to, is right, it is the wave of the future[.]”). 132. See Peter A. Winn, General Discussion on Privacy and Public Access to Court Files, 79 Ford. L. R ev. 1, 11 (2011) (noting need for better training of lawyers, suggesting that “Many older lawyers still have their secretaries file their pleadings on the PACER system, and lack any real personal knowledge of the system.”). 133. Edward Felten (presenter), Implementation—What Methods, If Any, Can Be Employed To Promote The Existing Rules’ Attempts To Protect Private Identifier Information From Internet Access? (transcript of panel discussion), 79 Ford. L. R ev. 45, 50 (2011) (“advanced technology can help us to address the privacy challenges”); Elizabeth Stong (presenter), id. at 53-54 (noting training efforts). 134. See S edona C onference , The S edona G uidelines: Best P r actices A ddressing P rotective O rders , C onfidentialit y & P ublic A ccess I n C ivil C ases at 59 (March. 2007) (noting minimization as a “promising approach” that would “Seek to limit the filing of extraneous personal or confidential information,” and “provide expanded protections before moving forward with electronic public access systems”). The complete Guidelines and commentary are reprinted in this issue, and are also available online at http://www.thesedonaconference.org/content/miscFiles/publications_html?grp=wgs120.

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Such solutions are a matter of vigorous debate.135 Ultimately, unless the rules of procedure or role of the court clerk’s offices are changed, the issue may naturally devolve to a matter of professional ethics and good practice.136 Ample basis appears in the existing Model Rules of Professional Conduct to imply a general obligation of counsel to maintain the integrity of the judicial system and protect innocent citizens by following the rules for redaction of sensitive personal information. Perhaps most basically, the Rules require that a lawyer provide “competent representation” to a client, suggesting that lawyers Amended federal rules place the must at least have some familiarity with onus on counsel and their clients the technologies involved in electronic filto handle redaction of sensitive or ing of documents,137 and take supervisory responsibility for the lawyers and paraproprivate information. fessionals under their authority.138 Further, although lawyers must act with “zeal” in representing their clients, they also must avoid “offensive tactics” and treat “all persons involved in the legal process with courtesy and respect.”139 Consistent with the interests of clients, moreover, lawyers undertake a responsibility to aid the efficient administration of justice,140 and to obey the rules of the tribunals before which they appear.141 135. See id. at 56 (noting conflict between “public is public” view and view that “unrestricted Internet access undoubtedly would compromise privacy”); see also Stephen W. Smith, Kudzu In The Courtroom: Judgments Made In The Shade, 3 F ed. C ts . L. R ev. 177 (2009) (noting “worrisome” trend toward encouraging “secret court activity”); See, generally, Ronald Hedges, General Discussion on Privacy and Public Access to Court Files, 79 Ford. L. R ev. 1, 6 (2011) (background on Sedona process). 136. See Daniel Morman & Sharon R. Bock, Electronic Access To Court Records: A Virtual Tightrope In The Making, 78 F l a . B.J. 10, n.11 (Nov. 2004) (because court clerks have no authority to redact information, “[a]t the end of the day . . . personal responsibility for informing clients . . . and to ensure private information is not included in the case files lies with the attorneys”); see also Robert Heinemann, Implementation—What Methods, If Any, Can Be Employed To Promote The Existing Rules’ Attempts To Protect Private Identifier Information From Internet Access?, 79 Ford. L. R ev. 45, 59 (2011) (clerk’s office should be “backstop” on redaction only “in the last instance”). 137. A.B.A. Model R. P rof. C onduct 1 .1 (“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”). Similar competence obligations arise in the context of e-discovery. See Steven C. Bennett, Ethical Dimensions Of The New Federal Rules On E-Discovery, 16:12 A m . L aw C orp. C ounsel , Supp. 16-18 (2009); Steven C. Bennett, Teaching Technology Skills To Lawyers, 28:19 N.L.J., Jan. 16, 2006, at 13-17. 138. Model Rule 5.1(b) (“A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.”); Model Rule 5.3(a) (partners and other managers at firm “shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that [a nonlawyer’s] conduct is compatible with the professional obligations of the lawyer[.]”). 139. A.B.A. Model R. P rof. C onduct 1.3 , Cmt. 1. Thus, a lawyer “shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person[.]” A.B.A. Model R. P rof. C onduct 4.4(a) (“Respect for Rights of Third Persons”); See Charles Yablon, Stupid Lawyer Tricks: An Essay On Discovery Abuse, 96 C olum . L. R ev. 1618 (1996) (addressing “Rambo” litigation tactics in the discovery context). 140. See A.B.A. Model R. P rof. C onduct 3.2 (“A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”); F ed. R. C iv. P. 1 (rules should be administered to “secure the just, speedy, and inexpensive determination of every action and proceeding”). 141. A.B.A. Model R. Prof. Conduct 3.4(c) (lawyer shall not “knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists).

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Metadata and Other Issues Similar issues have arisen in the context of confidential information contained in metadata,142 and other situations.143 The Model Rules prohibit lawyers from “reveal[ing] information relating to representation of a client,” including confidential communications and client secrets.144 The Rule requires that attorneys take affirmative steps to ensure that they do not inadvertently transmit such information to third parties, without the consent of their clients.145 The precise degree of effort at privilege protection required by the Rule may vary, depending on the importance of the matter, and the instructions of the client.146 Several recent ethical opinions make clear that lawyers have a duty to use “reasonable care” when transmitting electronic information to prevent the disclosure of metadata that may contain client confidences and secrets.147 For the lawyer who receives a document containing arguably private metadata, ABA Model Rule 8.4 generally provides: “It is professional misconduct for a lawyer . . . to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”148 Rule 4.4(b) of the Model Rules, moreover, specifically provides that “[a] lawyer who receives a document relating to the representation of the lawyer’s client and who knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.”149 The latter Rule does not suggest a means by which a lawyer “reasonably should know” that a document was inadvertently sent; nor does it state whether the lawyer must do (or refrain from doing) anything with the document after notification to the adversary.150 And the 142. See, generally, Steven C. Bennett & Jeremy Cloud, Coping with Metadata, 61:2 M ercer L. R ev. 47189 (2010); Paula Schaefer, The Future Of Inadvertent Disclosure: The Lingering Need To Revise Professional Conduct Rules, 69 M d. L. R ev. 195 (2010). 143. See, e.g., Ronald C. Minkoff, Putting The Genie Back—What To Do When Your Client Has Stolen Documents, MLRC M edia L awL etter , May 2010; Maine Ethics Op. 194 (Dec. 11, 2007) (lawyer may store client data with third party, but only if confidentiality is ensured); State Bar of Az. Ethics Op. 99-03 (Apr. 1999) (addressing whether defense counsel in worker’s compensation case may conduct interview of plaintiff’s treating physician without first obtaining consent). 144. See A.B.A. Model R. P rof. C onduct 1.6. 145. Significantly, the Rule applies “not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.” Id. cmt. 2. Thus, work product, attorney-client privileged information, and client secrets are all subject to protection obligations for the attorney. See id. cmt. 1 (“The client is thereby encouraged to Seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.”). 146. See Bradley H. Leiber, Applying Ethics Rules to Rapidly Changing Technology, 21 G eo. J. L egal Ethics 893, 909 (2008) (“[A]ll states are in agreement that an attorney who sends a document containing metadata must act competently.”); See also Jason Krause, Metadata Minefield: Opinions Disagree on Whether It’s Ethical To Look At Hidden Electronic Information, A.B.A. J. (Apr. 2007), available at http://abajournal.com/magazine/metadata_minefield/ (noting that attorneys may run “afoul” of other rules by disclosing client confidences and secrets). 147. N.Y. State Bar Assoc. Comm. on Prof’l Ethics, Op. No. 782 (2004); See also Prof’l Ethics of the Florida Bar, Op. No. 06-2 (2006) (“[A] lawyer’s obligation to take reasonable steps to safeguard the confidentiality of all communications sent by electronic means to other lawyers and third parties and to protect from other lawyers and third parties all confidential information, including information contained in metadata.”). 148. A.B.A. Model R. P rof. C onduct 8.4. 149. A.B.A. Model R. P rof. C onduct 4.4(b). 150. Comments to the Rule state that “[w]hether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these Rules[.]”A.B.A. Model R. P rof. C onduct 4.4 cmt. 2.

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Rule says that it is “a matter of professional judgment” whether lawyers may read such documents, once they know that such documents were inadvertently sent.151 The ABA Committee on Ethics and Professional Responsibility, in a 2006 formal opinion, determined that, by specifying (in Rule 4.4(b)) that the only ethical obligation of the receiving lawyer was to notify the sending lawyer that private information might have been inadvertently sent, the ABA Model Rules do not preclude receiving lawyers from reading such information, and exploiting it for any lawful purpose.152 A number of contrary state ethics opinions have issued.153 A lawyer who receives potentially confidential metadata thus “should proceed with caution,”154 and, when in doubt, seek a dialogue with opposing counsel on how best to handle the situation.155

151. See id. cmt. 3 (“Some lawyers may choose to return a document unread . . . when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer.”) The Pennsylvania Bar Association’s Committee on Legal Ethics and Professional Responsibility similarly concluded that “each attorney must determine for himself or herself whether to utilize the metadata contained in documents and other electronic files based upon the lawyer’s judgment and the particular factual situation.” See Pa. Bar Assoc., Comm. on Legal Ethics and Prof’l Responsibility, Formal Op. 2007-500 (2007) (suggesting “common sense” approach). 152. See ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 06-442 (2006) (“Even if transmission of ‘metadata’ were to be regarded as inadvertent, Rule 4.4(b) is silent as to the ethical propriety of a lawyer’s review or use of such information.”); see also Ethics Comm. of the Colo. Bar Assoc., Formal Op. 119 (2008) ( finding there is “nothing inherently deceitful” about searching through metadata); D.C. Bar Assoc., Ethics Op. 341 (2007) (concluding that lawyers are prohibited from reviewing metadata only when they have “actual knowledge” that metadata was inadvertently sent; in “all other circumstances,” lawyers are “free to review the metadata contained within the electronic files provided by an adversary”); Md. State Bar Assoc., Comm. on Ethics, Ethics Dkt. No. 2007-09 (2007) (“[N]o ethical violation if the recipient attorney (or those working under the attorney’s direction) reviews or makes use of the metadata without first ascertaining whether the sender intended to include such metadata.”). 153. See, e.g., Ala. State Bar, Office of Gen. Counsel, Formal Op. 2007-02 (2007) (finding that “mining” of metadata prohibited, as it could permit recipient attorney to “acquire confidential and privileged information in order to obtain an unfair advantage against an opposing party”); Ariz. State Bar Ethics Comm., Ethics Op. 07-03 (2007) (concluding that lawyers should “refrain from conduct that amounts to an unjustified intrusion into the client-lawyer relationship”); Fla. Bar Ethics Dep’t, Ethics Op. 06-02 (2006) (finding that a recipient lawyer has an obligation “not to try to obtain from metadata information relating to the representation of the sender’s client”); Me. Bd. of OverSeers of the Bar Prof’l Ethics Comm’n, Op. 196 (2008) (finding that a lawyer may not “take steps to uncover metadata, embedded in an electronic document sent by counsel for another party, in an effort to detect information that is legally confidential”); N.Y. County Lawyers Assoc., Comm. on Prof’l Ethics, Op. 738 (2008) (concluding there is a “presumption” that disclosure of metadata is inadvertent, and would be unethical to view); N.Y. State Bar Assoc., Comm. on Prof’l Ethics, Op. 749 (2001) (finding that the “use of technology to surreptitiously obtain information that may be protected by the attorney-client privilege, the work product doctrine or that may otherwise constitute a ‘secret’ of another lawyer’s client” would “violate the letter and spirit” of the New York disciplinary rules). 154. See David Hricik & Chase Edward Scott, Metadata: The Ghosts Haunting E-Documents, 13 G a . B.J. 16, 22 (Feb. 2008). 155. See Fed. R. C iv. P. 26(b)(5)(B) (providing that a party who produces privileged information may notify recipient of claim of privilege; after being notified, recipient “must promptly return, sequester or destroy the specified information . . . [and] must not use or disclose the information until the claim is resolved”). Rule 26, however, does not itself impose an obligation on the recipient to notify the producing party of the possibility of an inadvertent production of information.

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C onclusion As with other aspects of modern legal practice, affected by rapidly developing technology and changing business practices, the suggestion that lawyers should “proceed with caution” in addressing matters regarding public filing of potentially confidential or sensitive information seems utterly non-controversial. Bar ethics committees, and legal ethicists, would do well to consider this area of practice as well, to aid the profession in developing best practices.156

156. The ABA Commission on Ethics 20/20, among other groups, was established to address questions of ethics arising from the use of technology in the practice of law. See ABA President Carolyn B. Lamm Creates Ethics Commission to Address Technology and Global Practice Challenges Facing U.S. Lawyers (press release), Aug. 4, 2009, http://www.abanow.org/2009/08/aba-president-carolyn-blamm-creates-ethics-commission-to-address-technology-and-global-practice-challenges-facing-u-slawyers/. Among the issues on the commission’s agenda have been data security and confidentiality concerns. See Ethics 20/20 Commission Reviews Comments On Its Preliminary Agenda, 26 L aw yer’s M a nual of P rofessional C onduct 112 (Feb. 17, 2010), available at http://www.americanbar.org/ content/dam/aba/migrated/ethics2020/bnart_2.authcheckdam.pdf.

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Best Practices Addressing Protective Orders, Confidentiality & Public Access in Civil Cases1 The Sedona Conference C ourts & Media L aw Journal I ntroduction2

I

n 2004, United States District Court Judge Brent McKnight of North Carolina, a member of the Judicial Conference Advisory Committee on Civil Rules, was chairing a subcommittee focused on the issue of public access to settlement agreements filed with the federal courts.3 Together with members of the litigation section of the Federal Bar Association, Judge McKnight approached The Sedona Conference — a nonprofit law and policy think tank dedicated to the advanced study, and reasoned and just development, of law and policy in the areas of complex litigation, antitrust law and intellectual property rights — with the idea of establishing a working group to study this issue and develop a set of guidelines or best practices for courts and practitioners working through the complicated process of framing local rules and procedures to accommodate the federal courts’ nationwide electronic Case Management / Electronic Case Filing (“CM/ECF”) system. 1. This document and the “Opposing Views” document below were both originally published by the Sedona Conference in 2007. The Guidelines document is available at http://www.thesedonaconference. org/dltForm?did=3_07WG2.pdf; the “Opposing Views” document is available at http://www.thesedonaconference.org/dltForm?did=Opposing_Views_April_2007.pdf. Both documents are copyright © 2007 The Sedona Conference, and are republished here with permission. Related documents regarding the guidelines are available at http://www.thesedonaconference.org/content/miscFiles/publications_html?grp=wgs120. 2. This introduction was written by Courts & Media Law Journal managing editor Eric P. Robinson. It is based on the forward originally published with the Guidelines, written by The Sedona Conference Executive Director Richard G. Braman. See id. at ii-iii. 3. A report on this topic commissioned by the subcommittee is Robert Timothy R eagan, Shannon R. Wheatman, M arie L eary, Natacha Blain, Steven S. Gensler , George C ort & Dean Miletich, Sealed Settlement Agreements in Federal District C ourt (Federal Judicial Center, 2004), available at http://ftp.resource.org/courts.gov/fjc/sealset3.pdf.

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The group, known as Working Group 2 (WG2),4 first met in April 2004, bringing together attorneys who primarily represented corporate defendants, those who primarily represented individual plaintiffs, and representatives of public interest groups, and the news media. Despite the untimely death of Judge McKnight a few months after the initial meeting, the members of WG2 continued their work and in May 2005 published a Public Comment Draft that was circulated widely to judges, practitioners, academics and other interested parties. With the assistance of the American Judicature Society, the Dallas Bar Association, the Samuel I. Newhouse Foundation and others, public “town hall” meetings were held in four major cities to present the Public Comment Draft and air a wide range of comments and responses. The six-month Public Comment Period was extended for an additional six months, and a special effort was made to reach out to sectors of the legal profession who believed that their views were underrepresented in the initial effort. At a second meeting of the Working Group in April 2006, several significant revisions were agreed upon and an editorial committee was established to integrate the revisions and comments into a final version for publication.5 A revised version was presented to the Working Group for further comment in November 2006. A special Editorial Advisory Committee was then established, consisting of a federal judge and two distinguished legal academics not previously associated with WG2,6 to review the draft to make sure that it presented an accurate and balanced portrayal of the current law and an unbiased set of recommended best practices. The final version of this publication was completed in February 2007. While the WG2 guidelines were the culmination of the longest public comment period and most extensive Working Group dialogue in the experience of The Sedona Conference, a number of WG2 members expressed objections to the final document and resigned from the Working Group. These former members first called for further dialogue, then drafted an “Opposing Views” report which argued that there is a lack of consensus “in this still controversial area.” Because of the rift, The Sedona Conference opted not to publish the roster of WG2 members in the Guidelines, since “the resulting roster would leave the misimpression that the publication reflects only input from those listed [who did not ask that their names be removed], instead of reflecting all the efforts to reach accommodation and compromise through dialogue.” Both the final WG2 Best Practices Addressing Protective Orders, Confidentiality & Public Access in Civil Cases and the “Opposing Views” report are reproduced below. Both documents are copyright © 2007 The Sedona Conference and are republished here with permission.

4. The Sedona Conference’s initial working group, WG1, focused on Electronic Document Retention and Production. See http://www.thesedonaconference.org/content/miscFiles/publications_ html?grp=wgs110. Subsequent working groups have focused on the Role of Economics in Antitrust; International Electronic Information Management, Discovery and Disclosure; Mass Torts and Punitive Damages; and Patent Damages and Remedies. 5. Members of the editorial team were Professor Laurie K. Doré of Drake University; Ronald J. Hedges, counsel at Nixon Peabody in New York, and a former magistrate judge in the U.S. District Court for the District of New Jersey; and Kenneth J. Withers, director of Judicial Education & Content at The Sedona Conference. 6. The members of the Advisory Editorial Team were U.S. District Judge J. Thomas Marten of the District of Kansas; Professor Stephen Saltzburg of George Washington University; and Professor Jay Tidmarsh of Notre Dame Law School.

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Principles

Chapter 1: Discovery Principle 1: There is no presumed right of the public to participate in the discovery process or to have access to the fruits of discovery that are not submitted to the court. Principle 2: Absent an agreement between the parties or a court order based on a showing of good cause, a litigant is not precluded from disclosing the fruits of discovery to nonparties. Principle 3: A protective order entered under Fed. R. Civ. P 26(c) to facilitate the exchange of discovery materials does not substitute for the individualized judicial determination necessary for sealing such material, if filed with the court on a non-discovery matter. Principle 4: On a proper showing, nonparties should be permitted to intervene to challenge a protective order. Chapter 2: Pleadings, Court Orders, Substantive Motions & Dockets Principle 1: In civil proceedings, the public has a qualified right of access to documents filed with a court that are relevant to adjudicating the merits of a controversy. In compelling circumstances, a court may exercise its discretion to deny public access to submitted documents to protect the privacy, confidentiality or other rights of the litigants. Principle 2: The public has a qualified right of access to court dockets that can only be overcome in compelling circumstances. Principle 3: There is a qualified right of access to judgments, judicial opinions and memoranda, and orders issued by a court that can only be overcome in compelling circumstances. Principle 4: Notice of motions to seal and supporting materials should be reflected in the publicly accessible docket. Principle 5: Nonparties may seek leave to intervene in a pending case to oppose a motion to seal, to have an existing sealing order modified or vacated, or to obtain a sealing order. Chapter 3: Proceedings in Open Court Principle 1: The public has a qualified right of access to trials that can only be overcome in compelling circumstances. Principle 2: The public has a qualified right of access to the jury selection process. Principle 3: Absent a compelling interest, the public should have access to trial exhibits. Chapter 4: Settlements Principle 1: There is no presumption in favor of public access to unfiled settlements, but the parties’ ability to seal settlement information filed with the court may be restricted, due to the presumptively public nature of court filings in civil litigation. Principle 2: Settlements filed with the court should not be sealed unless the court makes a particularized finding that sufficient cause exists to overcome the presumption of public access to judicial records. Principle 3: Settlement discussions between parties and judges should not be subject to public access. Principle 4: Absent exceptional circumstances, settlements with public entities should not be confidential. Principle 5: An attorney’s professional responsibilities may affect considerations of confidentiality in settlement agreements.

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Chapter 5: Privacy & Public Access to the Courts in an Electronic World

I. Four Basic Policy A pproaches 1. Open electronic access, with minimal limits. 2. Generally open electronic access, coupled with more significant limits on remote electronic public access. 3. Electronic access only to documents produced by the courts. 4. Systematic reevaluation of the content of the public case file, combined with limited access to electronic files.

C ommon F eatures of R ecently D eveloped C ourt Rules and Policies on P ublic A ccess to C ourt R ecords 1. A statement of the overall purpose for the rule or policy. 2. Definitions of key terms used in the rule. 3. A procedure to inform litigants, attorneys, and the public that (a) every document in a court case file will be available to anyone upon request, unless sealed or otherwise protected; (b) case files may be posted on the Internet; and (c) the court does not monitor or limit how case files may be used for purposes unrelated to the legal system. 4. A statement affirming the court’s inherent authority to protect the interests of litigants and third parties who may be affected by public disclosure of personal, confidential, or proprietary information. 5. A list of the types of court records that are presumptively excluded (sealed) from public access by statute or court rule. 6. A statement affirming that the public right to access court records and the court’s authority to protect confidential information should not, as a general matter, vary based on the format in which the record is kept (e.g., in paper versus electronic format), or based on the place where the record is to be accessed (i.e., at the courthouse or by remote access). 7. As an exception to feature 6 above, a list of the types of court records that although not sealed will not be available by remote electronic public access. 8. A list of the types of information that either: (a) must not be filed in an open court record, or (b) if filed, must be redacted or truncated to protect personal privacy interests. These provisions mainly apply to personal identifiers such as the SSN, account numbers, and home addresses of parties. 9. Procedure for a court to collect and maintain sensitive data elements (such as SSN) on special forms (paper or electronic) that will be presumptively unavailable for public access. Such procedures generally build on technology to segregate sensitive information so that public access can be restricted in appropriate situations. 10. Procedure to petition for access to records that have been sealed or otherwise restricted from public access, and a statement of the elements required to overcome the presumption of nondisclosure. 11. Procedure to seal or otherwise restrict public access to records, and a statement of the burden that must be met to overcome the presumption of disclosure. 12. An affirmation that a rule on public access to court records does not alter the Court’s obligation to decide, on a case-by-case basis, motions to seal or otherwise restrict public access to court records. 13. Guidance to the courts concerning data elements that are contained in electronic docketing systems that must (or must not) be routinely made available for public access. 14. Guidance for attorneys and/or litigants concerning: (a) the extent to which public case files will be made available electronically; and (b) the need to exercise caution before filing documents and information that contain sensitive private information, which is generally defined elsewhere in the rule.

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15. An explanation of the limits, if any, on the availability of “bulk” and/or “compiled” data from public court records. Some rules specify that such data will only be made available to certain entities, for certain defined purposes, and pursuant to agreements to refrain from certain uses of the records obtained. 16. A statement concerning the fees that a court may charge for public access to court records.

The Sedona C onference I ntroduction

W

e live in an open and democratic society that depends upon an informed citizenry and public participation in government. Open public meetings laws and federal and state freedom of information laws facilitate such participation by providing citizens with a right of access to information concerning their government. Indeed, the First Amendment protects “the stock of information from which members of the public may draw.”7 At the same time, our society places high premiums upon personal privacy, property rights, and individual autonomy. The United States Supreme Court has elevated In order to facilitate the efficient some aspects of privacy to a constitutional (albeit rather amorphous) right. Our counexchange of information during try has long valued entrepreneurial condiscovery, parties may enter fidentiality as a key to social and material progress, promoting individual initiative, into agreements or stipulations private enterprise, and technological innodesigned to maintain the vation and the right to protect the property confidentiality of material created by that enterprise. Courts have made clear in the civil litigation context that produced during discovery. litigants may have privacy and proprietary rights in certain of the information produced during the discovery process.8 Nevertheless, the primary responsibility to protect those rights at each stage of the litigation rests on the attorney for the producing party. This inherent tension between public access to information about government activities and the desire to protect personal privacy, intellectual property and confidential business information comes to a head in the debate concerning confidentiality in litigation. As with the legislative and executive branches of government, our democratic society depends upon public participation in and access to the judicial process. Access to the courts both improves the operation of the judicial system and fuels the informed discussion essential to democracy. Public access to judicial proceedings facilitates public monitoring of our publicly — created, staffed, and subsidized judicial system. Fair and open judicial proceedings and decisions encourage public confidence in and respect for the courts — a trust essential to continued support of the judiciary. A public eye on the litigation process can enhance prompt, fair and accurate fact-finding and decision-making. Perjury is deterred, witnesses may step forward, and judgments may be tempered with greater care and deliberation. A public trial also educates citizens about the justice system itself as well as its workings in a particular case. Unlike the legislative and executive branches of government, however, the primary function of the courts is the resolution of the “cases and controversies” before them, and public access to certain stages of civil lawsuits casts light beyond the judicial process itself. Indeed, civil litigation most often involves disputes between private parties

7. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 (1980). 8. Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984).

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who are drawn into the courts reluctantly or even involuntarily. These court proceedings may require the disclosure of intimate personal or financial information or the disclosure of trade secrets or confidential marketing, research, or commercial information may be at stake. Public access to the pretrial, trial or settlement stages of those cases thus might jeopardize legitimate privacy or proprietary interests of the litigants. Moreover, public access may hamstring the litigants’ ability to resolve their dispute in a mutually agreed manner. Many threshold questions were addressed by WG2: Do litigants give up a measure of their privacy and autonomy when they enter the doors of the public courthouse in order to resolve their disputes? To what extent should court rules on protective orders, confidentiality and public access take into consideration the possibility that producing parties (or nonparties) did not voluntarily choose the dispute resolution forum? How is a court to honor the right of public access to judicial proceedings while protecting privacy and property interests? In which cases must such privacy and proprietary interests bow to a broader public interest? Virtually every federal circuit court of appeals and state court of last resort that has spoken on these matters has determined that courts are required to weigh the public interest in the particular proceeding or stage of the litigation against the private interest in maintaining the confidentiality of the material under consideration.9 On the public interest side, the general rule announced by the United States Supreme Court is that the public’s right of access to material produced in connection with a particular pretrial or trial proceeding arises when (1) the proceeding has historically been open and (2) public access plays a significant role in the proper functioning of the process.10 In doing so, the Court and the case law relying on this general rule have made distinctions between, for instance, discovery as historically private exchanges conducted by the parties, and trials as historically open proceedings in which the public has an interest, directly or as a matter of public accountability.11

9. “[T]he ordinary showing of good cause which is adequate to protect discovery material from disclosure cannot alone justify protecting such material after it has been introduced at trial. This dividing line may in some measure be an arbitrary one, but it accords with long-settled practice in this country separating the presumptively private phase of litigation from the presumptively public.” Poliquin v. Garden Way Inc., 989 F.2d 527, 533 (1st Cir. 1993). Compare Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786-87 (3d Cir. 1994) (confidentiality order over unfiled settlement agreement); Phillips v. General Motors Corp., 307 F.3d 1206, 1210-12 (9th Cir. 2002) (confidentiality order over unfiled settlement information) with In Re Providence Journal, 293 F.3d 1, 9-11 (1st Cir. 2002) (access to trial exhibits); Lugosch v. Pyramid Co., 435 F.3d 110, 119-20 (2d Cir. 2006) (access to summary judgment materials); Hartford Courant Co. v. Pelligrino, 380 F.3d 83, 90¬96 (2d Cir. 2004) (access to dockets); In Re Cendant Corp., 260 F.3d 183, 192-93 (3d Cir. 2001) (access to bids and bidding auction); Leucadia v. Applied Extrusion Technologies, 998 F.2d 157, 161-65 (3d Cir. 1993) (access to non-discovery pretrial motions); Virginia Dept. of State Police v. Washington Post, 386 F.3d 567, 574-77 (4th Cir. 2004) (access to summary judgment materials); Second v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993) (access to transcript and final order of permanent injunction as part of settlement agreement); Baxter Internat’l, Inc. v. Abbott Labs., 297 F.3d 544, 545-56 (7th Cir. 2002) (access to documents on appeal); Grove Fresh Distrib., Inc. v. Everfresh Juice Co., 24 F.3d 983, 896-97 (7th Cir. 1994) (access to court files); In Re Neal, 461 F.3d 1048, 1052 (8th Cir. 2006) (access to creditor list in bankruptcy proceeding); Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-81 (9th Cir. 2006) (access to summary judgment materials); EEOC v. National Children’s Center, 98 F.3d 1406, 1409-10 (D.C. Cir. 1996) (access to consent decree). 10. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605-06 (1982). 11. Baxter International v. Abbott Labs, 297 F. 3d 544 (7th Cir. 2002).

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On the private interest side, statutes and court rules have declared some types of proceedings (e.g., juvenile, child abuse, adoption, and guardianship) to be presumptively closed to the public, and certain types of information (e.g., the “personal identifiers” specified in Fed. R. Civ. P. 5.2,12 , including Social Security numbers, dates of birth, financial account numbers and names of minor children) to be presumptively eligible for exclusion from part or all or the court record available to the public. Case law has also given great weight to the private A constitutional right to public interest in protecting bona fide trade secrets access arises if the proceedings or and confidential proprietary information, such as marketing plans, employee traindocuments have historically been ing manuals, computer source code, and open to the general public and customer lists. Less weight has been given “public access plays a significant to unsupported claims of confidentiality for 13 broadly designated business information. positive role in the functioning of Attorneys must regularly consider the the particular process in question.” differing levels of protection (or conversely, the levels of public access) that may be afforded to materials exchanged in the course of discovery, and materials filed with the court. Further, when considering materials to be filed, attorneys and courts must distinguish between the levels of protection (or conversely, the levels of public access) afforded to materials being filed in relation to a non-dispositive matter and materials that relate to the merits of the case. In the discovery context, there is no presumption of public access to unfiled discovery.14 There is also no prohibition against a party disseminating information obtained through discovery. Attorneys may seek to enforce their clients’ privacy and proprietary interests by agreement or may seek a protective order under Fed. R. Civ. P. 26(c) by showing “good cause.” In the context of filing material with a court, a threshold presumption of public access exists. If the material relates to a non-dispositive matter, a “good cause” determination by the court in issuing an order to seal is sufficient to overcome the presumption of public access.15 However, if the material relates to the merits of the case, an order to seal must be supported by a determination of compelling need that overcomes the presumption of public access.16 Thus, materials “designated as confidential under a protective order… will lose confidential status (absent a showing of ‘most compelling’ reasons) if introduced at trial or filed in connection with a motion for summary judgment.”17 The relative strength of the public’s interest in access versus a litigant’s interest in privacy, property or confidentiality evolves with the stage of litigation, so that what constitutes “good cause” to restrict public access during discovery or non-dispositive stages of the proceeding does not equate to the “compelling need” necessary to restrict public access at another stage. This complexity appears to have generated widespread confusion in practice. The reported case law, supported by comments received by the Working Group in response 12. At the time the Guidelines were written, F ed. R. C iv. P. 5.2 had been proposed but not yet adopted . 13. Citizens First National Bank of Princeton v. Cincinnati Insurance Co., 178 F. 3d 943 (7th Cir. 1999). 14. Seattle Times Co., supra note 8. 15. Chicago Tribune Company v. Bridgestone/Firestone, Inc., 263 F.3d 1304 (11th Cir. 2001). 16. Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F. 2d 157 (3d Cir. 1993). 17. F eder al Judicial C enter , M a nual for C omplex L itigation, §11.432 (4th ed. 2004), available at https://public.resource.org/scribd/8763868.pdf.

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to the Revised April 2005 Public Comment Version of this publication, demonstrates that litigants frequently move to seal docket entries, court filings, or whole proceedings, citing standards applicable only in the discovery or non-dispositive context. Likewise, judges across the country are routinely presented with stipulated discovery protective orders that the parties claim govern filings on the merits. Under the pressure of court workloads, some judges may be tempted to improperly forgo the individual determinations necessary to seal court documents, and instead issue orders in accordance with the parties’ stipulations.18 More recently, the process of modernizing and automating court filing and case management systems has revealed age-old informal practices under which court clerks or counsel themselves routinely sealed filings without any judicial determination whatsoever. The electronic age and the requisite process of modernization has also led to a new concern. The conversion of presumptively public court records from paper-based filing systems accessible only at the courthouse itself, to electronic records potentially available via remote Intranet or Internet connections, has changed the analysis of the weight to be given to privacy concerns. While in the past, the likelihood that an individual or business would go to the effort of using court files to access personal information for private gain was remote, the automation of these records has made the harvesting of personal information for commercial use a viable, and indeed quite profitable, business. This has given rise to a new legal dialectic which recognizes a responsibility on the part of government to protect the confidentiality of personal information, and perhaps confidential business information, that it requires citizens to provide as part of the civil and criminal justice systems. For these reasons, the Working Group determined that the bench and bar would benefit from suggestions for “best practices” regarding public access to court files and proceedings in civil litigation, together with illustrations reflecting common situations that litigants and judges are likely to face. Chapter One deals with discovery, and it is placed first because it is clearly distinct from other aspects of litigation, in that it is largely private and party-controlled — until the fruits of discovery are filed with the court for consideration of the merits of the case. Chapter Two deals with the important administrative functions of the court — the procedures for filing, maintaining the docket, and handling court-generated documents such as opinions and judgments. Here the applicable standards for sealing are different from the standards for discovery protective orders, due to the greatly increased public interest in the workings of the court and the greatly narrowed focus of the materials involved to those that deal with the merits of the case. Chapter Three goes to the core judicial function with the greatest public interest—the trial itself, including jury selection and the evidence presented. Chapter Four takes up the question of settlements, which was not a primary focus of the Working Group, but has been a lightning rod for press coverage and legislative attention. Here the analysis is extended to consider settlements as private agreements between parties until the parties choose, or feel compelled, to invoke the supervisory or enforcement powers of the courts. Finally, Chapter Five explores the implications of the transformation of the courts from repositories of largely paper-based information to managers of digital information. In particular, Chapter Five examines the increased attention given to protecting personal information as courts redesign their processes and explore novel questions of public access in an electronic age. 18. See, e.g., Citizens First National Bank of Princeton, supra note 13, at 944 (“Instead of [making a determination] he granted a virtual carte blanche to either party to seal whatever portions of the record the party wanted to seal. This delegation was improper.”).

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Chapter 1. Discovery

Principle 1: There is no presumed right of the public to participate in the discovery process or to have access to the fruits of discovery that are not submitted to the court. The American federal civil litigation system is premised on the just, speedy and inexpensive resolution of disputes.19 The scope of discovery under the Federal Rules of Civil Procedure is intended to be broad. Parties may obtain discovery regarding “any matter, not privileged, that is relevant to the claim or defense of any party,” and for good cause shown, may obtain broader discovery relevant to the subject matter of the dispute. The information requested and produced during the discovery phase of civil litigation “need not be admissible at trial if [it] appears reasonably calculated to lead to the discovery of admissible evidence.”20 Unlike the civil law system in Europe and elsewhere, in the American civil litigation system the parties themselves develop the facts they need for trial through the discovery process outlined in the Federal Rules of Civil Procedure and state equivalents. These rules delegate to private parties the inquisitorial powers of the court, including the right to inspect and copy documents, the right to conduct depositions, and the right to compel nonparties to testify or produce documents.21 The court does not usually involve itself in the conduct of civil discovery, although it enforces procedural rules and may be called upon to decide discovery disputes. Generally, the fruits of discovery (documents, answers to interrogatories, deposition testimony, etc.) are not filed unless these are being used as evidence, either at trial or in connection with a discovery dispute or other pretrial proceeding, or unless the court orders that these be filed.22 Pretrial discovery that is simply exchanged between the parties is not a public component of a civil trial.23 There is thus no presumed right of public access to the discovery process or the fruits of discovery in the hands of a party. However, as discussed below, a party is not prohibited from voluntarily disclosing any information received during discovery unless the party has agreed otherwise or unless the court, upon a showing of good cause, enters a protective order pursuant to Fed. R. Civ. P. 26(c) or its state equivalents. A party’s ability to enter into such agreements, and the court’s ability to enter such orders, may be limited by statute or rule.24

Best P r actices 1. Attorneys should cooperate in efficiently exchanging information in civil litigation. Such cooperation includes an early, full discussion of the scope of discovery and the treatment of potentially discoverable materials that the parties deem confidential or private, to avoid later pretrial litigation of this issue. 19. F ed. R. C iv. P. 1. 20. F ed. R. C iv. P. 26(b)(1). 21. Seattle Times Co.., supra note 8 (“Thus, the [Federal Rules of Civil Procedure] often allow extensive intrusion into the affairs of both litigants and third parties.” 467 U.S 20 at 30; “The Rules do not distinguish between public and private information.” 467 U.S. 20 at 36). 22. F ed. R. C iv. P. 5(d). It is sometimes argued that discovery requests are made to threaten the release of “sensitive” information and coerce settlement. This is a matter of professional responsibility within the scope of ethics rules and not addressed by the Working Group. See Model Rules of Professional Conduct (2001), Preamble: A Lawyer’s Responsibilities (5) (“A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others”); Rule 3.4(d) (“A lawyer shall not… in pretrial procedure, make a frivolous discovery request…”). 23. See, e.g., Seattle Times Co., supra note 8 at 33 (1984) (“pretrial depositions and interrogatories are not public components of a civil trial … and, in general, they are conducted in private as a matter of modern practice”). 24. See e.g., Fla. Stat. Ann. §69.081; Texas R. Civ. P. 76a.

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2. A party may object to the discovery of otherwise relevant and non-privileged information it claims is confidential or private. Such an objection should be the basis for negotiation with the requesting party over the procedure for producing the requested discovery to protect legitimate privacy and confidentiality interests. If no agreement is reached, a party may apply to the court for a protective order under Fed. R. Civ. P. 26(c) or its state equivalents. 3. If the parties agree to produce information under the terms of a stipulated protective order, the court should enter such order upon a showing of good cause, subject to a later determination of the confidentiality of specific documents in the event of a challenge to the confidentiality designation.

E x amples 1. The attorneys representing the parties in a class action race discrimination lawsuit against a large corporation confer pursuant to Fed. R. Civ. P. 26(f) and map out the discovery phase of the litigation. The lawsuit alleges discrimination in pay and promotions throughout the company. It is anticipated that the plaintiff will serve a broad discovery request seeking current and historical information regarding employee pay and promotions. It is also anticipated that the defendant will object to public disclosure of employee pay, citing employee morale and competitive interests. The attorneys negotiate a procedure for the production of the relevant information in bulk form, redacting any “personal identifiers� in the data, and enter into a confidentiality agreement or stipulate to a protective order that would permit large volumes of information to be reviewed and exchanged without compromising privacy and confidentiality interests. 2. Same facts as Example 1, but the attorneys were unable to reach agreement. The plaintiff serves its discovery request, as anticipated, and the defendant objects. Under the court’s rules, the attorneys must attempt to resolve discovery disputes before filing any motions. During the required meeting, the defendant flatly refuses to produce the requested data, and the plaintiff threatens to obtain the data from other sources and publish it on the Internet. The plaintiff then moves to compel discovery and the defendant countermoves for a protective order. Three months and several hundred billable hours later, the court grants both motions in part, fashioning a protective order similar to that reached voluntarily in Example 1.

