Courts Say the Darndest Things: Bill Cosby and the Public’s Interest in Litigation

Author: Michael Dorsi

Last summer, a federal judge in Pennsylvania ruled in favor of unsealing Bill Cosby’s sworn testimony concerning the use of Quaaludes (Methaqualone) in sexual assaults against women.[1] The result should stand as a warning to litigants: you cannot guarantee that a sealed document will remain sealed.

Both federal[2] and California[3] law permit filing motions under seal — out of public view — but both impose restrictions and somewhat unpredictable tests.

In federal cases, Federal Rule of Civil Procedure 26 controls. The Rule is very vague, stating “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . .” A similarly vague test applies in California.”[4] While cases on the subject give attorneys a guide on what subjects to address, outcomes remain difficult to predict.

The fact that both parties to a case agree to seal records is insufficient.[5] California law explicitly states “The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.”[6] Courts faced with two-party motions to seal often reject those motions, viewing it as their job to police the public interest in knowledge of what happens in courts.

What happened in the Cosby case is similar. Both parties had wanted certain records sealed. Due to an unusual posture (explored in Part II of this series), the Court did not rule on sealing until years later the Associated Press sought the records. When it comes to filing under seal, there are no guarantees, even years after a case is closed.

[1] See Order (link), Memorandum Order (link).

[2] Fed. R. Civ. Proc. 26(c)(1)(F), (H).

[3] Cal. Rules of Court 2.550, 2.551.

[4] Cal. Rule of Court 2.550(d) (“The court may order that a record be filed under seal only 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.”)

[5] See Savaglio v. Wal–Mart Stores, Inc., 149 Cal.App.4th 588, 600 (2007).

[6] Cal. Rule of Court 2.551(a).

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