E. Trial records

“[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (footnote omitted). The Supreme Court has not addressed the constitutional presumption in civil cases, though the U.S. Court of Appeals for the First Circuit noted that “[t]he presumption that the public has a right to see and copy judicial records attaches to those documents which properly come before the court in the course of an adjudicatory proceeding and which are relevant to the adjudication.” F.T.C. v. Standard Fin. Mngmt. Corp., 830 F.2d 404, 412-13 (1st Cir. 1987). The Third Circuit has also held “that ‘there is a strong presumption that material introduced into evidence at trial should be made’ available for public access.” Littlejohn v. Bic Corp., 851 F.2d 673, 678 (3d Cir. 1988) (citations omitted).

“[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (footnote omitted).

"A 'strong common law presumption of public access' applies to trial records." Braggs v. Dunn, 276 F. Supp. 3d 1253, 1254 (11th Cir. 2017) (citing Wilson v. Am. Motors Corp., 759 F.2d 1568 1571 (11th Cir. 1985)). The common law right of access may be overcome by a showing of good cause, which requires "balancing the asserted right of access against the other party’s interest in keeping the information confidential." Romero v. Drummond Co., 480 F.3d 1234 (11th Cir. 2007). The court will consider "whether allowing access would impair court functions or harm legitimate privacy interests, the degree of and likelihood of injury if made public, the reliability of the information, whether there will be an opportunity to respond to the information, whether the information concerns public officials, or public concerns, and the availability of a less onerous alternative to sealing the documents. Id.

"The courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." Nixon v. Warner Commc'ns, 435 U.S. 589, 597 (1978) (footnote omitted). The Eleventh Circuit has held that the public and press have a qualified common law right of access to trial records, including documents submitted as evidence during trial. See Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 n.7 (11th Cir. 2001) (citing Littlejohn v. BIC Corp., 851 F.2d 673 (3d Cir. 1988)); see also Wilson v. Am. Motors Corp., 759 F.2d 1568, 11571 (11th Cir. 1985) ("A strong common law presumption of public access applies to trial records").

In Braggs v. Dunn, a district court within the Eleventh Circuit upheld the common law right of access to the trial record where the interest in public access outweighed the minimal privacy concerns of the defendants. 276 F. Supp. 3d 1253, 1254–1255 (M.D. Ala. 2017).

It is well established that the public has a right to access information presented at civil trials.  See Poliquin v. Garden Way, 989 F.2d 527, 533 (1st Cir. 1993) (“[O]nly the most compelling showing can justify post-trial restriction on disclosure of testimony or documents actually introduced at trial”).  The public has a “presumptively paramount right of the public to know” the content of judicial records in civil cases, which may be overcome for “only the most compelling reasons.”  Federal Trade Comm’n. v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 408 n.4, 410 (1st Cir. 1987); In re Providence Journal Co., Inc., 293 F.3d 1, 13, n.5 (1st Cir. 2002) (“[T]he common-law right of access extends to judicial records in civil proceedings.”); cf Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980) (plurality opinion) (“[H]istorically both civil and criminal trials have been presumptively open”).

“[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’s, 435 U.S. 589, 597 (1978) (footnote omitted). The Second Circuit recognizes that there exists a presumption of access to court records which is entitled to great weight if a party submits the document to the court for purposes of adjudication. Lugosch v. Pyramid Co., 435 F.3d 110, 114 (2d Cir. 2006).  Although the Supreme Court has not addressed the constitutional presumption in civil cases, the Second Circuit has held that the First Amendment "does not distinguish between criminal and civil proceedings," but rather "protects the public against the government's arbitrary interference with access to important information." Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 164 (2d Cir. 2013).

The Third Circuit recognizes a qualified common law right of access to documents referred to in trial and admitted into evidence. See Littlejohn v. BIC Corp., 851 F.2d 673 (3d Cir. 1988). Documents that are referred to at trial become part of the record and are thus presumptively accessible to the public.  Litigants waive whatever confidentiality interest they may have if no effort is made to limit this disclosure.  Id. at 680.   The right of public access does not depend on whether the evidence in question was properly admitted. See id. at 679 n.11; see also Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 529 F. Supp. 866, 898 (E.D. Pa. 1981) (finding that portions of documents read into the record in open proceedings became part of judicial record, without regard to whether they were filed with the court).

The presumptive right of access extends to documents under a protective order that are later introduced as an exhibit at trial.  Littlejohn, 851 F.2d at 680 (citations omitted).  The Littlejohn court found that when the party seeking protection did not object to use of the documents based on the protective order, that party waived their rights under the protective order and the trial court “published” those exhibits as public documents.  Id.

The public’s First Amendment right of access applies to exhibits offered into evidence at a civil trial. See Level 3 Commc'ns, LLC v. Limelight Networks, Inc., 611 F. Supp. 2d 572, 579 (E.D. Va. 2009); see also U.S. Dist. Ct. Rules E.D. Va., Local Civil Rule 5(H) (“Trial exhibits, including documents previously filed under seal, and trial transcripts will not be filed under seal except upon a showing of necessity demonstrated to the trial judge.”).