Principle 2: Absent an agreement between the parties or a court order based on a showing of good cause, a litigant is not precluded from disclosing the fruits of discovery to nonparties. Absent an agreement between the parties or an order to the contrary, a party is free to share the fruits of discovery obtained during litigation with others who are not parties to the lawsuit.25 In some cases, a producing party has legitimate reasons to limit the dissemination of certain information exchanged in the normal course of discovery. Because broad discovery is generally allowed, and given the nature of certain disputes in the civil justice system, the rules of discovery often require disclosure of private, confidential information involving matrimonial, financial, medical or family matters, or in commercial cases, trade secrets and other confidential business information. In order to facilitate the efficient exchange of information during discovery, parties may enter into agreements or stipulations designed to maintain the confidentiality of material produced during discovery. 25. Phillips v. General Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002); Harris v. Amoco Prod. Co., 768 F.2d 669, 68384 (5th Cir. 1985).

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In the absence of an agreement between the parties, a producing party has the right to object to the production of particular material on the basis of “annoyance, embarrassment, oppression, or undue burden,” and seek a protective order under Fed. R. Civ. P. 26(c). In appropriate cases, a party may seek an order “that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way.”26 The court is required to make a finding While all justifications for of “good cause” to support a protective order. restricting public access must To avoid a costly and time-consuming document-by-document determination of constitute “good cause” to be “good cause” by the court during the discovupheld, the requisite “good ery, parties who anticipate that the scope of cause” will be dramatically discovery will likely include private or confidential information often seek the court’s different depending upon the imprimatur under Fed. R. Civ. P. 26(c) on a particular documents and stipulated agreement regarding confidentiality. These “umbrella” protective orders, most proceedings, and the particular often found in large or complex cases, are stages of the litigation. frequently entered without judicial assessment of the specific documents or information the disclosure of which will be limited by the protective order, although a more generalized finding of “good cause” is still required. Parties may demonstrate reliance on a protective order entered as a case management tool. However, such an order is insufficient justification by itself for the court to enter a sealing order if documents subject to the protective order are to be filed. In determining whether good cause exists to issue or uphold a protective order under Fed. R. Civ. P. 26(c), a court is required to balance the parties’ asserted interest in privacy or confidentiality against the public interest in disclosure of information of legitimate public concern.27 Judicial restraints placed only upon the disclosure and use of information exchanged in discovery do not restrict “a traditionally public source of information.”28 “When directed solely at discovery materials, protective orders are not subject to the high level of scrutiny required by the Constitution to justify prior restraints; rather, courts have broad discretion at the discovery stage to decide when a protective order is appropriate and what degree of protection is required.”29 Therefore, given that the public shares the parties’ interest in a judicial system that can efficiently resolve disputes, the good cause standard generally should be considered to be satisfied if the parties can articulate a legitimate and particularized need for privacy or confidentiality, in those instances where the protective order will apply only to the disclosure of information exchanged during discovery. If a challenge is made, “good cause” must be shown based on the circumstances existing at the time of the challenge.30 Because of the limited scope and provisional nature of the umbrella protective order, the court need not conduct a detailed inquiry into the nature of the information at issue, which courts are sometimes unwilling or often practically unable to do, where much or all of the information at issue may not be used in connection with the determination of the merits of the dispute. 26. F ed. R. C iv. P. 26(c)(7). 27. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994). 28. Seattle Times Co., supra note 8at 33. 29. M a nual for C omplex L itigation, at 11.432, p. 66 (4th ed., 2004) (citing Seattle Times Co., supra note 8 at 36–37). 30. Leucadia, Inc., supra note 16.

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Best P r actices 1. Attorneys should counsel their clients that, absent an agreement or order issued upon a showing of good cause, there is no restriction on dissemination of documents and other information exchanged during discovery. A party desiring restrictions on dissemination of the fruits of discovery should approach the opposing party as soon as it becomes apparent that some type of restriction on dissemination is necessary. 2. Attorneys should assess in each case whether a protective order restricting dissemination of information produced during discovery is necessary. 3. An umbrella protective order or confidentiality agreement should provide a procedure for confirmation or challenge of the confidentiality designations made as to particular documents, including timely notice to the producing party that the designation is being challenged to enable the producing party to promptly seek protection and to prove that the particular information qualifies for judicial protection. 4. Attorneys should avoid excessive and unjustified designation of documents as “confidential” under a protective order.

E x amples 1. Using the race discrimination lawsuit example outlined under Principle 1 above, at the same time the attorney representing the corporate defendant notifies the attorney representing the plaintiff that she is willing to produce her client’s payroll and promotion database, she states that it contains private financial information on the employees of her client. She says she will only produce this database if the plaintiff’s counsel is agreeable to enter a protective order. The plaintiff’s attorney agrees and they negotiate a proposed protective order which: a. defines the information and documents it will protect, encompassing the type of information that could upon proof be the appropriate subject of a protective order; b. establishes a procedure whereby plaintiff’s attorney may notify defendant’s counsel if she believes that certain documents designated as “confidential” by the defendant should not be treated as such; and c. provides that within a specified period after being notified of plaintiff’s counsel’s objection to certain confidentiality designations, if defendant’s counsel wishes to maintain the confidentiality of the challenged documents, the defendant’s counsel must seek a protective order pursuant to Fed. R. Civ. P. 26(c). The protective order makes clear that if the confidentiality designation is challenged, the court is to make a de novo determination of whether there is good cause to restrict the dissemination of the challenged information.

Principle 3: A protective order entered under Fed. R. Civ. P 26(c) to facilitate the exchange of discovery materials does not substitute for the individualized judicial determination necessary for sealing such material, if filed with the court on a non-discovery matter. Protective orders sometimes purport to do more than restrict the parties from sharing the fruits of discovery. They often include a provision allowing materials deemed “confidential” to be filed with the court under seal without any further order. Such an agreement between the parties may be appealing. Courts are understandably disinclined to interfere with a matter agreed upon by the parties, particularly considering the court’s limited time and resources. However, no agreement between the parties should substitute for the individualized and particularized showing that must be made before any materials are filed under seal, at least for non-discovery

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purposes. Moreover, given the presumption of public access to filed materials, that showing must be made under the stricter standards described in Chapter 2 rather than the “good cause” standard of Fed. R. Civ. P. 26(c) used for the issuance of protective orders. Although protective orders with “sealing” provisions appear to be common, federal circuit courts have questioned the enforceability of protective orders that serve to seal material filed with the court, primarily because such sealing implicates the public’s qualified right of access to court records. For example, according to the Third Circuit, “[T]he burden of justifying the confidentiality of each and every document sought to be covered by a protective order remains on the party seeking the protective order; any other conclusion would turn Rule 26(c) on its head.”31 Similarly, the Sixth Circuit held that protective orders under Fed. R. Civ. P. 26(c) authorizing the sealing of documents that either party “considers ... to be of a confidential nature” is facially overbroad.32 Particularly in cases with large quantities of material to be produced in discovery, a threshold showing of “good cause” over broad categories of material may be sufficient for the issuance of a protective order under Fed. R. Civ. P. 26(c). The purpose of the order would be to facilitate the cooperative exchange of voluminous discovery. Protective orders must not confuse the confidentiality of material produced in discovery with the filing of such materials under seal. That issue is discussed in detail in Chapter 2.

Best P r actices 1. Attorneys should advise their clients that a protective order entered without an evidentiary showing only restricts the dissemination of designated documents and information so long as the need for confidentiality is not successfully challenged by another party or by an intervening third party, and so long as the information does not need to be filed in court or used as evidence at trial. The party wishing to prevent the dissemination of information may eventually be required to prove the basis for protecting specific information, even if not required to do so at the time the information is produced. 2. Protective orders which purport to cover both the exchange of documents in discovery and the filing of documents with the court would better conform with the legal standard if such protective orders: (1) were narrowly drafted; (2) kept the burden on the designating party to demonstrate good cause whenever the need for confidentiality is questioned; and (3) provided a procedure to establish a proper basis for sealing at the time the material is actually filed with the court for any purpose other than a discovery dispute.

3. Protective orders entered without evidentiary findings should provide a mechanism to establish whether information designated as confidential should be sealed if filed with the court. For instance, such an order could provide that a party “lodge” a protected document with the court pending a motion to seal from the designating party.33 If the designating party files a motion to seal the court record within a reasonable period of time, a determination is then made as to whether the particular information should remain under seal. The fact that information was designated as confidential pursuant to the protective order is not dispositive in determining that the information should be sealed in connection with a determination on the merits. 31. Id. at 166. 32. Procter & Gamble Co. v. Bankers Trust Co., 78 F. 3d 219, 227 (6th Cir. 1996). 33. A “lodged” document is a document submitted to the court in conjunction with the filing of a motion to allow the document to be filed under seal. The “lodged” document itself is not considered part of the filing. If the court denies the motion, the document is returned to the submitting party. See, e.g., N D. C al . C iv. L. R. 795(d). (“Sealed or Confidential Documents: Motion to File Under Seal”).

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4. As an alternative to the practice outlined above, the parties could agree in the protective order to provide reasonable notice to the designating party that it intends to file documents designated as confidential in court. The designating party should move within a reasonable period of time to have the specific documents sealed. Again, a judicial determination must be made as to whether the sealing of the particular records is warranted.

E x amples 1. In the class action race discrimination lawsuit outlined under Principle 1 above and the protective order discussed as an example under Principle 2 above, the plaintiff ’s counsel intends to file the payroll and promotion database which has been designated as confidential as an exhibit in opposition to a motion for summary judgment. Pursuant to the terms of the order, plaintiff’s counsel notifies defendant’s counsel in advance of the filing that the designation is challenged, triggering the defendant’s obligation to file a motion for a sealing order with respect to the challenged information. Alternatively, plaintiff’s counsel temporarily files the payroll and production database with the opposition papers, ensuring that the material is not made public and likewise triggering the defendant’s obligation. 2. Using the above example, plaintiff’s counsel also notifies defendant’s counsel that pages from one of defendant’s outdated employee handbooks will be filed in connection with a summary judgment motion. These pages had been designated as confidential pursuant to the protective order. Defendant’s counsel decides that it is not necessary to seek to have this outdated information sealed. Plaintiff’s counsel is permitted to file the information in open court, and the confidentiality designation with respect to that information is waived.

Principle 4: On a proper showing, nonparties should be permitted to intervene to challenge a protective order that limits disclosure of discoverable information. A party involved in parallel or subsequent litigation should be permitted to present arguments that a protective order should be modified to allow it access to the allegedly confidential documents. A court deciding whether its protective order should be modified to allow a party to such litigation access to documents should consider the standards of relevance and efficiency articulated in Fed. R. Civ. P. 26, including considerations of annoyance, embarrassment, and oppression under Fed. R. Civ. P. 26(c). However, the public disclosure of information of a private or sensitive nature in one lawsuit should not necessarily subject a party to repeated disclosure of the same information in subsequent litigation, if there is good cause for protecting it from disclosure. Most courts that have considered the question hold that the media, public interest groups, and other third parties have standing to intervene in a civil case for the limited purposes of opposing or seeking modification or rescission of a protective order entered pursuant to Fed. Rule Civ. P. 26(c) when they assert that the public interest is served by disclosure.34 Courts have found standing without any showing that persons subject to an order limiting disclosure of discovery materials would be willing to disclose absent the protective order; rather, the cases presume that since the only practical effect of the protective order is to prevent an otherwise willing speaker from communicating to a willing listener, the party seeking to intervene meets the redressable injury requirement of standing simply 34. See Grove Fresh Distributors v. Everfresh Juice Co., 24 F.3d 893, 896 (7th Cir. 1994); Pansy v. Borough of Stroudsburg, supra note 27, at 777; In re Alexander Grant & Co. Litigation, 820 F.2d 352, 35455 (11th Cir. 1987); CBS v. Young, 522 F.2d 234, 23738 (6th Cir. 1975).

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because the order impedes “the news agencies’ ability to discover newsworthy information from potential speakers.”35 The courts are in disagreement as to the burden of proof when motions are made to modify or vacate an existing protective order. One standard provides that, assuming the order to have been validly entered in the first instance, the moving party must show sufficient reasons to release the protected information.36 Another approach leaves the burden of proof on the party that sought the order in the first instance to justify continued confidentiality, but adds reliance on the existing order as a factor to be considered.37

Best P r actices 1. When intervention is allowed to oppose a motion for a protective order that has not yet been entered, or for purposes of challenging a general protective order, the court should consider and balance the public interest in the disclosure sought, the legitimate privacy interests that favor nondisclosure, and the extent to which the information is relevant to the controversy. The party seeking to limit disclosure has the burden of demonstrating that the balance of interests satisfies the “good cause” standard of Fed. R. Civ. P. 26(c). 2. If a protective order has already been entered after full consideration of the merIn some circumstances, papers its, including a review of the contents of the documents that are prohibited from filed with the court may contain disclosure under the order, the intervenor information that implicates should be required to demonstrate circumstances or considerations not already legitimate privacy or confidentiality considered by the court. interests, or otherwise warrants 3. In entering into a confidentiality agreement or seeking a protective order, parredaction or sealing, and may be ties should anticipate nonparty demands proper subjects for a sealing for discovery materials through suborder before filing. poena, or that nonparties will object to producing information pursuant to subpoena because the requested information is claimed to be confidential. Agreements should also include provisions that expressly allow parties to provide materials to requesting regulatory agencies that offer appropriate protection for confidential materials. 4. When collateral litigants intervene, the issuing court “should satisfy itself that the protected discovery is sufficiently relevant to the collateral litigation that a substantial amount of duplicative discovery will be avoided....”38 The court should balance this policy of avoiding duplicative discovery against the countervailing interests of the parties opposing modification, including their reasonable reliance on the order’s nondisclosure provisions. In many cases, any legitimate interest in continued secrecy can be accommodated by placing the collateral litigants under the use and nondisclosure restrictions of the original protective order. Modification merely removes the impediment of the protective order in the collateral litigation. The collateral court retains authority to determine the ultimate discoverability of, and the protection to be afforded to, specific materials in the collateral proceedings.39

35. Davis v. East Baton Rouge Parish School Board, 78 F. 3d 920, 927 (5th Cir. 1996). 36. See Phillips, supra note 25 at 1213. 37. See Pansy v. Borough of Stroudsburg, supra note 27, at 789-90 (3d Cir. 1994). 38. Foltz v. State Farm Mutual Automobile Ins. Co., 331 F.3d 1122, 1132 (9th Cir. 2003). 39. Foltz, at 1133.

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E x amples 1. Using the example of the class action race discrimination lawsuit discussed under Chapter 1, Principle 1, a class member has opted out of the class and is pursuing an individual race discrimination lawsuit against the same defendant in another jurisdiction. The attorney for the opt-out plaintiff calls the attorney representing the plaintiff class and asks for a copy of the payroll and promotion database that defendant produced in the class action. However, this has been designated confidential, so class plaintiffs’ counsel cannot provide the database to the attorney for the opt-out plaintiff. 2. In the same case as above, the attorney for the opt-out plaintiff serves a Fed. R. Civ. P. 45 subpoena on the attorney for the plaintiff class seeking production of all documents produced by defendant in the class action. But counsel for the plaintiff class is under a court order not to disseminate the confidential material produced by defendant. The protective order provides that class plaintiffs’ counsel tenders the subpoena to defendant’s counsel, who is obligated by the protective order to defend the protective order and oppose the subpoena, negotiate an extension of the protective order, or waive protection. 3. In the same case as above, because the opt-out plaintiff’s lawsuit involves allegations similar to those involved in the class action, and direct discovery requests for the information would be inevitable, defendant’s counsel agrees that the material can be produced to the opt-out plaintiff so long as he is willing to enter a similar protective order. 4. In a toxic tort case, a protective order is entered at the commencement of discovery. After significant discovery has taken place, a member of the news media moves to intervene, asserting that the general public has a legitimate interest in documents or information exchanged during discovery. If the court determines that a colorable public interest has been asserted, intervention should be allowed. 5. Assume the same facts as stated in Example 4, except that the parties fail to agree upon a stipulated protective order and one party moves for entry of a protective order pursuant to Fed. R. Civ. P. 26(c). The media, asserting the public interest, should be permitted to intervene and be heard in opposition to the motion. The party asserting confidentiality bears the burden of proving that an order should issue under Fed. R. Civ. P. 26(c). 6. Assume the same facts as stated in Example 4, except that the parties to the litigation failed to agree on a stipulated protective order and one party moved for the entry of a protective order pursuant to Fed, R. Civ. P. 26(c). The judge ruled on the motion and issued an order, making appropriate findings of fact and conclusions of law. At a later date, the news media intervene, seeking access to documents subject to the order. The intervenors bear the burden of coming forward with evidence sufficient to overcome the initial presumption that the existing order remain in place, although the original proponent bears the ultimate burden of persuasion that the order continues to be necessary and narrowly tailored to protect legitimate privacy and confidentiality interests.

Chapter 1 Selected Bibliography Manual for Complex Litigation, Fourth (2004), sec. 11.432 (discussing the use of “umbrella” and particularized” protective orders in complex litigation). Florida Statutes Annotated, §69.081 (describing the procedure for entry of an order “which has the purpose or effect of concealing a public hazard,” etc.). Texas Rule of Civil Procedure 76a (declaring that certain court records are presumed to be open and setting forth standards for sealing same). Seattle Times v. Rhinehart, 467 U.S. 20 (1984) (no public right of access to unfiled discovery materials).

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Poliquin v. Garden Way, 989 F.2d 527 (1st Cir. 1993) (showing of “good cause” sufficient to protect discovery materials from disclosure insufficient to bar access to evidence introduced at trial). SEC v. TheStreet.com, 273 F.3d 222 (2d Cir. 2001) (transcripts of depositions of NYSE officers held not to be “judicial documents” but no presumption against public access as third parties had been present). Leucadia v. Applied Extrusion Tech., Inc., 998 F.2d 157 (3d Cir. 1993) (recognizes distinction for purposes of access between discovery materials filed as exhibits to “merits” motions and those filed in support of discovery motions). Shingara v. Skiles, 420 F 3d 301 (3d Cir. 2005) (reviewing standards for issuance of umbrella orders and concluding such an order was not warranted in a case that “is neither complex nor involves ‘large-scale discovery’” and good cause showing not made). Pittston Co. v. United States, 368 F.3d 385 (4th Cir. 2004) (holds that party cannot object to sealing of materials when it had access to same and had agreed to sealing). Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996) (protective order cannot allow parties to control access to judicial records). Baxter Internat’l v. Abbott Labs, 297 F.3d 544 (7th Cir. 2002) (distinguishes between broad procedural orders entered for purposes of discovery as opposed to those entered at later stages of litigation). Citizens First Nat’l Bank v. Cincinnati Ins. Co., 178 F.3d 943 (7th Cir. 1999) (broad protective order granting parties “a virtual carte blanche” to seal records invalid under Fed. R. Civ. P. 26). In re Remington Arms Co., 952 F.2d 1029 (8th Cir. 1991) (sets forth procedure to determine whether information sought in discovery is trade secret for purposes of Fed. R. Civ. P. 26(c)(7) protective order). United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424 (10th Cir. 1990) (discusses access by collateral litigants to discovery materials subject to protective order). Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122 (9th Cir. 2003) (discusses access by collateral litigants to discovery materials subject to protective order; establishes “mechanics of the relevance inquiry” and which court should do what). United States v. Microsoft Corp., 165 F.3d 952 (D.C. Cir. 1999) (depositions in an antitrust action are open to public pursuant to the Publicity in Taking Evidence Act).

Chapter 2. P leadings, C ourt Orders, Substantive Motions & Dockets

Principle 1: In civil proceedings, the public has a qualified right of access to documents filed with a court that are relevant to adjudicating the merits of a controversy. In compelling circumstances, a court may exercise its discretion to deny public access to submitted documents to protect the privacy, confidentiality or other rights of the litigants. Chapter 1 dealt with discovery materials exchanged between the parties, for which there is no qualified right or presumption of public access. In Chapter 2 we start with the act of filing a document with the court, such as a pleading, response, motion, or an exhibit. We also deal with the documents and records created by the court in relation to civil litigation, such as dockets, docket entries, memoranda, orders, or judgments. When a document is filed R ey nolds C ourts & M edia L aw Jour nal

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or created by the court, a qualified right or presumption of public access arises. However, this is just the starting point of the public access analysis. The strength of the presumption, and the consequent burden that must be met to overcome it, depends on the relationship of the document to the adjudicative process. The more important the document is to the core judicial function of determining the facts and the law applicable to the case, the stronger the presumption and the higher the burden to overcome it. Thus, a qualified right or presumption of public access attaches to all documents filed with the court that are material to the adjudication of non-discovery matters.40 Courts have found the qualified right or presumption of public access from either of two sources, the Constitution or the common law. The United States Supreme Court has found a First Amendment right of public access in criminal cases. A constitutional right to public access arises if the proceedings or documents have historically been open to the general public and “public access plays a significant positive role in the functioning of the particular process in question.”41 “If the particular proceeding in question passes these tests of experience and logic, a qualified First Amendment right of public access attaches.” Id. That qualified right can be overcome “only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”42 Some federal courts have extended the First Amendment right of public access to court files and proceedings in civil cases.43 Other courts have found a common law presumption in favor of public access for documents and proceedings in civil cases.44 Some courts have found both a First Amendment right and a common law presumption.45 Public access serves important public interests, including informing the public of the cases that are before the court. The essential benefit of access is to ensure accountability to the public. Public scrutiny brings about accountability, fostering public trust that the judicial system is functioning justly, properly and efficiently, and that participants in the system are properly and honestly performing their duties. Another benefit of public access is educating the public on the workings of the courts and the civil justice system, which promotes public confidence in the judicial system. While important interests are served by the First Amendment right or common law presumption of public access, the right is not absolute and the presumption may be overcome in appropriate circumstances. If the documents in question have little or no relation to the merits of the case or have not historically been available to the public, the presumption of public access that arises from the mere fact that these have been filed with the court is quite weak. For instance, if the documents have been filed in relation to a discovery 40. See In re Cendant Corporation, 260 F. 3d 183, 19293 (3d Cir. 2001); Chicago Tribune Co. v. Bridgestone/Firestone. Inc., supra note 15, at 1312 (11th Cir. 2001). 41. PressEnter. Co. v. Superior Court, 478 U.S. 1, 8 (1986). 42. Id. See also Globe Newspaper Co. supra note 10 at 606-07 (1982) (“Where, as in the present case, the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.”). 43. See, e.g., Republic of Philippines v. Westinghouse, Elec. Corp., 949 F.2d 653, 659 (3d Cir. 1991); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 25253 (4th Cir. 1988). 44. See, e.g., FTC v. Standard Fin. Mgt., 830 F.2d 404, 408 n.4 (1st Cir. 1987); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1179 (6th Cir. 1983); Smith v. United States District Court, 956 F.2d 647, 650 (7th Cir. 1992); EEOC v. Erection Co., 900 F.2d 168, 169 (9th Cir. 1990); NBC Subsidiary (KNBCTV), Inc. v. Superior Court, 20 Cal. 4th 1178, 1217 (1999). 45. See e.g., Lugosch v. Pyramid Co. of Onandaga, 435 F.3d 110 (2d Cir. 2006) (documents submitted to a court for its consideration in a summary judgment motion are “judicial documents” to which a presumption of immediate access applies under both the common law and the First Amendment).

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dispute, the court may seal them under the same “good cause” standard that would support a particularized protective order under Fed. R. Civ. P. 26(c). Likewise, the presumption of public access to filed settlement documents that merely recite the terms of settlement and do not purport to assign liability or otherwise “adjudicate” the case is weak.46 The presumption of public access is much stronger in relation to “judicial documents,” that is, documents that relate to the merits In certain civil cases, courts may of the case and assist the court in fulfilling order that access to juror identities its adjudicatory function. Courts have the discretion to seal court documents to protect be limited or deferred to protect rights of privacy or confidentiality, provided the safety of jurors, or to ensure the court determines that an “overriding their verdict is a product of the interest” exists that can only be protected by 47 such an order. A circumstance that might evidence admitted at trial rather justify the exercise of the court’s discretion than outside interference. is to protect the confidential proprietary interests in trade secrets or other commercially sensitive information.48 Whether or not the requisite need for sealing has been demonstrated is a matter of courts’ supervisory powers and is “best left to the sound discretion of the court, discretion to be exercised in light of the relevant facts and circumstances of the particular case.”49 During the 18-month period between the publication of the “public comment” draft of this document in April 2005 and the final draft at the end of 2006, several commentators put forward the proposition that all actions to restrict or deny public access to the documents and proceedings related to civil litigation should be subject to the same “good cause” showing to overcome the presumption in favor of public access. While this notion has simplicity and surface appeal, it is contradicted by the great weight of the case law and advanced in a limited circumstance by only one federal circuit court decision.50 While all justifications for restricting public access must constitute “good cause” to be upheld, the requisite “good cause” will be dramatically different depending upon the particular documents and proceedings, and the particular stages of the litigation. The “good cause” needed to support an umbrella protective order under Fed. R. Civ. P. 26(c) will not suffice to support the sealing of those discovery documents when filed in court. To lump the varying expressions of burden under the common rubric of “good cause” creates confusion as to what standard actually applies, and does a disservice to attorneys and parties who may erroneously believe that the “good cause” that supported an umbrella protective order in discovery will also support an order to seal a record on appeal.51 46. See Gambale v. Deutsche Bank AG, 377 F.3d 133, 143-44 (2d Cir. 2004) (distinguishing between settlement amount and summary judgment documents). 47. See, e.g., Chicago Tribune Co. v. Bridgestone/Firestone, supra note 15, at 1313; In re Cendant Corp., supra note 40, at 194; Leucadia, Inc., supra note 16 at 166; NBC Subsidiary (KNBCTV), Inc. supra note 44, at 1217 (1999). 48. See Leucadia, Inc., supra note 16. 166; Joint Stock Soc’y v. UDV North America, 104 F. Supp. 2d 390, 396 (D. Del. 2000). 49. Nixon v. Warner Communications, 435 U.S. 589, 59899 (1978). 50. Chicago Tribune Co. v. Bridgestone/Firestone, supra note 15, at 1313 (holding that the “good cause” standard of F ed. R. C iv. P. 26(c) may also apply to restrict access to documents filed in relation to a failed summary judgment motion in a settled case). 51. See, e.g., supra note 11.

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Statutes and court rules recognize specific situations in which pleadings must be kept confidential. For example, under the qui tam provisions of the False Claims Act, 31 U.S.C. §3729 et seq., a complaint of a private person must be filed in camera and remain sealed for at least 60 days, and the government may move in camera for an extension of the sealing.52 The purpose of the sealing requirement is to give the government an opportunity to review the complaint and determine whether to intervene.53 Similarly, the Trademark Counterfeiting Act of 1984, codified in relevant part at 15 U.S.C. § 1116(d), provides that a court may, on ex parte application, issue a seizure order for goods and counterfeit marks, and that any such order, “together with the supporting documents,” shall be filed under seal, “until the person against whom the order is directed has an opportunity to contest such order....”54 The purpose of the sealing is to avoid the loss or concealment of the items to be seized.55 In both of these statutory examples, sealing is for a specific purpose and a limited time. There are also categories of cases with records that invariably include information, the disclosure of which is discouraged as a matter of public policy. State legislatures have adopted statutes mandating that such categories of cases be closed to the public.56 Several state courts have, or are considering, court rules restricting remote access via the Internet in certain categories of cases.57 The Judicial Conference of the United States has also determined that remote access via the Internet to at least one category of cases, Social Security appeals, should be restricted.58 A court might also determine that sealing an entire document is not necessary because the protection of privacy or other interests can be achieved by redacting the private information or allowing the use of fictitious names. In such cases, redaction or use of a pseudonym can preserve the important privacy rights or property interests, while protecting the public’s right to access.59 In other cases, sealing may be warranted only for a limited period of time.60 Courts should adopt procedures to facilitate the orderly consideration of motions related to public access to filed documents. For example, a party may believe it has compelling reasons to request an order allowing it to file an entire document with the court under seal. The court may permit the party to “lodge” the document with the court (a step short of filing the document) and file an appropriate motion to have the document sealed upon filing.

52. 31 U.S.C. §§3730(b)(2) and (3). 53. 31 U.S.C. §3130(b)(4). 54. 15 U.S.C. §1116(d)(8). 55. 15 U.S.C. §1116(d)(4)(B)(vii). 56. See, e.g., I nd. C ode § 31-39-12 (records in juvenile proceedings); M d. C ode , S tate G ov ’t. § 10-616(b) (records in adoption and guardianship proceedings); Mad. Code, State Gov’t, § 10-616(b) (records in adoption and guardianship proceedings); N.Y. Fam. C.t Act, §166 (records of family court proceedings); N.Y. Dom. Rels. L., §235 (records in divorce, custody, and child support proceedings). As originally published, the Guidelines also cited M d. C ode , Art. 88A, §6(b) (records in child abuse or neglect proceedings), which has since been repealed. See 2007 M d. A cts chap. 3, § 1 (eff. Oct. 1, 2007). 57. See, e.g., I nd. A dmin. R . 9(g); Md. R. 16-1006 and 16-1007; Vt. R. for P ublic A ccess to C t. R ec ’ds , §6. 58. See R eport of the Judicial C onference C ommittee on C ourt A dministr ation a nd C ase M a nage ment on P rivacy a nd P ublic A ccess to E lectronic C ase F iles (Sept. 2001), available at http:// www.privacy.uscourts.gov/Policy.htm. 59. See Doe v. City of Chicago, 360 F. 3d 667, 669-70 (7th Cir. 2004). 60. See E-Government Act of 2002, Pub. Law 107-347, 116 Stat. 2899 (2002) and F ed. R. C iv. P. 5.2 (implementing the E-Government Act, §205(c)(3), to provide privacy protection for filings electronically transmitted to a court). At the time the Guidelines were written, F ed. R. C iv. P. 5.2 had been proposed but not yet adopted .

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Under such a procedure, the court and opposing parties have access to the document while the motion is under consideration, and the public has notice of the pending motion to file the document under seal, but the document has not been made public through filing.61

Best P r actices 1. Courts should provide guidance to civil litigants regarding the procedures for seeking and the standards for obtaining protective orders and sealing orders through the promulgation of local rules, courtwide standing orders, and courtroom-specific standing orders. 2. In jurisdictions where lodging is permitted, litigants should temporarily file or “lodge” documents with the court awaiting a ruling on a motion to have the documents filed under seal. If the motion is granted, the documents will be filed under seal. If the motion is denied, the documents will be returned to the party unfiled. 3. Whenever a party seeks to file documents previously subject to a protective order, appropriate notice should be given that would enable the producing party to move for protection of the documents. 4. In exercising its discretion to issue a sealing order, a court should consider the importance of the rights and interests (for instance, privacy rights, confidential information, or proprietary business information) that would be jeopardized by public access to the sealed material; whether the need for confidentiality outweighs the public’s interest in disclosure; whether the sealing requested is broader than necessary to meet that need for sealing; and whether less restrictive alternatives might be available that would preserve the interest in confidentiality while permitting at least some public access such as redaction, limiting the duration of the sealing order or the use of pseudonyms. Absent extraordinary circumstances, sealing orders themselves should not be sealed. 5. Attorneys should counsel their clients regarding the standards for sealing party-filed documents, the risk that information may be made public, and measures that may be taken to minimize or avoid the compromise of such information. 6. Sealing requests should not be overly broad and attorneys should take reasonable steps to segregate material that should be filed under seal from material that may be filed without seal. For example, an entire document a party requests to file under seal should not be sealed if, as a practical matter, confidentiality can be adequately protected by more limited means, such as the redaction of specific information, the use of “Doe” pleadings, or the sealing of only a portion of the document, with the non-confidential material to be openly filed. 7. Orders granting or denying a motion to seal should be subject to immediate appellate review under the collateral order or other doctrine.

E x amples 1. A plaintiff files a trademark infringement action alleging that the defendant is manufacturing “knock off” products. The plaintiff seeks an ex parte seizure order, pursuant to statute, based on a showing that the defendant intends to move or destroy the products. The complaint and the request for an immediate seizure order are temporarily filed along with a motion to have the documents filed under seal. The temporary filing is accompanied by a proposed order to be endorsed by the judge, also under seal, stating that the complaint will be unsealed upon either the execution or the denial of the requested seizure order. 61. See, e.g., D.N.J. L. C iv. R. 5.3; C al . C t. R. 243.1 to 243.4

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2. The exclusive Midwestern distributor of a highly popular and profitable product of an East Coast manufacturer is engaged in a dispute with the manufacturer over the manufacturer’s alleged shoddy accounting practices. For several months the parties engaged in unsuccessful settlement negotiations, until the distributor prepares to file suit. The plaintiff distributor requests that its attorney file the complaint under seal to avoid publicity and loss of good will. After review of the controlling law in the jurisdiction, the attorney determines that the plaintiff’s generalized interest in avoiding publicity and losing goodwill will not provide the requisite showing to support a sealing order. The attorney so informs his client and counsels him regarding possible alternatives, including alternative dispute resolution. 3. The same facts as Example 2 above. The distributor files a motion for summary judgment supported by documents designated as “confidential” and produced under a Rule 26(c) protective order which detail proprietary and commercially sensitive information about the manufacturer’s business. The distributor’s attorney files the motion with the confidential information redacted and requests the court’s permission to file an unredacted version under seal. The manufacturer’s attorney promptly files a motion explaining the basis for sealing the unredacted version with an affidavit that establishes the significance of the information to the business, the competitive harm disclosure might cause, and the measures taken to date to keep the information confidential. The court grants the sealing motion and files an order, stating the grounds for sealing without revealing any of the information itself. 4. Several members of a wealthy family, all beneficiaries under a trust, file suit against another family member who is the trustee, alleging misappropriation of trust assets. In the complaint, the plaintiffs set forth sensitive family information, such as the value of the trust, their respective shares of the trust assets, and the holdings of the trust. The plaintiffs’ attorney prepares two versions of the complaint: one version in which the paragraphs containing the sensitive family information have been redacted, to which the public would have access, and another version of the complaint to be the subject of a motion to seal. 5. A plaintiff who is HIV-positive brings suit against a dentist for refusal to treat him in violation of state law. The plaintiff is not known in his community as being HIV-positive. He files his complaint under the court’s “Doe” procedure, in which information that would identify him personally is removed from the version of the pleading to which the public has access. The version of the complaint containing identifying information is filed under seal. The judge issues an order that information identifying the plaintiff in all subsequent pleadings is to be redacted from publicly accessible versions, with unredacted versions filed under seal. 6. A plaintiff intends to file a motion for summary judgment in fourteen days, which will be supported by documents it obtained from the defendant through discovery and designated by the defendant as confidential under a stipulated protective order. Pursuant to the terms of the particular protective order, the plaintiff informs the defendant of its intention to file, which permits the defendant to file a motion to seal the material in advance of the summary judgment filing date. The defendant files the motion to seal, and the plaintiff files a redacted version of its summary judgment motion and supporting information but separately files an unredacted version containing the confidential information with the court. 7. During the course of litigation, the court indicates it may impose sanctions on counsel for repeatedly missing court-imposed deadlines in the case. Counsel requests the court’s permission to file a responsive brief and affidavit under seal simply explaining

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that “medical reasons” are detailed in its response regarding sanctions. The court exercises its discretion to seal the brief and affidavit, in part because the public’s interest in access is weaker because the filings have no role in the determination of the merits of the case. 8. In the same matter, counsel files a dispositive summary judgment motion, and temporarily files select portions of the supporting evidence along with a motion to seal stating that “confidential and proprietary” business information is contained in the documents. The court indicates its initial intent to deny the sealing motion. Counsel then requests, and the court grants, permission for counsel to file a supplemental brief and affidavit establishing how the information in the documents is maintained in confidence, that it is not known to the public or business competitors, and how disclosure of the information may give competitors an unfair advantage. In light of the supplemental filings, the court assesses the strength of the presumption of public access, weighs it against the interests in confidentiality, and finds a compelling need to partially seal the documents.

Principle 2: The public has a qualified right of access to court dockets that can only be overcome in compelling circumstances. The docket is the principal index of judicial proceedings. All the judicial business of the court should be noted on the docket.62 For each case, the individual docket should serve as a record of all activity and as an index of all documents, pleadings, appearances, the scheduling of hearings and trials, motions, orders, judgments, as well as miscellaneous items. There is a presumption of public access to dockets.63 Access to the docket is the primary means to determine if a particular case is being adjudicated or if a party is engaged in litigation. Access to individual case dockets is the primary means to monitor the course of any particular case. Access to the docket is also the primary means for the public (including the media, academics, and civic groups) to monitor the overall performance of the courts and the administration of justice. The effectiveness of particular laws or court rules is often measured by analysis of court dockets. Moreover, legislative decisions regarding the allocation of resources to the judicial branch of government are based in large part on statistical analysis of docket activity. When permitted by law or statute, certain court documents may be sealed and certain proceedings may be closed to the public. However, it does not follow that corresponding dockets should be sealed, either in whole or in part. The existence of a case itself should never be kept secret, and whenever particular documents or proceedings are to be sealed, docket entries referencing that sealing should be made to give the public adequate notice. On rare occasions, docket entries could reveal information that would jeopardize the privacy or confidentiality interests of parties involved. Statutes and court rules restrict public disclosure of particular types of information that might appear in docket entries, such as Social Security numbers or the names of minors. However, the restrictions imposed by such statutes and court rules do not justify the sealing of the docket itself. Rare circumstances may justify the temporary redaction of particular information in docket entries to prevent the destruction of evidence or the loss of a remedy. When such redaction is required a judge should make appropriate findings of fact and conclusions of law in an order that should be noted on the docket and should expire by its own terms when the circumstances justifying the order have passed. 62. See F ed. R. C iv. P. 79(a). 63. See e.g., Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 93-94 (2d Cir. 2004).

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Many courts include narrative “minute entries” or summaries of proceedings directly on the docket when the proceeding generates no document. Clerks who compose such narrative entries should be careful not to include sensitive or confidential information explicitly restricted by statute, court rule, or order. A narrative entry that must be redacted or sealed should be composed as a separate document and placed in the case file, and an appropriate entry made on the docket.

Best P r actices 1. The public should be given access to the docket except in the most compelling circumstances. Even if the merits of a case warrant issuance of a sealing order, the case must still be assigned a docket number and a docket index itself must be accessible to the public. 2. The identity of the judge to whom a case has been assigned should appear on the docket under all circumstances, as should the identity of counsel. 3. “Procedural” events should appear on the docket for public review. These include, for example, the nature of the case, the payment of the filing fee, and notations that motions have been made or affidavits filed. 4. There may be circumstances under which parts of individual docket entries should be sealed. If so, the existence of a sealing order based on findings of fact and conclusions of law should be reflected on the docket. 5. Care should be exercised to distinguish between situations in which a document or proceeding is sealed, and the extremely rare instances in which the corresponding docket entries should also be sealed.

E x amples 1. A plaintiff seeks to file a trademark infringement action against a defendant and seeks an immediate ex parte seizure order. The plaintiff is aware that the defendant monitors the filing of suits against it. The plaintiff presents the complaint and the ex parte motion for a seizure order, arguing that if the defendant knows the existence of the litigation it will destroy or transfer the infringing products to an unknown location. Convinced that the standards for both the ex parte seizure order and a sealing order are met, the judge endorses the seizure order and dictates a temporary sealing order, reciting her findings of fact and conclusions of law. The complaint and orders are filed with the clerk, with instructions to assign the case a number and docket it with only the number, judge’s name, entries for a complaint and seizure order under seal, and an entry for a temporary sealing order. The temporary sealing order is set to expire upon execution of the seizure order or after a reasonable period of time. 2. An infant plaintiff, by his guardian, commences a declaratory judgment action against an insurer that issued a homeowners’ policy to the infant plaintiff’s grandfather. The infant alleges that, while visiting his grandfather’s home on various occasions, he was sexually assaulted by the grandfather. The infant seeks a declaration that the grandfather’s acts fall within the policy coverage. The case is assigned a “John Doe” plaintiff name, in accordance with local practice regarding the identity of minors. The insurance company is named as defendant. The docket includes the names of counsel and of the judge and routine procedural entries. The complaint appears on the docket with the notation “Under Seal,” followed by an entry for the sealing order. The sealing order, which is not itself under seal, states that the judge, after reviewing the complaint and hearing from counsel, finds that the allegations in the complaint involve a minor and include matters of a sensitive and private nature, which should be confidential and protected from public disclosure by the court and counsel, in the best interests of the child.

