It has been over a decade since the adoption of New York's Rule relating to the sealing of court records. (1) In that time, a substantial body of law has developed interpreting and applying the rule pertaining to the sealing of court records. Now is a particularly appropriate time to undertake a review of that decisional law because New York courts have entered the age of electronic filing. The first tentative steps allowing parties to file all their papers electronically have been undertaken on an experimental basis in the Commercial Divisions of the New York State Supreme Court, and this practice is about to be expanded to a number of other courts. Eventually, the New York State Office of Court Administration hopes to implement electronic filing in most trial courts in the state.
Electronic filing raises serious issues of public access and the privacy protection of litigants. Routine review of court records by the public is virtually unheard of. Only the press, the parties, or persons directly interested in a file routinely search through the hard copy records reposing in the various county clerks' offices throughout the state.
Under an electronic filing system, all papers filed with the court will potentially be available to anyone with access to the internet. Moreover, with search engines, the public will have ready access, at the touch of a button, to an array of potentially private and embarrassing information regarding anyone who was a party or who was even mentioned in papers filed in any action in any court.
The purpose of this article is to review how the rule has operated since its inception, to analyze the case law applying the rule and to examine whether the rule is appropriate for the electronic age.
I. THE PURPOSE OF THE RULE
The rule provides that a court shall not enter an order in a civil action (2) sealing court records, in whole or in part, "except upon a written finding of good cause, which shall specify the grounds thereof." (3) The rule was drafted by the New York State Advisory Committee on Civil Practice at the request of then-Chief Judge Sol Wachtler and the Office of Court Administration. (4)
The rule was adopted at a time when the plaintiffs' bar, consumer groups, and state and national public figures were expressing concern that sealing orders were preventing the public from learning about hazards arising from unsafe products or environmental toxins. (5) These groups argued that public hazards were being concealed by demands of defense counsel that the entire litigation file be sealed as a condition of settlement. (6) Plaintiffs' attorneys also argued that such sealing orders prevented them from using information obtained in one action to prosecute similar actions against the same defendants for the same product defects or toxic hazards. (7) Defense counsel argued that such agreements were "necessary to facilitate settlements, protect trade secrets, ... or prevent adverse publicity which might cause juries to be biased against the defendant in future cases." (8)
The New York rule is designed to end the parties' control over the sealing decision. It requires the court, when presented with a request to seal any or all of the court records, to weigh the interests of the public's qualified right to access court records (9) against the parties' interest in privacy. (10) The rule is designed to end what had become a common practice of pro forma approval by the courts of confidentiality and sealing orders entered into by the parties. (11)
The rule is an admonition to the courts that the public's oversight of the courts and its interest in the dissemination of important information must be balanced against the legitimate privacy interests of the parties on a case-by-case basis. As one court aptly stated, "[w]hat it all boils down to ... is the prudent exercise of the Court's discretion. In exercise of that discretion the Court engages in a balancing process weighing the potential for harm and embarrassment to the litigants and public alike. …