Without deciding the source of the right of access, a district court in the Fourth Circuit held that the public’s right of access extends to demonstrative exhibits used in a hearing on a motion to dismiss. See Rambus, Inc. v. Infineon Techs. AG, No. CIV.A. 3:00-cv-524, 2005 WL 1081337 (E.D. Va. May 6, 2005).

If jury instructions are recited in open court, they are “judicial records” to which a First Amendment right of access attaches. Benedict v. Hankook Tire Co. Ltd., 323 F. Supp. 3d 747, 760 (E.D. Va. 2018).

If no effort is made to prevent dissemination of confidential information at trial, the right to claim that trial materials containing that information should be sealed is waived. See Benedict v. Hankook Tire Co. Ltd., 323 F. Supp. 3d 747, 760–61 (E.D. Va. 2018); see also RegScan, Inc. v. Bureau of Nat. Affairs, Inc., No. 1:11-cv-1129, 2012 WL 2994075, *8 (E.D. Va. July 19, 2012) (denying motion to seal settlement communications) (“If the confidentiality of particular communications was so important as now to warrant retroactively redacting additional information that has been in the public domain for months, then Defendant should have asserted its privilege and objected to Plaintiff's original Motion to Enforce Settlement, as opposed to waiving the privilege by responding with its own version of events and no mention of privilege or confidentiality.”); see also Danzy v. Coloplast Corp., No. 1:19CV1017, 2022 WL 1591968, *5 (M.D.N.C. May 19, 2022) (“When a request to seal pertains to publicly available information, the proponent of that request faces an uphill battle.  Because the common-law presumption of public access to judicial records accounts for ‘whether the public has already had access to the information contained in the records,’ In re Knight Publ’g Co., 743 F.2d 231, 235 (4th Cir. 1984), this Court has denied motions to seal when litigants sought to retroactively seal information available on the public docket . . . Even if, absent the disclosure by Plaintiff, Defendant would possess an adequate justification for sealing limited portions of the Expert Memorandum, Freeman Report, and Freeman Deposition, the Court cannot ignore the extent to which public disclosure already has occurred.”).

The Fifth Circuit has recognized a common-law right to inspect and copy judicial records, but that right is not absolute and will generally only apply to “original records.” Pratt v. Dennis, 511 F.3d 483, 485 (5th Cir. 2007). Audiotapes which constitute original records may be obtained, but back-up tapes of a stenographer’s transcript do not constitute original records and may only be obtained if there is reason to doubt the accuracy of the stenographer’s transcript. Id.

In criminal cases, the media has no constitutional right to trial exhibits beyond that enjoyed by the public, Belo Broad. Corp. v. Clark, 654 F.2d 423, 427 (5th Cir. 1981), but the court has not specifically addressed civil trial exhibits.

The Seventh Circuit recognizes a First Amendment and common law right to access records submitted into evidence in open court. See In re Continental Illinois Sec. Litig., 732 F.2d 1302 (7th Cir. 1984); Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir. 1994).

“Once the evidence has become known to the members of the public, including representatives of the press, through their attendance at a public session of court, it would take the most extraordinary circumstance to justify restrictions on the opportunity of those not physically in attendance at the courtroom to see and hear the evidence, when it is in a form that readily permits sight and sound reproduction.”  In re Continental Illinois, 732 F.2d at 1313 (quoting United States v. Myers, 635 F.2d 945, 952 (2d Cir.1980)) (where “courtroom was open to the public, the witnesses repeatedly referred to the contents of the Report and excerpts from the Report were quoted by counsel in open court,” litigant’s impression that protective order “would shield the Report from the presumption of access, even when it was introduced into evidence and relied on to make a decision” was “legally incorrect”); see also Fort Wayne Journal-Gazette v. Baker, 788 F. Supp. 379, 387 (N.D. Ind. 1992).

The Seventh Circuit has rejected the argument that “only items of evidence are subject to the common law right of access,” noting that the cases “speak of judicial records, not items in evidence” and that “judicial records include transcripts of proceedings, everything in the record, including items not admitted into evidence.”  Smith v. U.S. Dist. Ct., 956 F.3d 647 (7th Cir. 1992) (access right applied to memorandum by clerk of court where it was read in part in open court and relied upon by magistrate); accord Carlson v. United States, 837 F.3d 753, 760 (7th Cir. 2016).

There appears to be no Eighth Circuit case law discussing the right of access to civil trial records.

Subject to the provisions of Holland v. Eads, 614 So. 2d 1012, 1016 (Ala. 1993), trial records should be available to the public.

The right of press and public access to judicial proceedings and records has been recognized as a matter of right under the First Amendment in Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980) and its progeny, including Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise I”), 464 U.S. 501 (1984); and Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). This right has been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings. that constitutional law is, of course, binding upon state courts under the Supremacy Clause.  The Alaska Constitution can be interpreted to provide greater protection for First Amendment rights, but not less.  Various court rules and statutes may specify restrictions on or exceptions to the presumptive constitutional right of access to Alaska court records—most notably, Alaska Administrative Rules of Court 37.5 through 37.8—but would only be enforceable to the extent that they are not unconstitutional.