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3. A plaintiff in a patent infringement action has moved for summary judgment against the defendant. As part of that motion, the plaintiff has submitted the affidavit of an expert economist containing financial information that is proprietary to the plaintiff and which, if made public, would have adverse competitive effects on the plaintiff. The motion for summary judgment is filed and the affidavit is filed separately under seal. Both filings are noted in the docket, including the name of the affiant expert.

Principle 3: There is a qualified right of access to judgments, judicial opinions and memoranda, and orders issued by a court that can only be overcome in compelling circumstances. The public has a qualified right of access to judgments, judicial opinions and memoranda, and court orders. Public access to opinions and orders is essential to public understanding and monitoring of the judicial process.64 Access by the legal community to court opinions is essential to the development of the common law and stare decisis, which depends on the application of precedent as expressed in court orders, judgments, and the reasoning articulated in judicial opinions and memoranda. Absent a clear showing of a compelling interest In considering whether to seal a that can only be protected by imposing settlement, then, a court might confidentiality restrictions, access to judgappropriately distinguish between ments, judicial opinions and memoranda and court orders should not be restricted. settlement information that would If restrictions on access are found to be not exist but for the settlement and essential, those restrictions should be narrowly crafted so as to impose no greater “adjudicative� facts that may be restriction on public access than is necesrelevant to the underlying merits sary to protect the interest at stake. of the settled controversy. Courts and attorneys must balance the need for access with the legitimate interests of the parties in privacy and confidentiality. Court documents should be written with the presumption of public access in mind, and with the understanding that de facto restrictions on access arising from the difficulties of retrieving physical files have been largely eliminated by technology. Consequently, judges and law clerks should not include unnecessary confidential information in filed documents. Attorneys who submit proposed orders for a judge’s signature should also exercise similar editorial judgment. When information restricted by a statute or court rule must be included in a document, or when courts are presented with confidential information that must be incorporated in rulings, an unredacted version should be filed under seal and made available to the attorneys and parties in the case. A redacted version should be filed for public access, with an explanation of the reason for the redactions. The sealing of an entire document, or the filing of a redacted document under circumstances not addressed by a statute or court rule, must be based on a finding by the judge, available in the public record, that the necessity for restricting public access to the document in question overcomes the presumption of public access to judicial decisions in that particular instance. 64. See Republic of the Philippines supra note 43, 663-64 (3d Cir. 1991); In re Continental Illinois Securities Litigation, 732 F.2d 1302 , 1308-09 (7th Cir. 1984).

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Best P r actices 1. Judges should include in opinions and orders a full discussion of the facts relevant to their decisions, guided by the consideration that the purpose of opinions and orders is to provide to litigants, lawyers, the public, and appellate courts reasoned explanations for their decisions. Courts should avoid including information, the public disclosure of which may be harmful to a litigant or a third party. If there is a compelling reason to include such information in opinions or orders, courts should consider redacting or sealing the information the disclosure of which would be harmful to a litigant or third party. 2. When a court includes information restricted by statute, court rule, or an existing sealing order in an opinion or order, the court should issue both a redacted document, as to which there will be public access, and an unredacted document that will be filed under seal. 3. If an opinion, memorandum, order, or judgment is to be sealed in part or in whole, the judge should set forth findings of fact and conclusions of law that will be available for public access, including a discussion of the right deemed to be threatened by public access to the full opinion, the lesser restrictive alternatives to sealing the court considered, and why these were rejected. 4. The court should review its decision to seal an opinion, memorandum, or order, upon request by the parties or a third party intervenor, or upon the occurrence of changed circumstances. The sealing order should be vacated if and when the grounds justifying the sealing order no longer exist.

E x amples 1. A business entity commences an action against a competitor for the theft of information utilized by the plaintiff in a manufacturing process. The plaintiff’s manufacturing process is proprietary and is a closely guarded secret. For the purpose of ruling on a motion for summary judgment, the judge must compare both parties’ manufacturing processes in an opinion. The judge files a brief summary judgment order for public access, together with a finding that the manufacturing process constitutes a legally protected trade secret and that public access to the accompanying opinion would compromise the plaintiff’s legal interest. The opinion is filed under seal. 2. Same facts as Example 1 above. The theft is alleged to have been committed by a former employee of the plaintiff who became employed by the defendant, and the defendant has not yet established its own manufacturing process. The relief sought by plaintiff is solely injunctive in nature. The judge, ruling on a motion for a preliminary injunction, addresses whether the former employee had access to the plaintiff’s information and the likelihood of the plaintiff’s success on the merits of the case, but carefully avoids describing the information in detail in the opinion and order. 3. Same facts as Example 1 above. The opinion issued by the judge totals thirty pages addressing a number of facts and legal issues, and the detailed comparison of the parties’ manufacturing processes appears on only three pages. A sealing order covering all information about the manufacturing process, based on findings of fact and conclusions of law, is already in place in the case. The judge files the full opinion under seal and a redacted opinion, referencing the existing protective order, for public access. 4. An insurance broker brings an action against an insurer, alleging that she is owed commissions on the sale of the insurer’s products, and that other brokers were paid at a higher rate than she was. During discovery, the parties stipulate to a protective order for the production of records of commissions paid by the defendant to other brokers.

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Both parties move for summary judgment and include in their papers the records of commissions paid to other brokers. In ruling on the motions, the judge does not treat the commission information as confidential, as the protective order applied only to non-filed discovery materials and no showing has been made to justify sealing.

Principle 4: Notice of motions to seal and supporting materials should be reflected in the publicly accessible docket. The public has a qualified right of access to all papers, including briefs, submitted in support of and in opposition to motions filed with the court that address non-discovery matters. Consequently, motions to seal documents should be rare and made only when there is no feasible alternative. However, in some circumstances, papers filed with the court may contain information that implicates legitimate privacy or confidentiality interests, or otherwise warrants redaction or sealing, and may be proper subjects for a sealing order before filing. In the absence of court rules or orders specifying procedures for the filing of materials under seal, the parties themselves should agree to a procedure under which a party intending to publicly file papers or information which has been subject to a sealing or protective order, or intending to file under seal any new material, informs the other party in a timely manner of that intent, thus allowing the other party opportunity to object, consent, or confer on the appropriate confidentiality status of the material. A court is not required to give particularized notice to any specific constituency when deciding a motion to seal.65

Best P r actices 1. As stated under Principle 1, attorneys should take reasonable steps to minimize the use of confidential information in motions, proposed orders, or briefs, so as to minimize the need to redact or seal such documents. The inclusion of attachments, such as discovery material produced under a protective order, should likewise be minimized, and when necessary, should be presented in such a manner as to facilitate the temporary filing of only the protected attachments, and not the whole document, pending resolution of a motion to seal. 2. Attorneys who intend to submit a motion discussing or attaching material designated by another as confidential or subject to seal should inform the designating party of their intent to file the material and ask the designating party to promptly respond and confirm whether that party continues to contend that the material merits confidentiality. 3. For cases in which the parties are unable to agree upon what, if any, information should be included in any public filing, and in all cases in which new pleadings, substantive motions, and accompanying materials are submitted with the intention of being filed under seal, the court should permit (by way of local rule, standing order, or in a protective order under Rule 26(c)) a party to temporarily file the material with the court under seal, thereby providing notice to all parties of the intended action without compromising the purported private or confidential nature of the material itself, pending a prompt ruling on confidentiality.

E x amples 1. A plaintiff intends to file a motion for summary judgment in 14 days, which will include documents obtained from the defendant through discovery and designated by the defendant as confidential under a stipulated protective order. The plaintiff may inform the defendant of its intention to include specified documents in an upcoming filing and request that the defendant file a motion to seal the material in advance of the filing date. 65. See Webster Groves Sch. Dist. v. Pulitzer Publ’g Co., 898 F.2d 1371 (8th Cir. 1990).

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If the defendant files the motion to seal, the plaintiff temporarily files its summary judgment motion and the accompanying documents with the court, pending a decision on the defendant’s motion to seal. If the defendant does not move to seal in advance of the filing, the plaintiff still temporarily files its summary judgment motion and the accompanying documents but also files a motion seeking a court order that the summary judgment motion be filed publicly and that defendant’s confidentiality designation be removed. If the defendant does not respond or object, defendant will be deemed to have waived the confidential designation, the designation will be removed, and the summary judgment motion with the supporting documents will be publicly filed. 2. The same facts as above, except that the plaintiff agrees that the documents merit sealing. The plaintiff drafts its summary judgment motion, brief, and supporting declarations, limiting its use of confidential material and reference to confidential facts. It temporarily files its motion and accompanying materials with the court along with a motion to seal, and submits a redacted copy of the summary judgment motion and brief intended for public filing. The court reviews the documents proposed to be sealed and the documents proposed to be redacted, and rules upon the motion to seal.

Principle 5: Nonparties may seek leave to intervene in a pending case to oppose a motion to seal, to have an existing sealing order modified or vacated, or to obtain a sealing order. Courts have recognized that the members of the public have standing, and grounds to intervene, to obtain access to documents filed with a court under seal. So too, nonparties who have an interest in privacy and confidentiality of materials filed with the court and available to the public also have standing to independently seek to seal such materials. When the parties agree to secrecy or limitations on disclosure based upon interests that may be narrower than those of nonparty intervenors, the court is not likely to have the benefit of the adversary process in making its decision. In such circumstances, courts have the discretion to grant nonparties permission to intervene for the purpose of opposing a pending motion to seal, or moving to have an existing sealing order modified or vacated.66 The proposed intervenor should demonstrate good cause for the intervention and that it has moved to intervene without undue delay. The court issuing a sealing order retains jurisdiction to entertain motions to modify or vacate the order after a case is closed.67 Appellate review exists for a trial court order addressing a motion to intervene and to modify or vacate a sealing order, although federal courts are split as to whether the proper “vehicle” is a mandamus petition or an appeal under 28 U.S.C. § 1291.68 Whatever the vehicle, “all circuits that have considered the issue have found appellate jurisdiction ... under one doctrine or the other.”69

66. Cf. Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 1989). 67. See Gambale, supra note 46 (court retains jurisdiction over its own records, and may modify or vacate a sealing order after a case is closed.). 68. See Virginia Dept. of State Police v. Washington Post, 386 F.3d 567, 574 n.4 (4th Cir. 2004); United States v. McVeigh, 119 F.3d 806, 809-10 (10th Cir. 1997); Bank of America Nat’l Trust and Savings Ass’n v. Hotel Rittenhouse Assoc., 800 F.2d 339, 341 n.2 (3d Cir. 1986). 69. McVeigh, 119 F.3d at 810.

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Best P r actices 1. The entry of a motion to seal on the docket reasonably in advance of a hearing or decision provides adequate public notice that the court may seal party filed documents, 2. Interested persons who make an appropriate showing under Fed. R. Civ. P. 24(b) should be permitted to intervene to oppose, seek modification of, or seek vacatur of a sealing order. 3. Orders regarding motions to intervene and motions to modify or vacate sealing orders should be subject to immediate appellate review under the collateral order doctrine or any other appropriate procedural mechanism.

E x amples 1. Company A wishes to file a motion for summary judgment including financial materials it obtained through discovery pursuant to a protective order. Company A files a motion to seal in advance of or concurrently with its motion for summary judgment. The allegedly confidential material is temporarily filed under seal with the court pending a decision on the motion to seal. The motion to seal and the temporary filing under seal of the financial materials appear on the court docket. The local newspaper, which has been reporting on the case, moves to intervene to oppose Company A’s motion to seal. The motion to intervene should be granted. 2. Same facts as in Example 1, and Company A obtains the order sealing material in connection with its summary judgment motion. Several months later a litigant in another action involving Company A discovers the sealing order and believes that the subject financial materials are relevant to the new action. The litigant’s attorney moves to intervene and unseal the records. The court grants the motion to intervene. Subsequently, the court may, in its discretion, grant or deny the collateral litigant access to the sealed materials.

Chapter 2 Selected Bibliography Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (2d Cir. 2004) (addresses common law right of access to docket sheets). In re Application of Dow Jones & Co., Inc., 842 F 2d 603 (2d Cir), cert. denied, sub nom. Dow Jones & Co. v. Simon, 488 U.S. 948 (1988) (entry of a protective order may give rise to redressable injury). North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198 (3d Cir. 2002) (analyzes media claim of access to “special interest” deportation proceedings under “experience and logic” test of Richmond Newspapers, 448 U.S. 555 (1980), and denies access; notes that some courts of appeals have extended First Amendment right to civil trials). Virginia Dept. of State Police v. Washington Post, 386 F.3d 567 (4th Cir. 2004) (discusses distinction between First Amendment and common law rights of access and between summary judgment and discovery materials for purposes of access; discusses criminal investigation as compelling interest). In re Washington Post Co., 807 F.2d 383 (4th Cir. 1986) (extends common law right of access to documents submitted with regard to proceedings that fall within that right; reminds district courts to follow “procedural requirements” set out in earlier circuit decision). Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002) (conducts same analysis as North Jersey Media Group, cited above; reaches opposite conclusion). Webster Groves School Dist. v. Pulitzer Publishing Co., 898 F.2d 1371 (8th Cir. 1990) (upholds limitation on access to civil proceeding involving juveniles; does not decide whether R ey nolds C ourts & M edia L aw Jour nal

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First Amendment right of access extends to civil proceedings, but applies common law standards; holds that procedural information on docket should not have been sealed). Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304 (11th Cir. 2001) (discusses right of access to sealed materials under First Amendment, common law and Rule 26(c); distinguishes between discovery motions and “merits” motions for purposes of access).

If parties voluntarily elect to file their settlement agreement in order to facilitate its subsequent enforcement, their action may create a judicial record, trigger a presumption of public access, and forfeit the confidentiality of the settlement.

United States v. Valenti, 987 F.2d 708 (11th Cir. 1993) (affirms authority of district court to seal bench conference and articulate reasons later to satisfy a compelling interest; holds “dual-docketing system” unconstitutional). Rule 5(d), Federal Rules of Civil Procedure (discovery materials not to be filed until “used in the proceeding” or until the court orders filing). Rule 79, Federal Rules of Civil Procedure (requires maintenance of “civil docket” and chronological listing of entries thereon).

Rule 412(c), Federal Rules of Evidence (provides for sealing of documents and in camera hearing on requests to use sexual conduct evidence). United States District Court, District of New Jersey, L. Civ. R. 5.3 (establishes comprehensive procedures for electronic filing, including motions to seal). United States District Court, District of South Carolina, L. Civ. R. 5.03 (establishes procedure for motions to seal).

Chapter 3. P roceedings

in

Open C ourt

Principle 1: The public has a qualified right of access to trials that can only be overcome in compelling circumstances.

Public access to trials70 on the merits reflects a long tradition in the United States. Trials have long been considered open to the public. Public access to trials is essential to the monitoring and oversight of the judicial process. Public access also allows the public to share the “communal” experience of the trial. Constitutional and common law rights of access compel the conclusion that trials are at the heart of the right of public access both for historical reasons and to vindicate concerns for the legitimacy and accountability of the judicial system. Legitimate interests exist that may justify narrow restrictions on public access to trials. For example, governmental interests exist in protecting certain types of information, such as those pertaining to classified national security information, undercover operations, and confidential informants. Privacy interests, such as those related to juveniles and to sensitive medical information, may justify limited trial closure in some contexts. Property interests also exist which may warrant restrictions, such as those related to trade secrets. Moreover, the judicial system itself may, as an institution, require a limited restriction on immediate public access for purposes of, for example, “sidebar” conferences. 70. As used herein, “trials” encompasses jury and nonjury trials as well as any judicial proceeding in court or on the record, except those conducted in camera.

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The United States Supreme Court has established a right of public access to criminal trials derived from the First Amendment. The Court has also established standards that govern any restriction of public access to criminal trials.71 Similar considerations apply to civil trials. A party seeking to restrict public access to a civil trial should demonstrate a substantial likelihood that a compelling interest will be prejudiced by allowing public access and that no alternative other than closure can adequately protect the threatened interest. Any restriction on public access ordered by the court should be narrowly tailored. The trial court should also make findings of fact and conclusions of law adequate to justify the closure.

Best P r actices 1. Closure of a civil trial on the merits is extraordinary and should be permitted only in rare circumstances where compelling interests leave no alternative. 2. Any closure must be no broader than absolutely necessary, and should be strictly limited to that portion of the trial that requires closure. 3. Alternatives to complete closure should be employed whenever possible. For example, counsel and witnesses may be directed to avoid references to particular facts or subjects (if such a direction will not deprive a party of the right to a fair trial) or, if a witness has a legitimate privacy interest justifying protection of his or her identity, testimony may be taken anonymously. 4. If closure is necessary, the court should consider providing access through other means (such as providing the public with a prompt transcript) if this can be done without compromising the compelling interest that required closure. 5. Courts should require parties who contend that closure of a portion of a trial will be necessary to raise the issue through a written motion in advance of trial, to allow the court ample time for consideration, and to permit the full exploration of alternatives to closure (such as orders precluding references to certain matters and/or providing for substitutes for evidence that implicates confidentiality concerns). Such a closure motion should be heard at a hearing duly noticed and open to the public. The hearing on the motion should be recorded or transcribed. 6. Any order of closure should be based on a complete statement of the reasons for closure and of the findings of fact that support the closure order in sufficient detail to allow appellate review. The order should include express findings identifying the compelling interest that requires closure and the reasons why less restrictive alternatives are insufficient. 7. If the interest that led to closure loses its compelling importance with the passage of time, the transcript of the closed portion of the trial should be made available to the public. 8. The need to hold certain brief discussions during the course of a trial outside the hearing of the jury under circumstances where it is impractical to excuse the jury from the courtroom justifies the use of “sidebar� conferences that are inaudible to the jury and the public. Because such conferences involve the discussion and resolution of procedural and substantive issues integral to the conduct of the trial, however, these should remain subject to the right of public access and, absent compelling justification, transcripts of such proceedings should be promptly made available to the public (subject to whatever protections are necessary to keep matters from coming to the attention of the jury). 71. See, e.g., Press-Enterprise Co. v. Superior Court, supra note 10 at 508-10 (1984); Globe Newspaper Co., supra note 10 at 606-07.

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9. Conferences in chambers are occasionally used to address issues that arise in the course of a trial. Because it is not practical to admit the public to in-chambers conferences, the use of such conferences to address the merits of procedural and substantive issues (as opposed to, for example, scheduling matters or other routine discussions of no genuine public interest) should be avoided unless there are compelling circumstances that justify exclusion of the public (for example, where the subject under discussion involves a jury issue that implicates protected privacy rights of a juror). If procedural or substantive issues are discussed in chambers, the proceedings should be recorded and transcripts promptly made available to the public (unless, again, compelling circumstances justify confidentiality). 10. In-chambers proceedings should never be used to prevent public access to trial proceedings that could not be closed to the public if they took place in a courtroom. 11. Any closed trial proceedings must be transcribed or recorded in the same manner as open proceedings, so that access may be provided if the closure order is later reversed, or if the interests that require closure are later waived or no longer require protection.

E x amples 1. On the first day of trial, the attorney for the plaintiff makes an oral application to the court to seal the trial, contending that his client might be embarrassed by public disclosure of “private facts.” No notice of this motion appears on the public docket. The attorney presents no facts to support the likelihood, nature, or extent of the damage his client would suffer by the public disclosure of the “private facts,” and the attorney does not present any reasons why a less restrictive alternative to sealing the trial would not satisfy the concern (for instance, sealing only particular testimony or evidence). Based on these deficiencies, the court denies the application. 2. Consistent with the local rules of the court, a plaintiff files a motion to seal expert testimony that will be offered by both parties in a patent infringement trial. The experts will testify on the damages sought by the plaintiff, and their testimony will be premised on financial data held confidential by the plaintiff. The plaintiff submits an affidavit with its motion, which explains the nature of the data and why it is confidential. The affidavit also explains the competitive harm that will be visited on the plaintiff if the data becomes public. The court hears the motion, makes findings of fact and conclusions of law, and holds that specified portions of the experts’ testimony revealing the financial data will be sealed. The court’s ruling is filed for public review.

Principle 2: The public has a qualified right of access to the jury selection process. Public access to the jury selection process promotes fairness by allowing the public to verify the impartiality of jurors, who are key participants in the administration of justice. Moreover, public access enhances public confidence in the outcome of a trial because public access assures those who are not attending that others may observe the trial. Public access also vindicates the societal concern that wrongdoers are brought to justice by individuals who are fairly selected to be jurors. Consistent with these interests, courts should not conceal from the public information that might bear on the ability of jurors to decide the matter before them impartially. Public access fosters discussion of government affairs by protecting the full and free flow of information to the public.

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There may be circumstances in which some restriction to public access is necessary to ensure the safety or well-being of individual jurors, or to address personal privacy concerns.72 In certain civil cases, courts may order that access to juror identities be limited or deferred to protect the safety of jurors, or to ensure their verdict is a product of the evidence admitted at trial rather than outside interference.73 Various interests are cited in opposition to public access to the juror selection process. These interests include juror privacy, ensuring that an adequate number of persons are willing to serve as jurors, protection of the integrity of the jury system and avoiding a circuslike atmosphere. But the difficulty in attracting qualified jurors, or the fact that a trial may be the subject of intense media coverage, are insufficient reasons to deny public access to the jury selection process. These reasons would render the right of access meaningless— the very demand for openness would defeat its availability. Thus, personal preferences of jurors, a judge’s unwillingness to expose jurors to press interviews, or a judge’s concern that jurors may disclose what transpired during deliberations do not, by themselves, warrant anonymous juries or restrictions on public access. The qualified right of public access to the jury selection process does not extend to the deliberations of jurors, which traditionally occur in secret. In the case of jury deliberations, that secrecy is reinforced by substantive evidentiary rules that prevent jury verdicts from being impeached by testimony concerning the jury’s internal deliberations in most instances. However, in cases in which the conduct (or misconduct) of the jury itself becomes an issue that is the subject of testimony and/or other proceedings before a court, such proceedings, like other trial proceedings, are subject to the right of public access and should remain confidential only if compelling reasons (such as legitimate interests in juror privacy or in protecting a criminal investigation) justify confidentiality. Concealing a juror’s misconduct is not by itself a legitimate privacy concern. While a court may take steps to prevent remaining jurors from being tainted by such proceedings, that is not in itself a reason for denying public access; rather, the steps to be taken should be similar to those used by the court to prevent jurors from having access to other possibly prejudicial information about a case (i.e., instructions to avoid news coverage or, in some cases, sequestration).74 Courts may limit an attorney’s or party litigant’s ability to interview jurors regarding their verdict or deliberations, or may require a showing of good cause before allowing such post-verdict interviews. Such orders do not themselves implicate the public’s right of access to any public information, but only limit the behavior of lawyers and litigants. However, courts ordinarily should not limit the public’s ability to interview jurors after the conclusion of a trial.75 72. F ed. R. C iv. P. 5.2, proposed at the time the Guidelines were written but not yet adopted, mandates that certain personal identifiers be redacted from documents filed with the United States Courts. Neither the text of the proposed rule nor the Advisory Committee Notes explicitly address documents created or filed by the courts themselves, such as juror information. While redaction of personal identifiers from juror information may be considered consistent with the overall intent of the proposed rule, redaction of such information by court personnel is inconsistent with the intent of the Advisory Committee to place such duties on litigants and counsel. 73. See Richmond Newspapers, Inc., supra note 7; In re Globe Newspaper, 920 F.2d at 94; In re Baltimore Sun Co., 841 F.2d 74 (4th Cir. 1988); Sullivan v. Nat’l Football League, 839 F. Supp. 6 (D. Mass. 1993). 74. See United States v. Edwards, 823 F. 2d 111 (5th Cir. 1987). 75. Compare In re Baltimore Sun Co., 841 F.2d at 75-76; State v. Neulander, 801 A.2d 255 (N.J. 2002), and In re Express News Corp., 695 F.2d 807, 810 (5th Cir. 1982); United States v. Antar, 38 F.3d 1348,

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Best P r actices 1. Empanelling an anonymous jury or closing jury voir dire (“jury secrecy� procedures) are extraordinary and should be undertaken only in rare circumstances where exceptionally important interests leave a trial court with no practical alternative. Although such circumstances have sometimes been found to exist in criminal cases (especially ones involving organized crime), it would be extremely rare for such circumstances to be present in a civil case. If initial questioning of jurors is conducted through written questionnaires, these should be available to the public. 2. Before answering oral or written questions from the court or the parties, potential jurors should be informed about whether and how the court will protect the confidentiality of any information provided. Such procedures help alleviate concerns that the government will compel them to disclose personal or confidential information without adequate privacy protections and thereby ensure that sufficient numbers of citizens will agree to serve and will not avoid service because of privacy concerns. 3. Any jury secrecy order should be no broader than absolutely necessary, should be strictly limited to highly personal juror information that requires protection, and should be entered only on the affirmative request of an individual juror. Alternatives to jury secrecy should be employed whenever possible. 4. If jury secrecy is necessary, a trial court should provide access through other means (i.e., a transcript) if this could be done without compromising the overriding interest that required secrecy in the first place. 5. If the interest that led to jury secrecy loses its overriding importance with the passage of time, a transcript of the closed portion of the jury proceeding or the names of anonymous jurors could be made available to the public upon application to the court by an interested party. Stronger reasons to withhold juror names and addresses (such as jury tampering) normally arise during trial rather than after a verdict is rendered. 6. Trial courts should require parties who anticipate that jury secrecy may be necessary to raise the issue through written motions, to allow a trial court ample time for consideration and to permit the full exploration of alternatives to secrecy (such as change of venue). Such motions should be heard at a hearing duly noticed and open to the public. 7. Courts should freely allow nonparties who oppose jury secrecy to submit papers and make arguments addressing any secrecy motion. Intervention should be liberally granted for this purpose. 8. Any order of jury secrecy should be based on findings of fact that support the secrecy order, including express findings identifying the compelling interests that require secrecy and the reasons why less restrictive alternatives are insufficient. 9. Jury secrecy orders, while appearing to be interlocutory in nature, should be appealable by mandamus or under the collateral order doctrine. 10. Any closed jury proceeding should be recorded and transcribed, so that access may be provided if the secrecy order is later reversed, or if the interests that require secrecy are later waived or no longer require protection.

E x amples 1. In a civil action brought by a government agency against a well-known entertainer, the defendant approaches the court on the first day of trial and requests that the voir dire be sealed. The defendant’s argument is that juror candor in answering questions will be compromised by the attendance of the press. In deciding the motion, the court 1364 (3d Cir. 1994).

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considers if adequate public notice was given that the request would be made. Second, the court considers the proposition that candor might be compromised, noting that the application is solely premised on the defendant’s celebrity status and press coverage. In the absence of a showing of facts supporting the proposition, the court denies the motion. 2. During the jury selection process in a civil action arising out of the sexual abuse of minors, the court advises the prospective jurors that they will be asked during voir dire if they ever experienced or witnessed sexual abuse. Given the nature of such questions and the (presumably) private nature of “yes” answers, the court gives jurors an opportunity to answer at sidebar in the presence of counsel. The sidebar conferences are transcribed. Two jurors state that parents or other relatives sexually abused them. One of these jurors testified about the abuse at a criminal trial. The other never reported the abuse. The judge releases the transcript of the voir dire of the first prospective juror but, after determining that the second juror would suffer psychological harm if the abuse became public, seals the transcript as to her. The judge puts findings of fact and conclusions of law on the record to justify the sealing.

Principle 3: Absent a compelling interest, the public should have access to trial exhibits. The right of public access to trial proceedings includes the right of public access to evidence admitted during a trial, including the testimony that is memorialized in the transcript.76 Admitted evidence should be fully available to the public on a contemporaneous basis, and the standard for sealing evidence should be the same as that for closing a courtroom: That is, only compelling interests may justify sealing, and any order denying access must be based on findings of fact and conclusions of law demonstrating such an interest.77 It must be recognized, however, that logistical problems may foreclose contemporaneous access to trial exhibits in particular cases. This may simply be a question of practicality.78 In such circumstances, the court, the parties, and the person seeking access should confer in an attempt to arrive at a procedure acceptable to all. When circumstances warrant, the public interest may be satisfied by providing access to the trial proceedings when the exhibit is admitted, rather than access to the exhibit itself. When access is sought to evidence introduced through means of novel technology such as computer generated or enhanced imagery, the court may be vested with wider discretion in deciding whether and how access may be allowed.79 Moreover, public access to trial exhibits is inhibited by a prevailing practice in most American trial courts to return trial exhibits to the parties after the time for filing an appeal has expired, or an appeal has been taken and resolved. Because the physical exhibits are not maintained as public records, these are no longer subject to enforceable public access rights.80 76. See Nixon, supra note 49 at 609. 77. The Working Group reached no consensus on a right of public access to excluded evidence. On the one hand, such evidence, by its very exclusion, has been deemed by the judge to be irrelevant to the jury function. On the other hand, access to excluded evidence may allow the evaluation of the judge’s role as “gatekeeper” and the overall fairness of the trial. In addition, evidence marked during trial becomes part of the record on appeal, even if excluded, indicating that appellate courts consider excluded evidence to be part of the adjudicative process. 78. See e.g, In re Application of National Broadcasting Co., 635 F.2d 945 (2d Cir. 1980). 79. See In re Providence Journal Co., 293 F.3d l (1st Cir. 2002). 80. See Littlejohn v. Bic Corp., 851 F.2d 683 (3d Cir. 1988).

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Best P r actices 1. Courts should reasonably and promptly accommodate requests for access to exhibits admitted at trial and not under seal. 2. Providing access to trial evidence so that copies, recordings and/or photographs can be made of the evidence should be routine. Access should be denied only in rare circumstances where compelling interests leave the court with no practical alternative. Any denial of access to trial exhibits should be no broader than absolutely necessary and should be strictly limited to evidence that requires protection. Alternatives to denial of access should be employed whenever possible. 3. A party that intends to request that the court seal evidence it expects to be admitted at trial should make its request by written motion before trial. The court should hear and decide motions to seal admitted trial exhibits after other parties have had time to oppose the request, or nonparties have had time to request leave to intervene to oppose the request. Absent the most exigent circumstances, trial courts should deny any request for denial of access that is not made in time to allow such notice. 4. The hearing on the motion should be recorded. 5. If denial of access is necessary, a trial court should consider providing access through other means (i.e., providing access at the conclusion of the trial) if this can be done without compromising the overriding interest that required denial of access. If the interest that led to denial of access loses its overriding importance with the passage of time, access to trial evidence should be granted at the earliest possible time. 6. Any order denying access to evidence should be based on a complete statement of the reasons for denial and of the findings of fact that support the order denying access, including express findings identifying the compelling interests that require denial of access and the reasons why less restrictive alternatives are insufficient.

E x amples 1. A plaintiff receives documents in discovery from the defendant in a product liability case. Prior to trial, the documents are marked confidential pursuant to a protective order entered in the case, and the plaintiff is prohibited from disseminating them publicly. Plaintiff identifies the documents on an exhibit list exchanged before trial, and during the trial these are marked and admitted in evidence. At no time does the defendant move to have the trial exhibit sealed. The exhibits are available to the public. 2. Same facts as above, except that the trial has ended and the exhibits have been returned to the parties who introduced the exhibits, and the press seeks to obtain copies of the admitted exhibits from the plaintiff. Although the protective order once protected the documents from disclosure, the plaintiffs’ attorney provides the exhibits to the press because they were admitted in open court. The defendant learns of the press’s request and seeks to enforce the protective order to bar the plaintiff from providing the exhibits to the press. The court rejects the defendant’s effort to invoke the protective order because the documents, having been received in evidence in open court, are no longer properly subject to protection. 3. A plaintiff receives documents in discovery from the defendant in a product liability case. The documents are marked “confidential” pursuant to a protective order entered in the case and the plaintiff is prohibited from disseminating them publicly. Plaintiff identifies the documents on an exhibit list exchanged before trial and the defendant requests that the documents only be admitted under seal. The defendant moves before trial to seal the exhibits on the basis that the exhibits contain proprietary information and trade secrets. The court holds a hearing and grants the motion, protecting genuinely proprietary information from disclosure. The court admits exhibits for which no compelling need for protection has been established.

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Chapter 3 Selected Bibliography In re Providence Journal Co., 293 F.3d 1 (1st Cir. 2002) (right of access to attend criminal trial and pretrial proceedings extends to “documents and kindred materials;” defendants’ right to fair trial constitutes compelling interest sufficient to allow restriction of access; common law, but not First Amendment, right of access held to encompass duplication of evidence, but where “cutting-edge technology” in issue, trial court given discretion to accommodate access). ABC, Inc. v. Stewart, 360 F. 3d 90 (2d Cir. 2004) (vacating in part order closing voir dire examination of potential jurors; recognizes that after-the-fact release of transcript no substitute for presence; trial court failed to demonstrate interest in assuring juror candor sufficient to seal and failed to use available alternatives to sealing). Publicker Indus., Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984) (First Amendment and common law rights of access extended to civil proceedings). In re Application of National Broadcasting Co., 635 F.2d 945 (2d Cir. 1980) (common law right of access to inspect and copy judicial records extends to evidence introduced at trial, whether documentary or of other nature, under reasonable procedures to be determined by the court). United States v. Antar, 38 F.3d 1348 (3d Cir. 1994) (presumptive right of access applies to voir dire of examination of potential jurors; concludes that trial court erred in sealing transcript without adequate notice and findings of fact; modifies trial court restrictions on post-verdict interviews of jurors by press).

First, public court records must easily be available to allow for effective public monitoring of the judicial system; and second, private or sensitive information in court files that is not germane to the public oversight role may require protection from indiscriminate public disclosure.

United States v. Simone, 14 F.3d 833 (3d Cir. 1994) (presumptive right of access applies to post verdict examination of jurors into possible misconduct; strikes down closure of examination given failure of trial court to articulate “overriding interest;” after-the-fact receipt of transcripts not equivalent to actual presence). Little John v. BIC Corp., 851 F.2d 673 (3d Cir. 1988) (common law presumption of access applies to documents initially produced in discovery pursuant to protective order and later admitted into evidence at trial, but exhibits returned to party after trial are no longer judicial records and disclosure cannot be compelled). In re Perrigo Co., 128 F.3d 430 (6th Cir. 1997) (injunction prohibiting magazine from publishing materials filed under seal violated First Amendment; umbrella protective order pursuant to which documents filed under seal without good cause determination invalid). United States v. McDougal, 103 F.3d 651 (8th Cir. 1996) (affirms refusal to allow media access to videotaped depositions of President Clinton, although introduced at criminal trial and transcript released; concludes that, under circumstances presented, videotape itself not a “judicial record;” rejects “strong” presumption of access recognized by other circuits and defers to sound discretion of trial court).

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United States v. McVeigh, 119 F.3d 806 (10th Cir. 1997) (First Amendment right of access does not extend to suppressed evidence or evidence inadmissible at trial). Goff v. Graves, 362 F.3d 543 (8th Cir. 2004) (affirms sealing of depositions of confidential prison informants in Section 1983 action; preservation of institutional security and protecting against retaliation are compelling interests to issue protective order and to seal portion of record). 28 C.F.R. § 509 (sets out U.S. Department of Justice policy with regard to open judicial proceedings, civil and criminal).

Chapter 4. Settlements

Principle 1: There is no presumption in favor of public access to unfiled settlements, but the parties’ ability to seal settlement information filed with the court may be restricted, due to the presumptively public nature of court filings in civil litigation. A dichotomy currently exists between open courts and private alternative dispute resolution such as arbitration and mediation. In many cases, parties may be willing or able to waive litigation in favor of such private dispute resolution, where the confidentiality of both the process and its outcome can be contractually assured. Similarly, litigants possess broad discretion to contract privately for confidentiality as a condition to settling even litigated disputes. In such cases, confidentiality, like other settlement terms, becomes a matter of private agreement to be enforced pursuant to applicable contract law. There is a strong public policy in favor of settlement. Confidentiality of settlement terms is generally believed to encourage such settlements, and in the majority of cases, the parties need not make their settlement public by filing it with the court. Courts will generally enforce private confidentiality agreements so long as they merely restrict the voluntary disclosure of information and do not prohibit disclosures required by law or court order. Because the agreements can be reached without any judicial involvement, and the settlement itself is rarely filed with the court, these confidential settlements do not implicate any right of public access.81 In many cases, however, a confidential alternative to litigation may not be available to disputing parties. Likewise, settling parties may not wish to rely solely upon private agreement to ensure confidentiality and may choose instead to more deeply involve the court in their confidential compromise.82 In utilizing a public court to resolve their dispute or enforce its confidential settlement, the litigants invoke the jurisdiction of a forum that is subject to public oversight and monitoring. As such, confidentiality may no longer be a matter within the exclusive control of the parties. Confidentiality agreements between the parties regarding settlement do not bind the court, and if the parties wish to file their settlement agreement under seal, the court must exercise independent judgment and comply with applicable legislative and judicial standards83 before issuing any sealing order incident to a settlement.84 81. See Gambale , supra note 46; Herrnretier v. Chicago Housing Authority, 281 F.3d 634, 636-37 (7th Cir. 2002); Pansy v. Borough of Stroudsberg, supra note 27, at, 781, 788-89; Laurie K. Doré, Settlement, Secrecy, and Judicial Discretion: South Carolina’s New Rules Governing the Sealing of Settlements, 55 S.C. L. R ev. 791, 799-800 (2004). 82. See Doré at 801-04. 83. See Chapter 4, Principle 2 below. 84. See Gambale at 139-42 (2d Cir. 2004).

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Although contract doctrine in some jurisdictions may invalidate confidentiality clauses that are illegal, unconscionable, or contrary to public policy, a strong and well-established public policy favors alternative dispute resolution (ADR) and the private settlement of disputes. Thus, notwithstanding the potential public interest in the resolution of disputes involving statutory or public rights (i.e., consumer or employee claims) or public health and safety, little public oversight of confidentiality in alternative dispute resolution or private settlement currently exists. Attorneys should thus ensure that their clients are fully aware of all available public and private dispute resolution processes and advised that confidentiality cannot be expected or assured in a public forum.

Best P r actices 1. At or before the commencement of litigation, attorneys should confer with their clients to determine whether private dispute resolution is available and would be preferable to traditional litigation in the courts. Among other things, attorneys should present these options to clients in the context of the clients’ needs or desires to maintain confidentiality. 2. Attorney should discuss with clients that certain disputes present “classic� matters for private resolution, such as breach of a commercial contract between business entities. In contrast, other disputes, such as those brought by individual consumers or employees to vindicate statutory rights or involving public entities or officials, may not be appropriate for private dispute resolution given the public interest in their resolution. 3. In discussing the above options with clients, attorneys should also discuss the available mechanisms for enforcement of any breach of confidentiality by adversaries.

