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Los Angeles Times

The policymaking body for California courts approved new rules Friday that will make it more difficult for parties in lawsuits to keep records secret from the public.

The Judicial Council, headed by Chief Justice Ronald M. George, is also looking into whether it has legal authority to establish public access to secret out-of-court settlements and documents obtained by litigants during discovery.

Consumer advocates contend that dangerous products and fraudulent practices are hidden from the public because corporations insist that records be sealed during or after litigation. Plaintiffs may be pressed to agree to the secrecy to obtain better settlements.

The new rules, approved 18 to 1, will prevent state courts from sealing records simply because both sides in a lawsuit agree to it. Beginning Jan. 1, judges will have to make public virtually all records that have been introduced in court. Documents can be sealed only if the case passes a strict test.

“Unless confidentiality is required by law, trial court records are presumed to be open,” the new rules state.

A compelling need or overriding interest for secrecy must be shown. Among the circumstances that might justify secrecy are protection of trade secrets or confidential personnel information.

The requirements make it “clear that there is a pretty high burden that has to be met before a document is sealed,” said Michael Bergeisen, general counsel of the Judicial Council.

The news media, consumer groups and trial lawyers generally favored the new rules, while some industry groups and insurance organizations opposed them.

Thomas J. Brandi, president of the Consumer Attorneys of California, said that without the rules, judgments against insurance companies for fraud and deceit in failing to pay valid claims can be kept confidential. Under the new rules, such verdicts for policyholders will be made known to the public.

Brandi said he personally had to agree to seal court records in a sexual harassment case against a prominent public figure as a condition of obtaining a settlement for his client. The new rules would make such confidentially far more difficult to obtain.

“Sealing documents, whether by secret settlement or court order, guarantees further misconduct and further injury,” Brandi said.

The California Supreme Court directed the Judicial Council to develop the new requirements after ruling last year that the public has the right to attend civil, as well as criminal, trials.

In that ruling, the court said that a Los Angeles judge erred when he barred the news media and the public from a trial involving a contractual dispute between actor Clint Eastwood and his former companion, Sondra Locke. But the court decision also offered guidance on the standards courts should apply in deciding whether to seal records.

Until now, there has been no statewide set of rules to guide judges when requests for confidentiality are made. Lawyers for the news media have often complained that records have been routinely sealed, even when the secrecy served no significant interest and impaired the public’s right to know.

A lawyer with the Foundation for Taxpayer and Consumer Rights praised the Judicial Council’s action as the right step to giving consumers access to information about dangerous products.

“It is important for public safety purposes that we have the right to access this information,” said Pam Pressley, the attorney for the consumer group.

But business critics of the rules complained that easing public access to court records might invite more lawsuits and jeopardize the privacy of litigants.

Several of these critics said they were pleased that the rules approved Friday would not affect confidential settlements reached outside court or documents obtained by litigants during discovery but not introduced during a trial.

Secret settlements have come under recent scrutiny as a result of the Firestone tire recall. The recall came after eight years of accidents and deaths, but many of the cases were kept confidential under secret settlements.

Bergeisen, the Judicial Council’s lawyer, said an examination into whether the council has authority to approve rules for such settlements and discovery evidence will be completed within the next few weeks.

Fred L. Main, senior vice president and general counsel of the California Chamber of Commerce, said business can live with the rules approved Friday but not with requirements for public access to out-of-court settlements or discovery documents because they would reduce the incentives for litigating parties to settle.

Juan Acosta, legislative advocate for the California Building Industry Assn., agreed. He said some parties settle cases to preserve privacy. If such settlements will be made public anyway, litigants will be more likely to go through protracted trials, Acosta said.

The new rules apply to trial judges and justices on the Court of Appeal and to civil and criminal cases. They would not affect confidential records in family mediation or juvenile proceedings.

Consumer Watchdog
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