Once upon a time, parties could agree on their own to keep court records away from public view. But a concern grew that information that should arguably have been publicly available was sealed from view and, in some cases, deleted from court files. Enter Cal Rules of Ct 2.550 and 2.551, which apply to both civil and criminal cases and set the presumption that court records are open to the public. So, how do you go about getting records sealed now?
A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record, accompanied by a memorandum and a declaration with facts sufficient to justify the sealing. Cal Rules of Ct 2.551(b)(1). These facts include (Cal Rules of Ct 2.550(d)(1)-(5)):
- There is an overriding interest that overcomes the right of public access to the record;
- The overriding interest supports sealing the record;
- A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;
- The proposed sealing is narrowly tailored; and
- No less restrictive means exist to achieve the overriding interest.
The rules don’t define what may constitute an “overriding interest,” but leave that to case law.
Courts have held that the personal finances of the rich and famous are not worthy of sealing (see In re Marriage of Burkle (2006) 135 CA4th 1045, 37 CR3d 805), but they have found overriding interests in instances such as the protection of minor victims of sex crimes from further trauma and embarrassment; the protection of witnesses from embarrassment or intimidation so extreme as to render them unable to testify; the protection of trade secrets when disclosure by definition vitiates the secret; attorney-client communications; national security; binding contractual obligations not to disclose; and the anonymity of juvenile offenders in juvenile court. NBC Subsidiary, Inc. v Superior Court (1999) 20 C4th 1178, 87 CR2d 778
Once you prepare the motion or application, you have to serve a copy of it on all parties who have appeared in the case and lodge it with the court in a sealed envelope or other appropriate container, labeled “CONDITIONALLY UNDER SEAL” and with an affixed cover sheet. Cal Rules of Ct 2.551.
On receipt of the lodged record, the clerk will endorse the affixed cover sheet with the date of its receipt and retain but not file the record unless the court orders it filed. Cal Rules of Ct 2.551(d).
When the situation arises in which it is appropriate to seek the sealing of court records, all you need to do is follow the rules.
For everything you need to know about sealing and unsealing court records, go to CEB’s California Civil Procedure Before Trial §§12.122-12.139. Protecting confidential documents in the context of writ proceedings is covered in CEB’s Civil Writ Practice §§20.23-20.28.
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