Bennett v. Smith Bundy Berman Britton, PS

• Decision Date: 10 January 2013
• Docket Number: No. 84903–0.,84903–0.
• Citation: 176 Wash.2d 303,291 P.3d 886
• Court: Washington Supreme Court
• Parties: Rondi BENNETT, an individual, and Gerald Horrobin, an individual, Plaintiffs, and D. Edson Clark, Petitioner, v. SMITH BUNDY BERMAN BRITTON, PS, a Washington professional services corporation, and Sharon Robertson, individually and her marital community, Respondents.

176 Wash.2d 303

291 P.3d 886

Rondi BENNETT, an individual, and Gerald Horrobin, an individual, Plaintiffs,andD. Edson Clark, Petitioner,

v.SMITH BUNDY BERMAN BRITTON, PS, a Washington professional services corporation, and Sharon Robertson, individually and her marital community, Respondents.

No. 84903–0.

Supreme Court of Washington, En Banc.

Jan. 10, 2013.

Michele Lynn Earl–Hubbard, Allied Law Group LLC, Seattle, WA, for Petitioner.

Valerie A. Villacin, Catherine Wright Smith, Smith Goodfriend PS, Barbara L. Schmidt, Mary C. Eklund, Preg O'Donnell & Gillett, PLLC, Seattle, WA, for Respondents.

CHAMBERS, J.^*

[176 Wash.2d 304]¶ 1 Article I, section 10 of the Washington State Constitution declares, “Justice in all cases shall be administered openly, and without unnecessary delay.” Underthis straightforward directive, court records that become part of the administration of justice may be kept from the public only upon a showing of some compelling need for secrecy. But not all records are subject to this constitutional command. Documents obtained through the discovery process may be sealed for mere good cause shown. This good cause standard helps protect sensitive information, including information of nonparties, that might never be used in litigation. However, once material becomes part of the administration of justice, article I, section 10 requires disclosure unless a party shows a more compelling need for secrecy than mere good cause.

¶ 2 The case before us was settled before the trial court made any decision. We must decide if records sealed for good cause and submitted in support of a motion that was never decided became part of the administration of justice and are thus presumptively public. We affirm the Court of Appeals, Bennett v. Smith Bunday Berman Britton, PS, 156 Wash.App. 293, 234 P.3d 236 (2010), and hold that only material relevant to a decision actually made by the court is presumptively public under article I, section 10. In the absence of a decision by the court, the records in question here are not part of the administration of justice and may remain sealed for good cause.

FACTS

¶ 3 This case illustrates how litigation may take unexpected twists and turns. The case began as a marriage dissolution. The firm Smith Bunday Berman Britton PS (Smith Bunday) provided accounting services to Todd and Rondi Bennett during their divorce. Rondi Bennett and her father, Gerald Horrobin, owned businesses jointly with Todd Bennett. Smith Bunday also provided accounting services for those businesses. Rondi and Gerald (for the sake of clarity we will refer to these parties collectively as Horrobin) filed suit against Smith Bunday alleging it had aided Todd Bennett in embezzling and hiding money that belonged to Horrobin. As part of discovery, the plaintiffs requested tax records of nonparties to the suit. Smith Bunday objected to the discovery on ground that it was prohibited by law from revealing a person's tax information without that person's consent.

¶ 4 To resolve the confidentiality problem, the plaintiffs proposed a protective order. The order, stipulated to by both parties, and signed by the trial judge, permitted the parties to stamp any documents they produced as “confidential.” Such documents, according to the protective order, could then be used in conjunction with briefs, motions, and other court filings only if the documents were filed separately under seal.