No published decisions.

The Supreme Court of Arkansas found that the Chancellor erred in sealing the final order in a paternity suit. Arkansas Dep’t of Human Services v. Hardy, 316 Ark. 119, 123, 871 S.W.2d 352, 355 (1994). The court went further and said that secret final orders could defeat the synergy of the peoples’ right and the press’s function, especially in cases in which the State is a party. Id., 871 S.W.2d at 355.

The presumption of access to records in ordinary civil cases applies to trial records. The seminal California Supreme Court case on open access to civil proceedings, NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999), addressed the question of whether, in a jury trial, the trial court had properly “issued orders . . . sealing the transcripts of those proceedings.” Finding a presumptive right of access to those trial transcripts, the Supreme Court affirmed a lower court ruling mandating “that transcripts of those hearings be made available to the public or journalists.” Id. at 1188.

The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) expressly applies to “all electronically filed (e-filed) or served (e-service) documents in accordance with the rules of the Supreme Court . . . .” (Section 4.00.)  In general, all “[i]nformation in the court record is accessible to the public,” and “court record” is broadly defined.  (Section 3.03(a); Section 4.10.)  The Public Access Policy restricts access to records in certain types of cases or to certain documents, absent a contrary court order.  (Section 4.60.)

Trial records are like any other filing: in both state and federal court, the First Amendment provides a strong presumption of public access to documents filed in civil cases “that directly affect an adjudication;” these are referred to as “judicial documents.”  United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995).  Records of that type may be sealed only if “specific, on the record findings are made demonstrating that [sealing] is essential to preserve higher values and is narrowly tailored to serve that interest,” provided that the “right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of the right to a fair trial.”  In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) (internal quotations and alterations omitted).

The Connecticut Appellate Court has explained that Conn. R. Super. Ct. §§ 11-20A(a),(b) “codifies the common-law presumption of public access to judicial documents,” which it defined as “any document filed that a court reasonably may rely on in support of its adjudicatory function, including discovery related motions and their associated exhibits.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 47–48, 970 A.2d 656, 683 (2009).

“There is a common law right of access to trial records.” John Does I-VI v. Yogi, 110 F.R.D. 629, 633 (D.D.C. 1986). In Yogi, the court denied a party’s request for a “blanket seal of discovery material or exhibits on the trial record” as the party did not prove “with sufficient specificity that the materials sought contain proprietary information” to justify the sealing. Id. at 634.

In EEOC v. National Children’s Center, 98 F.3d 1406 (D.C. Cir. 1996), the D.C. Circuit held that a district court abused its discretion in sealing a consent decree entered in connection with the settlement of an EEOC action for sexual harassment against a D.C. charitable entity that received public funding. Id. at 1410-11 (citing Hubbard factors). The court noted that the “public should be able to learn how the money it has contributed to a charitable organization is being spent” and that “because the Center provides services to children and the alleged misconduct by the Center’s staff in this case was of a sexual nature, the public interest in disclosure is compelling.” Id. at 1410.

Trial records, including evidence, are encompassed by Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988), and Florida’s constitutional right of access to court records. Civil court records may be closed only when consistent with Florida Rule of Judicial Administration 2.420, as well. That provision provides for closure in only a limited number of circumstances that are consistent with the test for closure of civil court proceedings, as outlined in Barron. Thus, to overcome the strong presumption of openness, a party wishing to make trial records confidential must satisfy the three-prong Barron test, laid out above. See Section VI.A; see also Bainter v. League of Women Voters of Fla., 150 So. 3d 1115, 1118-19 (Fla. 2014) (requiring trial court to unseal 538 pages of documents admitted into evidence and sealed trial transcript); Sarasota Herald-Tribune v. State, 924 So. 2d 8 (Fla. 2d DCA 2005) (overturning order restricting access to photographs entered into evidence at criminal trial).

Rule 21 of the Uniform Superior Court Rules provides that: “all court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth below.” “Superior courts may restrict or prohibit access to court records only if they do so in compliance with the requirements of Rule 21.” In re Motion of the Atlanta-Journal-Constitution, 271 Ga. 436, 437 (1988); see also Green v. Drinnon Inc., 262 Ga. 264, 265 (1992) (affirming an order to produce to newspaper official court reporter’s tape of comments from the bench that were recorded while court was in session); Undisclosed LLC v. State, 807 S.E.2d 393 (Ga. 2017) (a court reporter’s tape of proceedings may not be accessible if there is a filed transcript). See generally Munoz v. Am. Lawyer Media, L.P., 236 Ga. App. 462, 464 (1999) (“Photographic or other exhibits, and a trial record’s printed text, are equally open to public inspection”). The public’s right of access to court exhibits is reinforced by the Georgia Open Records Act, which specifically requires public access to court exhibits by expressly providing that the custodian of such exhibits “shall, upon request” make a copy of them available to the public. O.C.G.A. § 50-18-72(c).

Generally, all records offered or admitted at trial are available for public inspection.  I.C.A.R. 32(d)(9).  A recent high-profile anti-trust case filed in the federal district court for the district of Idaho highlights the various concerns and tensions of private litigants attempting to seal trial documents and proceedings in an otherwise open judicial proceeding.

