I won’t tell if you don’t… Confidentiality and Seals
Everybody has secrets. One of the most frustrating and invasive aspects of litigation is the forcible exposure of those secrets to the prying eyes of your enemy (the other party), the courts, and anybody who takes the time to look up the records of your litigation.
So how do you handle the invasion of privacy that is litigation? Very, very delicately.
First, it begins with the recognition that just because you have been keeping something secret, that does not automatically entitle you to keep it secret from the world at large. You must examine what you are trying to protect. Is it a true trade secret? Is it the formula for Coke? Or is it a list of your clients, that would be valuable to your competitor? Or is it just a letter that reveals the embarrassing fact that you read trashy tabloids? It is important to remember that some things really are not worth protecting.
Second, after you have decided the value of your “secret” you must then decide the best vehicle for protection. You may be able to work with the opposing party, and produce your information to them under an agreed “protective order” in accordance with Tex. R. Civ. P. 192.6. Without agreement you must bring your desire for protection to the court. Under an agreed protective order, you have control over how the opposing party uses the documents, but the documents are not yet part of the “public domain.”
If you cannot get a protective order governing your documents, there is the possibility of a “seal” under Tex. R. Civ. P. 76a. Sealing documents is not without great peril. If you really want to keep your documents away from prying eyes, it is best not to have those documents as part of the record. Once those documents are considered “court records”—a fact specific question relating to the contents or use of the documents—you cannot take their public character away. Because Texas has an open-courts system, court records are generally open to the public without some weighty, contravening interest.
Finally, to have your records sealed, you must make a public announcement—to the Clerk of the Texas Supreme Court, and at the place where notices of meetings of county governmental bodies are posted—that you are attempting to seal records. Then there must be a public hearing, where anyone can intervene and contest the seal of your records. If you carry your burden of showing a specific, serious and substantial interest, outweighing the presumption of open courts, and outweighing any adverse effect to public health and safety, and you demonstrate that there is no less restrictive means than sealing your records to protect your interest, then and only then are your records sealed.
Imagine, trying to explain why your deepest secret should remain a secret, in front of a bunch of interested parties. Not exactly the best way to keep anything private! So if you are concerned about airing your dirty laundry during litigation, make sure you bring these issues to your attorneys’ attention early, and resolve them.
As always, our blog is no substitute for a real, live lawyer.