E x amples 1. Two parties to a commercial agreement include in that agreement a provision for mandatory arbitration or mediation. The agreement provides for a sale of goods by one party to the other. No public health or safety concerns are implicated. Under these circumstances, there is no need for public oversight of the dispute resolution process and the parties may ensure confidentiality through contract. Enforcement of any settlement would be through contract law principles. 2. An individual receives telecommunications services from a large business entity. The consumer, under the terms of a standard agreement that was mailed to him, is required to arbitrate any future dispute that he has with the business entity. Under the terms of a confidentiality provision in the arbitration agreement, no public access is available to the facts or nature of the dispute, the arbitration proceedings, the terms of any award or settlement, or the services rendered by the arbitrator in this particular case. This dispute, which may implicate the rights of similarly situated consumers, involves statutory claims that have both remedial and deterrent objectives and that arguably implicate a public interest broader than the immediate parties. The confidentiality of this alternative forum raises policy concerns absent from Example 1 and not addressed by the Working Group. 3. A business entity intends to commence an antitrust action against a competitor. Rather than proceed to litigation, the parties agree to arbitrate or mediate. A settlement is reached under which the competitors agree to divide markets on a geographic basis, in violation of antitrust laws. A startup company formed by former employees with knowledge of the confidential settlement agreement files suit, alleging that the settlement violates antitrust laws. The settling parties should not have any expectation that the confidentiality of the settlement will be maintained, inasmuch as the legality of the settlement itself has been questioned and is relevant to the action.

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Principle 2: Settlements filed with the court should not be sealed unless the court makes a particularized finding that sufficient cause exists to overcome the presumption of public access to judicial records. Parties that resort to a public forum and that enter into a settlement thereafter may have legitimate interests that warrant confidentiality. However, given the public right of access to public forums, sealed settlements should be the exception and not the norm. Courts should assure that settlements that are filed with the court are not sealed unless good cause exists; and unless specific findings of fact and conclusions of law are made and are available for public review. Attorneys who choose to file a settlement with the court should not seek to seal that settlement unless they are satisfied that such a showing can be made. Advocates of this position observe Courts are public forums. As discussed in Chapter 2, there is a presumption of access to that unrestricted Internet access courts and to information filed with courts, undoubtedly would compromise including settlement agreements. Thus, information considered to be confidential by privacy and, in some situations, could parties and filed with courts may, by the act of increase the risk of personal harm filing, become public records subject to public to litigants or others whose private access.85 This presumption of public access, however, is arguably weaker (and thus more information appears in case files. easily rebutted) for “settlement facts” that relate to the specific terms, amounts, and conditions of a settlement involving nongovernmental, private litigants than the presumption that attaches to information more central to the adjudicatory function of courts.86 In considering whether to seal a settlement, then, a court might appropriately distinguish between settlement information that would not exist but for the settlement and “adjudicative” facts that may be relevant to the underlying merits of the settled controversy. Parties may have legitimate interests in the confidentiality of all or part of a settlement. Parties may also have justifiably relied on a promise of confidentiality in entering into a settlement. At the same time, however, a sealed settlement may affect the interests of the general public and collateral litigants. To overcome the presumption of public access, then, parties must establish sufficient cause and satisfy applicable tests established by legislatures and courts to govern the sealing of a settlement, in whole or in part. In addition, the judge should make specific findings of fact and conclusions of law on any application to seal a settlement to determine whether the presumption of public access has been overcome. Despite resort to a public forum, the parties may elect to avoid any question of access to the terms of a settlement by choosing not to file it. For example, parties may enter into a settlement agreement and then file a voluntary dismissal under Fed. R. Civ. P. 41(a)(1). Such a dismissal requires no judicial action and the settlement agreement would not be submitted to the court. Alternatively, a party could move for dismissal under Fed. R. Civ. P. 41(a)(2), the resolution of which does not require approval of any settlement agreement. Under either procedure (or their state equivalents), the settlement agreement does not become a public record. The unfiled settlement will not trigger any presumption of public access and will instead have the status of any other private contract.87 85. Jessup v. Luther, 277 F.3d 926 (7th Cir. 2002); Bank of America Nat’l Trust & Savings Ass’n, supra note 68. 86. See Gambale, supra note 46at 143-44 (distinguishing between settlement amount and summary judgment documents). 87. Compare SmithKline Beecham Corp. v. Pentuch Group, P.L.C., 261 F. Supp. 2d 1002, 1004-08 (N.D.

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Settlements that are both filed and sealed appear to be infrequent, at least in federal courts.88 Confidential settlements, however, are more common and of broader concern. Parties are largely free to agree between themselves to confidentiality provisions in settlements. If the parties enlist the court’s assistance concerning the settlement, however, the court should independently scrutinize any confidentiality provision. For example, the parties may request that the court retain enforcement jurisdiction to oversee the fulfillment of the settlement terms, or they may file a separate action for specific performance of the settlement or to recover damages for its breach. In such cases, the court should not enforce any nondisclosure or confidentiality provision that is not supported by a specific and sufficient showing of good cause.

Best P r actices 1. Before attempting to seal a settlement, attorneys should confer with their clients to ensure that legitimate privacy, commercial or similar confidences exist that warrant confidentiality. 2. When negotiating the terms of a settlement, attorneys should confer among themselves with regard to any need for confidentiality and attempt to reach agreement on legitimate grounds for confidentiality. 3. Attorneys should not seek to seal settlements unless they are satisfied that grounds exist for a sealing order. 4. In considering whether to seal a settlement or enter a confidentiality order incident to a settlement, courts should distinguish between “settlement facts,” such as the amount, terms and conditions of a compromise, and “adjudicative facts” that are relevant to the merits of the underlying controversy. The former, which arise out of the settlement process itself, might warrant a sealing order. Care should be taken in extending any such order to the latter so as to avoid suppressing information relevant to other cases, public health or safety, or other legitimate public interest. 5. In negotiating a confidential settlement agreement, attorneys should incorporate into any confidentiality provision an explicit exception for disclosures required by law or court order.

E x amples 1. An individual plaintiff and a corporate defendant have entered into a settlement of a personal injury action. The defendant, as a matter of corporate practice, does not reveal the monetary amount of any settlements. The defendant insists, and the plaintiff agrees, on a confidential settlement. The parties do not contemplate filing the settlement with the court, as there is no basis for a sealing order. 2. An individual plaintiff and a corporate defendant have entered into a settlement of a personal injury action. The defendant settled to avoid the publication of internal documents at trial and on the express condition that the amount of the settlement would be confidential. The parties want the terms of the settlement embodied in an order by which the court retains jurisdiction to enforce the settlement. They move to seal the settlement. While the settlement itself would be presumed to be a public document if filed, the presumption of public access is weak as to the amount of the settlement. The court seals only the amount of the settlement. Ill. 2003) (Posner, C.J., sitting by designation) (alleged illegality of settlement agreement not subject to review under either procedure) with FombyDenson v. Department of the Army, 247 F.3d 1366, 1374-75 (Fed. Cir. 2001) (declining sua sponte to enforce confidential settlement agreement as contrary to public policy). 88. R. T. Reagan, et al., supra note 3.

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3. An individual plaintiff who developed certain software is in litigation with a corporate defendant. The litigation arises out of the corporate defendant’s alleged failure to develop and market new applications arising out of the software. The parties enter into a settlement agreement. The terms of the settlement provide for the parties to share source codes of the defendant’s applications. Both parties, who are in a very competitive field of business, deem the source codes highly confidential. The parties agree that the settlement should be confidential. Neither party trusts the other and both contemplate injunctive relief and contempt should the source codes be misused. They agree to file a motion to seal the settlement. The source codes are described in detail so that there can be no misunderstanding of the scope of the settlement in any future enforcement action. The court issues an order sealing only that part of the settlement that reveals the source codes.

Principle 3: Settlement discussions between parties and judges should not be subject to public access. Courts primarily exist to resolve disputes. Disputes may be resolved in a number of ways, including settlement. A strong public policy supports settlement and the “just, speedy, and inexpensive determination of every action.”89 Thus, judges should be expected to encourage settlement and to participate in settlement discussions. Judges are public officials, however, and, as such, are subject to oversight and monitoring by the public. Thus, when a judge participates in settlement discussions between the parties or is otherwise “injected” into the settlement process, the judge’s actions are arguably subject to public monitoring and oversight. The desire or need for such oversight and monitoring may be heightened when settlement discussions affect public health and safety. However, several factors argue against public access to settlement negotiations even when they may involve the court. First, settlement negotiations require candor, and public access might discourage a party from revealing information necessary for self-evaluation and compromise. Second, settlement discussions are often conducted on an ex parte basis, where information is exchanged with the judge for settlement purposes only and is never shared with the adversary. Third, and most significantly, in promoting settlement, the judge acts as a facilitator, rather than as an adjudicator. Because the judge is not engaged in “decision-making,” the rationale for public oversight and monitoring is significantly diminished. Indeed, in many cases, the parties may privately settle their dispute without filing their settlement or submitting it for approval or other action by the court. In these cases, the case is dismissed on stipulation. No judicial record exists and the judge has neither the need nor the power to approve or disapprove of the settlement. In such cases, where the judge has no approval role and serves merely as a mediator or facilitator for the parties’ private negotiations, any presumption of public access is weak, if not nonexistent. If public access is to be denied on this premise, however, the judge should take care not to step into a judicial role concerning the settlement. To protect the confidentiality of their settlement, the parties should not file their agreement with the court or seek judicial “approval” of their compromise. If parties voluntarily elect to file their settlement agreement in order to facilitate its subsequent enforcement, their action may create a judicial record, trigger a presumption of public access, and forfeit the confidentiality of the settlement.

89. F ed. R. C iv. P. 1.

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Best P r actices 1. A judge may act as an intermediary or facilitator in settlement negotiations between the parties to a case. Alternatively, the judge may refer the case for confidential, court-annexed alternative dispute resolution such as mediation. So long as the court does not step into an adjudicatory role and the settlement agreement is not filed with the court, no presumption of public access to the settlement discussions or to any settlement agreement will result. 2. Absent a statute or rule which requires otherwise, attorneys should not ask a judge to “approve” a settlement that they wish to keep confidential, file that settlement with the court or request that the terms of the confidential agreement be entered as orders of the court. A judge should not seek to approve a private settlement unless required or requested to do so. 3. In cases where judicial approval of a settlement is legally required (e.g., class actions), or in cases where the parties seek the court’s imprimatur on their settlement so that it can be entered as a consent decree enforceable through injunction, contempt or summary judgment, the settlement must be filed and submitted to the court. In such cases, the settlement agreement becomes a presumptively public judicial record, and proceedings leading to its formal approval are subject to a qualified right of public access. 4. A judge should not sua sponte suggest to the parties that a settlement might be kept confidential. In a case pending in federal court, however, a judge might appropriately suggest, as an alternative, that the court retain jurisdiction to enforce a settlement. 5. If the terms of a settlement are presented to a judge, the judge may express concern about any term that might arguably be illegal, unethical or unenforceable. However, it may be difficult for a judge to independently “police” the provisions of a settlement in this manner, as there will be no adversarial development of any issue.

E x amples 1. The parties to a commercial dispute appear before a judge for a settlement conference. The judge conducts the conference in chambers and engages in ex parte discussions with the parties in an attempt to facilitate a settlement. A settlement is reached. The terms of the settlement are not put on the record and the settlement agreement is never filed. The settlement is private and there is no right of public access. 2. The same facts as Example 1 above, but the settlement is submitted to the court as a stipulation, with a motion that it be adopted by the court as an order. If the judge grants the motion, the judge gives the settlement a public imprimatur and the settlement becomes a public record. 3. The same facts as Example 1 above, but the settlement includes a provision whereby the parties agree to divide their state into districts and not compete with each other in certain districts. The judge cautions the parties of the possible illegality of the settlement and refuses to approve or otherwise facilitate the settlement.

Principle 4: Absent exceptional circumstances, settlements with public entities should not be confidential. Public entities and officials, whether at the federal, state or local level, are public actors. By definition, their actions affect the public, whom they represent. The public thus possesses a significant interest in the monitoring and oversight of public officials and entities, even in litigation. Public entities are generally subject to open public meeting and/or open public record laws. Such laws, which seek to facilitate public monitoring and government accountability, may require disclosure of settlements involving the government or other public entities. Thus, when a public entity enters into a settlement, no expectation of confidentiality should exist, whether or not the settlement is filed with the court. R ey nolds C ourts & M edia L aw Jour nal

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For these reasons, there should be a strong presumption against the confidentiality of any settlement entered into with a public entity or of any information otherwise disclosable under a public records law.90 A particularly strong presumption of public access exists with regard to any monies paid by public entities in settlement. Only exceptional circumstances (such as those involving intimate personal information, the privacy of minors, or law enforcement needs) should warrant the confidentiality of these types of settlements.91

Best P r actices 1. An attorney representing an individual or entity in litigation against a public agency should, before entering into settlement negotiations with the agency, consult with his or her client to determine whether the client has any proprietary or privacy interest in the terms of the settlement for which protections should be sought under applicable public records law or a court order. Absent any such protection, the attorney should caution his or her client against any expectation of confidentiality 2. An attorney representing a public agency should, in the course of settlement negotiations with an adversary, caution the adversary against expecting any confidentiality of a settlement agreement, absent specific exemptions in the public records laws or a court order 3. In determining whether to seal a settlement of a matter involving a public entity or official, a court should carefully consider relevant federal or state law. On the one hand, judges should be hesitant to seal a settlement if the information would be otherwise disclosable under a federal or state freedom of information or open public records statute. On the other hand, information that would be exempt from disclosure under such a law or separate privacy-related statute might merit a confidentiality order.

E x amples 1. A business entity sues a state agency for breach of contract. The action arises out of alleged delay damages incurred by the plaintiff after the defendant agency failed to accept goods on a certain date. The settlement agreed to by the parties includes, at plaintiff’s insistence, a confidentiality provision. No legitimate basis for confidentiality exists. 2. An individual sues a state agency for wrongful disclosure of her private medical information. The defendant agency admits that it erred in disclosing the information. The parties enter into a settlement which, at plaintiffs’ insistence, seals all facts relevant to the suit, including plaintiffs’ medical information. The plaintiffs’ information may be sufficiently confidential to justify sealing the settlement or issuing a confidentiality order.

Principle 5: An attorney’s professional responsibilities may affect considerations of confidentiality in settlement agreements. The obligation of an attorney to maintain a client’s confidences is fundamental to the attorney-client relationship. An attorney must thus take steps to arrive at a settlement that protects a client’s confidential information. Consistent with this obligation, an attorney must take client confidences into account during settlement negotiations and may seek an agreement to limit the voluntary disclosure of confidential information as a condition of settlement. 90. See Pansy v. Borough of Stroudsburg, supra note 27, at 792. 91. See generally, Doré, supra note 81, at 809-10.

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In all settlement negotiations, however, an attorney should consider and adhere to all applicable standards of professional responsibility. For example, certain nondisclosure provisions may violate ethical rules that prohibit restrictions on another attorney’s practice of law. The ethical rules of a jurisdiction may similarly prohibit a settlement that purports These key questions have to restrict an attorney from using information gained in one case in other related motivated courts at both the cases. Additionally, a confidential settlement federal and state levels to begin should not prohibit the disclosure of information required by law or court order. the development of new access An attorney should also recognize that policies in the context of electronic confidential information may concern public health and safety or may affect specific indicase files. viduals (such as collateral litigants). Depending upon the ethical rules of a jurisdiction, attorneys may have limited discretion to reveal confidences when death, serious bodily injury or financial harm is imminent.92 Little guidance exists, however, concerning the factors that an attorney should consider in deciding to exercise this discretion.93 Moreover, unless otherwise required,94 no mandatory duty to disclose exists.

Best P r actices 1. Attorneys should familiarize themselves with applicable ethical rules and substantive law to determine what limitations exist on their negotiating confidential settlements that might include unethical, illegal, or otherwise unenforceable terms. 2. Attorneys should familiarize themselves with applicable ethical rules and substantive law to determine which circumstances may permit disclosure of otherwise confidential information. 3. Regardless of whether ethical rules prohibit a nondisclosure provision or whether an attorney has discretion to disclose a confidence, an attorney should discuss and attempt to resolve any concerns concerning confidentiality with his client.

E x ample 1. The parties to a products liability action are engaged in settlement negotiations. The product at issue is a widely distributed and well-known kitchen appliance. Through study of the defendant’s highly confidential design documents, obtained during discovery under a protective order, the plaintiff learns of the existence of a design defect in the product’s control panel that might cause a fire like that in plaintiff’s case. Plaintiff’s attorney knows of at least four other cases involving fires in the appliance. The defendant insists that it will not settle without a confidentiality agreement. The attorney confers with his client about the proposed settlement and the defendant’s confidentiality demand. The client decides to agree to the settlement and confidentiality demand. Absent an ethical rule or substantive law to the contrary in the jurisdiction, the information would be considered a “client confidence.” The attorney may not voluntarily reveal any information covered by the confidentiality clauses of the settlement agreement. 92. See Model R. Prof. Resp., 1.6(b). 93. See id., Rule 1.6, Comment 6. 94. See, e.g., 17 C.F.R. 205, “Standards of Professional Conduct for Attorneys Appearing and Practicing Before the [Securities and Exchange] Commission in the Representation of an Issuer”

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Chapter 4 Selected Bibliography 28 C.F.R. § 50.23 (policy of the United States Department of Justice with regard to confidential settlements) Eastern District of Michigan, Local Civil Rule 5.4 (placing temporal limit on sealing of settlement agreements) District of South Carolina, Local Civil Rule 5.03 (establishing procedure for motions to seal and barring sealed settlements). Poliquin v. Garden Way, Inc., 989 F.2d 527 (1st Cir. 1993) (recognizing court’s inherent power to modify confidentiality order even after settlement). Gambale v. Deutsche Bank, 377 F. 3d 133 (2d Cir. 2004) (recognizing “weak” presumption of access to settlement amount given reliance on confidentiality and lack of public interest concerning amount). Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994) (holding that because settlement agreement between police chief and borough was not filed with, interpreted or enforced by the district court, it was not a judicial record subject to right of access doctrine: “Simply because a court has entered a confidentiality order over documents does not automatically convert those documents into ‘judicial records’ accessible under the right of access doctrine.” However, court allowed newspaper to intervene to challenge propriety of confidentiality order under state Right to Know Act and Federal Rule 26 and required that “good cause” support any confidentiality order). Zurich American Ins. Co. v. Rite Aid Corp., 345 F.Supp.2d 497 (E.D. Pa. 2004) (vacating an order sealing an arbitration award in corporate governance case, after balancing public policy favoring disclosure against speculative concerns of party favoring secrecy). Ashcroft v. Conoco, Inc., 218 F.3d 288 (4th Cir. 2000) (addressing impropriety of sealing confidential settlement in environmental tort lawsuit involving contaminated drinking water). Ford v. City of Huntsville, 242 F.3d 235 (5th Cir. 2001) (vacating confidentiality order concerning settlement between city and employee because trial court failed to consider effect of order on Texas Public Information Act). Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976 (6th Cir. 2003) (creating new federal common law privilege protecting “secrecy of matters discussed … during settlement negotiations”. Herrnreiter v. Chicago Hous. Auth., 281 F.3d 634 (7th Cir. 2002) (defendant in employment discrimination proceeding gave up claim of confidentiality with respect to settlement agreement when it made the terms of that agreement a subject of litigation by filing a motion to implement the settlement). Lynch, Inc. v. Samatamson, Inc., 279 F.3d 487 (7th Cir. 2002) (“No one supposes that there is any impropriety in a judge’s conducting settlement discussions off the record”). Jessup v. Luther, 277 F.3d 926 (7th Cir. 2002) (reversing district court’s denial of newspaper’s motion to unseal settlement agreement in Section 1983 action because filed settlement agreement was a judicial record subject to public right of access). Union Oil Company of California v. Leavell, 220 F.3d 562 (7th Cir. 2000) (finding order sealing virtually all judicial documents in case file unjustified; when the parties “call on the courts, they must accept the openness that goes with subsidized dispute resolution by

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public (and publicly accountable) officials … . only genuine trade secrets, or information within the scope of a requirement such as Fed. R. Crim. P. 6(e)(2) … may be held in longterm confidence”). Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122 (9th Cir. 2003) (discussing right of collateral litigants to obtain discovery, motions, and judicial records filed under seal in settled case). Phillips v. General Motors Corp., 307 F.3d 1206 (9th Cir. 2002) (examining right of access in settled product liability case to information produced by manufacturer concerning total number and aggregate dollar amount of settlements in similar fueled fire cases). Chicago Tribune Co. v. Bridgestone/ Firestone, Inc., 263 F.3d 1304 (11th Cir. 2001) (remanding for Firestone to demonstrate need for confidentiality of discovery filed under seal in settled case). EEOC v. Nat. Children’s Ctr., Inc., 98 F.3d 1406 (D.C. Cir. 1996) (holding that trial court abused its discretion in sealing consent decree in EEOC action and remanding for further explanation of decision to seal portions of the record and determination of good cause to support protective order governing deposition transcripts). Joseph F. Anderson, Jr., Hidden from the Public by Order of the Court: The Case Against GovernmentEnforced Secrecy, 55 S.C.L. Rev. 711 (2004). A. F. Blakley, To Squeal or Not to Squeal: Ethical Obligations of Officers of the Court in Procession of Information of Public Interest, 34 Cumberland L. Rev. 65 (2003). Laurie K. Doré, Public Courts v. Private Justice: It’s Time to Let Some Sun Shine in on Alternative Dispute Resolution, 81 Chicago Kent L. Rev. 463 (2006). Laurie K. Doré, Settlement, Secrecy, and Judicial Discretion: South Carolina’s New Rules Governing the Sealing of Settlements, 55 S.C.L. Rev. 791 (2004). Laurie K. Doré, Secrecy By Consent: The Use and Limits of Confidentiality in the Pursuit of Settlement, 74 Notre Dame L. Rev. 283 (1999). Robert Timothy Reagan, et al., Sealed Settlement Agreements in Federal District Court (Federal Judicial Center, 2004). James E. Rooks, Jr., Settlements and Secrets: Is the Sunshine Chilly?, 55 S.C.L. Rev. 859 (2004).

Chapter 5. Privacy & P ublic Access Electronic World

to the

C ourts

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Introduction

The growing use of electronic filing and imaging technology makes it possible for courts to offer broader public access to case files through remote electronic access. There is increasing awareness, however, of the implications such broad public access to case files, especially through the Internet, has for personal privacy, and proprietary business information. In the United States court community, many have suggested that case files long presumed to be open for public inspection and copying unless sealed by court order contain private or sensitive information, trade secrets, and proprietary information that should be protected from unlimited public disclosure and dissemination in the new electronic environment.95 95. Congress has expressed this viewpoint in the E-Government Act of 2002, Public Law No. 107357. Section 205(c)(3) of the Act requires the Supreme Court to prescribe rules “to protect privacy and

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Others maintain that electronic case files should be treated the same as paper files in terms of public access and that existing court practices are adequate to protect privacy, confidentiality, and intellectual property interests.

Potential Privacy, Confidentiality, and Proprietary Implications of Public Access to Electronic Case Files Before the advent of electronic case files, the right to “inspect and copy” court files depended on one’s physical presence at the courthouse. The inherent difficulty of obtaining and distributing paper case files effectively insulated litigants and third parties from any harm — actual or perceived — which could result from misuse of private or proprietary information provided in connection with a court proceeding. The Supreme Court has referred to this relative difficulty of gathering paper files as “practical obscurity.”96 Case files may contain private, sensitive or proprietary information such as medical records, employment records, financial information, tax returns, Social Security numbers and other personal identifying information, as well as customer lists, business plans, research data, and other proprietary business information. Allowing access to case files through the Internet, depending on how it is accomplished, can make such information available easily and almost instantly to anyone who seeks it. Personal, sensitive, or proprietary information, unless sealed or otherwise protected from disclosure, can be downloaded, stored, printed, and distributed. The information contained in court records, particularly the personal information, is highly valued by datamining companies that cull public records and integrate public record data with other sources of data and sell the information for profit. Because there are few, if any, legal limitations on how public court records may be used by those who obtain them, data-mining companies are able to freely exploit the information in court records for commercial purposes as marketing information or “competitive intelligence.” These circumstances place into conflict two important policy considerations. First, public court records must easily be available to allow for effective public monitoring of the judicial system; and second, private or sensitive information in court files that is not germane to the public oversight role may require protection from indiscriminate public disclosure. In different jurisdictions, two primary positions appear to be emerging with respect to the privacy issues relating to electronic case files. The first is sometimes referred to by the shorthand expression, “public is public.” This position assumes that the medium in which case files are stored does not affect the presumption that there is a right of public access. By this analysis, current mechanisms for protecting privacy and confidentialsecurity concerns relating to electronic filing of documents and the public availability … of documents filed electronically.” Fed. R. Civ. P. 5.2 was been promulgated in response to this mandate. It should be noted that the E-Government Act and Fed. R. Civ. P. 5.2 address only issues of personal privacy and do not extend similar rule-based protections to business confidences or proprietary information. Strong concern for the protection of such information was expressed by many members of this Working Group, and this is reflected throughout these Guidelines. However, we acknowledge that there is a special role for rulemaking in the area of personal privacy, as well-developed common law doctrines of business confidentiality and proprietary information are often unknown or unavailable to private citizens. 96. See United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 770-71, 780 (1989) (recognizing “the vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information”).

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ity primarily through protective orders and motions to seal are adequate even in the new electronic environment. Some have also suggested that the focus for access policies should be on determining whether information should be deemed “public” in any format electronic or paper rather than on limiting access to electronic case files. Advocates of this position suggest that litigants do not have the same expectation of privacy in court records that may apply to other information divulged to the government. The judicial process depends on the disclosure, voluntarily or involuntarily, of all relevant facts, to allow a judge or jury to make informed decisions. In bankruptcy cases, for example, a debtor must disclose a Social Security number or taxpayer identification number and detailed financial information that the bankruptcy trustee needs to administer the case and that creditors need to fully assert their rights. Similarly, in many types of civil cases for example, those involving personal injuries, criminal alleThe failure to reach consensus gations, or the right to certain public benstems not from any lack of effort efits case files often must contain sensitive personal information. To a certain extent, of WG2, but from the Working then, advocates of this position expect private litigants to abandon a measure of their Group’s inability to bridge personal privacy at the courthouse door. the gaps in legal and practice A second position on the privacy issue principles that are presumed by focuses on the relative obscurity of paper some in the Group but rejected by as compared to electronic files. Advocates of this position observe that unrestricted many others. Internet access undoubtedly would compromise privacy and, in some situations, could increase the risk of personal harm to litigants or others whose private information appears in case files. In other cases, proprietary, financial, marketing, or trade secret information must be disclosed. In these cases, advocates for this position urge that the reasons and justification for public assess be balanced against the legitimate needs of corporate litigants to have access to the courts for resolution of disputes without having to forfeit valuable proprietary information to the public and competitors. The combination of electronic filing and remote access magnifies the potentially dire consequences of mistaken exposure of sensitive information. The accidental disclosure of such information cannot be reversed mistaken dissemination on the Internet is fundamentally different from an inadvertent disclosure on paper in a courthouse. This reality increases the burden on attorneys and courts to carefully guard against such mistakes. It also has been noted that case files contain information on third parties who often are not able or not aware how to protect their personal privacy or to protect valuable proprietary information by seeking to seal or otherwise restrict access to sensitive information filed in litigation. Advocates of the second position acknowledge that it is difficult to predict how often court files may be used for “improper” purposes in the new electronic environment. They suggest that the key to developing electronic access policies is not the ability to predict the frequency of abuse, but rather the assumption that even a few incidents could cause great personal or competitive harm. Advocates of this position also note that the judicial branch, like other branches of government, has an obligation to protect personal and proprietary information entrusted to it.

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They argue that there is a “public interest in privacy” because of the compulsory nature of information disclosure in the context of litigation. That is to say, confidential information often is disclosed in litigation not by choice but by compulsion. On this view, the courts should explicitly recognize, in rules and policies on public access to court records, that although there may not be an expectation of privacy in case file information when there is no protective order, statutory right, or established court procedure that provides such protection, there has been an expectation of practical obscurity that will be eroded through the development of electronic case files. Appropriate limits on electronic access to certain file information may allow the courts to balance these interests in the context of the new electronic environment.

Emerging Themes in the Development of Electronic Access Policy and Procedures In efforts to analyze the issues of privacy, confidentiality, and access to electronic court records, the courts are engaging in a debate that in many ways mirrors the broader societal debate over privacy in the Internet era. In the policy development process, courts are addressing two related questions. First, what is the appropriate role of the courts in collecting and maintaining public records? Second, have those courts that allow Internet access to case files changed their role from being passive “custodians” of court records to being active “publishers” of information? These key questions have motivated courts at both the federal and state levels to begin the development of new access policies in the context of electronic case files. In addition, court policymaking committees also have begun to ask whether the reliance on a case-by-case approach to access issues should be reexamined in the context of Internet publication of court records: Is it prudent to rely on litigants as the primary means of protecting privacy and confidentiality in the context of case files? Judges, as a general matter, do not raise privacy or confidentiality issues on their own. Instead, privacy and confidentiality issues that might be asserted in the course of litigation historically have been addressed on a case-by-case basis, so that if a litigant does not challenge the entry of sensitive information into the record, it will be entered without further inquiry. Many courts appear to be searching for an alternative to the case-by-case approach, crafting restrictions on remote public access to preserve an element of the practical obscurity of paper files while allowing the public to take advantage of rapid advances in technology to provide easier and cheaper ways to monitor the courts and particular cases. This search for an alternative has led several courts to propose or implement new “categorical” restrictions on access, in effect reversing the common law presumption of access either by presumptively sealing certain types of cases or categories of information or by maintaining open access at the courthouse but restricting remote access on the Internet. In the federal courts, for example, the Judicial Conference of the United States has developed a privacy policy that allows unlimited public access to Social Security case files only at the courthouse, but prohibits remote public access over the Internet. Minnesota has proposed a twist on “courthouse only” access, providing remote public access only to documents and information created or maintained by the courts themselves. Under the Minnesota proposal, documents created by litigants would only be accessible from the courthouse. Other new state court rules on public access such as those from California, Maryland, and Vermont carve out limited categories of cases or information for presumptive sealing, adding new categories to existing statutory sealing requirements. Finally, courts are increasingly focused on “logistics” issues such as data security, the proliferation of electronic documents, and the mechanics of implementing new sealing requirements or access restrictions in the context of electronic case files.

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Sedona Working Group Assessment of the Main Approaches to Public Access Rules and the Most Common Rule and Policy Features Recently-developed rules and policies on public access to court records appear to follow four basic policy approaches. In addition, a preliminary review reveals several issues that each court system seeks to address in developing these rules and policies. Although the Working Group has concluded that it is too soon to identify “best practices” in this area, it is helpful to assess how the new public access rules are consistent – or not – with the principles articulated in these guidelines.

The Four Basic Policy A pproaches

1. Open electronic access, with minimal limits.

Some court systems have developed rules or implemented new public access policies affirming that the existing public access system for paper records will continue to apply to electronic court records. This group, which includes the New York state courts and the U.S. federal courts, draws few distinctions between access to electronic and paper files. As a general matter, these court systems only restrict public access to certain personal identifying information in court records that may be used to facilitate the crime of identity theft, but they allow electronic public access to almost all unsealed court records. Under this approach, the litigant has the obligation to protect private or confidential information by seeking to seal court records or by other self-help mechanisms such as redaction or refraining from filing such information unless absolutely necessary. This approach, while consistent with the law as it developed before the advent of electronic case filing and potential Internet access to court records, does not take into account the shifting role of courts from “custodians” of records to “publishers,” and engages in no examination of its consequences or desirability. With only minimal restrictions on electronic public access, this shift in the role of the courts role may not provide adequate protections for private or proprietary information in court records, and may not be necessary to fulfill the courts’ role in providing appropriate public access to court records. 2. Generally open electronic access, coupled with more significant limits on remote electronic public access.

A second group has adopted a middle ground that generally allows remote electronic public access, but at the same time places significant limits on the types of cases — or categories of information — that courts may make available electronically. These courts recognize that there are practical and policy reasons to be cautious about electronic public access, especially in the short-term future during the period of transition from paper to electronic court files. The California and Indiana access rules provide examples of this approach. As with approach No. 1 above, the obligation to protect personal privacy, confidentiality, or proprietary information will be largely left to individual litigants with little or no independent assistance of the court. The Working Group views this approach as more balanced than approach No. 1, but suggests that it may still fall short of providing appropriate protections for private and confidential information in court records. One expects the court to take a more active role, recognizing that public access to court records should be restricted where forfeiture of privacy or proprietary rights would likely result from disclosure. 3. Electronic access only to documents produced by the courts.

A third group of courts permits remote access to documents created by the court, such as dockets and court orders, but does not permit remote access to documents created by the parties. This approach is adopted in the Minnesota and Vermont access rules. R ey nolds C ourts & M edia L aw Jour nal

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The Working Group notes that while this approach appears to provide significant protections for private and confidential information submitted by the litigants as part of the court record, this approach does not appear to allow the public to conduct sufficient oversight of the courts. In many cases, it is important to review pleadings and other litigantfiled elements of the case file in order to effectively evaluate a court’s decision and orders. 4. S  ystematic reevaluation of the content of the public case file, combined with limited access to electronic files.

A fourth broad policy approach is to systematically review the elements of the public case file with the policy goal of better accommodating personal privacy interests in the context of electronic court records. These courts seek to limit the filing of extraneous personal or confidential information in public court files, a strategy referred to as “minimization.” Where such information must be filed, these courts would provide expanded protections before moving forward with electronic public access systems. The Florida court system has issued a report outlining this approach. The Working Group views this as a promising approach because it focuses on limiting the filing of information that arguably should not be in the public case file, and on sealing or otherwise limiting public access to information that is truly private or confidential, yet also necessary for the adjudication of the dispute.

List of Common Features of Recently Developed Court Rules and Policies on Public Access to Court Records The Working Group concludes that, as a general matter, the common features of public access rule outlined below are consistent with the principles in Chapter 2 on “Pleadings, Court Orders, Substantive Motions, and Dockets,” and Chapter 3 on “Trials.” As noted in those chapters, it is clear that there are some categories of cases that invariably involve information that should be subject to limited public disclosure. State law often mandates that such categories of cases be closed to the public. In addition, many cases involve personal information, the public disclosure of which may violate recognized privacy rights or expose litigants to identity theft or other abuse. In those cases, exclusion of such information from pleadings – or the redaction of such information as mandated in several court rules – will be necessary to protect litigants’ privacy interests while minimally intruding upon the public’s qualified right of access to judicial records. 1. A statement of the overall purpose for the rule or policy. 2. Definitions of key terms used in the rule. 3. A procedure to inform litigants, attorneys, and the public that (a) every document in a court case file will be available to anyone upon request, unless sealed or otherwise protected; (b) case files may be posted on the Internet; and (c) the court does not monitor or limit how case files may be used for purposes unrelated to the legal system. 4. A statement affirming the court’s inherent authority to protect the interests of litigants and third parties who may be affected by public disclosure of personal, confidential, or proprietary information. 5. A list of the types of court records that are presumptively excluded (sealed) from public access by statute or court rule. 6. A statement affirming that the public right to access court records and the court’s authority to protect confidential information should not, as a general matter, vary based on the format in which the record is kept (e.g., in paper versus electronic format), or based on the place where the record is to be accessed (i.e., at the courthouse or by remote access).

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7. As an exception to feature 6 above, a list of the types of court records that — although not sealed — will not be available by remote electronic public access. 8. A list of the types of information that either: (a) must not be filed in an open court record, or (b) if filed, must be redacted or truncated to protect personal privacy interests. These provisions mainly apply to personal identifiers such as the SSN, account We intend to prepare and submit numbers, and home addresses of parties. 9. Procedure for a court to collect and main- a restatement of the Guidelines tain sensitive data elements (such as SSN) that we regard to be a fair, on special forms (paper or electronic) balanced, and accurate statement that will be presumptively unavailable for public access. Such procedures generally of current practice in this area that build on technology to segregate sensitive will be a more practical tool for information so that public access can be restricted in appropriate situations. practitioners and that we will urge 10. Procedure to petition for access to reis a preferred alternative to the cords that have been sealed or otherwise restricted from public access, and a statecurrent Sedona Guidelines. ment of the elements required to overcome the presumption of nondisclosure. 11. Procedure to seal or otherwise restrict public access to records, and a statement of the burden that must be met to overcome the presumption of disclosure. 12. An affirmation that a rule on public access to court records does not alter the Court’s obligation to decide, on a case-by-case basis, motions to seal or otherwise restrict public access to court records. 13. Guidance to the courts concerning data elements that are contained in electronic docketing systems that must (or must not) be routinely made available for public access. 14. Guidance for attorneys and/or litigants concerning: (a) the extent to which public case files will be made available electronically; and (b) the need to exercise caution before filing documents and information that contain sensitive private information, which is generally defined elsewhere in the rule. 15. An explanation of the limits, if any, on the availability of “bulk” and/or “compiled” data from public court records. Some rules specify that such data will only be made available to certain entities, for certain defined purposes, and pursuant to agreements to refrain from certain uses of the records obtained. 16. A statement concerning the fees that a court may charge for public access to court records.

C onclusion

C

ourts have begun to address privacy and confidentiality issues that arise as court files are made accessible on the Internet. The federal courts and a growing number of state court systems have developed policies or court rules to balance the competing interests of public access and personal privacy. These policies and rules recognize that case files may contain sensitive personal, confidential or proprietary information that may require special protection in the context of Internet access. Through changes in rules, court policies and likely also in case law it is clear that the law in this area will continue to develop to respond to the fundamentally changed context of public access to court records in the Internet era. It is also clear that the era of “practical obscurity” has past. Litigants and attorneys must be aware of the possible consequences of filing any private or confidential information.