In the consolidated cases of Saint Alphonsus v. St. Luke’s Health Sys., Ltd., Case Nos. 1:12-CV-00560-BLW and 1:13-CV-00116-BLW (D. Idaho), antitrust claims were raised by the Federal Trade Commission and a competing hospital concerning St. Luke’s Health System’s purchase of the Saltzer Medical Group.  A discovery stipulation was agreed upon by the parties which became a Protective Order, allowing the parties to designate what would be treated as confidential and “attorneys eyes only” (“AEO”).  As is typically done, there was no involvement of the trial court in the process of designating AEO documents.  Shortly before trial, the discovery order was transformed into a Pretrial Order which allowed the AEO documents to be used at trial as sealed exhibits, redacted depositions and the closure of courtroom proceedings when any reference was made to an AEO document or testimony.  Trial began and it soon became apparent that hundreds and thousands of documents were being introduced under seal and the press and public were being escorted from the courtroom on a repeated basis.  A coalition of news organizations protested.  While the trial judge allowed the media organizations to intervene, he denied their request to unseal the documents already admitted at trial and to open the proceedings.  The media appealed to the Ninth Circuit.  While that appeal was pending, the underlying trial ended and the court made its ruling in the case.  The Ninth Circuit eventually granted the media’s Writ of Mandamus and instructed the trial court judge to make a determination as to whether “compelling reasons exist for the continued sealing of trial materials [both exhibits and testimony] within 120 days.”  Thereafter, the trial judge made a step-by-step determination as to what exhibits and trial testimony should be unsealed and/or redacted.  He noted a “strong presumption” in favor of access and that a party seeking to seal judicial records must identify “compelling reasons” that outweigh the “public interest in understanding the public process.”  Saint Alphonsus, 2014 WL 314472, at *1 (D. Idaho, Jan. 28, 2014) (citing Kamakana v. City & Co. of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006)).  This resulted in approximately 506 exhibits/trial testimony being unsealed and approximately 122 exhibits/trial testimony being unsealed but with redactions.  Id., Dkt. 511 (filed July 3, 2014).

In 1992, an Illinois appellate court held that the right of public access extended to transcripts of hearings. In re Marriage of Johnson, 232 Ill. App. 3d 1068, 1074, 598 N.Ed. 2d 406, 410, 174 Ill. Dec. 209, 213 (Ill. App. Ct. 4th 1992) (holding that the trial court abused its discretion in denying public access to court records and transcripts in personal injury action and marital dissolution proceeding).

Trial records are open to public access unless Administrative Rule 9(G) excludes them. Ind. Admin. Rule 9(D)(1).

Generally, court records filed in the office of the clerk of court are public records open to inspection under Iowa Code Chapter 22. In Iowa, “[e]very person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record.” Iowa Code § 22.2 (2018). Certain records, such as minutes of testimony that accompany a county attorney’s information, are confidential by court rule.

A presumption of openness applies to trial records in civil cases under the Kansas Open Records Act, 45-215 et seq., as implemented by the Kansas Judicial Branch.  See Kansas Judicial Branch, Administrative Order No. 156, Administration of the Kansas Open Records Act, http://www.kscourts.org/kansas-courts/supreme-court/administrative-orders/Admin-order-156.pdf .

Presumptively open.  Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125, 128 (Ky. 1988); Roman Catholic Diocese v. Noble, 92 S.W.3d 724, 731 (Ky. 2002).

There should be no different standards for access to trial records than for access to pre-trial records. See “Pretrial motions and records” section above. Typically, such records are obtained simply by going to the clerk’s office (or the judge’s chambers) and asking for the record.

Admitted and proffered exhibits, including both documents and physical items, are part of the public record of a case, and while in the custody of the clerk’s office, are available for inspection and copying unless they are otherwise confidential. Public Information and Confidentiality, Admin. Order JB-05-20 § III(A)(7). Exhibits submitted to the clerk, but never proffered or admitted, will be made available to the submitting party, but are subject to inspection or copying while in the custody of the clerk’s office. Id.  Public copying or inspection may be limited by the terms of a protective order or by a judicial order or administrative order governing the handling of contraband or dangerous materials. Id.

The clerk’s office will return or destroy trial exhibits admitted into evidence in civil cases after final judgment has been entered and the appeal period has lapsed.

In a case challenging a court order denying confidentiality to certain exhibits admitted in evidence at trial containing trade secrets, the Supreme Judicial Court distinguished the comparatively lenient standard for entry of a protective order governing discovery materials from the more rigorous standard that must be met before trial exhibits will be sealed. Bailey v. Sears, Roebuck & Co., 651 A.2d 840, 843–44 (Me. 1994). The court quoted with approval the First Circuit’s opinion in Poliquin v. Garden Way, 989 F.2d 527, 533 (1st Cir. 1993):

Material of many different kinds may enter the trial record in various ways and be considered by the judge or jury for various purposes . . . . It is neither wise nor needful for this court to fashion a rulebook to govern the range of possibilities. One generalization, however, is safe: the ordinary showing of good cause which is adequate to protect discovery material from disclosure cannot alone justify protecting such material after it has been introduced at trial. This dividing line may in some measure be an arbitrary one, but it accords with the long-settled practice in this country separating the presumptively private phase of litigation from the presumptively public.

