The Art of the Seal: Closing the Courtroom Doors

For many clients, the public nature of a law suit is problematic and plays a major factor in the deciding whether to file suit and how to litigate a case. Whether it be a client who wants to make sure that their trade secrets do not inadvertently find its way into the public eye or a client who simply wants to keep an embarrassing personal matter out of the public’s knowledge, sealing a courtroom weighs the presumption of openness vs. a party’s interest in keeping a matter private.

In 1989 the Texas Legislature assigned the task of establishing guidelines for state courts to determine whether the records in a civil case could be sealed. In response, the Supreme Court added Rule 76a. To assist state courts with applying this rule, the Texas Supreme Court provided the courts with a balancing test to determine whether or not a court records could be sealed. Starting with the general presumption that a court’s records should remain open to the public, a state court may seal its records if it is shown that:

(a) a specific, serious and substantial interest which clearly outweighs:

1. the presumption of openness; and
2. any probable adverse effect that sealing will have upon the general public health or safety; and,

(b) no less restrictive means than sealing records will adequately and effectively protect the specific interest asserted.See Rule 76(a)(1) and Fox v. Doe, 869 S.W.2d 507, 511 (Tex. App.-San Antonio 1993, writ denied).

The rule also requires a party seeking to seal a court record to file a written motion with the court and post a notice of the motion and the hearing date so that the public may attend the hearing and be heard. This notice must be filed at least fourteen days prior to the hearing.

The sealing of a case is almost always necessary, and most often found, in trade secret litigation. Trade secrets are unique kind of property whose value stems wholly from them being kept private from the public. Upon disclosure or revelation, the trade secret’s value is lost. As such, the Texas Supreme court has held that “a properly proven trade secret interest may constitute a specific, serious, and substantial interest, which would justify restricting access to the documents in question.”See Upjohn Co. v. Freeman, 906 S.W.2d 92, 96 (Tex. App. Dallas 1995). Of course, this only allows the court’s records to be sealed as it pertains to the trade secrets. It does not close the courtroom which may be necessary in some cases. As such, litigators must be extremely cautious when filing motions and exhibits, during a hearing or trial to ensure that they do not inadvertently disclose a client’s trade secret or allow a witness to disclose the trade secret during testimony.

Similar to sealing court records, Courts apply a comparable test when determining whether to close a courtroom to the public. While the public’s right to attend civil proceedings is well recognized under Texas law and grounded in the First Amendment, the right is not absolute.See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 600 (1980) and Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655, 657 (Tex. 1992).

In Dallas Morning News v. Fifth Court of Appeals, The Texas Supreme Court explained that the right of public access must be subject to reasonable limitations to protect countervailing interests such as the fair administration of justice or for other compelling public purposes. Thus, it is important that any motion to close the courtroom is well supported by affidavits and argument that the public’s right to knowledge should take a backseat to protecting the interests of the interested parties.

A few examples of grounds that warranted the closing of a courtroom are:

• Matters of national security;
• Trade Secrets; and
• Certain privacy rights of participants or third parties.

On the other hand, here are several instances where the court refused to close the courtroom:

• Motor vehicle product recalls;See Volvo Car Corp. v. Marroquin, 13-06-00070-CV (Tex. App. Nov. 5, 2009). and
• Pharmaceutical drug cases.See Eli Lilly & Co. v. Marhsall, 850 S.W.2d 155 (Tex. 1993)..

Having an order from the court granting your motion to seal may seem like you’ve won the day; however, the Supreme Court provided a method for any person to file a motion to unseal the court records. Pursuant to 76(a)5 a court that issues a sealing order retains continuing jurisdiction to enforce, alter, or vacate that order. The Court obviously recognized that the basis for sealing a court’s may change after time. Therefore, upon application of a party, court records that once needed protection must give way to the presumption of openness.

However, in order to prevail in unsealing the court’s records, Rule 76(a) requires a party who had notice under the rule to show a change of circumstances that materially affects the order.

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