Courts Say the Darndest Things II: Bill Cosby and Procedural Tricks

Author: Michael Dorsi

The Cosby case presented an unusual situation. The filings under seal were pending future review concerning sealing when the case settled. As a result, the Court did not rule until the Associated Press sought review years later.[1]

Settlements sometimes preserve confidentiality, but they cannot be relied on to happen at the right time. Sometimes litigants need to make a motion, and need to present the evidence they want sealed in order to provide adequate support for the motion. This can be a tricky situation for counsel.

The timing of motions permits state-court litigants more room to maneuver on noticed motions, at least compared to federal court litigants in the Northern District of California. California permits a party to file a redacted motion and conditionally lodge the un-redacted version of the motion under seal.[2]

Because the timing rules are the same for the motion to seal and any other motion other than summary judgment, the underlying motion often will be heard on the same or a later date than the motion to seal.

If the moving party prevails on the motion to seal, then that party is secure — at least for the time being. If the moving party loses a motion to seal, the filing under seal is returned to the moving party unless that party directs otherwise.[3] If the moving party also loses the underlying motion, then the moving party may be perfectly happy to have the moving papers not appear in the file. The difficult situation arises when the moving party prevails on the underlying motion but loses the motion to seal. At that point, the litigant must decide what is more important: obtaining relief on the motion or keeping the records out of public view.

Underlying Motion Granted, Motion to Seal Granted (moving party satisfied) Underlying Motion Granted, Motion to Seal Denied (moving party’s dilemma)
Underlying Motion Denied, Motion to Seal Granted (moving party maintains confidentiality) Underlying Motion Denied, Motion to Seal Denied (moving party has option to withdraw sealed papers)[4]

 

As a result, in California state court, a moving party that arranges the calendar well can guarantee that the motion to seal only matters if the party wins the motion.

 

In federal court, the Northern District’s local rules prevent this situation by employing an administrative motion process, which causes the motion to seal to be fully briefed in five days.[5] and that motion to be decided promptly, well before any ruling on the underling motion.[6]

 

[1] Memorandum Order (link)

[2] Cal. Rule of Court 2.551(b)(4).

[3] Cal. Rule of Court 2.551(b)(6).

[4] This blog post does not explore whether withdrawing such papers has an effect on preserving rights for appeal. As with any litigation decision, parties should consult with an attorney.

[5] N.D. Cal. L.R. 7-11.

[6] N.D. Cal. L.R. 7-11(c), 79-5(f).

 

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