Id. at 843–44. In Poliquin, “The court concluded that non-disclosure of judicial records could be justified only by the most compelling reasons.” Id. at 844.

The Supreme Judicial Court affirmed the trial court’s denial of a request to seal trial exhibits despite an affidavit from the defendant that disclosure of the evidence sought to be protected would “result in a direct loss of revenue to Emerson Electric Co. and would spare our competitors the considerable burden of financing their own research and development.” Id. The court explained:

On this record we cannot say the trial court abused its discretion by determining that the defendants had failed to satisfy the court that they had established good cause or that justice required the continued protection of the exhibits admitted in evidence as distinguished from the materials produced in the course of the discovery process.

Id.

Trial records are likely subject to the First Amendment right of access. Doe v. Shady Grove Adventist Hosp., 598 A.2d 507, 511 (Md. Ct. Spec. App. 1991). Under the Maryland Rules, all pleadings filed in connection with trial proceedings, including any exhibits, are “Case Records,” which are presumptively open to public inspection. Md. Rule 16-902(c) (defining “Case Records”); Md. Rule 16-903(b) & (d) (once exhibits are filed or marked by the court, they are presumptively subject to inspection “notwithstanding that the record otherwise would not have been subject to inspection under the Rules”); see also Baltimore Sun Co. v. Mayor & City Council of Baltimore, 755 A.2d 1130, 1134 (Md. 2000). Under the Rules, the right to inspect a judicial record, including audiovisual records entered into evidence, includes the right to copy that record. Md. Rule 16-904.

Because there is a public right of access to civil trials, see, e.g., Boston Herald, Inc. v. Super. Ct., 658 N.E.2d 152, 155–56 & n.7 (Mass. 1995), there is a right of access to corresponding civil trial records. See, e.g., Republican Co. v. Appeals Ct., 812 N.E.2d 887, 892 n.8 (Mass. 2004) (citing Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (1st Cir.1989) (the First Amendment right of access to judicial records extends to civil trial records such as transcripts of proceedings, court briefs, and evidence).

Because Michigan recognizes a public right of access to civil trials, most trial records are available to the public. A party to an action has the ability to seal court records on a showing that other less restrictive means of protecting the party’s interest are not available, but a court must consider the public’s interest when determining whether good cause has been shown. Jenson v. Puste, 290 Mich. App. 338 (2010); M.C.R. 8.119(F)(1); M.C.R. 8.119(F)(2). However, courts may not ever seal court orders or judicial opinions, including orders to dispose of a motion to seal a record. Jenson, 290 Mich. App. at 345; M.C.R. 8.119(F)(5).

In Minneapolis Star & Tribune Co. v. Schumacher,  392 N.W.2d 197, 202–03 (Minn. 1986), the Minnesota Supreme Court recognized the common law presumption in favor of granting the public the right to inspect and copy court records and documents. This common law presumption of access has been characterized as “strong.” Id. at 203. Minnesota state district courts have also applied a common law right of access to civil proceedings and records. See, e.g., Williams v. Heins Mills & Olson PLC, 36 Media L. Rep. 1924, 1926 (Minn. Dist. Ct. Hennepin County 2008); Friederichs v. Kinney & Lange, 22 Media L. Rep. 2530, 2531–32 (Minn. Dist. Ct. Hennepin County 1994).

At the federal level, the District of Minnesota is part of the Eighth Circuit, which also recognizes a common law right of access to civil files and proceedings. Webster Groves Sch. Dist. v. Pulitzer Publ’g Co., 898 F.2d 1371, 1376 (8th Cir. 1990); In re Guidant Corp. Implantable Defribillators Products Liability Litig., 245 F.R.D. 632, 636 (D. Minn. 2007) (citing Webster Groves Sch. Dist., 898 F.2d at 1376).

In addition, the Minnesota Supreme Court has adopted The Rules of Public Access to Records of the Judicial Branch, which provide that as a general policy, the “[r]ecords of all courts and court administrators … are presumed to be open to any member of the public for inspection or copying at all times during the regular office hours.” Minn. R. Pub. Access Rec’ds. Jud. Br. 2. “Records” are defined as “any recorded information that is collected, created, received, maintained or disseminated by a court or court administrator.” Id. 3, subd. 5. Rules 7 and 8 dictate the procedure for requesting access, which is straightforward and does not require the payment of a fee unless otherwise established by statute; however, when copies are requested, the custodian may charge a copy fee. Id. 8; subd. 6.

All trial records are open to the public unless the trial is closed.

Trial records are presumed open unless sealed by the court. The Nevada Rules for Sealing and Redacting Court Records promulgated by the Nevada Supreme Court provide that “[a]ll court records in civil actions are available to the public, except as otherwise provided in these rules.”  SRCR 1(3).   For purposes of this rule, the term “court record” includes, but is not limited to any document, information, exhibit, or other thing that is maintained by a court in connection with a judicial proceeding; and any index, calendar, docket, register of actions, official record of the proceedings, order, decree, judgment, minute, and any information in a case management system created or prepared by the court that is related to a judicial proceeding.  SRCR 2(2).

