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Documents Cannot be Sealed in Famous Divorce Case

Posted By Azemika   |   Comments (0)



A California Appellate Court has ruled that Trial Court did not make a mistake in modifying a prior judges’ sealing orders and unsealing some documents in a high-profile divorce case since the prior judges’ sealing orders are subject to continuing review and modification by successor trial judge in the same case. In the case of In re Marriage of Nicholas, Mother filed for divorce from Father, a cofounder of a "successful and well-known high-technology company." Their divorce and a separate federal criminal indictment for securities fraud and narcotics crimes, drew "intense media scrutiny and interest. . . ."

After their case was assigned to trial judge, Mother and Father stipulated to an order, issued in January of 2003, requiring any document containing confidential information to be filed and sealed in the Court’s file. Confidential information was defined as including any information relating to family investments and holdings, along with information pertaining to their family and private lives, "personal characteristics, lifestyle, proclivities, customs, conduct, fitness, habits, sexual or other behavior, health and any other personal information. . . ."

The parties’ divorce was later assigned to another judge who recognized that the prominence of this family in Orange County made their filings newsworthy and issued a second sealing order in December of 2006, requiring sealing of any pleading or other document relating to custody of Mother and Father’s three minor children. That order also required Trial Court to seal all previously filed documents and to remove them from Trial Court’s computer system.

The second Judge then followed up in January of 2007, with a third sealing order restricting access to court files to parties’ attorneys of record and requiring others to seek a Trial Court order for any access. In February 2007, the Judge, on his own motion, issued a fourth sealing order, which incorporated by reference all of the findings contained in his second order and required the sealing of all of the documents in the Trial Court’s file, including those relating to family finances and holdings in Father’s company. This order was itself sealed, along with the Trial Court’s docket sheet and the entire Trial Court’s file.

In August of 2007, Los Angeles Times filed a motion to intervene and to unseal the divorce records, claiming that although some filings might be subject to a seal order, Mother and Father could not successfully argue that the entire Trial Court file should be sealed from public view. In December of 2007, the Judge issued a fifth sealing order in which he vacated the fourth sealing order, but left the documents sealed. The Judge then appointed a special master to determine which Trial Court records, past or future, should be sealed or redacted, and gave the special master general guidelines regarding making that determination. The Judge also advised the special master to unseal the parties’ Income and Expense Declarations, hearing notices, and pleadings, declarations, and exhibits that did not reference the parties’ children.

In February 2008, Mother and Father filed separate motions, seeking further redaction and further sealing of Trial Court records. The Judge referred them to the special master. In April of 2008, Mother and Father stipulated to have their divorce case referred to a retired Judge. The Trial Court’s Supervising Judge approved that assignment for all matters except the sealing issues. In June of 2008, the Supervising Judge reassigned the divorce case to another Judge (the fifth one in the case) to handle those issues.

On assuming his assignment, this latest Judge was faced with (1) numerous bankers’ boxes full of unlabeled brown envelopes, (2) 23 pages of register of actions containing "non-descriptive filings," and (3) great difficulty accessing any information. Believing that the sealing of the entire file impermissibly limited public access to the divorce records, this Judge ordered the special master to prepare a privilege log of all sealed and redacted pleadings and documents, which the Judge intended to review for possible unsealing of certain documents.

On August 2008, this last Judge issued a sixth sealing order, suspending the special master’s appointment and ordering his prior reports unsealed. Stating his intention to modify the prior sealing orders to give public access to future Trial Court filings, the Judge set a briefing schedule and calendared a hearing for early September. Father promptly filed a peremptory challenge to this Judge, but Trial Court denied it and the California Appellate Court declined to order a writ of mandate. Meanwhile, one of the original Judges filed a report under seal relating to the custody and visitation of the parties’ children.

On June 6, 2009, after a hearing, the last Judge issued a seventh sealing order, which vacated the fifth sealing order, unsealed all previously sealed filings pertaining to the hearing, opened redacted copy of the custody judgment, and ordered the Court Clerk to prepare a list of documents that might have been erroneously filed under seal. The Judge also ordered the Clerk to prepare a log of the entire file, categorizing document contents, and directed that, effective August 1, 2009, all future filings would not be under seal unless the filing party adhered to the statutory procedures for filings under seal. The Judge reminded the parties that the filings should have redacted Social Security and financial account numbers. Father promptly filed a notice of appeal from the seventh sealing order, claiming that the Judge lacked the jurisdiction to modify the prior sealing order, which became binding after appeals period expired. On September 3, 2009, the fifth Judge on the case issued an eighth sealing order containing a list of erroneously filed documents and directing the parties to review and submit any objections they may have to their unsealing.

Now, acting on Father’s appeal in a partially-published opinion, California Appellate Court has affirmed the Trial Court’s rulings. The Appellate Court has ruled that (1) there is a strong presumption in favor of public access to civil court records; (2) sealing orders should have limited duration and be reviewed periodically to determine the continued need for them; (3) California Rules of Court Rule 2.55(h) permits Trial Court to unseal records that have been sealed by a prior order; and (4) Trial Court’s inherent power to control its proceedings and case files gives Trial Court the authority to amend or modify sealing orders. Therefore, the Appellate Court affirms seventh sealing order. In the unpublished part of the opinion, the Appellate Court has ruled that issuing the seventh sealing order was not an abuse of discretion.