The Legal Record and The Recorder both have coverage today about an unfortunate big firm fourth-year associate who inadvertently disclosed a pleading that his firm had been fighting to keep confidential for months. The pleading – “a complaint in a shareholder derivative action against former executives of Mercury Interactive Corp. -- contains explosive allegations against the executives and quotes extensively from e-mails in which the executives allegedly discuss backdating their own stock option.” The parties had previously filed it “under seal,” but had failed to comply with California’s strict rules for filing sealed records.
These rules appear at California Rules of Court, Rules 2.550 and 2.551.
More after the jump.
Rules 2.550 and
and
2.551
provide very specific procedures for filing records under seal. The
rules recognize the public interest in having court records publicly
available, so the parties may not stipulate to file records under
seal. Instead, the court may only file a record under seal if it
expressly finds facts that establish:
(1) There exists an overriding interest that overcomes the right of public access to the record;
(2) The overriding interest supports sealing the record;
(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;
(4) The proposed sealing is narrowly tailored; and
(5) No less restrictive means exist to achieve the overriding interest.
Getting records sealed requires a noticed motion, and the moving party has to follow fairly exacting and
complicated procedures. Furthermore,
if a party wants to use discovery documents in trial, for a motion,
etc., and those documents are subject to a confidentiality agreement or
protective order, the party wanting to use the documents lodges them with the court in a sealed envelope and gives
notice to the party who produced the documents in discovery. The producing party
(who presumably is the one interested in keeping the documents
confidential) has only ten days to file a motion to have the documents sealed. If he or she doesn't file a motion within
ten days, the court clerk takes the documents out of the envelope and makes them part of
the public record.
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