The right of access, discussed in “Overcoming a presumption of openness” above, applies to trial records.

Rule 1-079 NMRA dictates that “court records are subject to public access unless sealed by order of the court or otherwise protected from disclosure under the provisions of this rule.” Because “court record” is defined as “all or any portion of a document, paper, exhibit, transcript, or other material filed or lodged with the court, and the register of actions and docket entries used by the court to document the activity in a case,” it follows that trial records are allowed the same presumption to public access. As such, trial records shall be open to the public absent statutory exclusion, see NMSA 1978 § 32A-58(C); NMSA 1978 § 24-1-15(J); NMSA 1978 § 24-2B-5.1(B); NMSA 1978 § 40-11A-625, or a court order to the contrary. The order must set forth the court’s findings that:

“(a) the existence of an overriding interest that overcomes the right of public access to the court record;

(b) the overriding interest supports sealing the court record;

(c) a substantial probability exists that the overriding interest will be prejudiced if the court record is not sealed;

(d) the proposed sealing is narrowly tailored; and

(e) no less restrictive means exist to achieve the overriding interest.”

Rule 1-079. The order shall require the sealing of the record only to the extent necessary. Id. The order shall further specify who is authorized to have access to the sealed court record and a date or event upon which it expires or shall explicitly state that the order remains in effect until further order of the court. The order shall specify any person or entity entitled to notice of any future motion to unseal the court record or modify the sealing order. Id.

The district court is given broad discretion in determining whether good cause has been shown, and reversal is permitted only for an abuse of discretion. Id. An abuse of discretion occurs only if the decision goes against the logic and effect of the facts and circumstances of the case. Id. “A district court's denial of a motion to seal is reviewed for an abuse of discretion.” Fred Loya Ins. Co. v. Swiech, 2018-NMCA-022, ¶ 16, 413 P.3d 530, 534.

In Fred Loya Ins. Co., the New Mexico Court of Appeals found an abuse of discretion by the trial court in that court’s denial of the appellants’ motion to seal the appellee’s motion for sanctions. 2018-NMCA-022, ¶ 25. There, the sanctions motion included confidential communications pertaining to an earlier settlement conference. The appellate court’s analysis hinged on the New Mexico Mediation Procedures Act, which bars disclosure of all mediation communications. Id. Because the appellee presented no evidence below of any exception to the Act that might encompass the motion for sanctions, the district court abused its discretion in denying the motion to seal. Id.​

“The right of access to proceedings as well as to court records is also firmly grounded in common-law principles, and the existence of the correlating common-law right to inspect and copy judicial records is ‘beyond dispute’.” Gryphon Domestic VI, LLC v. APP Int'l Fin. Co., B.V., 28 A.D.3d 322, 324–25, 814 N.Y.S.2d 110, 113 (1st Dep’t 2006) (citing Matter of Hofmann, 284 A.D.2d at 93–94, 727 N.Y.S.2d 84 (“[c]onfidentiality is clearly the exception, not the rule”); Danco Labs., Ltd. v. Chem. Works of Gedeon Richter, Ltd., 274 A.D.2d 1, 8, 711 N.Y.S.2d 419 (1st Dep’t 2000) (noting necessity for a “legitimate basis” to justify the sealing of court documents); Matter of Brownstone, 191 A.D.2d 167, 168, 594 N.Y.S.2d 31 (1st Div. 1993) (“statutory and common law have ‘long recognized’ that civil actions and proceedings should be open to the public to ensure that they are conducted efficiently, honestly, and fairly”)).

Courts have “authorized sealing only in strictly limited circumstances.”  Id. (citing Matter of Bernstein v. On–Line Software Intl., Inc., 232 A.D.2d 336, 337, 648 N.Y.S.2d 602 (1st Dep’t 1996) (protective order issued in arbitration proceedings to preserve the confidentiality of trade secrets); Matter of Twentieth Century Fox Film Corp., 190 A.D.2d 483, 486–487, 601 N.Y.S.2d 267 (1st Dep’t 1993) (finding parties had made sufficient showing to warrant sealing for purpose of preserving the privacy of an infant)).

The North Carolina Constitution confers a qualified right of access to civil court proceedings and records. See N.C. Const. Art. I, §18 (“All courts shall be open; every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay.”). Further, N.C.G.S. 7A-109(a) specifically grants the public a right to inspect court records in criminal and civil proceedings.

The North Carolina Supreme Court has held that “although the public has a qualified [constitutional] right of access to civil court proceedings and records, the trial court may limit this right when there is a compelling countervailing public interest and closure of the court proceedings or sealing of documents is required to protect such countervailing public interest. In performing this analysis, the trial court must consider alternatives to closure. Unless such an overriding interest exists, the civil court proceedings and records will be open to the public. Where the trial court closes proceedings or seals records and documents, it must make findings of fact which are specific enough to allow appellate review to determine whether the proceedings or records were required to be open to the public by virtue of the constitutional presumption of access.” Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 476-77.