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Chapter 5 Selected Bibliography C ourt Rules and Policy S tatements Federal Judicial Conference Privacy Policy, available at: http://www.privacy.uscourts.gov/b4amend.htm United States District Court, District of New Jersey, L. Civ. R. 5.3 California Special Rules for Trial Courts (Rules 2070 to 2077), available at: http://www.courtinfo.ca.gov/rules/titlefive/titlefive.pdf Indiana Administrative Rules (Rule 9), available at: http://www.in.gov/judiciary/orders/rule/amendments/2004/0204adminrule9.pdf Supreme Court of Florida, In re: Implementation of Report and Recommendations of the Committee on Privacy and Court Records, Administrative Order No.AOSC0620, June 30, 2006, available at: http://www.floridasupremecourt.org/clerk/adminorders/2006/sc0620.pdf Supreme Court of Florida, In Re: Interim Policy in Electronic Release of Court Records, Administrative Order No. AOSC0621, June 30, 2006, available at: http://www.floridasupremecourt.org/clerk/adminorders/2006/sc0621.pdf Maryland Rules of Procedure (Ch. 1000 Access to Court Records), available at: http://courts.state.md.us/access/roaccesstoctrecords.pdf Minnesota Recommendations of the Minnesota Supreme Court Advisory Committee on Rules of Public Access to Records of the Judicial Branch, available at: http://www.courts.state.mn.us/cio/public_notices/accessreport.htm New York Commission on Public Access to Court Records, Report to the Chief Judge of the State of New York, available at: http://www.courts.state.ny.us/ip/publicaccess/index.shtml Vermont Rules for Public Access to Court Records (and amendments), available at: http://www.vermontjudiciary.org/rules/proposed/rules_pa.htm Rules Governing Dissemination of Electronic Case Records, available at: http://www.vermontjudiciary.org/rules/proposed/ruleselectronic.htm

Cases

United States Supreme Court

U.S. Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989) (interpreting the FOIA, recognizing a privacy interest in information that is publicly available through other means, but is “practically obscure”). United States District Courts

Holland v. GMAC Mortgage Corp., 2004 WL 1534179 (D. Kan. Jun 30, 2004) (noting that filing documents under seal in court which employs electronic filing will be burdensome because sealed filing must be in paper format). Eldaghar v. City of N.Y. Dep´t of Citywide Admin. Servs., 2004 U.S. Dist. LEXIS 3503 (S.D.N.Y. 2004) (denying motion for protective order, observing there is no protectable privacy interest in personal identifiers that are already available on Internet). Websites

National Center for State Courts http://www.courtaccess.org/ Reporters´ Committee for Freedom of the Press http://www.rcfp.org/courtaccess/viewstates.php

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Opposing Views of the Undersigned Members of the Sedona C onference Working Group on Protective Orders, C onfidentiality & P ublic Access (WG2) to the Sedona Guidelines on Protective Orders, C onfidentiality & P ublic Access in Civil Cases April 6, 2007

Preliminary Statement After two years of review, it is clear that the Sedona Working Group (WG2) has not developed a true consensus on issues related to protective orders, confidentiality & public access. Quite simply, none exists. The large number of signatories to these Opposing Views in itself suggests that the Sedona Guidelines do NOT represent a consensus view of the law or the practice in this still controversial area. Over the course of the work, a threshold dispute arose concerning whether courts properly employ their discretion to achieve the appropriate balance in each specific case between facilitating public access to civil litigation proceedings and protecting litigants’ privacy, property and confidentiality, or whether courts (presumably at the behest of litigants) routinely circumvent applicable rules to enter protective orders and sealing orders in contravention of established legal principles. The numerous thoughtful public comments received by WG2 on an earlier public comment draft reflect diverging views on this and other key issues. The failure to reach consensus stems not from any lack of effort of WG2, but from the Working Group’s inability to bridge the gaps in legal and practice principles that are presumed by some in the Group but rejected by many others. For example, several organizations, academics, and practitioners questioned the need for and the possibility of developing any guidelines in the area that would represent a real consensus, pointing out, inter alia, that: (1) They were not encountering difficulty in dealing with confidential documents in litigation; (2) There did not appear to be any evidence of systemic problems, in that courts were exercising balanced, case-by-case discretion to protect confidential information and permit access where appropriate; and (3) It was not appropriate or desirable for Sedona to revive the court confidentiality debate that had been raging off and on since 1989 between pro access advocates (primarily media and plaintiff lawyers) and those seeking to protect their privacy and property rights in confidential information at risk of disclosure in litigation (defense and corporate lawyers and litigants).

Despite the absence of consensus in the Sedona Working Group on whether or not problems exist in this area of the law and a first “public” draft that appeared to advocate positions favoring access that were purely aspirational rather than a distillation of accepted legal or practice principles, we who subscribe to these Opposing Views have made a good faith effort within Sedona to develop balanced guidelines or “best practices” that hopefully will benefit the bench and bar in dealing with these issues. The Sedona tradition of generating consensus best practices began with the first Sedona Working Group on Electronic Document Retention and Production. That Working Group sought to assist the legal system in responding to myriad emerging issues raised by the electronic age and to propose guidelines and best practices to fill the undeniable gap in existing procedural rules. In the area studied by WG2, however, there is no emerging technology or event that precipitates our work. Debates concerning public access to various aspects of judicial proceedings have been waged for years, although the stakes are much higher in an internet age in which “access” to information (and the prospects for broad dissemination of that information) mean something entirely different than historical common law notions of access to judicial proceedings. R ey nolds C ourts & M edia L aw Jour nal

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In the area studied by WG2 we acknowledge that how one articulates best practices necessarily traces back to policy-laden issues such as the proper role of courts in our society, the scope of privacy and property rights for individuals and corporations, and the existence and scope of any First Amendment right of access to various stages of judicial proceedings, and the impact of such access on the judiciary and the judicial system. See, e.g., R. L. Marcus, The Discovery Confidentiality Controversy, 1991 Univ. Ill. L. Rev. 457. This tension is at the heart of our opposition to the Sedona Guidelines, because it still remains unclear what the Guidelines actually are -- do they summarize the prevailing best practices or the editors’ view of what the law should be? The Guidelines purport to be the former, but in many sections, having failed to achieve consensus -- as the sheer number of signatories to these Opposing Views demonstrates -- the Guidelines assert the latter. More important, in too many areas the professed restatement of the law is skewed in a manner inappropriate for practice guidelines. A substantial number of WG2 participants (and others), including the signatories to these Opposing Views, have provided comments on earlier drafts. Although we recognize the labor of the editors, those comments have not been sufficiently addressed in our view. However, these opposing views are submitted in an effort to outline our concerns within the time constraints imposed by Sedona. Subsequently, we intend to prepare and submit a restatement of the Guidelines that we regard to be a fair, balanced, and accurate statement of current practice in this area that will be a more practical tool for practitioners and that we will urge is a preferred alternative to the current Sedona Guidelines. The inability of WG2 members to coalesce around one viewpoint partially explains our dissent, but there are other considerations that may account for the fact that the process itself could not produce a consensus. The Working Group was formed to study and discuss issues regarding public access to the civil litigation process. As we point out above these are issues that have been hotly contested in courts and legislatures for many years. As a result, although there has been some improvement in the Pre-Publication Draft, the proposed Guidelines recommend policy shifts in prevailing law and practice, without acknowledging them as such, and many of them still read as if they are a summary of wellaccepted law and practice. Because there is no agreement on these issues even among the members of WG2, .Sedona cannot properly contend that the Guidelines represent a consensus. Therefore, we have no alternative but to submit these Opposing Views.

Principal Areas of Concern The principal areas of concern that we have with the Sedona Guidelines are as follows:

I ntroduction The Introduction most clearly reflects the somewhat improved but still overall pro-access bias of the Guidelines and the elevation of the media/plaintiff lawyer interest in access to confidential information in court files over constitutionally protected property and privacy rights. There is soaring rhetoric about an “open and democratic society” depending “upon an informed citizenry and public participation in government” designed to justify access to private, personal, proprietary, and confidential information in court files. At the same time the rhetoric masks the primary purpose of public participation in government -- observation of the workings of the branches of government. Confidential and top secret information in court files may be interesting. It may sell newspapers and space on the nightly news. But it is not necessary to achieve the purpose for which public access to the courts exists. In the discussion regarding the good cause required for sealing documents filed with the court, the Introduction draws a distinction between material relating to a non-dispositive matter and material that relates to the merits of a case, in which instance a “determina-

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tion of compelling need” is required to “overcome the presumption of public access.” With the use of the elastic word “relating,” the Introduction lays the foundation for principles expounded in Chapters 1 and 2 that would emasculate the meaning of good cause in this context and create an unjustifiable super standard (compelling need) that would make it much more difficult and time consuming to protect litigants privacy and property rights. These Opposing Views recognize that: “in daily application, the relative strength of a litigant’s interest in confidentiality versus the public’s interest in access evolves with the stage of litigation, so that what constitutes ‘good cause’ for maintaining confidentiality at one stage of the proceeding may not suffice at another.” However, we do not attempt a restatement of the law that introduces new concepts of “compelling need”, “particularly strong presumptions”, and “exceptional circumstances”, trusting that an informed judiciary will exercise a balanced discretion to apply the traditional standard of good cause to the myriad facts of particular cases in determining whether or not the interests in protecting privacy, property, and confidentiality outweigh the media’s interest in publishing the information in court files.

C hapter 1. D iscovery. 1. Principle 1 says there is “no presumed right” of the public to participate in discovery. There either is a right or there is no right. Seattle Times97 establishes that the public has no right of access to the discovery process or the fruits of discovery in the hands of a party. “No presumed right” obfuscates the issue and is inconsistent with straightforward guidance. These Opposing Views state the principle in a clear declarative sentence: “The public does not have a right to participate in the discovery process or to have access to the fruits of discovery that are not submitted to the court.” This principle does not mean that courts must bar all access in every case. Given the breadth of discovery, the empowerment of private parties to range through the files of their opponents, and the minimal judicial supervision, it simply means that access to the fruits of that process is not a public entitlement. 2. Principle 2 says that a litigant “is not precluded from disclosing the fruits of discovery.” While this is a slight improvement over earlier drafts, Seattle Times98 also says that information exchanged in discovery ordinarily should be used only in the litigation in which it is produced. Therefore, we restate Principle 2 as follows: In the absence of a protective order (stipulated or contested) or agreement limiting disclosure, and so long as the party acts for a proper purpose and consistently with other laws, there may be some circumstances in which a party may disclose information received during discovery. And, Best Practice 1 incorrectly states that “there is no restriction on dissemination of documents and other information exchanged during discovery”, which we have revised to make the statement of the “practice” consistent with the “principle”, as follows: “…absent an agreement, a protective order, or other legal or ethical limitations, a party may, for a proper purpose, disseminate documents and other information exchanged during discovery.” 3. Under Principle 4, the second paragraph says that “most courts” hold that the media has standing to intervene, but it only cites the cases supporting intervention rights. This section is an early example of the pro-media predisposition that permeates the whole document. Ignoring the recommendation of many WG2 members that the fact intensive law of intervention was not an appropriate subject for practice guidelines and should be dropped from the guidelines because that there was no consensus on the issue, the document states the principle as established law. 97. Seattle Times Co., supra note 8. 98. Id.

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C hapter 2. C ourt R ecords. 1. Principle 1 says that “in compelling circumstances,” a court may deny public access to documents submitted to the courts which are “relevant to adjudicating the merits.” The discussion on the next page says that the presumption of access is weak as to documents not related to the merits, e.g., related to discovery disputes. That is not stated in any principle. Moreover, the text says that the presumption of access is much stronger for documents “that relate to the merits of the case and assist the court in fulfilling its adjudicatory function.” The choice of the word “relevant,” with its encompassing connotation in the context of discovery rules, suggests a broader reach than the textual discussion. Most important, this is another instance in which the guidelines seek to restate the concept of good cause that varies depending on the circumstances in particular cases into a nearly insuperable presumption of access by imposing a compelling need standard. 2. Principle 2 attempts to ensconce a new “compelling circumstances” standard into the law concerning access to court dockets, which we believe is neither an appropriate standard nor a proper subject for practice guidelines. Moreover, at minimum, any guidelines on this subject should reference the increasing importance of privacy considerations in the computer age as discussed in Chapter 5. The issues discussed in Chapter 5 are not separate topics from this one. They directly affect the litigants’ privacy and property interests that must be weighed in the balance in making a sealing decision.

C hapter 3. P roceedings

in

O pen C ourt.

1. Principle 1, again overriding the comments of many WG2 members, creates a rule of law stating that “The public has a qualified right of access to trials that can only be overcome in compelling circumstances.” No cases are cited to support the “compelling circumstances” standard in this context. On the contrary, these Opposing Views state the accepted rule that courts have discretion to limit public access to various stages of court proceedings when competing interests outweigh the qualified public interest in access. (Case citations omitted.) 2. Sedona Principle 2 incorrectly emphasizes the benefits of public access to the jury selection process, while these Opposing Views, recognizing a qualified public interest in juror identities and jury selection, stresses the need for broad judicial discretion to control court proceedings and protect the privacy and confidentiality interests of jurors. Many WG2 members expressed the view that juror identities should be protected, but those opinions are not adequately reflected in the Guidelines. 3. Principle 3 offers a similarly unsupported twist on the “compelling interest” standard with regard to access to trial exhibits. These Opposing Views reiterate the traditional good cause standard as applied to the facts in particular cases and the stage of proceedings.

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C hapter 4. Settlements. 1. Principle 1, although conceding that there is no presumption in favor of public access to “unfiled” settlements, wrongly emphasizes the interest in public access to settlements “due to the presumptively public nature of court filings in civil litigation.” These opposing views deemphasize artificial “presumptions” and focus on practical suggestions for lawyers. 2. Principle 2 would require a court to make a “particularized finding” before sealing a settlement filed with the court. This requirement finds no support in the law or in the discussion accompanying it. These Opposing Views state the traditional rule: “In determining whether or not to seal a settlement agreement to be filed in court, the court evenly balances the privacy and confidentiality interests of the parties to the agreement, and the public’s qualified right of access to court records and proceedings.” And again, the issues discussed in Chapter 5 affect the privacy and confidentiality interests of the parties. 3. While conceding that settlement discussions should not be subject to public access, the discussion accompanying Principle 3 suggests, without support or justification, that a judge as a public official may be subject to oversight and monitoring when “’injected’ into the settlement process”, the need for which is “heightened when settlement discussions affect public health and safety.” Such contentions, at the heart of the controversy surrounding the public access debate, have been regularly rejected. And, recognizing that reality, these Opposing Views correctly point out that “…settlement discussions, negotiations, and draft agreements are subject, at most, to a negligible right of public access and the settlement process itself is rarely, if ever, subject to public review.” (Citations omitted.) 4. Principle 4 is another example of the pro-access tilt of the guidelines in an area where consensus should easily be achieved – settlements with public entities. However, with unsupported overstatement, the principle contends that “Absent exceptional circumstances, settlements with public entities should not be confidential.”(Italics added.) What could be the justification for reducing to “exceptional circumstances” important interests such as protecting “…intimate personal information, the privacy of minors, or law enforcement needs”…? Public access does not trump all other interests. These opposing views eliminate the exaggeration: “There is a presumption that settlements with public entities should not be confidential.” And, these Views reduce the confusion caused by the Sedona discussion’s varying description of the “presumption” as “strong” or “particularly strong”, or requiring “exceptional circumstances” to overcome it. A presumption is a presumption. The interests weighed in the balance will vary with the circumstances. Judges have the ability and the discretion to undertake that exercise. 5. Principle 5 speaks of the lawyer’s ethical obligations regarding settlement. It refers to the obligation to maintain a client’s “confidences.” The ethical rules distinguish between “confidences,” i.e., privileged information, and “secrets,” non-public information of the client that is not privileged. A lawyer has an obligation of confidentiality as to both. It appears that the discussion here uses the word “confidences” loosely, or if not, it should discuss the obligation as to secrets.

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C hapter 5. P rivacy

and

P ublic A ccess

to the

C ourts

in an

E lectronic World

While our restatement of the Guidelines will make some suggestions for further revisions in Chapter 5, we think that on the whole it is a balanced presentation of the need to be especially vigilant to protect litigants’ confidential information in the electronic age. In fact, this is the one Chapter of the Sedona Guidelines where there is a genuine consensus that there is a need for guidelines and that publishing them would provide useful guidance to bench and bar. Respectfully submitted,99

99. The “Opposing Views” document was signed by 19 attorneys who had been members of WG2. Because of the rift, The Sedona Conference opted not to publish the roster of WG2 members in the Guidelines, since “the resulting roster would leave the misimpression that the publication reflects only input from those listed [who did not ask that their names be removed], instead of reflecting all the efforts to reach accommodation and compromise through dialogue.” For similar reasons, the Reynolds Courts & Media Law Journal has opted not to publish the names of signatories of the “Opposing Views” document.

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An Analysis of Statutory Protections for Online News Reporters Jeffrey G. Purvis and Benjamin Thomas Greer It seems to me self-evident that police searches of newspaper offices burden the freedom of the press. The most immediate and obvious … injury … is physical disruption of the newspaper. … But there is another and more serious burden … imposed by an unannounced police search of a newspaper office: the possibility of disclosure of information received from confidential sources, or the identity of the source themselves. - Justice Potter Stewart1

A

s technology continues to mature and evolve, the legal system finds itself in perpetual catch-up mode, attempting to apply decades-old legal concepts and doctrine to cutting-edge technology. Courts often find the existing statutory and case law framework lacking in flexibility and foresight, and therefore struggle with its intended application in unforeseen contexts. As news reporting and publication expands to an online publication model, conflicts between law enforcement and a free press will continue to present the courts with difficult and novel issues. As evidenced by the 2010 incident in California involving a lost iPhone prototype and the Gizmodo technology blog, online reporters may find themselves increasingly without the legal protections of their traditional colleagues.2 Newsroom protections and reporter shield laws were enacted to protect and encourage an independent and robust press by preventing reporters from being compelled to divulge their sources of information, either in court or via search warrants. To maintain a free and vigorous press, it is imperative that the courts, prosecutors and defense attorneys have a nuanced understanding of statutory legal protections and the ability to apply them to the rapidly evolving technology. 1. Zurcher v. Stanford Daily News, 436 U.S. 547, 571 (1978) (Stewart, J., dissenting). 2. For details on this incident, see infra p.132.

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This article will: 1) detail the evolution and expansion of online reporting and remote publication; 2) create a comprehensive synopsis of relevant federal and state statutory and case law on newsroom search and seizure protections; 3) analyze the application of relevant newsroom search and seizure statutes in various online reporting circumstances, including the Gizmodo incident in which a prototype iPhone came into the possession of an online news contributor (blogger) who subsequently had his home office searched pursuant to a warrant; and 4) address the extent to which constitutional and state protections of the press ought to be extended to online media purveyors.

What Does a R eporter L ook L ike?: The E mergence and Growing R eliance on O nline News R eporting and P ublishing

A

s Johannes Gutenberg revolutionized the reproduction and helped facilitate the spread of information in the mid-15th century with the invention of his printing press,3 the 20th century would prove to contain the next technological advancement that would revolutionize the publication and dissemination of news. The World Wide Web provided the structural foundation for an interactive communication model for mass consumption, inexpensive cost dissemination, and the ability for real-time reporting of newsworthy events. The web is the natural step in the evolutionary progression of communication from oral to printed to digital distribution. The first online newspaper was launched in 1994 by the San Jose Mercury News, forging an alternate path for the traditional newspaper industry.4 Following the Mercury’s lead, the Charlotte Observer used a blog-like format in reporting the carnage of Hurricane Bonnie in 1998.5 Blogging and online news reporting began to garner national attention early in 2002 when National Public Radio (NPR) devoted three minutes to how blogging was transforming journalism,6 but it wasn’t until the 2004 presidential election cycle that this medium matured and could be classified as a mainstream delivery tool of newsworthy content.7 In 2004, journalistic institutions began conferring legitimacy to online reporting, such as when Time magazine created a specific journalistic award for “Blog of the Year.”8 3. Johannes Gutenberg, formerly a professional goldsmith, was the first to make type from an alloy of lead, tin, and antimony, which was critical for producing durable type that produced high-quality printed books. He apparently began designing his press in approximately 1436, although it was not until a 1439 lawsuit that there was any official record of his invention. Gutenberg is also credited with the introduction of an oil-based ink which was more durable than the previously used water-based inks. P hilip B. M eggs , A H istory of G r aphic D esign 58-69 (1998). The printing press was an important step towards the democratization of knowledge. Within fifty or sixty years of the invention of the printing press, the entire classical canon had been reprinted and widely promulgated throughout Europe. Now that more people had access to knowledge both new and old, more people could discuss these works. Howard Rheingold, Moblogs Seen as a Crystal Ball for a New Era in Online Journalism, O nline Jour . R ev., Jul. 9, 2003, http://www.ojr.org/ojr/technology/1057780670.php. 4. Kathy Gil, Blogging, RSS and the Information Landscape: A Look at Online News, presented at 14th International World Wide Web Conference (Chiba, Japan May 10-14, 2005), at 1, available at http://www.blogpulse.com/papers/2005/gill.pdf. 5. Id. 6. Kathy Gil, How Can We Measure The Influence of the Blogosphere (2004), available at http://citeseerx. ist.psu.edu/viewdoc/download?doi=10.1.1.124.2509&rep=rep1&type=pdf. 7. Id. 8. Gil, Blogging, RSS and the Information Landscape, at 3; see also Time Names PowerLine Blog of the Year (press release), Dec. 19, 2004, http://www.time.com/time/press_releases/article/0,8599,1009851,00.html. (“Before this year, blogs were a curiosity, a cult phenomenon, a faintly

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And in March 2005 the White House fully accredited this new form of journalism by issuing a blogger a press pass.9 Due to the lower cost structure of distribution and ease of access for readers, this new framework of journalism and form of diffusion10 has grown significantly and is not likely to slow. In a comprehensive survey of newspaper editors conducted in 2010 by the World’s Editor Forum, “86 percent of the editors believed integrated print and online newsrooms will become the norm, and 83 percent believed journalists will be expected to be able to produce content for all media within five years.”11 The survey also demonstrated the awareness of this framework shift, with 44 percent of editors stating that the Internet will become the most common platform for reading news in the future.12 The traditional print newspaper industry is facing a substantial challenge from the online news reporting model, and many legacy media are now creating a hybrid business model. Today, all major newspapers either offer an online version of their print newspaper or have an exclusively online edition, employing online journalists to fill their columns. Journalism is not constrained by a printed form of newspaper or magazine or audible television broadcast. As the evolution of physically printed words on paper or words projected through a speaker continues into encoded electrons published online, courts and legislatures must understand this new format and the freedom of speech/press issues that it presents, in order to maintain protection of critical constitutional rights.

Feder al Protections

in

Newsroom Searches

First Amendment - Fourth Amendment Analysis

and

Seizures

The Fourth Amendment to the U.S. Constitution governs warrants, searches and seizures.13 Searches and seizures of materials by law enforcement in U.S. newsrooms are historically rare,14 especially after enactment of the federal Privacy Protection Act in 1980.15 And when challenged, up until the late 1960s, it was generally accepted and understood that only instrumentalities, fruits or contraband of a crime were searchable items within a newsroom under the Fourth Amendment. But in 1967, in Warden v. Hayden,16 the United States Supreme Court held the substantive distinction previously made between embarrassing hobby on the order of ham radio and stamp collecting. But in 2004 blogs unexpectedly vaulted into the pantheon of major media, alongside TV, radio and, yes, magazines, and it was Power Line, more than any other blog, that got them there…”) 9. Id. at 3; see also A blogging first at the White House, MSNBC.com, Mar. 8, 2005, http://www.msnbc.msn. com/id/7117260/ns/politics/. The online journalist who made history was Garrett M. Graff. Graff was the author of “fishbowlDC,” a self described gossip blog about Washington, D.C., media. 10. Diffusion is the process through which an idea is “communicated through certain channels over time to the members of a social system.” E verett M. R ogers , D iffusion of I nnovations 17 (4th ed. 1995). 11. Emma Heald & Jean Yves Chainon, Newsroom Barometer, World E ditor’s Forum (2010), abstract available at http://www.trends-in-newsrooms.org/articles.php?id=84. 12. Id. 13. This amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. Amend. IV. 14. L.A. District Attorney Shuts Down Newsroom For 3-Hour Search For Advertisement Receipt, 26(3) News M edia & the L aw 15 (S ummer 2002), http://www.rcfp.org/news/mag/26-3/con-ladistri.html (“Newsroom searches are rare … .”) See also Newsroom Searches, in The R eporters C ommittee for F reedom of the P ress , A gents of D iscovery (2001), http://www.rcfp.org/agents/newsroom.html. 15. See pp. 112-117, infra. 16. 387 U.S. 294 (1967).

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materials being held in continuance of a crime and materials merely providing information about a crime “was no longer acceptable in contemporary society,”17 thus allowing law enforcement and prosecutors to search newsrooms at their leisure and unrestricted.

Zurcher v. S tanford Daily News In 1971, police officers were assaulted while attempting to clear protesters from an occupied building at Stanford University, and photographs of the assault appeared in the Stanford Daily, a student newspaper.18 Local prosecutors obtained a search warrant “for an immediate search of the Daily’s offices for negatives, film and pictures showing the events and occurrences at the hospital on the evening of April 9.”19 When the search warrant was executed, only the photographs previously published were discovered, and nothing was removed from the newspaper’s offices.20 The newspaper and several of its staff subsequently sought civil relief in federal district court.21 The District Court ultimately held that persons not suspected of a crime were entitled to greater protection under the Fourth Amendment than persons suspected of crimes, “particularly when the First Amendment interests are involved.”22 Thus, even where probable cause existed to believe that a crime had been committed and that relevant evidence of that crime would probably be found on a subject premises, no search warrant should be issued if the materials were in the possession of one not suspected of the crime. The government must instead obtain the materials via a subpoena duces tecum, the district court held, unless a sworn affidavit established proper cause to believe that the materials in question will be destroyed, or that a subpoena duces tecum would be “otherwise impracticable.”23 The District Court was particularly emphatic in demonstrating that the First Amendment provided additional protection when a search warrant was to be directed at newspersons in the “third party/not suspected of crime” circumstances, pointing out that the United States Supreme Court had applied strict scrutiny to grand jury compulsion of newspersons to reveal confidential sources in Branzburg v. Hayes and companion cases.24 The trial court went on to reject the government’s argument that the press has no greater Fourth Amendment protection than other citizens: The First Amendment is not superfluous. Numerous cases have held that the First Amendment “modifies” the Fourth Amendment to the extent that extra protections may be required when First Amendment interests are involved. Branzburg does not purport to over-rule these cases; it fails to even mention them. In short, one cannot logically read Branzburg to relegate the First Amendment to redundancy. . . . Because a search presents an overwhelming threat to the press’s ability to gather and disseminate the news, and because “less drastic means” exist to obtain the same information, third-party searches of a newspaper office are impermissible in all but a very few situations. A search warrant should be permitted only in the rare circumstance where there is a clear showing that 1) important materials will be destroyed or removed from the jurisdiction; and 2) a restraining order would be futile. To stop short of this standard would be to sneer at all the First Amendment has come to represent in our society.25

17. Id. at 300-10. 18. Zurcher v. Stanford Daily News, 436 U.S. 547, 550-51 (1978). 19. Id. at 551. 20. Id. at 551-52. 21. Id. at 552. 22. Stanford Daily v. Zurcher, 353 F.Supp. 124, 127 (1972). 23. Id. 24. Id. at 133-34 (citing Branzburg v. Hayes et al., 408 U.S. 665 (1972)). 25. Id. at 134 and 135 (citations omitted).

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The Court of Appeals affirmed, adopting the District Court’s opinion.26 But the United States Supreme Court emphatically upbraided the District Court for giving newsrooms this significant additional protection from search and seizure. It is an understatement to say that there is no direct authority in this or any other federal court for the District Court’s sweeping revision of the Fourth Amendment. Under existing law, valid warrants may be issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found. Nothing on the face of the Amendment suggests that a third-party search warrant should not normally issue.27 The high court was explicit that the Fourth Amendment’s search and seizure rules applied no differently to “third parties” — persons not suspected of crime — because search warrants are directed at places and things rather than at people,28 because the reasonableness of a search is not connected to the showing necessary for an arrest,29 and because a rule requiring subpoenas in place of search warrants where third parties were involved would not advance privacy interests while seriously undermining the “fundamental public interest” in enforcing the criminal law.30

The Supreme Court majority appeared to give more credence to the notion that the First Amendment had some impact on application of the Fourth Amendment’s search and seizure rules. As is not uncommon, the Court began by acknowledging the importance of the challengers’ constitutional interests: It is true that the struggle from which the Fourth Amendment emerged “is largely a history of conflict between the Crown and the press,” and that in issuing warrants and determining the reasonableness of a search, state and federal magistrates should be aware that “unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.”31

The opinion then identified only one difference in search and seizure process applicable when “materials protected by the First Amendment” were the subject of potential seizure: the Fourth Amendment, the majority said, should be applied with “scrupulous exactitude.”32 After reciting, without analysis, the dangers to a free press asserted by the challengers as flowing from ordinary search and seizure procedures, the Court confidently declared them to be without foundation: “Nor are we convinced, any more than we were in Branzburg v. Hayes that confidential sources will disappear and that the press will suppress news because of fears of warranted searches.”33 Evincing an originalism that took no account of the difference between an 18th Century printing press and a 20th Century news operation (let alone the current world of servers, storage in “the cloud” and the “Twitterati”34), Justice White made it clear that freedom of speech or of the press had no practical significance in Fourth Amendment practice: 26. 550 F.2d 464 (9th Cir. 1977). 27. Zurcher v. Stanford Daily, supra, 436 U.S. at 554 (footnote omitted). 28. Id. at 555-56. 29. Id. at 556-57. 30. Id. at 560-63. 31. Id. at 564 (citations omitted). 32. Id. 33. Id. at 566. The Court added this demonstration that the press has nothing to fear from government: “The fact is that respondents and amici have pointed to only a very few instances in the entire United States since 1971 involving the issuance of warrants for searching newspaper premises. This reality hardly suggests abuse; and if abuse occurs, there will be time enough to deal with it.” Id. 34. These are “the Tweet elite, whose feeds attract thousands of followers and whose 140-character spews capture the attention of the rapt who doggedly monitor them.” Urban Dictionary, http://www.urbandictionary.com/ define.php?term=twitterati.

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Is Mom’s Basement the Newsroom of the 21st Century? Aware of the long struggle between Crown and press and desiring to curb unjustified official intrusions, the Framers took the enormously important step of subjecting searches to the test of reasonableness and to the general rule requiring search warrants issued by neutral magistrates. They nevertheless did not forbid warrants where the press was involved . . . . [T]he prior cases do no more than insist that the courts apply the warrant requirements with particular exactitude when First Amendment interests would be endangered by the search. As we see it, no more than this is required where the warrant requested is for the seizure of criminal evidence reasonably believed to be on the premises occupied by a newspaper. Properly administered, the preconditions for a warrant – probable cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness – should afford sufficient protection against the harms that are assertedly threatened by warrants for searching newspaper offices.35

Various aspects of the court’s reasoning may be illuminating as to how application of the “suspect exception” may develop.

Feder al R esponse

to

Zurcher

Privacy Protection Act of 1980

The Privacy Protection Act of 1980 was enacted by Congress in response to Zurcher36 to protect third parties, including publishers, from the effect of overreaching law enforcement searches and seizures.37 Congress was concerned that the government could invade the privacy of non-suspects.38 The Act was passed as a way to overrule Zurcher, and to provide journalists with the ability to investigate and disseminate the news without having to worry about interference from the government.39 The purpose of the Act was to afford the press and third parties not suspected of criminal conduct protections not provided for in the Fourth Amendment40 and to achieve a balance between the interests in privacy of individual citizens and the societal interest in bringing wrongdoers to justice.41 The Act prevents law enforcement from searching and seizing both work product and documentary materials of journalists.42 The Act, which covers only searches and seizures that are performed by government officials,43 protects materials that are intended to be disseminated to the public or that contain information that will be included in a public communication, as well as materials that were gathered in the preparation of such publication but were deemed not publishable.44 The material must be possessed by a person reasonably believed to have an intention of disseminating some form of public communication, which is to be interpreted broadly.45 35. Id. at 565. 36. Supra note 25. 37. Center for Democracy and Technology, et. al., Consumer Privacy Guide, http://www.consumerprivacyguide.org/law/ppa.shtml (visited Oct. 19, 2011). 38. S. Rep. 96-874 (1980), reprinted in 1980 U.S.C.C.A.N. 3950, 3951. 39. Electronic Privacy Information Center, The Privacy Protection Act of 1980, http://epic.org/privacy/ppa/ (visited Oct. 19, 2011). 40. S. Rep. 96-874 (1980), supra, 1980 U.S.C.C.A.N. at 3950. 41. Id. at 3951. 42. Electronic Privacy Information Center, supra. 43. S. Rep. 96-874 (1980), supra, 1980 U.S.C.C.A.N. at 3956. 44. Id. 45. Id. at 3957.

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There are two exceptions in the Act that allow for the search and seizure of work product.46 The first is the “suspect exception,” where the Act’s protections do not apply when probable cause has established that the person in possession of the materials is committing or has committed the criminal offense that the materials relate to.47 The Act’s second exception allows a seizure if it is reasonable to believe that seizure would prevent a human death or bodily injury.48 The Act provides four exceptions to the search and seizure of documentary materials.49 The first two – the suspect exception and the death and injury exceptions – are the same as those applicable to work product. The third exception, applicable only to documentary materials, is when there is reasonable belief that the giving of notice would result in destruction, alteration, or concealment of the materials.50 The fourth exception for documentary materials applies when the individual has failed to produce the materials in response to a court order.51 The statute creates a civil cause of action for a person aggrieved by a search for or seizure of materials in violation the federal statutory protections.52 Finally, the Act provides that the attorney general shall issue guidelines on the procedure to be used by federal law enforcement agencies to conduct searches for material covered by the Privacy Protection Act,53 and an employee or officer may be disciplined for violating them.54 An example of judicial application of the Privacy Protection Act of 1980 in an electronic media context is Steve Jackson Games, Inc. v. United States Secret Service.55 In Steve Jackson Games, the plaintiff company published books, magazines, and games, and also operated an electronic bulletin board system called Illuminati, which included information about its products, provided a medium for communication between employees, writers, customers, and game enthusiasts, and gave users a way to send electronic mail. 46. “Work product” is defined by 42 U.S.C. § 2000aa-7(b) as including materials, other than contraband, the fruits of, or the instrumentalities of a crime, prepared, authored, created, or possessed “in anticipation of communicating such materials to the public, are prepared, produced, authored, or created, whether by the person in possession of the materials or by any other person,” and “include[s] mental impressions, conclusions, opinions, or theories of the person who prepared, produced, authored, or created such material.” 42 U.S.C.A. § 2000aa-7(b). 47. 42 U.S.C. § 2000aa(a)(1). See also infra pp. 114-117. 48. 42 U.S.C. § 2000aa(a)(2). 49. Documentary materials are defined as “materials upon which information is recorded, and includes, but is not limited to, written or printed materials, photographs, motion picture films, negatives, video tapes, audio tapes, and other mechanically, magnetically or electronically recorded cards, tapes, or discs,” excluding contraband, the fruits of, or the instrumentalities of a crime. 42 U.S.C.A. § 2000aa-7(a). 50. 42 U.S.C. § 2000aa(b)(3). 51. 42 U.S.C. § 2000aa(b)(4). Another exception applicable to both types of material provides that the Act does not affect or impair a government officer’s ability to conduct searches and seizures at the borders or points of entries of the United States. 42 U.S.C. § 2000aa-5. 52. 42 U.S.C. Section 2000aa-6. Such an action may be brought against the United States, a state that has waived its sovereign immunity, or any other government unit for the acts of their employees acting within the scope of their employment. 42 U.S.C. § 2000aa-6. If a state has not waived its sovereign immunity, the person has a civil cause of action against the employee of the State who violated the Act while in the scope of employment. The person may recover actual damages but not less than liquidated damages of $1,000 and reasonable attorneys’ fees. Id. 53. 42 U.S.C. § 2000aa-11. These regulations, adopted in 1981, are codified at 28 C.F.R. § 59.1. See infra pp. 117-118. 54. 42 U.S.C. § 2000aa-11, 42 U.S.C. § 2000aa12. 55. Steve Jackson Games, Inc. v. United States Secret Service, 816 F. Supp. 432 (W.D. Tex. 1993), aff’d on other grounds, 36 F.3d 457 (5th Cir. 1994).

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Steve Jackson, owner of the company, used the Illuminati’s programs for electronic mail for communicating with writers about articles that were to be published by the company. Blankenship, an employee of the company, was a user of the Illuminati bulletin board system and a user of another board where a sensitive document that had been obtained through hacking had been posted. As part of an investigation into Blankenship’s Internet use, federal agents executed a search warrant and seized computers and information from Steve Jackson Games Inc., even though there was never any basis for suspicion that the company was involved in any criminal activity. During the search, Steve Jackson employees advised agents that the company was in the publishing business. But the agents were unaware of the Privacy Protection Act, so they failed to realize the importance of that fact. While no criminal information found, it took months for the seized materials to be returned. In the company’s suit against the government, the court found that the defendants were liable for seizing work product materials from the plaintiff, because the company was a publisher.56 Once the employees put the agents on notice that it was a publishing company, the court said, the conduct of the Secret Service in conducting the search violated the Privacy Protection Act.57

The “suspect ”

exception

As noted supra, the suspect exception to the Privacy Protection Act provides that law enforcement may generally search for and seize materials only if there “is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate,” unless the material sought relates directly to the crime or immediate seizure is necessary to protect an individual’s life or prevent bodily injury.58 The burden is initially on law enforcement who intend to invoke this exception, who must show probable cause to demonstrate that the person in possession of the materials is committing or has committed the criminal offense for which the materials are sought.59 The exception cannot be invoked if the only offense the possessor is suspected of is receiving, possessing, communicating, or withholding the materials, unless such an action constitutes an offense under espionage laws or statutes regarding restricted data.60 In DePugh v. Sutton,61 DePugh, a convicted felon, left rolls of film with a photo processing company. The processor notified police that the photos appeared to depict child pornography, and the police department seized the photographs. A search warrant was obtained for DePugh’s home as well as his wife’s home in another state, and items were seized from each residence. DePugh maintained that the searches were improper, because for several years he had continuously been involved in producing communicative materials intended for distribution to the public. The court ruled that the Privacy Protection Act did not apply to DePugh, because he was suspected of the crime in which the materials were sought,62 citing the provision of the Act allowing searches and seizures when a person suspected of a crime has possession of materials that are related to it.63

56. Id. at 441. 57. Id. at 440. 58. 42 U.S.C. § 2000aa(a)(1). 59. S. Rep. 96-874 (1980), supra note 38, 1980 U.S.C.C.A.N. at 3957. 60. Id. at 3957-3958. 61. 917 F. Supp. 690 (W.D. Mo. 1996), aff’d without opinion, 104 F.3d 363 (table) (8th Cir. 1996). 62. Id. at 696. 63. Id.

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In Sennett v. United States,64 law enforcement searched the home of Laura Sennett, who claimed to be a photojournalist whose photos and commentary appeared on her own blog and website, and whose photographs had been published in other media outlets.65 Although at least three officers knew that Sennett was a photojournalist, a search warrant was issued and served, and an external hard drive containing more than 7,000 photographs, two computers, several cameras, and several camera memory cards were seized.66 The plaintiff claimed that this represented all of her professional work product, and nearly all of the equipment she needed to maintain her profession as a photojournalist.67 Sennett’s lawsuit for violation of the Privacy Protection Act ended when the court granted a motion for summary judgment by the defendants, who argued that the “suspect exception” applied because there was probable cause to believe that Sennett had participated in illegal acts of vandalism at a hotel in Washington, D.C.68 The court held that the requisite probable cause was present because there was enough circumstantial evidence to find probable cause to believe that Sennett “was, in some fashion, a member of this group of vandals.”69 Various aspects of the court’s reasoning may be illuminating as to how application of the “suspect exception” may develop. The court rejected Sennett’s argument that police knowledge that she was a photojournalist provided an innocent explanation for her presence at the hotel, thus negating probable cause that she was a co-conspirator or accomplice.70 Although “the fact that a person is a photojournalist who records demonstrations or a political scientist, historian, or psychologist, who records demonstrations for study and future publication is always a fact to be considered”71 in the probable cause determination, the court said, it refused to treat Sennett’s photojournalist status as a “game changer” in the probable cause determination, stating that Congress had declined to exclude journalists from the “suspect exception.”72 The court appeared to regard it as significant in supporting the probable cause finding that Sennett displayed no press credentials and carried no photographic equipment other than a small, handheld camera.73 One can only speculate about the number of bloggers or other web-based journalists present at a newsworthy event who would be identical to Sennett in this respect, but it seems reasonable to assume that the percentage would be very high. The court also regarded it as immaterial that the United States Attorney declined to file charges against Sennett based on the vandalism of the hotel because, the prosecutor said, “there was no evidence to date to suggest that Sennett participated in the vandalism.”74 64. 778 F. Supp.2d 655 (E.D. Va. 2011). 65. Id. at 656. The court made its ruling on a motion for summary judgment, but noted that the facts of the case were not materially disputed. Id., n. 1. 66. Id. at 658. 67. Id. 68. Id. at 656, 662, 667. 69. Id. at 665. The court cited the “strong suspicion” that Sennett may have arranged in advance to meet the vandals at the hotel, that she arrived at the hotel shortly after the vandals arrived (at 2:30 a.m.), that she was dressed similarly to the vandals and, like them, carried a backpack, that she did not display press credentials or carry any photographic equipment other than the small, handheld recorder used by her to photograph the vandals in action, and that when the vandals left the scene, she also left, at least initially in the same direction taken by the vandals. Id. at 656, 663-64. 70. Id. at 665-66. 71. Id. at 666. n. 21. 72. Id. at 665-66. 73. Id. at 663. 74. Id. at 666.

