Those who would prefer that court records remain secret have a higher burden in trying to keep filed pleadings, court orders, minute entries, hearing transcripts, trial exhibits and discovery documents filed with the court as attachments to motions. For those who wish to have court records secret, the proponent must demonstrate that sealing is warranted under both the federal common law and the First Amendment, which serves as independent grounds for challenging secrecy orders. Lawyers who motion to seal court records and files must demonstrate to the court and the opposition a very strong reason why public access should be denied.
Under the federal common law, courts begin with a presumption in favor of public access. Under the federal law, the presumption of public access can be overcome if the proponent of this secrecy effort demonstrates “compelling reasons” for secrecy that are supported by “specific factual findings.” Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) and Union Oil Co. v. Levall, 2020 Fed. 3d 562, 567-68 (7th Cir. 2000).
One of the standards and a compelling reason to seal or make secret court files may be found when disclosing the court records would result in “improper use of the material for scandalous or libelous purposes or infringement upon trade secrets,” but not much beyond that. Hagestad v. Tragesser, 49 F. 3d 1430, 1434 (9th Cir. 1995).
The First Amendment places an individual with a difficult restraint on attempting to maintain secrecy because of the public’s right of access to court records. This right of public access can be overcome by “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enter. Co. v. Super. Ct., 464 U.S. 501, 510 (1984). This is a high threshold that is not easily reached. Those who wish to have court files made secret must identify specific reasons why that order would be warranted. The Illinois Seventh Circuit Court of Appeals is one of only a few other federal district courts that have conclusively recognized the existence of a First Amendment right of access to court records in civil proceedings. Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 Fed. 3d 893, 897 (7th Cir. 1994). The courts have held that the public’s interest to see and review court records is at its height when those records concern issues of public health or safety. The law supports public view of court records, especially in cases involving dangerous products.
Very often defendants in lawsuits will make secrecy an element of settlement negotiations and contracts that end the lawsuit. The reason may be that the defendant wishes to keep secret its pattern of wrongdoing. That would prevent the public from seeing in court records what may have been revealed during discovery or the pleadings stage. Settlement agreements, if filed with the court, are also part of the court file and may be seen as any other part of the court file.
It is well known that product manufacturers who have been found liable for defects when their products have caused deaths or severe injuries have concealed evidence from the public by way of confidential settlement agreements. This was the case in defects in tire cases and in sexual abuse cases in the Catholic Archdiocese of Boston.
Transparency of court files and court records generally serves the public interest. This is especially true in product liability cases, pharmaceutical defect cases where individuals are injured by a long-standing practice or product defects that injure or kill individuals without public scrutiny.
Lawyers who handle these kinds of cases should be aware of the use of secret or confidential settlements and to combat them when appropriate.
Kreisman Law Offices has been handling product defect cases, mass tort cases, pharmaceutical defect cases, medical device defect cases and injuries to individuals and families because of the negligence of another for more than 37 years, in and around Chicago, Cook County and its surrounding areas, including Homewood, Glenwood, Lynwood, Chicago Heights, Hazelcrest, Country Club Hills, Midlothian, Harvey, Dixmoor, Blue Island, Oak Lawn, Palos Hills, Worth, Hickory Hills, Niles and Tinley Park, Ill.
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