The Laudable South Carolina Court Rules Must Be Broadened
University of California Hastings College of the Law
South Carolina Law Review, Vol. 55, p. 883, 2004
On November 1, 2002, the United States District Court for the District of South Carolina enacted its amended Rule 5.03. New subsection (C) of this local rule, as amended, prevents settlement agreements filed with the court from being placed under seal pursuant to the preexisting rule's requirements. By including this language, South Carolina's federal judges have taken a courageous first step by moving to ban secret settlements in their courts. They should be accorded credit not just for proposing the rule, but also for the forthright comments of Chief Judge Joseph Anderson Jr., and for raising the consciousness of other courts, attorneys, and the press on this important issue.
As helpful as the new rule is, if it is to accomplish its goal of preventing the court from being involved in the “secretizing” of information, it unfortunately does not go far enough. First, the rule excludes the vast majority of settlements -- all those not filed with the court. Second, it remains permissible to “restrict access to documents...not filed with the Court. This, of course, includes the vast majority of discovery. Third, Local Rule 26.08,4 referred to in Rule 5.03, both excludes unfiled discovery and allows a procedure whereby “protective agreements”--as opposed to the “settlement agreements” governed by Rule 5.03(C) -- may be secretized by following the procedural hurdles contained in Rule *885 5.03(A).5 While those hurdles include the requirement that the moving party explain the need for “less drastic alternatives to sealing,” in the case of “protective agreements,” -- i.e., those presumably stipulated to by the parties -- careful court scrutiny is neither mandated nor, in my view, likely.
Secretization is accomplished in a forum provided and paid for by the public. While it may occur outside the view of the court, it is not outside the court's purview, since it almost always occurs in connection with a lawsuit filed in the court's venue. There is no question that courts thus have inherent power to regulate the conduct of the parties and their lawyers in matters filed in those courts and may prevent secrecy agreements regardless of the circumstances in which they occur.
The purview of this Article is those secret settlements, stipulations for protective orders, agreements to return discovery and secretize other information, and similar devices that result in hiding information from the public that concerns a substantial danger to the public health or safety. One might argue both sides of the question of whether secrecy should be severely curtailed in ordinary cases; I do not address that issue. Rather, I submit that in those cases where secret settlements conceal information which, if known, would be reasonably likely to protect the public or even save lives, courts as a policy matter should create a broad presumption of openness, put teeth in rules that cover unfiled discovery and other documents, prevent stipulations to “protect” disclosure of information about public dangers, and through these and other means, ensure that the interests of public health and safety will trump any arguable privacy interests of the litigants.
Local Rule 5.03(C) is a good start. But it is just that--a start. This Article commends that honorable court to finish the job it began and provide further protection to the public it wishes to serve.
Number of Pages in PDF File: 24Accepted Paper Series
Date posted: December 14, 2013
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