To Seal or Not to Seal
July 3, 2019 § Leave a comment
… That is the question. Or was in a recent COA case.
A chancellor had sealed records in a controversial case, and a Jackson-area law firm sought to intervene in the litigation based on its claim that it should have access to certain documents produced in discovery but now kept from it by seal. The chancellor denied the motion to intervene, with the effect that the firm had no basis to access the records, and the law firm appealed.
In Butler Snow and Clark v. Estate of Mayfield, et al., the COA ruled that the chancellor improperly sealed the records.
¶25. “Mississippi law favors public access to public records . . . .” Estate of Cole v. Ferrell, 163 So. 3d 921, 925 (¶18) (Miss. 2012). “Court filings are considered to be public records, unless otherwise exempted by statute.” Id. at (¶15). “The law allows courts to determine when information should be declared confidential or privileged, exempting it from the Public Records Act.” Id. at 929 (¶33).
¶26. As Estate of Cole explains, the Legislature actually requires sealing certain types of records, such as certain youth court records, or confidential financial information. Id. at 924 (¶10). In general, “parties may request that the trial court seal certain documents,” at which point “the trial court may, in its discretion, limit the public’s access to those records.” Id. That discretion in sealing likewise provides us with a deferential standard of review, for in “determining whether the action taken by the court is proper, we review for an abuse of discretion.” Id. at (¶11).
¶27. In analyzing whether to seal a record, the Supreme Court explained that a trial court must “balanc[e] the parties’ competing interests—the public’s right of access versus confidentiality.” Id.; accord Miss. Dep’t of Corr. v. The Roderick & Solange MacArthur Justice Ctr., 220 So. 3d 929, 951 (¶78) (Miss. 2017) (noting the balancing test to weigh the public right of access against the private desire to seal the record from review).
¶28. Recently, the Supreme Court was faced with a sealed divorce file that contained serious allegations of the sexual abuse of underage children. Smith v. Doe, 2016-CA-00875-SCT, 2018 WL 549404 (Miss. Jan. 25, 2018). “Given the allegations raised and evidence presented in this appeal, th[e] Court ha[d] significant public health and safety concerns.” Id. at *5 (¶27). It “therefore remand[ed] the chancellor’s order sealing the court file for the trial court to conduct the balancing test set out in Estate of Cole . . . and determine whether the court file should remain under seal.” Id.
¶29. In this case, there is no indication the chancery court conducted the balancing test in any fashion. The only request to the chancery court was from Mayfield’s family to seal the matter to shield against all public scrutiny. During oral argument, counsel for Mayfield’s family admitted that any need for sealing the record was lessened by the pendency of the federal suit, which injected the allegations back into the public sphere. Despite this admission, the Mayfield family has actively used the seal as a shield against discovery in the federal litigation, to conceal what information it obtained pursuant to the bill of discovery.
¶30. Our review of the record shows that it does not contain confidential information, or indeed any information, that warrants a seal; as set out above, no balancing test was performed prior to sealing. The three-volume record before us primarily contains notices of subpoenas issued, depositions taken, and various other pretrial matters. The record does not contain the responses to the subpoenas duces tecum, deposition transcripts, or other documents obtained in discovery. We therefore reverse and render, unsealing the trial court record. We take no position on whether the information gained in the suit below is discoverable in the federal action, since that will be determined by the magistrate and district court in that pending action.
Lesson here is that the record must reflect that the chancellor conducted the proper balancing test. If you feel that there is an appeal in your case’s future, it would behoove you and your client to ensure that the judge does so and that it is in the record. If you don’t, you might have to explain to your client why the case is headed back to the trial court for a do-over. Clients hate to pay for a do-over, especially one that their lawyer could have avoided.
Oh, and a related point; when the record is sealed in MEC, everybody — and that includes you — is barred from reading anything in the file. Some lawyers came to me and asked me to seal a file, and I did because every attorney in the case agreed. They then discovered to their chagrin that none of the attorneys was receiving copies of pleadings filed and orders entered. They soon scrambled back and urged me to unseal the file, which I did. Better to ask that a particular document be sealed.
Most sealing takes place in domestic cases by agreement. If you don’t have an agreed order, it’s best either to forego sealing or set the matter for hearing and ask the judge to conduct an Estate of Cole balancing test on the record.