Question
Exhibits attached to a motion to amend a civil complaint to include punitive damages were filed under an earlier order that sealed exhibits unless parties objected to disclosure within ten days after filing. The motion has been on file for months, and no objection is on the record. A judge issued a written ruling allowing punitives and citing all the exhibits, and quoting several of them. But the clerk continues to refuse (as he has repeatedly for months) to give me, a journalist, access to the exhibits. They are not voluminous; they amount to a stack about 2 inches high. The last refusal occurred this morning. I have had probably a dozen conversations about the documents with the clerk(s) and have always accommodated the clerk.
Given the fact that the judge won’t speak about the case, can you suggest a motion I could file myself? This involves a high profile case, the consolidated personal injury lawsuits alleging molestation by Catholic Priests.
Answer
First, I assume that in the first sentence of your message below you meant that the court would “unseal” the exhibits if no objection was made. It sounds like you have tried to convince the clerk that the exhibits should not be sealed at this point and that the clerk has not been persuaded. Assuming you cannot convince the clerk that the documents you seek are not under seal, you may ultimately have to file a motion to unseal them. (As a practical matter, you may first want to try a letter to the clerk’s office, explaining why the documents are not under seal and should be made available to the public.)
Although any member of the public may file a motion to unseal, such a person must comply with a number of procedural rules, however, and may require the assistance of legal counsel to prepare such motion. The general rules governing a motion to unseal are available at the Judicial Branch of California web site:
http://www.courtinfo.ca.gov/rules/index.cfm?title=two&linkid=rule2_551.
In deciding whether or not to unseal a record, the court “must consider the matters addressed in rule 2.550(c)-(e),” which include the requirement that a record may only be sealed if the court makes express findings that establish:
(1) There exists an overridinginterest that overcomes the right of public access to the record;
(2) The overriding interestsupports sealing the record;
(3) A substantial probabilityexists that the overriding interest will be prejudiced if the record is notsealed;
(4) The proposed sealing isnarrowly tailored; and
(5) No less restrictive means existto achieve the overriding interest.
Cal. R. Ct. 2.550(d) (emphasisadded). (Text of entire Rule 2.550:
http://www.courtinfo.ca.gov/rules/index.cfm?title=two&linkid=rule2_550.)
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