Court records related to the following are confidential: (1) Juvenile court proceedings; (2) Mental health commitment proceedings; (3) Social security numbers; credit, debit, or electronic fund transfer card numbers; and financial account numbers; (4)  Adoption and paternity proceedings; (5)  Domestic violence protection order files - except for the final order of the court; (6) Psychological evaluations and drug and alcohol treatment records; (7) The property and debt listing of the parties to a divorce as provided by N.D.C.C. § 14-05-24.3; (8) Documents filed with the court for in-camera examination pending disclosure; (9) Case information and documents in Child Relinquishment to Identified Adoptive Parent cases brought under N.D.C.C. ch. 14-15.1; (10) names of qualified or summoned jurors and contents of jury qualification forms if disclosure is prohibited or restricted by order of the court; (11) judge and court personnel work material, including personal calendars, communications from law clerks, bench memoranda, notes, work in progress, draft documents and non-finalized documents; (12) party, witness and crime victim contact information gathered and recorded by the court for administrative purposes, including telephone numbers and e-mail, street and postal addresses; and (13) the name of a patron of the North Dakota Legal Self Help Center or information sufficient to identify a patron or the subject about which a patron requested information.

All “case documents” are presumed open to public access.  Case documents may only be sealed after a hearing in which the court determines that the clear and convincing evidence of prejudice to a party outweighs the right of access.  See State ex rel. Cincinnati Enquirer v. Lyons, 14 N.E.3d 989 (Ohio 2014); State ex rel. Vindicator Printing Co. v. Wolff, 974 N.E.2d 89 (Ohio 2012).

The Rules of Superintendence for the Courts of Ohio define “case document” as “a document and information in a document submitted to a court or filed with a clerk of court in a judicial action or proceeding, including exhibits, pleadings, motions, orders, and judgments . . .,” subject to certain exclusions.  Sup.R. 44(C)(1)–(C)(2).  As a result, the rules consider documents introduced at trial to be presumptively open to the public.  Sup.R. 45(A).  The court shall restrict public access if it finds by clear and convincing evidence that “the presumption of allowing public access is outweighed by a higher interest.”  Sup.R. 45(E)(2).

Evidence, even if previously sealed, is subject to a presumption of openness when it is introduced at trial. See R.W. v. Hampe, 626 A.2d 1218, 1224 (Pa. Super. 1993) (denying patient’s request that record of her psychiatric malpractice case be sealed and that she be referred to by initials alone).

In civil matters, “[c]ourt records are generally public documents and are subject to supervision by the court. . . . Basically, all court documents are public.”  Providence Journal Co. v. Clerk of Family Court, 643 A.2d 210, 211 (R.I. 1994).  Although the Rhode Island Supreme Court has not addressed what constitutes a “court record,” the Rhode Island Superior Court has adopted the approach that “documents that are filed with the court that reasonably may be relied upon in support of any part of the court‘s adjudicatory function are judicial documents.”  Dauray v. Estate of Mee, No. PB-10-1195, 2013 WL 372647 at *13, 2013 R.I. Super. LEXIS 19, at *40-41 (R.I. Super. Ct. Jan. 23, 2013) (quoting Rosado v. Bridgeport Roman Catholic Diocesan Corp., 970 A.2d 656, 678 (Conn. 2009)).  It also determined that once a document is identified as a “court record”, the scope of the public’s right of access is determined according to a balancing test.  See id. at 2013 WL 372647 at *14-15, 2013 R.I. Super. LEXIS 19, at *48-49 (citing Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001)) (“[T]he common law right of access requires a balancing of competing interests.”)). Courts are given broad discretion to balance the interests in disclosure and closure of court records. Id. at 2013 WL 372647, at *15, 2013 R.I. Super. LEXIS 19, at *52 (“Every court has supervisory powers over its own records and files . . .” (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978)).

Exhibits become public records when they are admitted into evidence at a trial or hearing. Requestors can access them under the South Carolina Freedom of Information Act, S.C. Code Ann. § 30-4-10, et. seq. Contact the local clerk of court if a trial is still pending regarding the availability of trial or motion records.

The Tennessee Supreme Court in King v. Jowers, 12 S.W.3d 410, 411-12 (Tenn. 1999), vacated a trial court order that denied access to the transcript of a closed voir dire proceeding in a civil case that the Court held should have been open to the public.  The Court cited to State v. Drake, 701 S.W.2d 604, 608 (Tenn. 1985) and State v. James, 902 S.W.2d 911, 914 (Tenn. 1995) to support its holding and did not differentiate between the test to be applied to the proceeding itself and the transcript of that proceeding.  The Court explained that in James it held “that the court shall not close proceedings unless it determines that failure to do so would result in particularized prejudice to the party seeking closure that would override the public’s compelling interest in open proceedings.”  King, 12 S.W.3d at 411-12 (citing James, 902 S.W.2d at 914).  The Court explained that in Drake it held “that before closure of a proceeding may occur, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced.”  Id. at 412 (citing Drake, 701 S.W.2d at 608).  Based on this precedent, the Court held that it could “find no justification for the closing of jury selection proceedings” in this civil case and that the order barring access to the transcript of the proceeding must be vacated.  Id.

