Introduction

The New Jersey Supreme Court’s revamped Rule 1:38 makes clear that the presumption of public access to court records is alive and well here. As a result, litigants are left to ponder the best approach to protect from public disclosure confidential and proprietary documents produced to an adversary during discovery. To be sure, Rule 4:10-3 provides for the use of a protective order to shield documents exchanged during discovery. But what happens when an adversary attaches a “protected” document to a pleading or motion which makes it part of the court record and, therefore, presumably accessible to the public? This Client Alert reviews the recent rule changes and explores their implications. It also discusses potential practical approaches to the issue.

Old Rule 1:38 (“Confidentiality of Court Records”)

Prior to September 2009, the presumption of public access to court records was far from absolute. Rule 1:38 narrowly defined court records as those records that were “required by statute or rule to be made, maintained or kept on file by any court, office or official within the judicial branch of government.” Court records were available for public inspection; all other records were to remain confidential. The rule included a catch-all provision that exempted from public access “records required by statute or rule to be kept confidential or withheld from indiscriminate public inspection.” The rule also set forth broad categories of records that were exempt from public access including personnel and pension records, criminal investigative reports, jury questionnaires and family division records.  As these exemptions were discussed throughout various court rules, statutes and case law, practitioners were left with the difficult task of discerning exactly which records would remain confidential and which would be available to the public.

A court could seal other non-exempt court records if it determined that there was good cause. See Hammock by Hammock v. Hoffmann-LaRoche, 142 N.J. 356, 375-76, 381 (1995) (a party seeking to rebut the presumption of public access bears the burden of proving by a preponderance of evidence that its privacy interest substantially outweighs the right to public access). But good cause was not defined under the court rules, leaving litigants to rely on common law when making a motion to seal.

Amended Rule 1:38 (“Public Access to Court Records and Administrative Records”)

Effective September 1, 2009, Rule 1:38 was replaced and renamed “Public Access to Court Records and Administrative Records.” The new rule shifts the emphasis from “confidentiality” toward a presumption of “public access.” It states that all court and administrative records within the custody and control of the judiciary will be available for public inspection and copying unless the record is expressly exempted under one of the thirty-eight (38) exceptions listed in R. 1:38-3 (court records) or R. 1:38-5 (administrative records). The rule was designed to provide practitioners with an all-inclusive, single point of reference to enable them to easily determine which records were confidential and which would be available to the public -- without having to consult a myriad of court rules, statutes and case law. The vast majority of exempted records, thirty (30) out of thirty-eight (38), pertain to family matters and criminal matters. Rule 1:38-11 vests courts with the discretion to seal non-exempt court records if the moving party can demonstrate that good cause exists by a preponderance of the evidence. The new Rule 1:38-1 specifically states that good cause exists when “disclosure will likely cause a clearly defined and serious injury,” and the party’s interest in privacy substantially outweighs the right to public access. There is no presumptive right of public access to unfiled discovery documents because Rule 1:38-2(b)(2) specifically excludes them from the definition of “court record.” However, the playing field changes once an adversary attaches a discovery document to a court filing. This is because the new Rule 1:38-2(a)(1) provides an absolute right of public access to attachments to pleadings, motions and briefs. Parties cannot rely on the fact that a protective order was previously issued to “protect” confidential and proprietary information contained in the documents. See Hammock, 142 N.J. at 382.

Practical Implications and Solutions

The obvious question, then, is how can a party shield confidential and proprietary information exchanged during discovery when an adversary attaches it to a court filing? The Court’s approach in In re: Levaquin® provides guidance in this regard. On October 13, 2009, the Honorable Carol E. Higbee entered a Protective Order of Confidentiality (“Protective Order”) which permits the parties to designate as “PROTECTED” any confidential and proprietary documents, materials or information. Pursuant to the Protective Order, the parties are allowed to share “protected” documents, material and information with co-counsel and witnesses in the Levaquin® litigation, as long as they agree to be bound by the Protective Order. To address the implications of the new rule, the Court approved a procedure for submitting motion papers that attach documents marked “PROTECTED.” For discovery motions, the parties are to file only the Notice of Motion with the Clerk. All other motion papers (i.e. briefs, certifications or affidavits) are to be served on the adversary, but not filed. Instead, a courtesy copy of the motion papers is provided to the Judge for an in camera review. After the Judge decides the motion, he or she destroys or returns them to the filing party. Thus, the protected documents do not become part of the court record. For pretrial non-discovery motions, the parties have ten (10) days after the exchange of motion papers to file a motion to seal any part of the papers. If neither party files a motion to seal or notifies the other party that it intends to file a motion to seal, the underlying pretrial non-discovery motion papers will be filed with the Clerk and become part of the court record. If either party files a motion to seal (or notifies the other party that it intends to file a motion to seal), then the notice of motion, brief, and certifications or affidavits in support of the motion to seal will be submitted to the Judge only. Similarly, the parties submit their underlying pretrial non-discovery motion papers to the Judge only. After the Court decides the motion to seal, the Clerk will file the motion to seal and the underlying motion papers in accordance with the Court’s Order. The take away from the new rule is clear. A party wishing to protect confidential information must file a motion to obtain permission to file documents under seal demonstrating both that disclosure will likely cause a clearly defined and serious injury, and that the party’s privacy interest substantially outweighs the presumption of public access. Given the New Jersey Supreme Court’s desire for public access, the extent to which such motions will be granted remains to be seen.

This communication provides general information and is not intended to provide legal advice. Should you require legal advice, you should seek the assistance of counsel.