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Instead, the court’s probable cause determination supporting application of the “suspect exception” focused on what the police knew at the time the search warrant was sought, with the court reiterating its conclusion that requisite probable cause had been present.75 This suggests that a subsequent exoneration of a journalist subject to the “suspect exception” may not be useful to that journalist in pursuing civil remedies under applicable statutes. Teichberg v. Smith76 represents another example of difficulties members of the new media face in utilizing the protections of federal statutory law. In Teichberg, police had been alerted to watch for individuals “who would intend to disrupt or interrupt the Republican National Convention and target critical infrastructures, including rail yards.”77 Police claimed to have encountered the plaintiff as he and two companions exited a rail yard. When the police got out of their patrol car “to talk to these individuals,” the officers said that they “observed” in the plaintiff’s backpack “cameras, video cameras, a computer, cables, maps, RNC protest schedTo qualify as a journalist, the ules and anarchist literature.”78 The three were placed in the patrol car, individually person must set out to gather newsworthy information to spread questioned, and, when a warrant check was negative, released. But the police kept their to public, not do so for personal equipment while they obtained a search warrant to examine the contents of the camera and reasons and must maintain computer.79 When the police application for a independence from the influence of search warrant was denied, the equipment was returned, having been held for approximately publishers and employers. 14 hours.80 The plaintiff claimed that he was a member of the Glassbead Collective, an independent news-gathering organization that gathers audio, video and photographic evidence of unlawful police conduct, and filed suit against the officers and the City of Minneapolis asserting various causes of action, including one for violation of the Privacy Protection Act.81 It is evident in its ruling dismissing this claim that the court did not credit the plaintiff’s description of events.82 The court disposed of the plaintiff’s Privacy Protection Act claim, finding that the plaintiff had not identified himself as a journalist, and then noting that, even if he had been so identified, the “suspect exception” defeated his claims because, “Plaintiff has failed to raise genuine issues of material fact that the temporary seizure of the Plaintiff’s backpack was unreasonable.”83

75. Id. 76. 734 F.Supp.2d 744 (D. Minn. 2000) 77. Id. at 746. 78. Id. 79. Id. at 747. 80. Id. 81. Id. at 746, 747. 82. The difference in how the testimony of the police and how the testimony of the plaintiff are recounted in the ruling is striking. What the police said and did is stated almost entirely without qualifiers (sometimes the police “reported”), while facts reported by the plaintiff are uniformly prefaced with “denies,” “asserts,” and “claims.” Id. at 746-47. 83. Id. at 752.

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Just as in the Sennett case, the judge in Teichberg seemed more than ready to accept the police characterization of the plaintiffs as criminal suspects, even where, in Sennett, the plaintiff was not prosecuted because the government determined that no evidence suggested she had participated in the vandalism, and in Teichberg, no crime had been committed at all.84 In a scenario like the “Occupy Wall Street” demonstrations taking place as this article is written, where persons documenting police violence use cellphone cameras and other, small, handheld devices, courts demanding that bloggers have press credentials and ready to credit police characterizations of new media journalists as silent accomplices of vandals and trespassers may not provide effective protection for important new exercises of First Amendment freedoms.

Code of Federal Regulations

The federal regulations adopted under § 2000aa-11 of the Privacy Protection Act85 provide guidance to federal officers and employees on methods of obtaining “documentary materials held by third parties.”86 But this provision is not applicable to searches and seizures against journalists, since they specifically state that: The use of search and seizure to obtain documentary materials which are believed to be possessed for the purpose of disseminating to the public a book, newspaper, broadcast, or other form of public communication is subject to title I of the Privacy Protection Act of 1980, which strictly prohibits the use of search and seizure to obtain such materials except under specified circumstances.87

Thus, the guidelines appear directed at “documentary materials”88 held by a “disinterested third party”89 not engaged in some form of public communication of information, i.e. those persons covered by 42 U.S.C. Section 2000aa-1190. As to materials held by journalists, as one court has observed, “…the purpose of the Act was to encourage use of subpoenas to obtain material” from journalists, rather than search warrants.91

84. A police officer sought a criminal complaint against Teichberg for trespass but a city prosecutor declined to issue a complaint. Id. at 749. 85. See supra note 53. 86. Separate regulations regarding subpoenas of the media generally require federal prosecutors to use such subpoenas as a last resort, and only after negotiating with the media subjects of the subpoenas to limit the scope of the inquiry. See 28 C.F.R. § 50.10 (2011). The rules also require specific, personal authorization from the Attorney General to execute such a subpoena. Id., See also, generally, Adam Liptak, The Hidden Federal Shield Law: On The Justice Department’s Regulations Governing Subpoenas to the Press, 1999 A nn. Surv. A mer. L. 227 (1999). 87. 28 C.F.R. 59.3(c) (citation omitted). 88. Defined as “any materials upon which information is recorded, and includes, but is not limited to, written or printed materials, photographs, films or negatives, audio or video tapes, or materials upon which information is electronically or magnetically recorded.” Excepted from this definition (thus permitting ordinary search and seizure methodology as to them) are “contraband, the fruits or instrumentalities of a crime, or things otherwise criminally possessed.” 28 C.F.R. 59.2(c). 89. Defined as “a person or organization not reasonably believed to be (1) A suspect in the criminal offense to which the materials sought under these guidelines relate; or (2) Related by blood or marriage to such a suspect.” 28 C.F.R. 59.2(b). 90. See supra note 54. 91. Doe v. DiGenova, 642 F. Supp. 624 (D.D.C. 1986) (citing S. Rep. 96-874, supra note 38, 1980 U.S.C.C.A.N. at 3950, 3951, 3957), aff’d in relevant part, Doe v. Stephens, 851 F.2d 1457, 1464 (D.C. Cir. 1988).

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Who is a “journalist”? The fundamental issue is the legal definition of the term journalist, and whether it comports with modern media reality. In formulating a legal definition of “journalist,” the law has heretofore focused on circumstances where a journalist resists being compelled to give testimony or in other contexts not involving search and seizure.92 As the subsequent discussion of state statutes in this article demonstrates, those statutes tend define protected persons using the terminology of journalism: publisher, editor, reporter, journalist, and the like.93 Thus, whether a blogger or other practitioner of online or technology-based public communication will be protected by those statutes remains at issue. Previously developed judicial definitions of what constitutes a “journalist” may therefore have ongoing relevance in this context, or may need to be adapted to take account of modern dissemination modalities. Several states have differing laws regarding what specifically constitutes a journalist protected by a newsperson’s privilege. Florida Evidence Code 90.5015 provides: “Professional journalist” means a person regularly engaged in collecting, photographing, recording, writing, editing, reporting, or publishing news, for gain or livelihood, who obtained the information sought while working as a salaried employee of, or independent contractor for, a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine. Book authors and others who are not professional journalists, as defined in this paragraph, are not included in the provisions of this section.94

Several other states take the same approach, defining a journalist in terms of an individual’s relationship a media entity.95 But while Florida’s statute requires that an individual be paid as an employee or independent contractor, Montana’s Evidence Code provides a privilege for anyone working for a recognized media entity, regardless of pay. Without a person’s consent, a person, including any newspaper, magazine, press association, news agency, news service, radio station, television station, or community antenna television service or any person connected with or employed by any of these for the purpose of gathering, writing, editing, or disseminating news may not be examined…96 The California Evidence Code also takes this approach: A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged…97

92. For a comprehensive examination of statutes and court rulings defining who is a “journalist,” see M e dia L aw R esource C enter , R esource M aterials For D efining “Jour nalist ” A nd “M edia” I n L iti gation A nd L egisl ation (Oct. 2011). 93. See infra pp. 123-132. 94. F l a . S tat. § 90.5015 (2011). 95. See C al . E vid. C od e § 1070; D.C. C ode §16-4702; C olo. R ev. S tat. § 13-90-119(1)(c); C onn. G en. S tat. § 52-146t(a)(2)(B); F l a . S tat. § 90.5015; I nd. C ode § 34-46-4-1(1); K y. R ev. S tat. § 421.100; Mont. C ode § 26-1-902(1); M d. C ode § 9-112(b), (c); N.J.S.A. § 2A:84A-21; N.M. S tat. § 38-6-7(A) (7), (8); N.Y. C iv. L aw § 79-h(a)(6)-(7); N.C. G en. S tat. § 8-53.11; N.D. C ent. C ode § 31-01-06.2; O r . R ev. S tat. § 44.520(1); 42 Pa . C on. S tat. § 5942(a). 96. Mont. C ode § 26-1-902 (2009). 97. C al . E vid. C ode § 1070 (2011).

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North Carolina, meanwhile, provides a definition based on whether an individual is “engaged in” specified journalistic activities. Journalist – Any person, company, or entity, or the employees, independent contractors, or agents of that person, company, or entity, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium.98

Several other states take this approach,99 while others provide protection while engaged in their duties as journalists, without specifically defining the term.100 Overall, state statutes seem to define a journalist as a person with a connection to a news distribution entity who is engaged in gathering and disseminating information to the public. A journalist is a person who had the intent, at the inception of an investigation, to disseminate information learned to the public; in most states, the mode of dissemination is not as important as the intent.101 A journalist does not have to be a credentialed reporter employed by a recognized press entity; the individual must only show that he or she was engaged in activities traditionally connected with gathering and spreading information.102 The party claiming to be a journalist has the burden of proving that he or she was gathering information for dissemination to the public,103 and must establish three elements to be deemed a journalist: that he or she is participating in investigative reporting, that he or she is gathering news, and that he or she had the intent at the start of the investigation to disseminate news to the public.104 In von Bulow by Auersperg v. von Bulow,105 Andrea Reynolds was a friend and confidant of the defendant while he was on trial for putting his wife into a coma by injecting her with insulin and other drugs. Reynolds then created a manuscript about the case. When a civil action was brought against von Bulow for the injuries to his wife,106 the court ordered Reynolds to produce the manuscript. Reynolds argued that the manuscript was privileged under New York’s shield law because she was a journalist producing an old press card and indicating that she had written an article about the von Bulow trial for a German magazine.107 The manuscript at issue was not produced under a contract with a publisher.108

98. N.C. G en. S tat. § 8-53.11 (2010). 99. See A l a . C ode § 12-21-142; Neb . R ev. S tat. § 20-146; O hio R ev. C ode § 2739.04, § 2739.12; 12 O kl a . S tat. § 2506(7); Tenn. C ode . § 24-1-208(a). 100. See A l ask a S tat. § 09.25.300; and C olo. R ev. S tat. § 13-90-119(2). 101. Chevron Corp. v. Berlinger, 629 F.3d 297, 307 (2d Cir. 2011); Too Much Media, LLC v. Hale, 993 A.2d 845, 854 (N.J. Super. A.D. 2010); Schiller v. City of New York, 245 F.R.D. 112, 119 (S.D.N.Y. 2007); In re Madden, 151 F3d 125, 129 (3d Cir. 1998); von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 143 (2d Cir. 1987). 102. Chevron Corp. at 307; Too Much Media, LLC at 855; Schiller at 118; In re Madden, at 129. 103. Too Much Media at 853-854; In re Madden at 130; von Bulow at 143. 104. In re Madden at 131. 105. 811 F.2d 136 (2d Cir. 1987). 106. von Bülow was convicted in his first trial in 1982, but the conviction was overturned on appeal. See State v. von Bülow, 475 A.2d 995 (R.I. 1984), cert. denied, Rhode Island v. Von Bülow, 469 U.S. 875 (1984). A retrial ended with an acquittal. 107. von Bülow at 139. 108. Id. at 139-40.

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The court ultimately decided Reynolds was not a journalist and her work was not privileged.109 In making this determination, the court found that the U.S. Supreme Court has not limited the definition of a journalist to just newspaper reporting,110 and that it does not matter which manner is used for dissemination.111 The court held that an individual may assert the status of “journalist” even if he or she is not part of the institutionalized press, as long as he or she carries on activities related to disseminating and gathering news.112 Prior experience as a professional journalist may be considered as persuasive evidence of a current intent to gather information for dissemination to the public.113 But gathering information for personal reasons and then deciding to publish or disseminate it does not make a person a journalist under the shield law.114 In Chevron Corp. v. Berlinger,115 the defendant created and released a documentary about the evidentiary phase of a trial involving Chevron’s subsidiary Texaco and environmental pollution in the Lago Agrio region of Ecuador. The documentary contained footage of Chevron’s representatives in court and meeting with President Rafael Correa of Ecuador. The A reasonable reading is that the district court found that the plaintiff’s counsel individual must be known within the in the Lago Agrio litigation had solicited Berlinger to create the film and had given him media as a contributing member. suggestions in the editing process.116 Chevron sought production of all footage related to the This requirement could leave previous trial.117 The court decided that Bernewcomers, unknown in the media linger did not qualify as a journalist and that the footage created for the documentary was industry, potentially unprotected. not privileged.118 The court determined that individuals like Berlinger who do not maintain their independence from the views of their publishers or employers while investigating and gathering information have a weak argument for being classified as a journalist.119 In Too Much Media, LLC v. Hale,120 defendant Shellee Hale created a website about negative tracking and marketing aspects of the online adult entertainment industry. She began an investigation into the industry by reviewing porn websites, news media websites, attending trade shows and interviewing people in the industry but never communicated with principals at Too Much Media.121 In addition to her own site, Hale communicated primarily through blogs and message boards that were mostly unfiltered and not reviewed by site administrators.122 Many of her posts were about an online security breach that occurred on

109. Id. at 146. 110. Id, at 143. 111. Id. 112. Id. at 142. 113. Id. at 143. 114. Id. 115. Supra,note 101, 629 F.3d 297 (2d Cir. 2011). 116. Id. at 303. 117. Id. at 304. 118. Id. at 311. 119. Id. at 308. 120. Supra note 101, 20 A.3d 364 (N.J. 2011). 121. Id. at 369. 122. Id.

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Too Much Media’s adult sites.123 In one post, Hale concluded that Too Much Media used technology fraudulently and unethically.124 When Too Much Media demanded Hale’s sources she resisted, arguing that she posted the information to inform the public and to begin a debate on the issues. The court denied Hale’s claim of being a journalist and decided that her work was not privileged.125 While the court found very few cases that determine who qualifies as a journalist, it held that for an individual to be a journalist he or she must have a connection with a news media outlet and be acting within the scope of his or her professional duties.126 Simply claiming to be a journalist, the court said, does not make a person into one, to whom the journalists’ privilege applies.127 For purposes of these cases involving reporters’ privilege, the general rule is that an individual’s intent at the start of an investigation is what often ultimately determines if the person is a journalist. To qualify as a journalist, the person must set out to gather newsworthy information to spread to public, not do so for personal reasons and must maintain independence from the influence of publishers and employers.

State Constitutional and Statutory Search & Seizure Rulings While the federal statute may or may not adequately protect newsrooms, nine state legislatures have extended statutory search warrant protections to newsroom materials.128 Many of these statutes substantially borrow search limitations from the statutory scheme of the federal Privacy Protection Act, but may provide greater latitude of protection or a broader definitional scope of terms as defined in state law. While these codes are commonly lumped together and referred to as “newsroom search and seizure protection statutes,”129 a closer examination may uncover an unexpected change in the scope of liberty in both protected location and material they actually shield from unlawful searches. Enacted statutes often leave gaps to be filled, ambiguities to be discerned, or verbiage to be defined. As the following statutes are untested and remain undefined by courts, we are left to rely upon the traditional cannons and tenets of statutory construction and judicial interpretation when comprehending what is protected by these statutes.

Rules

of

S tatutory I nterpretation

The courts’ preeminent concern is that statutes will have the desired legislative affect. In order to do so, they will commonly look to and apply rules such as the plain meaning rule,130 the relevant audience doctrine,131 determination of technical meaning,132 in pari materia (“part of the same material”),133 expressio unis est exclusio alterius (“the inclusion 123. Id. 124. Id. at 370. 125. Id. at 380. 126. Id. 127. Id. 128. These states are California; Connecticut, Illinois, Nebraska, New Jersey, Oregon, Texas, Washington, and Wisconsin. For detailed analyses of these statutes, see infra pp. 121-132. 129. R eporters Committee for Freedom of the Press, First A mendment Handbook, chap. 4 (7th ed. 2011), http://www.rcfp.org/handbook/?pg=4-4. 130. See, e.g., Smith v. United States, 508 U.S. 223 (1993); Bailey v. United States 516 U.S. 137 (1995); Watson v. United States 552 U.S. 74 (2007). 131. See, e.g., Patrie v. Area Coop. Educ. Serv.. 37 Conn. L. Rptr. 470 (Conn. Super. Ct. 2004). 132. See, e.g., Van Reken v. Darden, Neef & Heitsch, 647 N.W.2d 731 (S.D. 2002). 133. See, e.g., United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assoc., Ltd., 484 U.S. 365 (1988); Commonwealth v. Smith, 728 N.E.2d 272 (Mass. 2000).

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of one thing excludes the other”)134 and express legislative history. These are the factors we will employ to help give us guidance on the nine relevant state statues. The first and most commonly applied135 cannon is the “plain meaning rule.”136 Generally, “unless otherwise defined in the statute, or understood to have a technical or peculiar meaning in the law, every word or phrase of a statute will be given its plain and ordinary meaning.”137 The Supreme Court used this test in Nix v. Heddon, using the dictionary definition of “fruit” and “vegetable” to determine that tomatoes were vegetables covered under the Tariff Act of 1883.138 The second cannon is “the relevant audience doctrine.” Assuming that the ordinary meaning is consequential, the next step is to ask whose understanding of the ordinary meaning is relevant.139 The third test is the “determination of technical meaning.” Closely related to the “plain meaning rule,” this doctrine allows the use of a technical or peculiar of a term used in a statute, unless otherwise directed.140 In St. Clair v. Commonwealth, for example, the court discussed the different meanings of the word “conviction” in a statute that allowed a prior conviction to be used as grounds to seek special circumstances in a subsequent crime.141 The fourth test is the “expressio unis est exclusio alterius” doctrine, or “the inclusion of one thing excludes the others.”142 This general rule of construction stands for the supposition that statutory directives normally permit actions that they do not specifically prohibit.143 This cannon, like others, presupposes the fact that the legislature had the foresight and knowledge to know and consider all possible options before selecting the language it desired.144 A few judges, however, have suggested that this approach is unreliable and should not be followed for some subjects.145 The fifth statutory construction rule that we will apply is the in pari materia or “part of the same material” doctrine.146 In pari materia is principle that related statutes should be interpreted similarly, unless legislative history or purpose suggests material differences.147 Simply put, this cannon suggests that statutory language should be read in its entirety, not looked at in isolation. As articulated by the Supreme Court, “[s]tatutory construction … is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme … .”148 134. See, e.g., Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73 (2002). 135. See, e.g., Ellen Aprill, The Law of the Word: Dictionary Shopping in the Supreme Court, 30 A riz . S t. L. J. 275 (1998); Lawrence Sloan, When Judges Use the Dictionary, 68 A m . S peech 1 (1993); Note, Looking It Up: Dictionaries and Statutory Interpretation, 107 H arv. L. R ev. 1437 (1994). 136. Smith v. United States, 508 U.S. 223 (1993); Bailey v. United States 516 U.S. 137 (1995); Watson v. United States 552 U.S. 74 (2007). 137. Van Reken, supra note 132, at 733. 138. Nix v. Heddon, 149 U.S. 304 (1893) 139. Patrie v. Area Coop. Educ. Serv., 37 Conn. L. Rptr. 470 (Conn. Super. Ct. 2004) 140. Van Reken v. Darden, Neef & Heitsch, 674 N.W.2d 731, 733 (Mich. App. 2003). 141. St. Clair v. Commonwealth, 140 S.W.3d 510 (Ky. 2004), reh’g denied (Ky. 2004). 142. Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73 (2002). 143. See generally, Hishon v. King & Spalding, 467 U.S. 69, 77-78 (1984). 144. Nat’l Petroleum Refiners Ass’n v. FTC, 482 F.2d 672, 676 (D.C. Cir. 1973). 145. See, e.g., id. 146. United Savings Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365 (1988); Commonwealth v. Smith, 728 N.E.2d 272 (Mass. 2000). 147. Philip P. Frickey, Elizabeth Garrett & William N. Eskridge, Legislation and Statutory Interpretation (2d ed. 2006). 148. United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988).

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The final factor we will apply is that of express legislative history or intent. When available, the courts will consider legislative history to achieve a more clear conception of what the legislature was intending and attempting when enacting a statute. The prevailing and moderate position is that legislative history or legislative intent should be considered only if it is, (1) readily available to the average attorney; (2) relevant to the precise interpretative question, (3) and reliable evidence of consensus within the legislature that can be routinely discerned by interpreters at a reasonable costs.149 By applying these factors to each state’s statute, we will then categorize each statute according to level of protection it offers.

California Section 1524(g) of the California Penal Code states that “no warrant shall issue for any item or items described in Section 1070 of the Evidence Code.” Section 1070 of the state’s Evidence Code, in turn, states that: (a) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. (b) Nor can a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. (c) As used in this section, “unpublished information” includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.

A simple plain language reading of this statutory scheme is that it is written as an absolute unqualified general rule of protection. It provides the general premise that no search warrant shall be issued150 requiring “a publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication”151 to disclose “any information procured” for publication.152 The statute is comprehensive in its coverage of material with the legislature repeatedly using the comprehensive word “any.” A reasonable inference is that legislature chose to include the phrases “source of any information procured”153 and “refusing to disclose any 149. H enry H art, Jr . & A lbert S acks , The L egal P rocess: Basic P roblems in M aking a nd A pplication of L aw 1253-54 (William Eskridge, Jr. & Philip Frickey, eds. 1994); George Costello, Average Voting Members and Other “Benign Fictions”: The Relative Reliability of Committee Reports, Floor Debates, and Other Sources of Legislative History, 1990 D uke L.J. 39 150. Cal Penal Code §1524(g). 151. Cal. Evid. Code §1070(a). 152. Cal. Evid. Code §1070(a). 153. Id. (emphasis added).

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unpublished information obtained or prepared in gathering,”154 to provide maximum protection to materials held by journalists.155 The individuals to whom the statute applies is enumerated in the language of the provision, and includes publishers, editors, reporters, and other persons connected with or employed by the traditional publication industry.156 Because the statute specifically delineates the protected class, the issue of scope boundaries implicated by the expressio unis est exclusio alterius doctrine apply. The codified language would unquestionably include media and general newsgatherers, but only to the extent that the media entity or newsgatherer had some “connection” or employment relationship with the publication service.157 As the code does not define “connected,” courts could extend the intended statutory intent and provide protection to tangentially related individuals, so long as they could demonstrate a nexus with a news organization. The California Supreme Court has already held that the state’s provision regarding subpoenas of journalists covers a technology news blog.158 Extending this logic, the protections of Cal Penal Code §1524(g) ought to protect reporters working from their home workstations. This analysis leads the authors to conclude that this statute would best be described as providing limited protection of newsgathering material wherever situated. Infra, this article provides an in-depth analysis of this statutory scheme to the 2010 incident involving the technology company Apple and the Gizmodo technology blog, where an online reporter’s home office had a search warrant issued and exercised upon it.159

C onnecticut Connecticut General Statute section 54-33j provides: (a) No search warrant, as provided in section 54-33a, may be issued to search any place or seize anything in the possession, custody or control of any journalist or news organization unless such warrant is issued upon probable cause that such person or organization has committed or is committing the offense related to the property named in the warrant or such property constitutes contraband or an instrumentality of a crime.160

A simple, plain-language reading of this statute is that, like California’s, it is written as a double-qualified general rule. It provides the general premise that, “no search warrant … may be issued … unless such warrant is issued upon probable cause [and]… the property named in the warrant or such property constitutes contraband or an instrumentality of a crime.” Like the California statute, law enforcement must show a reasonable nexus between the items sought and a nefarious act. Unlike the California statute, however, the Connecticut statute’s relevant actor has been expressly limited to “any journalist or news organization.” In a companion section, the legislature has defined the terms “journalist” and “news organization.”

154. Id. (emphasis added). 155. See Delaney v. Superior Court, 50 Cal.3d 785, 798, 789 P.2d 934, 941 (Cal. 1990), reh’g denied (Cal. July 11, 1990) (reading “any” expansively). 156. Id. 157. Id. 158. See, e.g., O’Grady v. Superior Court, 139 Cal.App.4th 1423, 44 Cal.Rptr.3d 72 (Cal.App., 6th Dist. 2006) (extending coverage of C al . C onst., art. I, § 2(b) and C al . E vid.C ode § 1070(a) to a technology blogger). See also infra notes 217-231, and accompanying text. 159. See p. 130, infra. 160. C onn. G en. S tat. § 54-33j.

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For the purposes of … section … 54-33j: (1) “Journalist” means a person engaged in the business of investigating, collecting or writing news, or of supervising such activity, with the intent of publication or presentation or for publication or presentation to the public through a news organization. (2) “News organization” means (A) an individual, partnership, corporation or other association engaged in the business, whether or not for profit, of (i) publishing a newspaper or other periodical that reports news events and that is issued at regular intervals or has a general circulation; or (ii) providing newsreels or other motion picture news for public showing; or (iii) broadcasting news to the public by wire, radio, television or facsimile; and (B) a press association or other association of individuals, partnerships, corporations or other associations described in subparagraph (A) of this subdivision or in subdivision (1) of this section engaged in gathering news and disseminating it to its members for publication. (3) “News” means any compilation of facts, theories, rumors or opinions concerning any subject for the purpose of informing the public.161

By expressly limiting the two-tiered qualifier to “any journalist or news organization,” the doctrine of expressio unis est exclusio alterius would imply that unless otherwise stated, the two-tiered approach would not apply to non-journalists or non-news organizations. This would provide more protection for the media than to civilians at large. Like the California statute focused on the aspect of “possession,” Connecticut’s statute uses similar language, requiring that the sought-after information be in “possession, custody or control” of the media.162 This statute would thus clearly apply to a reporter’s home office or other any locale where a reporter could demonstrate that they have dominion or control over the premises. This analysis leads the authors to conclude that this statute would best be described as offering limited protection of transitory possession of newsgathering material.

I llinois 725 Ill. Comp. Stat. 5/108-3(b) states: When the things to be seized are the work product of, or used in the ordinary course of business, and in the possession, custody, or control of any person known to be engaged in the gathering or dissemination of news for the print or broadcast media, no judge may issue a search warrant unless the requirements set forth in subsection (a) are satisfied and there is probable cause to believe that: (1) such person has committed or is committing a criminal offense; or (2) the things to be seized will be destroyed or removed from the State if the search warrant is not issued.163

A plain-language reading of this statute once again provides a multi-layered, qualified general rule. To be protected under the Illinois statute, the material sought must be either (1) “work product,” or other items used in the ordinary course of business, and (2) in the “possession or custody” of the targeted individual. Also, to qualify under this statute the person in possession of the material must be “known to be engaged in the gathering or dissemination of news for the print or broadcast media.”164 This language raises the question of, known to whom? A reasonable reading is that the individual must be known within the media as a contributing member. This requirement could leave newcomers, unknown in the media industry, potentially unprotected. 161. C onn. G en. S tat. § 54-33i. 162. Id. 163. 725 I ll . C omp. S tat. 5/108-3(b). 164. Id. (emphasis added).

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The statute does include a furtherance of crime exception, however law enforcement does not need to demonstrate the item to be sought contains a nexus to the presumed criminal act. In addition, Illinois provides alternative grounds for seizure of items that “will be destroyed or removed from the state if the search warrant is not issued.” The language employed, “will be,” is a harsh boundary requiring absolute knowledge of future By approaching these statutes destruction; the legislature could have used softer language of “may” be destroyed or with a nuanced understanding “could” be destroyed, which would perhaps of the textual rules we are able provide less protection to journalists. As for the definition of journalist, the to more accurately categorize Illinois legislature has limited the protected them giving media a better group to include “any person known to be understanding of the protections engaged in the gathering or dissemination of news for the print or broadcast media.” The granted under state law. use of these terms could potentially cover online or remote publication reports.165 The Illinois law also defines “reporter” and “news medium.”166 “Reporter” is defined as “any person regularly engaged in the business of collecting, writing, or editing news for publication through a news medium …,”167 and “news medium” is defined as “any newspaper or periodical issued at regular intervals whether in print or electronic format and having a general circulation [or] a news service whether in print or electronic format….”168 With the amendment of the statute in 2001 to include electronic forms of publication in its understanding of news medium,169 there is little doubt that online reporters would be included and protected by the law. This statute also focuses on the “possession or custody” of the item sought rather than focusing on its location. Akin to the analysis under California and Connecticut statues, defining the possible search locale as “possession” provides maximum protection for online publishers working at remote workstations. This analysis leads the authors to conclude that this statute would best be described as providing limited protection of transitory possession of newsgathering material.

Nebr ask a Nebraska Revised Statute § 29-813(2) states: Notwithstanding subsection (1) of this section, no warrant shall be issued to search any place or seize anything in the possession, custody, or control of any person engaged in procuring, gathering, writing, editing, or disseminating news or other information for distribution to the public through a medium of communication unless probable cause is shown that such person has committed or is committing a criminal offense. For purposes of this subsection, the terms person, information, and medium of communication shall be defined as provided in section 20-145.170

165. The term “print” is defined by Merriam-Webster’s dictionary as “printed letters: type.” M erria m Webster’s D ictionary O nline (2011), http://www.merriam-webster.com/dictionary/print. 166. 735 I ll . C onsol . S tat. §5.8-902. 167. 735 I ll . C onsol . S tat. § 5.8-902(a) 168. 735 I ll . C onsol . S tat. § 5.8-902(b) 169. I ll . P ub . A ct 92-335, § 35 (eff. Aug. 10, 2001). 170. Neb . R ev. S tat. § 29-813(2).

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A plain language reading of this statute is that it provides a non-qualified general rule with the furtherance of crime exception. Like the California statute, it applies to “any person” involved in the various processes of gathering and disseminating information to the public. “Person” includes both “any individual … or other legal entity existing under … the law of the United States ….,”171 and the statutory definition of “information” includes “any written, audio, oral, or pictorial news or other material.”172 The Nebraska statute also provides a broad definition of “medium of communication,” which “shall include, but not be limited to, any newspaper, magazine, other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.”173 Like the other state statutes we have examined, the Nebraska law focuses on “possession, custody, or control” of materials, not their physical location.174 The conclusion that the statute is meant to cover a broad protected class is supported by the codified legislative findings. Section 20-144 states, “The legislature finds: (1) That the policy of the State of Nebraska is to insure the free flow of news and other information to the public, and that those who gather, write, or edit information for the public or disseminate information to the public may perform these vital functions only in a free and unfettered atmosphere;…(3) That compelling such persons to disclose…unpublished information is contrary to the public interest and inhibits the free flow of information to the public”.175 This legislative statement and committee statements would meet all of the hurdles facing the admittance of legislative materials because the findings are often published or codified, which demonstrates a higher level of legislative acceptance than committee testimony or even floor speeches.176 Under this statutory construction, remote publication authors would likely be covered and any location they could demonstrate dominion or control would be protected. This analysis leads the authors to conclude that this statute would best be described as providing limited protection of transitory possession of newsgathering material.

New Jersey New Jersey Statutes section 2A:84A-21.9 provides that: Any person, corporation, partnership, proprietorship or other entity engaged on, engaged in, connected with, or otherwise employed in gathering, procuring, transmitting, compiling, editing, publishing, or disseminating news for the public, or on whose behalf news is so gathered, procured, transmitted, compiled, edited, published or disseminated shall be free from searches and seizures, by State, county and local law enforcement officers with respect to any documentary materials obtained in the course of pursuing the aforesaid activities whether or not such material has been or will be disseminated or published. This section shall not restrict or impair the ability of any law enforcement officer… to search for or seize such materials, if there is probable cause to believe that: a. The person, corporation, partnership, proprietorship or other entity possessing the materials has committed or is committing the criminal offense for which the materials are sought; …177 171. Neb . R ev. S tat. § 20-145(7). 172. Neb . R ev. S tat. §20-145(3). 173. Neb . R ev. S tat. § 20-145(2). 174. Neb . R ev. S tat. § 29-813. 175. Neb . R ev. S tat. § 20-144 (emphasis added). 176. Costello, supra note 149, 1990 D uke L.J. at 43 (citing Thornburg v. Gingles, 478 U.S. 30, 44 n.7 (1986) (“We have repeatedly recognized that the authoritative source for legislative intent lies in the committee reports on the bill.”)). 177. N.J. S tat. § 2A:84A-21.9.

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This statute is written as a qualified general rule, similar to California’s. It provides a broad umbrella of coverage, including “any documentary materials obtained in the course” of seeking publication,178 and its protected class, like California’s, is broad and includes “any person.”179 We are able to understand the legislature’s intent for a broad scope of protection with confidence, because of the available legislative history. An Assembly committee’s statement of legislative intent in the text of the law enacting section 2A:84A-21.9 make this explicit, stating, The purpose of this bill is to preserve the first amendment’s freedom of the press by insuring that the files of the news media shall not be the subject of searches and seizures by law enforcement officials, except, as amended by the committee, in specifically enumerated special cases. The exceptions are where there is probable cause to believe that: the news media is involved in a crime, the seizure is necessary to prevent death or serious injury, the subpena process would result in concealment or destruction of evidence, the subpena process has not worked and justice is being thwarted. Committee amendment also provides for a civil cause of action against the State or the individual if a search and seizure against the news media is in violation of this act. Finally, the committee amendment explicitly refers to and reaffirms the power of the Department of Corrections to search inmate newspapers within a correctional facility.180

This statement, while less reliable than codified language, is not contradicted in any other statements regarding the statute. It sheds sufficient insight into the Legislature’s intent of a broad application. The statement is available at low cost and can be publicly accessed online or by contacting committee staff. This analysis leads the authors to conclude that this statute would best be described as offering comprehensive protection of newsgathering material wherever situated.

Oregon Or. Rev. Stat. section 44.520(2) states: (2) No papers, effects or work premises of a person connected with, employed by or engaged in any medium of communication to the public shall be subject to a search by a legislative, executive or judicial officer or body, or any other authority having power to compel the production of evidence, by search warrant or otherwise. The provisions of this subsection, however, shall not apply where probable cause exists to believe that the person has committed, is committing or is about to commit a crime.181

A plain reading of Oregon’s statute creates a simple, straight-forward, search protection, including the common crime exception. However, this statutory construction does not require law enforcement to demonstrate a nexus between the material sought and the suspected criminal action. This is quite unsettling. Under this statutory construction, it is conceivable that an unrelated criminal act could potentially give a pretext for law enforcement to search newsgathering material. The coverage of the Oregon statute is broad, covering anyone “connected with [or] employed by” any “medium of communication.” Coupled with a favorable statutory definition of “medium of communication,”182 this statute would surely include online or remote publishing reporters. 178. N.J. S tat. § 2A:84A-21.9 179. N.J. S tat. § 2A:84A-21.9 180. Statement of Legislative Intent, N.J. Assem., Jud., Law, Public Safety &Defense Comm., No. 1535, 1979 N.J. L aws chap. 488 (emphasis added). 181. O r . R ev. S tat. § 44.520(2). 182. Or. R ev. Stat. § 44.510 provides that the term “medium of communication”[“has its ordinary meaning and includes, but not limited to, any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system…”

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This analysis leads the authors to conclude that this statute would best be described as providing comprehensive protection of newsgathering material wherever situated.

Tex as Texas Code of Criminal Procedure Article 1801(e) states: A search warrant may not be issued under Subdivision (10) of Article 18.02 of this code to search for and seize property or items that are not described in Subdivisions (1) through (9) of that article and that are located in an office of a newspaper, news magazine, television station, or radio station, and in no event may property or items not described in Subdivisions (1) through (9) of that article be legally seized in any search pursuant to a search warrant of an office of a newspaper, news magazine, television station, or radio station.183

This statute is one of the most restrictive of all the search and seizure protection statutes. The plain reading of section 1801(e) tells us that it broadly protects newsgathering materials; however, it limits its sphere of protection to the “office” of newspapers, news magazines, television stations, and radio stations. This creates a zone of protection within a qualified building, but does not statutorily define the term “office.” Without a statutory definition we will rely upon our traditional methods. Like in the St. Clair case,184 where “convicted” had two very different definitions, so too does the word “office.”185 But the logical application would be the place of service. Since the generic term “office” is used in the statute, the legislature — which could have easily selected a more specific term as headquarters or production office — likely intended an expansive range of eligible locations. However, the statute refers to the office of a business, not that of a person. In order to apply to an at-home work station under the statute’s language that office may need to be the primary office or location of the publication, i.e., its headquarters. This analysis leads the authors to conclude that this statute would best be described as providing limited protection of newsgathering materials found in qualified newsrooms.

Washington Washington Revised Code section 10.79.015(3) states: Any such magistrate, when satisfied that there is reasonable cause, may also, upon like complaint made on oath, issue search warrant in the following cases:… (3) To search for and seize any evidence material to the investigation or prosecution of any homicide or any felony: PROVIDED, That if the evidence is sought to be secured from any radio or television station or from any regularly published newspaper, magazine or wire service, or from any employee of such station, wire service or publication, the evidence shall be secured only through a subpoena duces tecum unless: (a) There is probable cause to believe that the person or persons in possession of the evidence may be involved in the crime under investigation; or (b) there is probable cause to believe that the evidence sought to be seized will be destroyed or hidden if subpoena duces tecum procedures are followed. As used in this subsection, “person or persons” includes both natural and judicial persons.186

183. Tex. Code Crim. Proc. Art. 1801(e). 184. St. Clair v. Commonwealth, 140 S.W.3d 510 (Ky. 2004), reh’g denied (Ky. 2004). See supra note 141 and accompanying text. 185. Black’s Law Dictionary defines “office” as “a position of duty, trust, or authority, esp. one conferred by a governmental authority for a public purpose,” or alternatively “a place where business is conducted or services are performed.” Bl acks L aw D ictionary 914 (special abridged 8th ed. 2005). 186. Wash. R ev. C ode § 10.79.015(3).

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A plain reading of Washington’s statue shows that it provides limited protections to searches, but only for investigations of “any homicide or any felony.” In such a case, the statute allows a warrant to be issued only in exigent circumstances; otherwise, a subpoena should be used. There are no specific classes of media-affiliated individuals enumerated as being covered by the statute, and there are no specific locations cited in the statute. This analysis leads the authors to conclude that this statute would best be described as offering limited protection of newsgathering material wherever situated.

Wisconsin Wisconsin Statutes Section 968.13(1)(d) states: (1) A search warrant may authorize the seizure of the following: …(d) Documents which may constitute evidence of any crime, if probable cause is shown that the documents are under the control of a person who is reasonably suspected to be concerned in the commission of that crime under s. 939.05(2).187

Wisconsin Statutes Section 968.13(1)(d) is commonly included in the above newsroom search and seizure class of protection statutes. A plain reading of this statute indicates that it does not specifically include or preclude newsrooms or newsgathering material to their searchable items. It does however include the standard criminal activity exception. This analysis leads the authors to conclude that this statute would best be described as providing comprehensive protection of newsgathering material wherever situated. After careful consideration and analysis, we believe the aforementioned statutes, rather than being lumped together as “newsroom search and seizure protections,” could better be broken down into four main categories. The first category, statutes that provide protection of transitory possession of newsgathering material, would include the laws of Connecticut, Illinois and Nebraska. The second category, of states whose statutes provide protection of newsgathering materials found in qualified newsrooms, includes only Texas. The third group, including statutes that offer comprehensive protection of newsgathering materials wherever situated, includes the laws in New Jersey, Oregon, and Wisconsin. Finally, the group of states with statutes offering only limited protection of newsgathering material wherever situated includes California and Washington. By approaching these statutes with a nuanced understanding of the textual rules we are able to more accurately categorize them giving media a better understanding of the protections granted under state law.