Texas courts recognize that civil court records are presumptively open to the public.  See Davenport v. Garcia, 834 S.W.2d 4, 23–24 (Tex. 1992); In Interest of M.A.M., No. 05-14-00040-CV, 2015 WL 5863833, at *4 (Tex. App. Oct. 8, 2015), reh’g overruled (Nov. 30, 2015) and review denied (Feb. 26, 2016) (mem. op.) (citing Times Herald Printing Co. v. Jones, 717 S.W.2d 933, 936 (Tex. App.—Dallas 1986), vacated and dismissed on other grounds, 730 S.W.2d 648 (Tex. 1987) (per curiam)); Ashpole v. Millard, 778 S.W.2d 169, 170 (Tex. App. 198)).  This presumption is further cemented in Texas Rule of Civil Procedure 76a.  See Tex. R. Civ. P. 76a(1).  Documents filed during a trial are court records unless they are excluded from the definition in Rule 76a or are otherwise protected from disclosure.  See Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655, 659 (Tex. 1992).

If a party seeks to seal trial exhibits post-trial, the court must apply the presumption of access set forth in Rule 76a.  See Title Source, Inc. v. Housecanary, Inc., No. 04-18-00509-CV, 2019 WL 2996974, at *6 (Tex. App.—San Antonio July 10, 2019, pet. filed) (mem. op.) (holding that trial court abused its discretion when, post-trial, it sealed trial exhibits without applying the standards and procedures required by Texas Rule of Civil Procedure 76a).

The general presumption in favor of the right of public access presumably applies equally to trial records in civil cases.  See United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997) (“It is clearly established that court documents are covered by a common law right of access.  Under that doctrine, judicial documents are presumptively available to the public, but may be sealed if the right to access is outweighed by the interests favoring nondisclosure.”); Soc’y of Pro. Journalists v. Briggs, 675 F. Supp. 1308, 1310 (D. Utah 1987) (“This court agrees and holds that there is a constitutional right of access to public documents.”); State v. Archuleta, 857 P.2d 234 (Utah 1993) (First Amendment right of access to court records filed in connection with preliminary hearing); Utah Code § 63G-2-301(2)(f) (“judicial records” are presumptively public under GRAMA); Utah Code Jud. Admin. 4-202.02(1) (“Court records are public unless otherwise classified by this rule.”); see also Lafferty v. Bigelow, No. 2:07-CV-322 (D. Utah Jan. 9, 2014) (granting media intervenors’ motion to unseal records and to disclose unrecorded docket entries); DUCivR 5-2(a) (“The records of the court are presumptively open to the public.”).

Unless a document is filed under seal or relates to discovery, trial records are available to the public in civil cases in Vermont.  Vermont Courts Online does not allow currently allow for retrieval of the pleadings and orders listed on any dockets, however, so you need to contact the appropriate unit and division of the Vermont Superior Court to obtain copies of any trial motions or records.  Contact information for the units and divisions of the Vermont Superior Court are available at: http://www.vermontjudiciary.org/court-locations.

Vermont Rule of Civil Procedure 79.3 also provides that “[v]ideo recordings of public proceedings are public records, unless otherwise protected from disclosure by law or by order of the court. Duplicated copies may be ordered at the conclusion of a trial, or at any time by a party.”  V.R.C.P. Rule 79.3(f). However, the Vermont Rules for Public Access to Court Records contain exceptions to the general right of public access for “[a]ny transcript, court reporter’s notes, or audio or videotape of a proceeding to which the public does not have access” or “[a]ny evidence introduced in a proceeding to which the public does not have access.”  Vt. Pub. Acc. Ct. Rec. Rule 6(b)(30)-(31).

The public’s qualified right of access to judicial records in civil proceedings extends to “[e]xhibits entered into evidence in a judicial proceeding that lead to the judgment.” Lotz v. Commonwealth, 277 Va. 345, 351, 672 S.E.2d 833, 836 (2009) (public has rebuttable right of access to exhibits to sexually violent predator report admitted into evidence during a civil commitment hearing).

Company’s abstract concerns about sensitive, nonpublic, financial information contained in trial exhibits were insufficient to overcome the public’s right of access. U.S. Inspect, Inc. v. McGreevy, 57 Va. Cir. 511, 2000 WL 33406780 (Fairfax Cir. Ct. Nov. 27, 2000) (denying post-trial motion to seal trial exhibits).

The public’s right of access to court proceedings includes the right of access to case records, and any limitations are subject to the five-factor Bone-Club/Ishikawa test.  Dreiling v. Jain, 151 Wn.2d 900, 915, 93 P.3d 861, 870 (2004).

As set forth above, both the West Virginia Constitution (W. Va. Const. art. III, § 17) and statutes (W. Va. Code § 51-4-2) provide a presumptive right of public access to court records.  See “Access to civil records/In general” above.  This right applies to trial records.  State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 616, 520 S.E.2d 186, 191 (1999).

Exhibits admitted for introduction at trial are open unless sealed by a specific court order.