Under seal: wondrous court tales kept secret

Steve Korris Jun. 3, 2005, 10:53am

Mark McKenna

Case files at Madison County's courthouse hold wondrous stories for the world to read. But the most amazing stories are kept under seal by order of the court.

In the court's long, narrow galleys where years of cases are stored, visitors can pull out files and touch the mysterious, yet plain-looking sealed manilla envelope and merely guess what's contained within. But they dare not confirm those hunches lest they face criminal charges.

Sealed documents in Cunningham vs. Mattel--a 1999 suit alleging the toy maker deceptively inflated some Barbie doll prices--if separated from the public file, would by themselves make one of the thickest files in the Granite City courthouse.

Other curiosities in Granite City include a sealed case Lorie Marshall v. H&R Block that sits in the court vault--not for extra security--but because it would not fit on a shelf.

An envelope in a tobacco suit against Brown & Williamson holds what feels like four packs of cigarettes.

While common law and constitutional law grant public access to court records, state and federal judges can step in and issue protective orders to permit sealing.

“There has certainly been a growth in the number of filings under seal," said St. Louis University assistant professor of law Mark McKenna. "Often, both parties prefer it.

“Protective orders are very often negotiated documents. It makes it easier to get information from the other side. You don‘t have to worry about public relations.”

McKenna said openness of court records is part of the tradition of due process.

“In reality, it is pretty rare that the public is interested in discovery and such.”

Good judges evaluate protective orders that parties have negotiated and try to balance the benefits of sealing with possible public harm, McKenna said.

Anyone can petition to unseal documents, McKenna said. Often, news media makes those requests.

According to a 2003 report of the Federal Judicial Center, five states require good cause for sealing. Four states require that privacy interests outweigh public interests, and two require that privacy interests clearly outweigh public interests.

In Illinois, under State Supreme Court rules, a circuit judge can issue a protective order to prevent annoyance, expense, embarrassment, disadvantage or oppression.

The Illinois Supreme Court blew the seals off a case in 2000, declaring in Skolnick vs. Altheimer & Gray that court records are public “in all but the most extraordinary cases.”

In that case, attorney Skolnick sued his former firm and an attorney in the firm, Kass. In documents covered by a protective order, Kass found what she took as evidence of fraud on Skolnick’s part.

Kass sought relief from the protective order so she could file a counterclaim and report Skolnick to the Attorney Registration and Disciplinary Commission. The judge refused to modify the order, telling Kass she could file a counterclaim if she filed it under seal.

The Illinois Supreme Court reversed the judge‘s refusal to modify the order, declaring that Kass had an absolute duty to report misconduct. The Court also reversed the judge’s order to file the counterclaim under seal.

Twice in the 1990s, U. S. appeals courts unsealed documents.

In Jepson Inc. vs. Makita Electric Works, a defense attorney under a protective order filed a deposition from the case in a collateral case before a U. S. commission. The trial judge held the defense attorney in contempt and ordered a $5,000 sanction.

The 7th Circuit reversed in 1994, noting that the deposition came from someone not a party to the case and that it contained common sense observations.

In Procter & Gamble vs. Bankers Trust, protected documents fell into the hands of Business Week magazine. The trial judge enjoined publication by Business Week.

The 6th Circuit reversed the injunction in 1996, branding it as unlawful prior restraint. The judges held that parties cannot adjudicate their own case and courts cannot abdicate their function.

A bill to limit protective orders passed the Illinois House of Representatives two years ago. It would have prohibited sealing of documents that describe “public hazards.”

The bill, sponsored by Rep. James Brosnohan, defined public hazard as an instrument, procedure or product that has caused and is likely to cause injury. The bill provided for judges to settle disputes by reviewing documents in chambers.

The Illinois Civil Justice League opposed the bill, arguing that it would give the public access to years of research and development. The league warned that the public would see personal information about health, marriage, taxes and religion.

The bill passed the House, 71 to 44, in April 2003.

That May, the Senate Judiciary Committee passed it, the Senate gave it second reading, and the bill went on the calendar for third reading. When the time came for third reading, however, senators took it off the calendar.

A year passed before they returned to it. In May 2004, they approved a floor amendment and then another. In July they approved two floor amendments.

In August, they tabled all four amendments and the bill died.

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