The A pple-Gizmodo I ncident

G

izmodo is a technology weblog about consumer electronics … known for up-to-date coverage of the technology industry.”188 On March 18, 2010, software engineer Gray Powell lost the next generation iPhone prototype while celebrating his birthday at a restaurant in Redwood City, Calif. called Gourmet Haus Staudt.189 Gizmodo says that a drunken patron found the phone, which was disguised to look like an earlier model, and, mistakenly believing it to belong to another bar patron, gave it to his friend for safekeeping.190 The finder then decided to take the phone home and return it to the supposed owner the next day.

187. Wis . S tat. § 968.13(1)(d). 188. Gizmodo, Wikipedia, http://en.wikipedia.org/wiki/Gizmodo. The site is available at www.gizmodo.com. 189. Jesus Diaz, How Apple Lost the Next iPhone, G izmodo, Apr. 20, 2010, http://gizmodo.com/5520438/ how-apple-lost-the-next-iphone. 190. Id.

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The next morning, he became suspicious when he found that the phone’s memory had been remotely wiped by Apple as a security measure.191 The finder disassembled the phone to learn more, and formed the belief that he had a valuable next generation device.192 He called Apple’s customer service phone number to arrange the phone’s return, but no one at Apple believed his story.193 After weeks without any contact from Apple, the finder sold the device to Gizmodo for $5,000.194 Gizmodo claims that when the editors took possession of the phone they did not know who it belonged to, but upon inspection, they had no doubt as to the device’s authenticity.195 Gizmodo had the device for a week before the site published a detailed article about the phone and its physical features by editor Jason Chen.196 When Gizmodo learned that the phone belonged to Powell, the company called and offered to return it.197 It was subsequently reported that the device was sold to Gizmodo by a college student named Brian Hogan.198 Hogan claimed to have been given the prototype iPhone by mistake, but Hogan’s roommate told police that Hogan had recognized the advanced nature of the phone, had identified its owner as an Apple engineer and had subsequently sought to sell the phone to more than one electronics-related publication.199 When Hogan learned that police were investigating the circumstances involving the iPhone, he initially removed his computer, cellphone and other materials from his home, although he ultimately cooperated with the police.200 Hogan’s roommate reported that Hogan and Gizmodo editor Chen met on three different occasions in connection with sale of the iPhone.201 On April 23, 2010, California’s Rapid Enforcement Allied Computer Team entered Chen’s home when he was not present, with a search warrant, and seized four computers and two servers.202 Chen returned home while the police were still there and told them that the search was invalid under both federal and state law.203 Gawker Media immediately invoked California Penal Code section 1524(g), and demanded return of the seized equipment.204 191. This is known as “bricking,” as in “to render [a] computer useless, as useless as a brick.” Bricked, Urban Dictionary, http://www.urbandictionary.com/define.php?term=bricked. 192. Diaz, supra note 182. 193. Gizmodo presumes that because of the strict secrecy with which new technology is guarded, the customer service agents would not have known that a new phone even existed, much less that the valuable prototype had been lost. Id. 194. Id. 195. Id. 196. Jason Chen, This Is Apple’s Next iPhone, Gizmodo, Apr. 19, 2010, http://gizmodo.com/5520164/this-isapples-next-iphone. 197. Brian Lam, A Letter: Apple Wants Its Secret iPhone Back, Gizmodo, Apr. 19, 2010, http://gizmodo. com/5520479/a-letter-apple-wants-its-secret-iphone-back. 198. Connie Guglielmo & Joel Rosenblatt, Apple’s Jobs Asked Gizmodo to Return ‘Stolen’ iPhone, Bloomberg, May 4, 2010, http://www.bloomberg.com/news/2010-05-15/apple-s-jobs-asked-gizmodo-to-returnstolen-iphone-court-documents-show.html. 199. Id. (citing affidavit for search warrant filed by Detective Matthew Broad in In Re Sealed Search Warrant Records, No. 2010-0034 (Cal. Super, San Mateo County 2010)). 200. Id. 201. Id. 202. Police Seize Jason Chen’s Computers, Gizmodo, Apr. 26, 2010, http://gizmodo.com/5524843/policeseize-jason-chens-computers. See also Brian Stelter & Nick Bilton, Computers Seized From Home of Blogger in iPhone Inquiry, N.Y. Times, Apr. 26, 2010, http://www.nytimes.com/2010/04/27/ technology/27iphone.html. 203. Letter from Gaby Darbyshire, C.O.O., Gawker Media, to Detective Matthew Broad, San Mateo County Sheriff’s Office, Apr. 24, 2010, available via http://gizmodo.com/5524843/police-seizejason-chens-computers. 204. Id.

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After the search and seizure, the San Mateo County district attorney’s office delayed searching the computers until it examined the legality of the search.205 Eventually, the D.A. withdrew the warrant and returned the seized material, in return for Gizmodo voluntarily providing the information sought from the seized computers.206

Federal and State Protection Analysis The Fourth Amendment to the U.S. Constitution governs warrants, searches and seizures.207 Under the Fourth Amendment, as long as there was probable cause to believe a crime had occurred (in this case, Gizmodo allegedly receiving stolen property, namely, the iPhone prototype) and that evidence of the crime existed at the place to be searched (Chen’s apartment), and all the formalities of obtaining and executing the warrant were properly observed, the seizure would have been perfectly valid.208 However, individual states are allowed to provide greater protection than is granted by the U.S. Constitution.209 This appears to be the case with California Penal Code section 1524(g). As noted supra, section 1524(g) provides that “No warrant shall issue for any item or items described in Section 1070 of the Evidence Code.”210 The only items described in Section 1070 are items of “unpublished information” in the possession of newspersons who have gathered the information in the course of their profession.211 Such items include “information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.”212 Clearly the items seized from Jason Chen’s apartment would fall within the definition of “unpublished information.” The protected items would include communications with Brian Hogan, photographs taken of the device, written thoughts and all other materials that Chen gathered in preparation and anticipation of writing his articles about the new device. 205. Dan Gallagher & Rex Crum, Is Apple doing itself harm in case of missing iPhone?, M arketWatch, Apr. 27, 2010, http://www.marketwatch.com/story/apple-doing-itself-harm-in-case-of-missingiphone-2010-04-27. 206. Kim Zetter, Gawker Media Deals Its Way Out of iPhone Search Warrant, Wired.com [Threat L evel Blog], July 16, 2010, http://www.wired.com/threatlevel/2010/07/gizmodo-warrant-void/. See also Matt Zimmerman, San Mateo D.A. Withdraws Controversial Gizmodo iPhone Warrant, Electronic Frontier Fdtn., July 16, 2010, https://www.eff.org/deeplinks/2010/07/san-mateo-dawithdraws-gizmodo-iphone-warrant. 207. This amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. C onst. amend. IV. 208. See, e.g., Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 306-07 (1967). 209. See, e.g., Lego v. Twomey, 404 U.S. 477, 489 (1972) (“of course, the states are free, pursuant to their own law, to adopt a higher standard”); Oregon v. Hass, 420 U.S. 714, 719, (1975) (“a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary under federal constitutional standards”). See also Branzburg v. Hayes, 408 U.S. 665, 706 (1972) (while declining to recognize a First Amendment reporters’ privilege, recognizing that “we are powerless to bar state courts from responding in their own way and construing their own constitutions so as to recognize a newsman’s privilege, either qualified or absolute.”) 210. C al . P enal C ode § 1524(g). 211. C al . E vid. C ode §1070(a). 212. Id.

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Interestingly, section 1524(g) contains no qualifying language whatsoever. In this regard it is completely unlike section 1524(c), which applies to lawyers, doctors, clergy, and psychotherapists and states that “no search warrant shall issue for any documenThe publication of Gizmodo’s tary evidence in the possession or under the control of any person who is a lawyer,… a articles on the Internet and the physician,… a psychotherapist,… or a member of the clergy, and who is not reasonably scope of sales of the iPhone would suspected of engaging or having engaged provide the requisite connection in criminal activity related to the documento interstate commerce to justify tary evidence …”213 Had similar language been present in section 1524(g), the warrant application of federal law. executed for Chen’s possessions would have been appropriate, assuming that Chen and Gizmodo were reasonably suspected to have themselves engaged in the criminal activity of receiving stolen property, which was directly related to the unpublished information that was the subject of the warrant. Unlike section 1524(g), section 1524(c) allows a warrant to issue, even for the above listed protected classes, as long as proper procedures are followed.214 Allowing the information to be removed from the possession of the protected individual removes the possibility that he will tamper with the evidence prior to the determination of the evidence’s admissibility, but still allows the protected individual an opportunity to state his case for the information remaining private. This balancing of interests in section 124(c) gives prosecutors much more flexibility than the rule created by section 1524(g), which appears to grant complete immunity regardless of the newspersons’ culpability. Since such language is present in Section 1524(c) and conspicuously absent from 1524(g), it can only be assumed that the legislators did not intended for the same types of qualifying conditions to apply. A search warrant is not the only mechanism by which information can be obtained by the police: the other, and more favored possibility under California’s law, is via a subpoena under California Evidence Code § 1070. This section limits use of subpoenas against journalists, as a means of promoting the free speech value of encouraging disclosure of information to the public. It bars subpoenaing journalists seeking both the identity of a confidential source, as well as any information that could lead to the identity of the source.215 In civil litigation, the law does not provide a privilege against disclosure, only immunity from contempt sanctions for refusal to reveal a confidential source.216 The court can still use sanction measures other than contempt in order to compel disclosure of the information.217 213. C al . P enal C ode § 1524(c) (emphasis added) 214. The required procedure includes the appointment of a special master to “…inform the party served of the specific items being sought and that the party shall have opportunity to provide the items requested. If the party… fails to provide the items requested, the special master shall conduct a search for the items in the areas indicated in the search warrant… If the party who has been served states that an item or items should not be disclosed, they shall be sealed by the special master and taken to court for a hearing.” C al . P enal C ode § 1524(c)(1)-(2). 215. Rosato v. Superior Court, 51 Cal. App. 3d 190, 217-18 (1975). 216. SCI-Sacramento, Inc. v. Superior Court, 54 Cal. App. 4th 654, 60, 62 Cal. Rptr. 2d 868 (Cal. App., 3d Dist. 1997). 217. Mitchell v. Superior Court, 37 Cal. 3d 268, 274 (1984).

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The question of whether online publications fall within the protection of this aspect of the law was addressed in O’Grady v. Superior Court.218 In this case, Apple sued after the PowerPage blog published news about Apple’s secret plans to release a device (known as “Asteroid”) which would allow people to make digital live sound recordings on their Apple computers.219 The series of articles on the site included the product’s price, introduction date, quantity available for sale upon launch and sketches of the product,220 apparently based upon a Powerpoint presentation about the product which had been created by Apple for internal company use.221 Apple claimed that PowerPage “misappropriated and disseminated … confidential information about an unreleased product,” which the company claimed was a trade secret.222 Apple argued that California’s newspersons’ shield law (California Evidence Code § 1070) did not apply in trade secret misappropriation cases, and that even if it did apply, Apple’s need for the information overcame the protection. Apple also argued that the statute only protects against contempt proceedings and not against providing the information for discovery purposes, and that there was no right to protection of speech under the circumstances.223 Apple sought compensatory and punitive damages.224 In response, the publishers sought a protective order to shield them from having to disclose the information.225 The court analyzed the factors for application of the shield law set forth in Mitchell v. Superior Court,226 the first being “the nature of the litigation and whether the reporter is a party.”227 The court held that because the petitioners seeking the protective orders were not named parties in the underlying lawsuit — Apple named only Doe defendants in the complaint — the factor favored nondisclosure.228 Another factor is the crucial nature of the information sought, and the court decided that this factor favored disclosure because the identity of the person who had misappropriated the information was central to Apple’s claim.229 The court then looked at whether Apple had exhausted alternative sources, and found that the company had not shown that it could not obtain the evidence from other sources.230 Finally, the court examined the importance of preserving confidentiality231 and concluded that the publication did not expose any proprietary technology and that competitors would not be able to take the information in the articles to build a competing product.232 Application of the factors used in Mitchell and O’Grady to the Gizmodo situation strongly suggests that Chen may not have been shielded by California Evidence Code § 1070. Chen could conceivably have been accused of receiving stolen property and would be a party to a prosecution thereof, or could have been sued in a civil action by Apple. Information contained in Chen’s computer records, cellphone records, and related media would 218. O’Grady v. Superior Court, supra note 158, 139 Cal. App. 4th 1423, 44 Cal. Rptr. 3d 72 (Cal. App., 6th Dist. 2006). 219. Id. at 1431. 220. Id. at 1433. 221. Id. at 1435. 222. Id. at 1436. 223. Id. at 1437-38. 224. Id. 225. Id. at 1437. 226. 37 Cal.3d 268. 227. Id. at 279. 228. O’Grady v. Superior Court, supra note 158, 139 Cal. App. 4th at 1469. 229. Id. at 1470. 230. Id. at 1471. 231. Id. at 1475. 232. Id. at 1476.

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then be necessary to determine culpability because it may show whether Chen did, or did not, fully investigate the iPhone seller’s claims of innocently finding the device prior to Gizmodo’s purchase of the prototype phone. It is unlikely that the prosecution (or Apple) would be able to obtain the same evidence through other avenues, although examination of Hogan’s computer and other possession might reveal details of the negotiations between him and Chen. It is also possible that other manufacturers could use the information released by Gizmodo to produce competitive products. On balance, in this case the government’s interest in investigating the possible crime probably outweighs Chen’s right to protect the source of his information. Branzburg233 does not deal with the Fourth Amendment, does not address the California statute, and does not deal with a situation where the newsmen themselves were accused of wrongdoing, it does shed light on the newspersons’ privilege generally At issue in Branzburg was “whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment.”234 The court held it did not,235 reasoning that the burden on newspersons in responding to grand jury subpoenas was less than the public interest in administration of justice.236 As discussed supra,237 the Privacy Protection Act makes it is illegal “to search for and seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast or other similar form of public communication, in or affecting interstate or foreign commerce,”238 but allows such seizure if “there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate: provided, however, That a government officer or employee may not search for or seize such materials under the provisions of this paragraph if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein…”239 The terms “documentary materials” and “work product materials” are defined by other provisions. “Documentary materials” are defined as “materials upon which information is recorded, and includes, but is not limited to, written or printed materials, photographs… and other mechanically, magnetically or electronically recorded cards, tapes, or discs, but does not include contraband or the fruits of a crime or things otherwise criminally possessed, or property designed or intended for use, or which is or has been used as, the means of committing a criminal offense.”240 “Work product materials,” meanwhile, is defined as “materials, other than contraband or the fruits of a crime or things otherwise criminally possessed, or property designed or intended for use, or which is or has been used as the means of committing a criminal offense,” and which are “in anticipation of communicating such materials to the public, are prepared, produced, authored, or created, whether by the person or in possession of the materials or by any other person; are possessed for the purposes of communicating such materials to the public; and include mental impressions, conclusions, opinions, or theories of the person who prepared, produced, authored, or created such material.”241 233. Branzburg v. Hayes, supra note 209, 408 U.S. 665 (1972). 234. Id. at 706.  235. Id. 236. Id. at 701. 237. See pp. 9-17, supra. 238. 42 U.S.C. § 2000aa(a)(1). 239. Id. 240. 42 U.S.C. § aa-7(a). 241. 42 U.S.C. § aa-7(b).

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The information seized from Jason Chen’s apartment would very likely be considered work product because the photos, written thoughts and unpublished materials would have been compiled by Chen in preparation and anticipation of writing his articles about the iPhone. The articles were disseminated to the public via the huge online following Gizmodo receives,242 and, as buzz of the articles’ content spread, it is likely that the article became very popular. The publication of Gizmodo’s articles on the Internet and the scope of sales of the iPhone would provide the requisite connection to interstate commerce to justify application of federal law. Although the information held by Chen would ordinarily be protected as work product, it would be difficult for Gizmodo to claim that it did not have at least some suspicion that the device had been stolen from Apple. It is unclear what steps the organization took to investigate the “finder’s” story prior to taking possession of the device. The prosecution can certainly argue that the materials seized from Chen pursuant to the search warrant were “property . . . used as, the means of committing a criminal offense,” namely, receipt of stolen property.243

C onclusion

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s courts struggle to apply statutory protections of new forms of journalism, a disconnect between judges raised before the pervasive presence of the Internet and journalists born into a “wired” environment threatens to rob existing statutory schemes of effectiveness. Will a judge hearing the claims of a journalist reporting via Twitter accurately adjudicate those claims when that judge has only the vaguest understanding of what Twitter is? As the reporting world advances into remote publishing, reflecting the need and desire of the consumer, so too should the courts. A free press not only serves an integral constitutional role as watchdog ensuring the integrity of the executive, legislative and judicial branches of our government; it also facilitates the free flow of business and societal information that acts as the lubricant for our society and commerce. Aggressive and innovative newsgathering is often critical to obtaining such information. By not extending newsroom search and seizure protections to online reporters who do not work in traditional settings, the courts would inhibit the effectiveness of such journalists, as well as their neutrality, independence and future financial viability. Journalists would fear that the courts, which often work in close coordination with local law enforcement, may not be fully detached and neutral when determining whether searches are based on adequate probable cause. Congress and state legislatures have attempted to ensure that news gathering and reporting can seek shelter from such overreach. The debate about how to define who qualifies as a reporter and what a legitimate newsroom looks like will continue to intensify as courts and legislatures continue to wrestle with the question whether to extend statutory protections against search and seizures of newsgathering materials to nontraditional journalists.

242. According to the Alexia web traffic tracking web site, Gizmodo is around 600th in traffic among the sites that Alexa tracks, and is particularly popular among Internet users in Los Angeles. Alexa.com, [Analysis of] Gizmodo.com, http://www.alexa.com/siteinfo/gizmodo.com (visited Nov. 10, 2011). 243. Prosecutors subsequently agreed to void their search warrant and return Gizmodo’s seized items in exchange for Gizmodo’s voluntarily turning over the materials sought by the government. See supra note 205, and accompanying text.

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Social Media and Electronically Stored Information in Family Court Dana C. Hackley and Grant H. Hackley I ntroduction

T

he catchphrase “Web 2.0” has become the latest means to identify the Internet, its component parts, and all of its lasting implications. The term is more specifically a characterization of the second evolution of the Internet most defined by user-generated content.1 Web 2.0 has been comprised of wikis,2 social media,3 citizen journalism,4 blogs5 and microblogs.6 It is best demonstrated through the ability to and desire for interconnectivity, interactivity and collaboration, and it leaves a lasting and permanent public record of our activities, thoughts and beliefs.

1. Tim Oreilly, What is Web 2.0: Design Patterns and Business Models for the Next Generation of Software, C ommunications & S tr ategies No. 65 (1Q 2007), at 17-37, available at http://ssrn.com/abstract=1008839. 2. For an explanation of wikis, see Annette Lamb & Larry Johnson, Wikis and Collaborative Inquiry, 25 S chool L ibr ary Monthly 48 (2009). 3. Social media is defined as online electronic communication creating networking and collaborative opportunities through multimedia. It includes sites such as Facebook, MySpace, YouTube, Flickr, Plaxo and LinkedIn. 4. Citizen journalism is also referred to as “journalism of assertion” in social science research. For more information on Web 2.0 and the development of citizen journalism, see Ron Miller, The New Journalism: It’s Audience Participation Time, E content, July/Aug. 2008, http://www.econtentmag.com/ Articles/Editorial/Feature/The-New-Journalism-Its-Audience-Participation-Time-49664.htm. 5. The Pew Research Center defines a blog as, “Online journals, a way for Internet users to express themselves creatively or to document their experiences.” P ew I nter net a nd A merica n L ife P roject, Blogs (topic), http://pewinternet.org/topics/Blogs.aspx. 6. Microblogs are postings on sites and services such as Twitter, Tumblr, Plurk, whatyadoin.com and Jaiku. For more on microblogging see Antti Oulasvirta, Esko Lehtonen, Esko Kurvinen, & Mika Raento, Making the ordinary visible in microblogs, 14 P ersonal & Ubiquitous C omputing 237 (2010), available via http://dl.acm.org/citation.cfm?id=1773670.

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The legal field has taken notice of Web 2.0 and is beginning to embrace all of its capabilities and consequences.7 Social media has also impacted almost every dimension of both civil and criminal court cases, with courts across the nation taking up a myriad of questions related to use of social media. Such issues include First Amendment “protected activity” of employees,8 whether debt collectors can contact friends and family members of creditors through social networking sites,9 and whether the U.S. Justice Department can subpoena Twitter for account holder information.10 The next frontier is administrative proceedings, such as United States Food and Drug Administration (FDA) enforcement actions related to potentially misleading pharmaceutical product advertisements on Facebook.11

Discovery

of S ocial M edia I nformation s social media plays a more prominent role in court proceedings, courts have had to deal with procedures and standards for discovery of information from social media platforms. Such discovery is controlled not only by the federal and local procedure rules,12 but also by foundational statutes such as the Electronic Communications Privacy Act (ECPA)13 and related Stored Communications Act (SCA).14 One of the more oft-cited cases relevant to social media e-discovery in the context of the SCA is Crispin v. Christian Audigier Inc., in which defendants in a licensing dispute served subpoenas to Facebook and Myspace to obtain information from the plaintiff’s accounts.15

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7. According to the 2011 ABA Legal Technology Survey Report, 37 percent of law firms are using LinkedIn, 19 percent are using Facebook, and seven percent are using Twitter or a similar microblogging service. The study also found that 62 percent of individual lawyers are using LinkedIn, 22 percent are using Facebook and six percent are using Twitter for professional purposes. A merica n B ar A ssoc ., 2011 L egal Technology S urvey R eport, http://www.americanbar.org/groups/departments_offices/legal_technology_resources/publications.html. 8. Jessica Martinez, NLRB v. American Medical Response: A Rare Case of Protected Employee Speech on Facebook, Berkeley Tech. L.J. B olt, Mar. 7, 2011, http://btlj.org/?p=1111. 9. Stephanie Rabiner, Stay Off Woman’s Facebook, Judge Orders, F indl aw.com (L aw & Daily L ife blog), Apr. 20, 2011, http://blogs.findlaw.com/law_and_life/2011/04/stay-off-womans-facebookjudge-orders.html. 10. In re Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d), --- F.Supp.2d ----, 2011 WL 5508991 (E.D. Va. Nov. 10, 2010), available at http://www.scribd.com/doc/72407661/Va-EasternDist-Court-Judge-s-Opinion-on-DOJ-Twitter-Order. (upholding the constitutionality of ECPA). 11. Adrianne Jeffries, FDA Asserted Authority Not Only Over Social Media, but Metadata Too, R ead Write Web (blog), Aug. 8, 2010, http://www.readwriteweb.com/archives/fda_asserted_authority_not_only_over_social_media.php. 12. For example, the Federal Rules of Civil Procedure were amended in 2006 to expand discovery to electronic documents. See F. R Civ. Pro. 34 (note, 2006 amendments). 13. Electronic Communications Privacy Act of 1986 (”ECPA”), Pub. L. No. 99-508, 100 Stat. 1848 (1986). For background on the ECPA, see Orin Kerr, User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 G eo. Wash. L. R ev. 1208 (2003); Marie Trimble, A Guide to Navigating the Discovery of Facebook Records Within the Boundaries of the Electronic Communications Privacy Act, The Whisper (D efense R esearch I nstitute ’s Young L aw yers C ommittee) June 2010, http://clients.criticalimpact.com/newsletter/newslettercontentshow1.cfm?contentid=1054&id=200; and Timothy Ackerman, Consent and Discovery Under the Stored Communications Act, The F ederal L aw yer (Nov/Dec. 2009), http://www.pattersonsheridan.com/images/uploads/SCA_Control_article_PUBLISHED-crop.pdf. 14. The Stored Communications Act, 18 U.S.C. §§ 2701-2712, http://www.law.cornell.edu/uscode/usc_ sup_01_18_10_I_20_121.html. 15. 717 F.Supp.2d 965 (C.D.Cal. May 26, 2010).

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The plaintiff moved to quash the subpoenas, and the U.S. magistrate judge denied the motion. Upon motion for reconsideration of the magistrate’s order, the District Court reversed the magistrate, finding that Facebook and Myspace were electronic communication service providers under the SCA, and thus the plaintiff’s private communications were protected from production pursuant to the subpoena.16 While this holding was issued at the district court level, courts within other circuits have found its reasoning to be persuasive.17 Despite the saturation of social media and the ease in which it is obtained, e-discovery procedures remain in place. The same limitations on admissibility of evidence, including relevance and authentication, still apply to electronically stored information.

Relevance Federal Rule of Evidence 401 provides a test for relevant evidence: “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.18

In the context of social media, information such as the content of wall posts and messages, as well as site registration data, are all discoverable, as long as they are obtained through legal means.19 Courts are currently trying to define the contours of such discovery. In Zimmerman v. Weis Markets, Inc., for example, a Pennsylvania trial court ruled that if a person voluntarily posts information or media on a social networking site, that information is discoverable because that poster has no expectation of privacy in the information posted.20 In Largent v. Reed another Pennsylvania court also granted discovery of social media information, but noted, 16. Id. at 982. 17. See, e.g., Rene v. G.F. Fishers, Inc., 2011 WL 4349473, 2011 U.S. Dist. LEXIS 105202 (S.D. Ind. Sept. 16, 2011). See also Abrams v. Pecile, 83 A.D.3d 527, 922 N.Y.S.2d 16, 2011 N.Y. Slip Op. 03108 (N.Y. Sup. Ct., App. Div. 1st Dep’t 2011) (ordering defendant to comply with plaintiff’s discovery request to access defendant’s social networking accounts); Patterson v. Turner Construction Company, 88 A.D.3d 617, 931 N.Y.S.2d 311 (N.Y. Sup. Ct., App. Div. 1st Dept. 2011) (“The postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access … just as relevant matter from a personal diary is discoverable.”); McCann v Harleysville Ins. Co. of N.Y., 78 A.D.3d 1524, 910 N.Y.S.2d 614, 2010 NY Slip Op 08181 (N.Y. Sup. Ct. App. Div. 4th Dep’t Nov. 12, 2010); McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285, 2010 Pa. Dist. & Cnty. Dec. LEXIS 270 (Pa. Ct. of Common Pleas, Jefferson Cty. Sept. 9, 2010); and Romano v Steelcase Inc., 30 Misc.3d 426, 907 N.Y.S.2d 650, 2010 NY Slip Op 20388 (N.Y. Sup. Ct. Suffolk County Sept. 21, 2010). In Barnes v. CUS Nashville, No. 3:09-cv-00764, 2010 WL 2265668, 2010 U.S. Dist. Lexis 52263 (M.D. Tenn. June 3, 2010), the magistrate judge actually ordered a Facebook account be created in order to streamline the discovery process, saying, “In order to try to expedite further discovery regarding the photographs, their captions, and comments, the Magistrate Judge is willing to create a Facebook account. If Julie Knudsen and Michael Vann will accept the Magistrate Judge as a ‘friend’ on Facebook for the sole purpose of reviewing photographs and related comments in camera, he will promptly review and disseminate any relevant information to the parties. The Magistrate Judge will then close this Facebook account.” 18. Fed. R. Evid. 401. 19. On the other hand, information obtained by logging into someone else’s password-protected account is not admissible, and is quite illegal. See, e.g., Virginia Computer Invasion of Privacy Act, Va. Code Ann. § 18.2-152.5, which makes it a crime to access another’s account to obtain financial or identifying information. 20. Zimmerman v. Weis Markets, Inc., Case No. CV-09-1535, 2011 WL 2065410, 2011 Pa. Dist. & Cnty. Dec. LEXIS 187 (Pa. C.P. Northumberland County May 19, 2011), available at http://www.gtleblog. com/uploads/file/Zimmerman.pdf.

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“The Court does not hold that discovery of a party’s social networking information is available as a matter of course. Rather, there must be a good faith basis that discovery will lead to relevant information.”21 In Offenback v. L.M. Bowman, Inc. the judge ruled more narrowly, ordering first an in camera review of the postings prior to allowing discovery: something he felt the defendant should have taken more initiative to do themselves. The Court recognizes that the scope of discovery into social media sites “requires the application of basic discovery principles in a novel context,” and that the challenge is to “define appropriately broad limits … on the discovery ability of social communications.” … If Defendants had, in fact, narrowed their discovery requests in this fashion, we believe it would have been both possible and proper for Plaintiff to have undertaken the initial review of his Facebook account to determine whether it contained potentially relevant and responsive information, and thereafter to solicit the Court’s assistance if a dispute remained as to whether he should be required to produce the information identified.22

The court in Patterson v. Turner Constr. Co. agreed with the need for limits on attempts at blanket discovery of social media information, saying “… it is possible that not all Facebook communications are related to the events that gave rise to plaintiff’s cause of action.”23

Authentication

Social media evidence must also face similar authentication as other discovery materials.24 In Lorraine v. Markel American Insurance Company, the court pointed out that “[w] hen faced with resolving authentication issues for electronic evidence, courts have used a number of the methods discussed in Rule 901(b), as well as approved some methods not included in that rule.”25 A particular issue arises with social media when multiple parties can access an online account. Specifically discussing social media, the court in State v. Eleck found that “proving only that a message came from a particular account, without further authenticating evidence, has been held to be inadequate proof of authorship.”26 The court in Commonwealth v. Purdy expounded on this notion: While e-mails and other forms of electronic communication present their own opportunities for false claims of authorship, the basic principles of authentication are the same. Evidence that the defendant’s name is written as the author of an e-mail or that the electronic communication originates from an e-mail or a social networking Web site such as Facebook or MySpace that bears the defendant’s name is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant. There must be some “confirming circumstances” sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant authored the e-mails.27 21. Largent v. Reed, Case No. 2009-1823, slip op. at 13, n.13 (C.P. Franklin Nov. 8, 2011), available at http://www.x1discovery.com/download/Largent_v_Reed.pdf. 22. Offenback v. L.M. Bowman, Inc., C ivil No. 10-1789, n.3, 2011 WL 2491371, *3, n.3, 2011 U.S. Dist. LEXIS 66432, *6, n.3 (M.D. Pa. June 22, 2011) (citation omitted).   23. Patterson v. Turner Constr. Co., 88 A.D.3d 617, 618, 931 N.Y.S.2d 311, 311, 2011 NY Slip Op. 07572 (1st Dep’t October 27, 2011) 24. Methods of authentication are outlined in F. R. Evid. 901 and its state equivalents. 25. 241 F.R.D. 534, 545 (D. Md. 2007). 26. State v. Eleck, 23 A.3d 818 (Conn. App. 2011). The appellate court in this case excluded Facebook messages at trial where the alleged author claimed her account had been hacked. Id. For more information on authentication of social media and State v. Eleck, see John Patzakis, Facebook Evidence Disallowed By Court Due to Lack of “Identifying Characteristics,” e D iscovery l aw & Tech Blog , Oct. 3, 2011, http://blog.x1discovery.com/2011/10/03/facebook-evidence-disallowed-by-court-dueto-lack-of-%E2%80%9Cidentifying-characteristics%E2%80%9D/. 27. Commonwealth v. Purdy, 459 Mass. 442, 450, 945 N.E.2d 372, 381 (Mass. 2011) (citations omitted).

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Spoliation Spoliation issues are just as relevant with respect to use of social media as they are for other forms of evidence. There have been several reported cases in which courts have sanctioned parties for spoliation of electronic evidence,28 but spoliation of social media evidence is a new phenomenon.29 The court in Katiroll Co., Inc. v. Kati Roll & Platters, Inc. discussed spoliation in the context of social media, and applied the same requirements for the spoliation inference30 – as it had applied in an earlier case involving e-mail.31 A Virginia state judge recently ordered lawyer Matthew Murray to pay $522,000 for instructing his client to remove photos from the client’s Facebook profile,32 and for his 28. An examination of sanctions imposed by courts in the course of discovery of electronic information found 29 cases that were dismissed for failure to preserve electronic evidence. See Dan H. Willoughby, Jr.; Rose Hunter Jones; and Gregory R. Antine, Sanctions for E-Discovery Violations: By the Numbers, 60 D uke L.J. 789, 805-06 n.65 & n.67 (2010). 29. Only one case in the Willoughby study arguably involved social media. In Columbia Pictures, Inc. v. Bunnell, the court found that defendants responded to the filing of the copyright infringement suit with a plan to delete and modify of postings on web forums whose content included references to copyright infringement. No. 2:06-cv-01093 FMC-JCx, 2007 WL 4877701, *1 (C.D. Cal. Dec. 13, 2007). 30. This inference “permits a jury to infer that ‘destroyed evidence might or would have been unfavorable to the position of the offending party.’” Mosaid Technologies Inc. v. Samsung Electronics Co., Ltd., 348 F.Supp.2d 332, 336 (D. N.J. 2004) (quoting Scott v. IBM Corp., 196 F.R.D. 233, 248 (D. N.J. 2000)). 31. Katiroll Co., Inc. v. Kati Roll & Platters, Inc., No. 10-3620 (GEB), 2011 WL 3583408 (D.N.J. Aug. 3, 2011) (quoting Mosaid Tech., Inc. v. Samsung Elec. Co., Ltd., 348 F.Supp.2d 332, 336 (D. N.J. 2004)). The Mosaid Tech. cases involved e-mail, but the court’s rationale in that cases was based on prior cases involving non-electronic evidence. 32. Lester v. Allied Concrete Co., Case No. CL08-150 (Va Cir. Ct., Charlottesville Oct. 21, 2011), final order available at http://cache.abovethelaw.com/uploads/2011/11/Final-Order.pdf. News accounts do more justice to the facts of this case than could rehashing them here: According to a September 1 order from Judge Hogshire, the spoliation began in March 25, 2009, when Murray received a discovery request for the contents of Lester’s Facebook account. Attached was a photo of Lester wearing a “I [heart] hot moms” t-shirt, and holding a beer can with other young adults. Murray instructed a paralegal to tell Lester to “clean up” his Facebook page because, “we don’t want blowups of this stuff at trial,” the assistant, Marlina Smith, said in a deposition. She emailed that message to Lester the next day. On March 26, 2009, according to the judge’s order, Murray came up with a scheme to take down or deactiviate Lester’s Facebook account so that he could respond that he had no Facebook page on the date the discovery request was signed. When defense attorneys filed a motion to compel, Murray instructed Lester to reactivate the account. But in a December 16, 2009, deposition, Lester denied deactivating the account. Murray is also accused of withholding the email from Smith instructing Lester to clean up his Facebook page when he was ordered to produce it shortly before the trial began. Murray falsely claimed after the trial that the omission was the paralegal’s mistake, according to the court order. Lisa Provence, Sanctions: Allied Concrete attorneys want $900K in legal fees, The Hook (Charlottesville, Va.), Sept. 24, 2010, http://www.readthehook.com/100997/sanctions-alliedconcrete-attorneys-wants-900k-legal-fees. See also Christopher Danzig, Facebook Spoliation Costs Widower and His Attorney $700K in Sanctions, Above the Law, Nov. 8, 2011, http:// abovethelaw.com/2011/11/facebook-spoliation-costs-widower-and-his-attorney-700k-in-sanctions/; John Patzakis, Facebook Spoliation Costs Lawyer $522,000; Ends His Legal Career, eDiscovery law & Tech Blog, Nov. 15, 2011, http://blog.x1discovery.com/2011/11/15/facebookspoliation-costs-lawyer-522000-ends-his-legal-career/ (noting that “many are calling [this penalty] the largest eDiscovery sanction penalty ever leveled directly against an attorney…”).

