Nevada's examination of the practice of sealing court records

Particularly since the Watergate scandal, when the U.S. Supreme Court ruled that the public was not entitled to access the tapes that were recorded in President Nixon's oval office, vigorous debate has surrounded the question of whether and when court cases and their documents may be sealed, away from the public view. As access to public information and databases becomes increasingly simple, businesses and individuals have developed a greater fear that their trade secrets, proprietary information and personal information may become public knowledge when they litigate.

Increasingly litigants are pushing the courts for broader and more frequent orders sealing their case, in whole or in part, away from the public's perceived-to-be-prying eyes. Whereas the public, and in particular the press, have been pushing these same courts for greater and easier access. Thus, several state supreme courts, including those in Arkansas, Washington, Florida, and now here in Nevada, have established study committees to determine how and when cases can be "sealed" or made private and confidential, and under what circumstances they may be unsealed.

At issue is an attempt to strike a balance between the public's right to examine court records as public documents, and a litigant's perceived need for privacy and/or secrecy.

The Arkansas Supreme Court set up a Task Force on Public Access and Privacy to ensure compliance with Arkansas's Freedom of Information Act. The Arkansas task force tried to balance the public's historic right to information against the more modern danger of identity theft which can result from open, unfettered access to court records. Ultimately that court issued an order outlining a goal to "minimize reluctance to use [the] court system," by allowing litigants to seal a case with greater ease and therefore feel safe knowing their privacy remained protected. Their order requires that certain information will automatically remain private unless a hearing is held, and then the proponent of publicity must show, before access is granted, by a preponderance of the evidence that the public's interest in the information outweighs the need for privacy.

The State of Washington took a different approach and amended its rules to make it more difficult to seal a case by requiring a hearing and specialized showings. Once sealed, the public may even move to have files unsealed upon showing that the compelling circumstances for the original seal no longer exist. Washington's approach focuses more on the right to public access in court documents than on the litigant's right to privacy.

Most recently, the Florida Supreme Court confronted the issue of sealed cases, and held that Florida citizens have a greater constitutional right to access court records than do citizens of most other states. On April 5, the Florida Supreme Court issued an opinion restructuring its public access to court document rights. The decision bears a close resemblance to the Washington approach, but also goes one step further by requiring that "the removal from public view of all information acknowledging the existence of a case is expressly not allowed." Therefore, the public always has the right to know that a case exists, even if the public does not have a right to know the private information found within the case files.

Nevada has not been immune to the controversy surrounding the sealing of court documents, nor has it been passive in response. In February, the Las Vegas Review Journal reported that 115 cases have been sealed in Clark County since 2000. Assembly Bill 519, a bill addressing the practice of sealing, was examined by the 2007 Legislature, and was defeated when the Nevada Supreme Court promised to undertake a study concerning the public's access to court documents and to implement new rules if deemed necessary.

The Nevada Supreme Court set up the Commission on Preservation, Access and Sealing of Court Records, comprised of members of the legal and journalistic communities. Those members include: District Judge Brent Adams, Dan Bowen, Joe Bradley, Don Campbell, Kathleen England, District Judge David Gamble, District Judge Kathy Hardcastle, Justice James Hardesty, Gary Hengstler, A.D. Hopkins, Edward Lemons, Nancy Ann Leeder, Kim Mandelbaum, Rich Myers, and Barry Smith. The commission's task is to develop guidelines that outline when and under what circumstances the judiciary can seal, in whole or in part, court documents. The commission will make recommendations to the Nevada Supreme Court, which will ultimately define and adopt any necessary new rules.

On May 21, the first meeting of the dommission was held. One member began by pointing out that "most of the treachery in the world occurred in the dark" and declared that an independent judiciary and a free press are distinguishing characteristics of a free society. Members of the dommission were educated about how sealing a case operates to deprive the public of access. In general, the dommission agreed that the practice known as "super-sealing" the entire existence of a case should be banned in Nevada. In fact, on June 19, the commission unanimously voted to recommend such a ban to the Nevada Supreme Court. A majority of the commission also seems to agree that the burden of proof should rest with the proponent of sealing to establish a compelling reason. The commission also considered whether there should be a mandatory public hearing to establish findings that a compelling interest exists to seal the case. The commission contemplated a cooling-off period in order to give the interested public time to provide input on the propriety of sealing a particular court document. Another approach discussed whether to require public notification and at least a brief hearing whenever a document is to be sealed.

Whether the commission can assuage the fears on both sides of the debate and make Nevada's guidelines a model for other states to follow will depend upon the results of their study. More to come later.

Joe Schrage and Rebecca Stahl-Summer Law Clerks, McDonald Carano Wilson LLP.