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client to pay an additional $180,000 for obeying his attorney’s instructions.33 Both sides have appealed.34 Monetary sanctions aren’t the only weapon wielded by trial judges. Outright dismissal of claims is a possibility as well,35 though use of that particular sanction may be limited in family court. In the matrimonial context, for example, it makes little sense to dismiss Spoliation issues are just as a divorce case where the result would be to ensure that two parties who would most relevant with respect to use of certainly prefer to be divorced would have to social media as they are for other remain married, at least until the lifting of the particular sanction. Nevertheless, famforms of evidence. ily litigants may be wise to appreciate that their conduct in posting potentially adverse information to social media sites (and subsequent improper destruction of the same) may expose them to both monetary and other sanctions. The upshot of these cases is that litigants seeking information posted on Facebook, MySpace and other social networking sites are likely limited to seeking such information directly from the adverse party through ordinary discovery under the rules of civil procedure of the relevant jurisdiction. Such avenues to obtain information leads to concerns over e-discovery violations and the potential for “cleansing” social networking accounts of information that might tend to be adverse to a claim or defense. While such concern might be justified from the point of view of a litigant, courts have shown a willingness to impose sanctions, including dismissal of actions, for e-discovery violations, including purging of information.36

S ocial Media

in Family C ourt family court case is already likened to walking through a minefield, but adding social media discovery to the mix causes a hotbed of contentious issues to arise. Plaintiffs and defendants have increasingly attempted to utilize social media evidence within the course of civil litigation. In Debord v. Mercy Health System of Kansas, Inc., for example, the plaintiff alleged she was terminated for complaining about sexual advances by a supervisor.37 The defendants claimed the plaintiff was terminated for comments the plaintiff posted to her Facebook account about the supervisor falsifying time records. In discovery, the defendant supervisor and the defendant medical center moved to compel information from the plaintiff’s Facebook account. The magistrate judge denied the motion to compel, on the basis that the information sought, implicitly salacious from the memorandum opinion, was not relevant, since much of the material sought post-dated the termination. In Purvis v. Commissioner of Social Sec., federal judge Susan Davis Wigenton made it a point to personally review the claimant’s Facebook page in a disability case.38

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33. Id. 34. Lisa Provence, Not over: Both sides appeal in Lester v. Allied Concrete, The Hook (C harlottes ville , Va .) , Nov. 29, 2011, http://www.readthehook.com/102207/not-over-both-sides-appeal-lesterv-allied-concrete. 35. See Dan H. Willoughby, Jr., et al., Sanctions for E-Discovery Violations: By the Numbers, 60 D uke L.J. 789 (2010). 36. Dan H. Willoughby, Jr. et. al., Sanctions for E-Discovery Violations: By the Numbers, 60 D uke L.J. 789 (2010). 37. Case No. 10-4055-WEB, 2011 U.S. Dist. LEXIS 87019 (D. Kan. Aug. 8, 2011). 38. Civil No. 09-5318, 2011 WL 741234 (D.N.J., Feb. 23, 2011) (“Although the Court remands the ALJ’s

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Discovery of social media is also an emerging trend in the criminal context. Prosecutors in the U.S. Rep. Gabrielle Giffords shooting proceedings reportedly plan to use the “goodbye friends” message that alleged gunman Jared Loughner posted to MySpace hours before the crime as evidence against him.39 In West Virginia, a suspect did most of the work for the prosecutor by forgetting to log out of his Facebook account after checking his page during the course of robbing a home.40 In Clark v. State, the defendant claimed he wasn’t the kind of person who could kill his girlfriend’s child, but his MySpace postings were entered into evidence during trial, directly disputing the claim.41 Jury tainting due to social media is a hot button issue.42 Cases such as People v. Rios, in which a juror in a criminal trial sent a key witness a friend request,43 caused the U.S. Judicial Conference Committee on Court Administration and Case Management to develop a set of model jury instructions for all federal judges regarding their use of digital devices and social media.44 Like everyone else in modern society, judges, jurors and litigants continue their increased use of social media, with the attendant rise of social media evidence issues sure to follow.45 In family court, social media has been accused of being both cause and effect of divorce. The British site Divorce-Online controversially claimed in late 2009 that the social networking site Facebook causes one in five divorces.46 Volatile domestic relationships are said to be exacerbated by the ease with which social media users can reconnect with old flames, access to otherwise private information, and conveniently and rapidly share multimedia content.47 The omnipresent ability to connect with others has upended historical

decision for a more detailed finding, it notes that in the course of its own research, it discovered one profile picture on what is believed to be Plaintiff’s Facebook page where she appears to be smoking. … If accurately depicted, Plaintiff’s credibility is justifiably suspect.”). 39. Doug Rule, Police, Prosecutors Look for Evidence on Facebook, Twitter, Mobiledia, http://www. mobiledia.com/news/83193.html. 49-count indictment against Jared Lee Loughner available at: http://online.wsj.com/public/resources/documents/030311loughnersuperseding.pdf. 40. Edward Marshall, Burglar Leaves His Facebook Page on Victim’s Computer, The [M artinsburg , W.Va .] Jour nal , Sept. 16, 2009, http://www.journal-news.net/page/content.detail/id/525232.html. 41. Clark v. State, 915 N.E.2d 126 (Ind. 2009). 42. United States v. Forde, No. 09-4704, 407 Fed. Appx. 740 (4th Cir. Jan. 10, 2011), available at http:// pacer.ca4.uscourts.gov/opinion.pdf/094704.U.pdf. See also Jurors Twitter Activity Buys Convicted Murderer New Trial, A ssociated P ress , Dec. 8, 2011, http://newsone.com/nation/associatedpress4/ saved-by-the-tweet-jurors-twitter-activity-buys-murder-convict-new-case/. 43. People v. Rios, 6 Misc.3d 1225(A), 907 N.Y.S.2d 440 (table), 2010 N.Y. Slip Op. 50256(U) (N.Y. Sup. Ct., Bronx County Feb. 23, 2010), aff’d, 87 A.D.3d 916, 930 N.Y.S.2d 180, 2011 N.Y. Slip Op. 06528 (N.Y. Sup. Ct., App. Div. 1st Dept. 2011). 44. See U.S. Judicial C onference , C ommittee on C ourt A dministr ation a nd C ase M a nagement P ro posed Model Jury I nstructions: The Use of E lectronic Technology to C onduct R esearch on or C ommunicate about a C ase (Dec. 2009), http://www.uscourts.gov/uscourts/News/2010/docs/ DIR10-018-Attachment.pdf. 45. For an examination of increasing use of social media in the legal community and its implications, see Kathleen Elliott Vinson, The Blurred Boundaries of Social Networking in the Legal Field: Just ‘Face’ it (March 25, 2011). 41 U. M emphis L. R ev. 355 (2011), available at http://ssrn.com/abstract=1666462. 46. Divorce-Online (http://www.divorce-online.co.uk/) is an online British service assisting in divorce filings. The company filed a news release in December 2009 stating, “Facebook is bad for your marriage.” Mainstream media, despite the unscientific nature of the findings, picked up the announcement. See Carl Bialik, Irreconcilable Claim: Facebook Causes 1 in 5 Divorces, Wall S t, J. (Numbers G u y blog), Mar. 12, 2011, http://online.wsj.com/article/SB100014240527487035978045761945632 88753204.html. 47. Belinda Luscombe, Facebook and Divorce: Airing the Dirty Laundry, Time , (June 23, 2009), http://

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social norms: for example, a Texas man faces battery charges after he allegedly attacked his estranged wife after she didn’t respond to his Facebook status update,48 while a Kentucky man allegedly pulled a gun on a woman after they fought over his refusal to change his Facebook status from “single” to “in a relationship.”49 As a result of the increased involvement of social media as a factor in family court proceedings, family court judges and lawyers are taking notice of the rise in social media evidence in both divorce and child custody cases. Although this article is the first attempt to quantify this trend, the news media are replete with accounts of social media being utilized in divorce proceedings.50 The Connecticut Gallion v. Gallion case is illustrative of both the use of social media and its impact on litigants.51 Stephen Gallion had seen information posted by his wife – using the couple’s shared computer – on social networking sites that led him to believe there would be additional password-protected information related to his divorcing spouse’s statements regarding the couple’s children and her ability to care for them.52 District Superior Court Judge Kenneth Shluger ordered counsel for the parties to swap social media and dating site password information for their clients.53 The American Bar Association and the American Academy of Matrimonial Lawyers (AAML), well aware of the trend, have surveyed attorneys regarding their use of social media within family court legal proceedings. The 2010 AAML study found Facebook is the “unrivaled leader for online divorce evidence” with 66 percent of attorneys citing it as a primary source. MySpace followed, with 15 percent of attorneys utilizing the site as evidence.54 Also, 81 percent of AAML members cited an increase in the use of evidence from social networking websites during the past five years.55

www.time.com/time/magazine/article/0,9171,1904147,00.html. 48. Facebook Status Feud Results In Texas Man’s Arrest, A ssociated P ress , Oct. 6, 2011, available at http://www.huffingtonpost.com/2011/10/07/facebook-status-feud-resu_0_n_999462.html. 49. Deborah Highland, It’s Complicated: Facebook Status Fuels Fight, Arrest, Daily News [B owling G reen, K y.], Sept. 29, 2011, http://www.bgdailynews.com/news/it-s-complicated-facebook-statusfuels-fight-arrest/article_3db85d8d-620e-5b31-ba96-388ba172a45e.html. 50. See, e.g., Nadine Brozan, Divorce Lawyers’ New Friend: Social Networks, N.Y. Times , May 15, 2011, http://www.nytimes.com/2011/05/15/fashion/weddings/divorce-lawyers-new-friend-social-networks.html; Stephanie Hayes, Facebook flubs make for salacious legal cases, Ta mpa B ay Times , Oct. 15, 2010, http://www.tampabay.com/features/humaninterest/facebook-flubs-make-for-salaciouslegal-cases/1128148; and Carolyn Davis, Divorce, Facebook Style, P hil . I nquirer , July 12, 2010, http://articles.philly.com/2010-07-12/news/24967905_1_facebook-popular-social-networkingwebsite-divorce-case. 51. Gallion v. Gallion, No. FA114116955S, 2011 WL 4953451 (Conn. Super. Ct. Sept. 30, 2011), available at http://caselaw.findlaw.com/ct-superior-court/1583038.html. 52. Kashmir Hill, Judge Orders Divorcing Couple to Swap Facebook and Dating Site Passwords, Forbes , Nov. 7, 2011, http://www.forbes.com/sites/kashmirhill/2011/11/07/judge-orders-divorcing-coupleto-swap-facebook-and-dating-site-passwords/. 53. The court ruled that “Counsel for each party shall exchange the password(s) of their client’s Facebook and dating website passwords. The parties themselves shall not be given the passwords of the other.” One of the author’s former civil litigation practice involved routine perusal of social networking sites for the express purpose of obtaining information to use for impeachment of adverse parties. Gallion, 2011 WL 4953451, at *1. 54. Facebook is Primary Source for Compromising Information, A merica n A cademy of M atrimonial L aw yers , Feb. 10, 2010, http://www.aaml.org/about-the-academy/press/press-releases/e-discovery/big-surge-social-networking-evidence-says-survey-. 55. Id.

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Social media mining and more current forms of electronically stored information evoke e-discovery, relevance, admissibility and ethical issues in all areas of the law. In criminal law, social media evidence has been utilized to provide an alibi,56 assert a motive,57 to locate criminals on the run,58 and to select59 and instruct60 juries. In United States v. Romero, social media was even utilized to provide cause for a probation violation search.61 Nevertheless, it can be argued that no other area of litigation has seen as great an impact from social media as family court proceedings.

Trends and Examples

From the Facebook bigamist62 to a Florida man accused of violating a domestic order by sending his estranged wife a “friend request” on Facebook,63 social networking sites are adding a new dimension to discovery in family court. Social media are feeding the flames of hostility in both divorce and child custody cases. In Goedelman v. Wilmont, a mother suspected her estranged husband of abuse and thus decided to take photos of their son before and after spending time with his father. The photos were posted on Facebook and then admitted into evidence in court.64 In In re C.C. the court cited a father’s Facebook page in which he encouraged friends and family to post positive information about himself and negative information about his wife calling his actions, “bordering on harassment.” However, the children were removed from both parents who were found to be substance abusers.65 And in In re J.V.M., the paternal grandparents worried about the safety of their four grandchildren 56. People v. Calderon, 2010 WL 3505971 (Cal. App. 2d Dist. 2010); see also Damiano Beltrami, I’m Innocent. Just Check My Status on Facebook, N.Y. Times , Nov. 1, 2009, http://www.nytimes. com/2009/11/12/nyregion/12facebook.html. 57. MySpace posts were instrumental in convicting Rachel Wade, a Pinellas Park teen accused of killing Sarah Ludemann, amid a love triangle. See Stephanie Hayes, Facebook Flubs Make For Salacious Legal Cases, St. Petersburg Times, Oct. 15, 2010, http://www.tampabay.com/features/humaninterest/facebook-flubs-make-for-salacious-legal-cases/1128148. In another case, a southwestern Pennsylvania man was accused of trying to shoot his wife because he believes she spends too much time on the Facebook social networking site. See , Man accused of trying to kill wife over excessive Facebook use, A ssociated Press, Dec. 26, 2011, available at http://www.post-gazette.com/pg/11360/1199422-100.stm. 58. Hayes, supra (reporting Florida fugitive who was found in New York because of Facebook postings). 59. Laura Martinez, Cameron Co. DA Will Check Facebook Profiles For Jury Picks, Brow nsville [Tex .] H er ald, Jan. 17, 2011, http://www.chron.com/business/technology/article/Cameron-Co-DA-willcheck-Facebook-profiles-for-1689598.php; Social media affects jury picks in Casey Anthony case, A ssociated P ress , May 16, 2011, http://www.news-journalonline.com/news/florida/2011/05/15/ social-media-affects-jury-picks-in-casey-anthony-case.html. 60. Thaddeus Hoffmeister, Model Jury Instructions for the Digital Age, Juries blog , Feb. 28, 2011, http://juries.typepad.com/juries/2011/02/model-jury-instructions-for-the-digital-age.html. 61. 2010 U.S. Dist. LEXIS 102089 (D. Kan. Sept. 27, 2010). 62. John France’s first wife Lynn alleged bigamy when she found Facebook photos of John in a Prince Charming costume getting married at Disney World. John Wetenhall, Alleged Facebook Bigamist’s Defense: Never Married to First Wife, ABC News , Aug. 4, 2010, http://abcnews.go.com/US/allegedfacebook-bigamists-defense-marriage-legal/story?id=11306824. 63. Jailed For “Friend” Requests, The Smoking Gun, http://www.thesmokinggun.com/file/facebookfriend-arrest (publishing Pasco County, Fla.. Sheriff’s Office incident report for case number CTC1006158MMAWS). 64. 2011 Ill. App. Unpub. LEXIS 2692, 2011 IL App (5th) 110248U (Ill. App. Nov. 3, 2011), available at http://www.state.il.us/court/R23_Orders/AppellateCourt/2011/5thDistrict/5110248_R23.pdf. 65. 2011 WL 4910452, 2011 Cal. App. Unpub. LEXIS 7829, (Cal. App. 2d Dist. Oct. 17. 2011), available at http://www.scribd.com/doc/72861008/2011-Call-App-In-Re-CC-FB-Evid-in-Custody-Case.

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after their mother was suspected of still being involved with gangs posted a profane threat on her MySpace page.66 In the midst of two parents appealing termination of their parental rights a child’s Facebook post stating, “Someone save me he’s drunk again” was reviewed.67 Often the utilization of social media by children is brought into question by one parent or another in order to discredit and evoke irresponsible parenting. In Gillum v. Gillum, the father of two teen girls requesting a change of custody accused their mother of inappropriately allowing the girls to post The content of wall posts mature content onto MySpace.68 In Bemis and messages, as well as v. Bemis, a judge ordered both parents site registration data, are all to more closely monitor their daughter’s Facebook page.69 The court in In re the discoverable, as long as they are Marriage of Jon T. Pazdera explained why obtained through legal means. one of the children in question should not remain in the custody of her mother because the child’s access to an online social networking site was viewed as irresponsible on the part of the parent.70 But posting multimedia online isn’t always a deal breaker for the family court. In In re Marriage of Brechwald, the court awarded a father sole custody of his three girls despite the mother showing evidence of his posting the girls’ photos onto an online social networking site, saying his actions were benign.71 In a bizarre case, the FBI was called to intervene after one man allegedly told a 17-year-old on Facebook he planned to harm his ex-wife.72 It turns out the man knew his ex-wife had created the fake account and posed as the teen in order to manufacture evidence to boost her child custody case.73 In

66. In re J.V.M., No. B199639, 2008 WL 484305 (Cal. App. 2d Dept. Feb. 5, 2008), available at http:// www.fearnotlaw.com/articles/article17887.html. 67. In the Interest of A.F., D.W. and D.W., Minor Children, No. 0-826 / 10-1518, 2010 Iowa App. LEXIS 1358 (Iowa App., 2010) 68. 2011 WL 2084148, 2011-Ohio-2558 (Ohio App., 2d Dist. May 27, 2011), available at http://scholar. google.com/scholar_case?case=17763504473546594348. Ultimately, the court ruled, “Although the wisdom of allowing Internet posts of a bikini-clad girl or of young girls kissing is certainly problematic, Gillum’s characterization of the photographs as ‘sexually exploitive’ is also debatable.” Thus the court declined to grant a change of custody provision. 69. Bemis v. Bemis, 2011 Conn. Super. LEXIS 1747 (Conn. Super. July 12, 2011), available at http://www. scribd.com/doc/72861172/2011-Conn-Bemis-Parents-Ordered-to-View-Kid-s-FB-Account (“Each parent shall view Alyssa’s Facebook page once per week. If Alyssa is unwilling to share 100% access, she shall be denied computer and smart phone access except for use of a computer for schoolwork, which shall be supervised.”). 70. 2011 WI App 1, ¶ 5, 330 Wis. 2d 832, 794 N.W.2d 926 (Wis. App., 3d Dist. Nov. 2, 2010), http://www. wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=56223 (“The [lower] court concluded the child ‘has decided she is going to start calling the shots, she is going to start doing whatever she wants to do in terms of pot, alcohol, sex, MySpace, smoking.’”). 71. 801 N.W.2d 33 (table), 2011 WL 1584425 (Iowa App. Apr. 27, 2011), http://scholar.google.com/scholar_case?case=9692665981855759492. 72. Dean Praetorius, Angela Voelkert’s Fake Facebook Profile Apparently Reveals Hoax, Not Murder Plot, Huffington Post, June 9, 2011, http://www.huffingtonpost.com/2011/06/09/facebook-angelavoelkert-murder_n_873907.html. 73. Id.

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a similar case, a New Jersey woman was facing identity theft charges for impersonating her ex-boyfriend via Facebook.74 In divorce cases, the mudslinging has become easier than ever before.75 Estranged spouses are utilizing social media evidence to prove false statements, particularly in regards to financial standing and assets. For example, in Hamilton v. Hamilton, the wife was on public assistance and waived her right to child support, but during the course of mediation a MySpace page was located indicating the husband earned $250,000.76 Additional cases point to spouses claiming to be struggling and in need of spousal support posting photos of lavish vacations or claiming physical inabilities allegedly preventing them from working but posting dance parties on social networking sites.77 Despite the use of social media evidence as a sword in family law cases, the reality is that social media has also become a convenient resource in family court. As it pertains to matrimonial matters, “electronic discovery may be crucial in the proper cases to determine and confirm the existence of vital information. In others, it may be a weapon of abuse which will further clog a system that is already in dire need of relief.”78

Statistical Analysis With this in mind, we examined published cases in all jurisdictions regarding the utilization of the social media as evidence in divorce and family court proceedings.79 In total, 114 cases were examined. Because the social network MySpace was launched toward the end of 2001 and Facebook in 2004, the earliest published case was in 2001.

74. Case Against NJ Woman Charged With Identity Theft Via Facebook Will Go Forward, E rickson ’s S ocial Net working L aw Blog , Nov. 3, 2011, http://www.socialnetworkinglawblog.com/2011/11/ case-against-nj-woman-charged-with.html. 75. A 2009 study of 304 graduate students conducted by Guelph University in Canada found that Facebook actually created jealousy and suspicion contributing to the ease at which participants could monitor a partner’s activities. Facebook Causes Jealousy, Hampers Romance, Study Finds, University of Guelph [press release], Feb. 13, 2009, http://www.uoguelph.ca/news/2009/02/post_176.html. For the full study, see Amy Muise, Emily Christofides & Serge Desmarais, More Information than You Ever Wanted: Does Facebook Bring Out the Green-Eyed Monster of Jealousy?, 12 C yber Psych. & Behavior 441 (2009). 76. 976 A.2d 924, 2009 ME 83 (Me., 2009) 77. In B.M v. D.M, 2011 NY Slip Op 50570 (N.Y. Sup. Ct., 2011) the wife claimed she was totally disabled and in too much pain to work. Blog posts admitted into evidence showed photos of her belly dancing regularly. See also Belinda Luscombe & Lina Lofaro, Facebook and Divorce. Time, 2009, 173(24), 93-94. Sylvia Hsieh, Divorce attorneys are missing evidence on social media sites. L aw yers USA, June 28, 2009, http://lawyersusaonline.com/blog/2009/06/25/divorce-attorneys-are-missing-evidence-on-social-media-sites/. 78. Schreiber v. Schreiber, 904 N.Y.S.2d 886, 890 (N.Y. App. Div. 2010) (quoting Lee Rosenberg, Outside Counsel: Electronic Discovery and the Matrimonial Case, N.Y.L.J., June 15, 2005, at 4, col. 4, http:// www.newyorklawjournal.com/PubArticleNY.jsp?id=900005430892&slreturn=1)). 79. The Fastcase database (the leading legal-specific app as identified by the ABA in 2011; see 2011 ABA L egal Technology S urvey R eport : O nline R esearch (Volume V) (2011)) was used through the West Virginia Bar Association‘s website to search published court cases from 1925 through Sept. 12, 2011. Cases were analyzed using the following keywords: Facebook, MySpace, divorce, and child custody. Duplicate cases and cases not under the family court jurisdiction were excluded from the analysis.

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After a slow start of only one case in 2001 and no cases between 2002 and 2006, the number of child custody and divorce cases involving the Facebook and MySpace social media sites slowly rose in 2005 and 2008, then tripled in 2009 with 24 cases. In 2010 the number of cases steadily increased to 37 cases. The number of cases reached a peak of 39 cases in 2011.80 Annual number of divorce or child custody published cases utilizing social media evidence Published Cases Year

Number

Gain/loss from prior year

Percentage of all cases

2011

39

+5.4%

34.2%

2010

37

+54.2%

32.5%

2009

24

+200%

21.1%

2008

8

+60%

7.0%

2007

5

+100%

4.4%

2006

0

--

0

2005

0

--

0

2004

0

--

0

2003

0

--

0

2002

0

-100%

0

2001

1

+100%

.9%

2001 - 2011

114

--

100%81

81

Cases B y P latform: Facebook

versus

My Space

According to Facebook, the site now has more than 750 million users, up from over 500 million active users in July 2010 and 250 million active users in July 2009.82 Meanwhile, according to media reports, MySpace dropped from around 76 million users in 200983 to around 64 million users in 201084 and continues to drop in popularity.85 Despite these trends, MySpace led to more of the cases in our study (80 cases, 70.2 percent) than Facebook (35 cases, 30.7 percent). One case (.9 percent) involved both platforms.

80. Because this is such a new phenomenon, we are reluctant to imply that these figures, including the slower growth from 2010 to 2011, represents any sort of trend. 81. Figures in column do not total 100 because of rounding. 82. Timeline, Facebook , https://www.facebook.com/press/info.php?timeline (visited Jan. 9, 2012). 83. Michael Arrington, Facebook Now Nearly Twice the size of MySpace Worldwide, Jan. 22, 2009, available at http://techcrunch.com/2009/01/22/facebook-now-nearly-twice-the-size-of-myspaceworldwide/. 84. Social Media Matchup [graphic], C hicago Tribune , Oct. 7, 2009, reposted at http://thenextweb.com/ socialmedia/2010/01/27/twitter-myspace-facebook-chart/. 85. Michael Arrington, Amazingly MySpace’s Decline is Accelerating, Tech C runch , March 23, 2011, http://techcrunch.com/2011/03/23/amazingly-myspaces-decline-is-accelerating/.

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Cases B y Jurisdiction

Fig. 1: Number of divorce or child custody published cases utilizing social media evidence by jurisdiction. USA Outline Map 1998 from University of Texas at Austin library: http://www.

lib.utexas.edu/maps/ united_states.html#usa

In addition to social networking site, cases were identified based on jurisdiction. California had the highest number of published opinions citing social media evidence utilization, with a total of 23 cases. Ohio and Texas were second with 10, while New York returned 8, or 13 percent less than California. Other leading states were North Carolina with 5, Kentucky, Alabama, Michigan and Oregon each with four cases. There was one case in federal court.86

Cases

by

I ssue

involving

S ocial M edia

Content themes were also established in order to better understand the utilization of social media e-discovery. Cases

Percentage of Cases

Credibility / Reputation

67

58.8%

Contact

21

18.4%

Sexual Content / Affair

14

12.3%

Proving False Claims

11

9.7%

Attorney use of social networking

1

.9%

114

100%87

Social Media Issue

Total 87

86. The federal case involved the Hague Convention, which applies to international custody disputes. See, e.g., Marvin L. Solomiany & Randall M. Kessler, The Hague Convention: Application and Analysis to Child Custody Issues, presented at the Georgia Superior Court Judges Winter Conference, Augusta, Ga. (2006), available at http://www.ksfamilylaw.com/pdf/solomiany-hagueconvention.pdf. 87. Figures in column do not total 100 because of rounding.

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Information from both Facebook and MySpace was utilized as evidence to discredit one of the parties involved in the litigation in 67 cases, making up 58.8 percent of the total social media e-discovery in family cases. Often, the mere fact that a child is allowed to have an online social networking account is utilized to discredit a parent’s responsibility within a custody proceeding. In Fitzpatrick v. Fitzpatrick, for example, the father filed a petition alleging that the mother violated Facebook is the “unrivaled leader a separate family court order requiring her to delete both children’s accounts from the for online divorce evidence” with MySpace social networking site. The father 66 percent of attorneys citing it as hoped to discredit the mother’s parenting abilities by allowing the child to utilize the a primary source. sites.88 In In the Interest of S.A., a child’s utilization of social networking was entered into evidence to exemplify inadequate supervision on behalf of one parent.89 In another case, a parent’s alleged breach of probation prohibiting drug or alcohol use was directly in question when MySpace and Facebook photos of alcohol consumption were admitted.90 Contact

For some, going through a divorce or negotiating custody has been made simpler with the advent of social media. But, as an article in The Huffington Post points out, though there are benefits for divorced couples to communicate via new technology, there are also drawbacks.91 In re Samantha B., the mother and father communicated about their daughter almost solely through their respective MySpace accounts.92 The mother deleted her profile in a successful attempt to cut off communication with the father, but then later reestablished communication through her own mother’s MySpace account.93 A family court judge granted the mother’s request for an order terminating the father’s rights on the grounds that he had abandoned the child – based, in part, on the lack of contact -- but the appeals court reversed.94 Sexual Content / Affair

While infidelity and adultery are historically and anecdotally most commonly cited in divorce proceedings, they were only the third most common issues among the cases 88. Fitzpatrick v. Fitzpatrick, 77 A.D.3d 1108, 909 N.Y.S.2d 795, 2010 N.Y. Slip Op. 07443 (N.Y. App. Div. 3d Dept., 2010). The father was unsuccessful in this. Id. 89. In the Interest of S.A., No. 0-260/10-0203 (Iowa App. 5/12/2010) (Iowa App., 2010) (“P.A. was found using inappropriate language on Facebook after midnight, and P.A. and S.A. were allowed to watch a sex-oriented movie that was inappropriate for their ages.”). 90. In the Interest of K.R.B., No. 02-10-00021-CV, 2010 WL 3928727, 2010 Tex. App. LEXIS 8161 (Tex. App. – Fort Worth Oct. 7, 2010) (mem. opinion), available at http://law.justia.com/cases/texas/second-court-of-appeals/2010/21762.html. 91. Judy Corcoran & Julie A. Ross, Ex-Texting, Huffington Post, Sept. 2, 2011, http://www.huffingtonpost.com/judy-corcoran/extexting_b_931848.html. 92. In re Samantha B., 2011 Cal. App. Unpub. LEXIS 1882 (Cal. App. 5th Dist. Mar. 15, 2011) (unpublished), available at http://www.leagle.com/xmlResult.aspx?xmldoc=In%20CACO%2020110315031. xml&docbase=CSLWAR3-2007-CURR. 93. Id. at *11. 94. Id. at *38.

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in our study, cited in 14 cases. Cases involving sexual content, while not necessarily related to physical infidelity between spouses, disproportionally cited MySpace (13 cases, 93 percent of the cases involving sexual content) disproportionately more than Facebook (one case, 7 percent of the cases involving sexual content). One case involved both platforms. Some of the sexual content described in the divorce and custody cases was insignificant, while other cases referred not only to adult promiscuity but also included the alleged sexualization of children. In Williams v. Gonzalez, a mother sought review of a custody order granting custody of the mother’s four minor children to her mother.95 The children’s grandmother, seeking custody of the children in a post-divorce custody proceeding, presented as evidence the mother’s MySpace page, where the mother was known as “sexy nurse Williams.”96 The children were depicted in images with an “oral aura,” according to the court, and pictures of them were placed in a slideshow with two sexually explicit graphics, one of which had a sexually explicit label.97 According to the grandmother’s expert on social networking, a local police officer, the photos posted by the mother on her MySpace profile created a “pedophile’s dream.”98 Based on this and other evidence, the appeals court affirmed the lower court’s modification of an earlier uncontested divorce decree, so that custody of three children went to the grandmother.99 Proving False Claims

Electronically stored information has been admissible in order to discredit claims such as injury and thus inability to work. The types of claims to be proven false are limitless, but are probably best illustrated by the account of a spouse who was supposed to be watching the children but was instead discovered to be partying, based on a video posted to YouTube.100 In Dexter v. Dexter, the appellant denied using illicit drugs, but her MySpace posts stated that she was merely on hiatus during the proceedings and that she planned to use drugs again in the future.101 Attorney Use of Social Networking

States are beginning to update their ethics rules to incorporate appropriate usage of social media by attorneys.102 But states continue to disagree on the particulars of these rules,

95. Williams v. Gonzalez, 2010 Ohio 3993 (Ohio App. 2010) 96. Id. at *3, ¶ 16. 97. Id. 98. Id. 99. Id. at *1, ¶ 1; *4, ¶ 25; *5, ¶ 31; and *5, ¶ 32. The court held that custody of the fourth child was not properly before the court, as the custody of that child had not been resolved by either of the two uncontested decrees. Id. at *4, ¶ 25. As to that child, the court remanded for “modification of its judgment consistent with the terms of this decision.” Id. at *5, ¶ 32. 100. Steven Seidenberg, Seduced: For Lawyers, the Appeal of Social Media Is Obvious. It’s Also Dangerous, ABA Jour nal , Feb. 4, 2011, available at http://www.abajournal.com/magazine/article/seduced_for_lawyers_the_appeal_of_social_media_is_obvious_dangerous. 101. Dexter v. Dexter, 2007 Ohio 2568 (Ohio App. 2007), appeal denied, 115 Ohio St.3d 1473, 875 N.E.2d 627, 2007-Ohio-5735 (Ohio Oct 31, 2007) (table). 102. Paul Garrity & Kathryn Hone, Legal Ethics and The Social Network, Social Media Law Blog, Oct. 18, 2010, http://www.socialmedialawupdate.com/2010/10/articles/ediscovery/legal-ethics-and-thesocial-network/. The Philadelphia Bar Association’s Professional Guidance Committee addressed the question of an attorney trying to access Facebook and Myspace accounts of a third party witness. See Phila. Bar Assoc. Prof’l Guidance Comm., Opinion 2009-02 (March 2009), available at http:// www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSRe-

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such as to what extent counsel may “friend” anyone possibly associated with a case.103 Authorities also disagree on using social networking sites to obtain information. While the New York City Bar Association determined there would be no violation of the rules of professional conduct if an attorney or his or her agent sends a “friend request” to obtain information from an unrepresented person’s social networking website without also disclosing the reasons for making the request,104 the Philadelphia Bar Association determined that this violated professional ethics.105 The ABA’s model ethics rules forbid communication with a person represented by another attorney,106 and some have suggested this can prohibit access to social media posts.107 In cases such as Hoffman v. Griffin108 plaintiffs have been unsuccessful in having the court reprimand an opposing counsel for contacting them via social networking site.

C onclusion

I

t is clear from this review that use of social media in adverse family law proceedings is growing and is likely to continue to grow, as utilization of social media by litigants is expanding at an impressive rate. Counsel for litigants would be wise to review the social media postings of their current clients and potential clients, and to advise them of the consequences of postings that might relate in any way or be relevant to their pending or current matrimonial proceedings. By the same token, counsel should further advise clients on the significant adverse impact of using social media to denigrate the adverse party or reveal significant negative information about themselves.

sources/Opinion_2009-2.pdf. See also New York State and Philadelphia Bar Association Legal Ethics Opinions Address Lawyers’ Use of Social Media Sites for Investigative or Background Research, I nter net for L aw yers , http://www.netforlawyers.com/content/new-york-state-philadelphia-barsocial-media-ethics-opinion-0007. 103. See, e.g., Fla. Sup. Ct. Judicial Ethics Advisory Committee, Ethics Op. 2009-20 (Fla. 2009), available at http://www.jud6.org/LegalCommunity/LegalPractice/opinions/jeacopinions/2009/2009-20.html (barring judges from “friending” attorneys who may appear before the judge, and from such attorneys “friending” judges before whom they may appear). See also N.C. Jud. Stds. Comm., Inquiry No. 08-234 (April 1, 2009), available at http://www.aoc.state.nc.us/www/public/coa/jsc/publicreprimands/jsc08-234.pdf (reprimanding a judge for “friending” a lawyer involved in a hearing before him and then using Facebook to discuss the case with the lawyer). 104. Ass’n of the Bar of the City of N.Y., Formal Opinion 2010-2 (2010), http://www.abcny.org/ethics/ ethics-opinions-local/2010-opinions/786-obtaining-evidence-from-social-networking-websites. 105. Phila. Bar Assoc. Prof’l. Guidance Comm., Opinion 2009-2, supra note 101. 106. A.B.A. Model R. Prof. Ethics. 4.2. 107. See Yvette Ostolaza & Ricardo Pellafone, Applying Model Rule 4.2 to Web 2.0: The Problem of Social Networking Sites, 11 J. H igh Tech. L. 56 (2010), available at http://www.jhtl.org/docs/pdf/ Final%20Ostalaza%20and%20Pellafone%20Lead%20Article.pdf. 108. Hoffman v. Griffin, No. A-0213-09T3, 2010 WL 3418311, 2010 N.J. Super. Unpub. LEXIS 2067 (N.J. Super., App. Div. 2010), available at http://www.leagle.com/Redirect.aspx?shortname=innj co20100820226.

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For Further Reading Privacy and Public Access to the Courts in an Electronic World Grayson Barber, Personal Information in Government Records: Protecting the Public Interest in Privacy, 25 St. Louis U. Public L. Rev. 63 (2006), available at http://www.graysonbarber.com/pdf/SLU_PubLRev_2006.pdf. Beth Givens, Public Records on the Internet: The Privacy Dilemma, The Privacy Rights Clearinghouse (March 2006), available at https://www.privacyrights.org/ar/onlinepubrecs.htm. Report of the Judicial Conference Committee on Court Administration and Case Management on Privacy and Public Access to Electronic Case Files, available at http://www.privacy.uscourts.gov/Policy.htm.

Pleadings, Privacy and Ethics Timothy B. Lee, Studying the Frequency of Redaction Failures in Pacer, Freedom to Tinker Blog, May 25, 2011, https://freedom-to-tinker.com/blog/tblee/studying-frequency-redaction-failures-pacer. Ronald Leighton, Implementation—What Methods, If Any, Can Be Employed To Promote The Existing Rules’ Attempts To Protect Private Identifier Information From Internet Access?, 79 Ford. L. Rev. 45 (2011). Shari Claire Lewis, The Need To Redact Personally Identifiable Data From E-Filings, N.Y.L.J., Aug. 17, 2010, available at http://www.rivkinradler.com/ publications.cfm?id=705. Walter W. Miller, Jr. & Maureen A. O’Rourke, Bankruptcy Law vs. Privacy Rights: Which Holds The Trump Card?, 38 Hous. L. Rev. 777 (2001-02). Robert Timothy Reagan, Sealing Court Records and Proceedings: A Pocket Guide (2010), available at http://cryptome.org/0003/sealing-guide.pdf. Joel Reidenberg, General Discussion on Privacy and Public Access to Court Files, 79 Ford. L. Rev. 1 (2011). Cameron L. Sabin & Kenneth B. Black, Managing Pandora’s Box: Recognizing And Handling The Privacy Risks Associated With Electronic Access To Court Records, 18 Utah B.J. 6 (Jan./Feb. 2005). Peter A. Winn, Online Court Records: Balancing Judicial Accountability and Privacy in an Age of Electronic Information, 79 Wash. L. Rev. 307 (2004). Lisa C. Wood & Marco J. Quina, The Perils Of Electronic Filing And Transmission Of Documents, 22 Antitrust 91 (Spr. 2008).

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For Further Reading (continued) The Sedona Guidelines Related documents regarding the guidelines are available at http://www. thesedonaconference.org/content/miscFiles/publications_html?grp=wgs120. Robert Timothy Reagan, Shannon R. Wheatman, Marie Leary, Natacha Blain, Steven S. Gensler, George Cort & Dean Miletich, Sealed Settlement Agreements in Federal District Court (Federal Judicial Center, 2004). See also the bibliographies included in each chapter of the Guidelines.

Is Mom’s Basement the Newsroom of the 21st Century? Reporters Committee for Freedom of the Press , First Amendment Handbook, chap. 4 (7th ed. 2011), http://www.rcfp.org/handbook/?pg=4-4. Zurcher v. Stanford Daily News, 436 U.S. 547, 550-51 (1978).

“Friends ” and Family Nadine Brozan, Divorce Lawyers’ New Friend: Social Networks, N.Y. Times, May 15, 2011, http://www.nytimes.com/2011/05/15/fashion/weddings/ divorce-lawyers-new-friend-social-networks.html. Carolyn Davis, Divorce, Facebook Style, Phil. Inquirer, July 12, 2010, http:// articles.philly.com/2010-07-12/news/24967905_1_facebook-popular-socialnetworkingwebsite-divorce-case. Facebook is Primary Source for Compromising Information, American Academy of Matrimonial Lawyers, Feb. 10, 2010, http://www.aaml.org/aboutthe-academy/press/press-releases/e-discovery/big-surge-social-networkingevidence-says-survey-. Paul Garrity & Kathryn Hone, Legal Ethics and The Social Network, Social Media Law Blog, Oct. 18, 2010, http://www.socialmedialawupdate. com/2010/10/articles/ediscovery/legal-ethics-and-thesocial-network/. Stephanie Hayes, Facebook flubs make for salacious legal cases, Tampa Bay Times, Oct. 15, 2010, http://www.tampabay.com/features/humaninterest/ facebook-flubs-make-for-salaciouslegal-cases/1128148.

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Board of Editors Hon. William F. Dressel  has been the president of The National Judicial College since 2000. He was a lawyer in private practice in both Denver, and Fort Collins, Colorado until he was appointed a judge in Colorado’s 8th Judicial District, a postion he held for 22 years. In 1998 Dressel recieved the Justice Management Institute’s Ernest C. Friesen Award of Excellence in recognition of his vision, leadership, and sustained commitment to the achievement of excellence in the administration of justice.

Stewart Cheifet,  an assistant professor at the Donald W. Reynolds School of Journalism at the University of Nevada, Reno, pioneered the field of technology journalism with the award-winning public television series “Computer Chronicles.” He also anchored “Net Café,” and has been a commentator on technology for a variety of programs and events. He previously worked for ABC News and CBS News, and as president of PCTV, a company focused on media and technology, and CEO of WITF, a diversified broadcasting and media company. Cheifet has won numerous awards for his work, including twelve awards from the Computer Press Association. Charles Davis  is an associate professor at the Missouri School of Journalism, where his scholarly research focuses on access to governmental information and media law. He has earned a Sunshine Award from the Society of Professional Journalists for his work in furthering freedom of information and in 2008 was named the Scripps Howard Foundation National Journalism Teacher of the Year. He previously worked for newspapers and as a national correspondent for Lafferty Publications, a Dublin-based news wire service for financial publications.

Toni Locy    is the Reynolds Professor of Legal Reporting at Washington and Lee University. She spent 25 years as a journalist reporting and writing for some of the nation’s biggest and best news organizations, specializing in the coverage of federal, state, and local law enforcement, the federal trial and appellate courts, and the U.S. Supreme Court. She is currently writing a textbook on covering courts based on her experience as a reporter in Pittsburgh, Philadelphia, Boston, and Washington. Nancy B. Rapoport  is the Gordon Silver Professor at the William S. Boyd School of Law, University of Nevada, Las Vegas. She clerked for the Honorable Joseph T. Sneed on the United States Court of Appeals for the Ninth Circuit and then practiced law (primarily bankruptcy law) with Morrison & Foerster in San Francisco. She started her academic career at the Ohio State University College of Law, then became Dean and Professor of Law at the University of Nebraska College of Law. She then served as Dean and Professor of Law at the University of Houston Law Center. Among her published works are Enron and Other Corporate Fiascos: The Corporate Scandal Reader 2d, and the Law School Survival Manual: From LSAT to Bar Exam.

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Board of Editors (continued) Rick Rodriguez,  the former executive editor and senior vice president of

The Sacramento Bee, joined the Walter Cronkite School at Arizona State University as the Carnegie professor, Southwest Borderlands Initiative, in March 2008. He was previously managing editor of the Bee, where he also worked as an assistant managing editor, recruiter, columnist, projects editor, editorial writer, deputy Capitol bureau chief, and reporter during a 25-year career at the newspaper. He also was a reporter at the Fresno Bee and the Salinas Californian, and was the first Latino to serve as president of the American Society of Newspaper Editors.

Christina Wells  is the Enoch H. Crowder Professor of Law at the University of Missouri School of Law, and has been a visiting professor at the University of Illinois College of Law and at Masaryk University and Palacky University in the Czech Republic. She joined the faculty in 1993 after having been an associate with Skadden, Arps, Slate, Meagher and Flom in Chicago and Heller, Ehrman, White and McAuliffe in Los Angeles, primarily in the area of business litigation. She received the Shook, Hardy & Bacon Research Award in 2009 for her article on the constitutionality of statutes regulating funeral protests, and also received that award in 2005.

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donald w. reynolds national center for

COURTS&MEDIA

A research and policy center of the Donald W. Reynolds School of Journalism, University of Nevada, Reno, affiliated with The National Judicial College


vol 2 issue 1