¶ 5 On October 7, 2008, Smith Bunday filed a motion to dismiss all of the plaintiffs' claims on summary judgment. On October 29, Horrobin moved to remove certain documents from the protective order so they could be attached unsealed to the plaintiffs' response to the summary judgment motion. In particular, Horrobin wanted to attach some of the documents marked “confidential” to a declaration of the plaintiffs' expert witness, Ed Clark, in support of the response. The trial court ordered that the documents should be filed under seal first, and then upon receipt, the court would examine them and determine whether they should remain subject to the protective order. On November 14, 2008, Horrobin filed the response to the summary judgment motion and Clark's supporting declaration.

¶ 6 Just a few hours after the response was filed, and before the court had examined either the summary judgment motion or response, the parties settled the case. Smith Bunday notified the court that the case had been settled and that its summary judgment motion should be removed from the calendar.

¶ 7 Settlement did not bring resolution. Smith Bunday noticed that Horrobin's response and supporting declaration contained or made reference to documents that had been stamped “confidential,” but Horrobin had not filed them under seal as required by the stipulated protective order. This was apparently accidental. After discussing the matter, and despite the fact the case had settled, the parties stipulated the plaintiffs would refile redacted and sealed versions of the response and declaration in accordance with the stipulated protective order.

¶ 8 The plaintiffs' expert, Clark, who wrote the declaration in support of the response to summary judgment, moved to intervene. He asserted his right as a member of the public to open access to court records, opposed the refiling under seal, and moved to unseal other documents in the case already filed under seal.¹ The trial court granted his motion to intervene but denied his motion to unseal. Clark appealed, and the Court of Appeals upheld the trial court's order. Clark petitioned this court, and we accepted review.

ANALYSIS

Standard of Review

¶ 9 A trial court's decision to seal records is reviewed for abuse of discretion. Dreiling v. Jain, 151 Wash.2d 900, 907, 93 P.3d 861 (2004) (citing King v. Olympic Pipe Line Co., 104 Wash.App. 338, 348, 16 P.3d 45 (2000)). But the proper standard governing the sealing of court records is a legal question we review de novo. Rufer v. Abbott Labs., 154 Wash.2d 530, 540, 114 P.3d 1182 (2005). If the trial court reached its decision by applying an improper legal standard, we will remand to the trial court to apply the correct rule. Id.

Presumption of Public Access

¶ 10 There are, for purposes of the case before us, two different standards for sealing documents. “Much of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). Such information may implicate privacy interests of both litigants and nonparties. To protect such interests, “[b]ecause of the liberality of pretrial discovery[,] ... it is necessary for the trial court to have the authority to issue protective orders.” Id. at 34, 104 S.Ct. 2199. Thus, under our civil rules, parties may seal discovery material “for good cause shown.” CR 26(c).

¶ 11 At some point, material that is sealed for good cause during discovery may become part of the administration of justice, and at that point, a stricter standard of sealing must be applied. A party may, for example, file material sealed for good cause in discovery along with and in support of a motion. We have recently decided several cases addressing the effect of such filing on the public's right of access to the records.

¶ 12 Not long ago we held in Dreiling, in accordance with federal case law, that documents filed in support of dispositive motions, such as a motion for summary judgment, cannot remain sealed under a mere good cause standard; rather, they become presumptively public. Dreiling, 151 Wash.2d at 909–10, 915, 93 P.3d 861. We explained that presumptive publicity was guaranteed by article I, section 10 of our state constitution, which provides the public a right of access to court documents as well as a right of physical access to courtroom proceedings. Id. at 908–09, 93 P.3d 861 (citing Const. art. I, § 10). Article I, section 10 applies and renders documents presumptively public when the documents cross the line from “unfiled discovery” to “documents filed in support of a motion that can potentially dispose of a case.” Id. at 912, 93 P.3d 861 (emphasis omitted). We ultimately held that where article I, section 10 applies to documents, courts must engage in an Ishikawa analysis ² to determine whether sealing is permissible. Id. at 915, 93 P.3d 861.

¶ 13 In Rufer, 154 Wash.2d 530, 114 P.3d 1182, we went further, holding that “any records that were filed with the court in anticipation of a court decision (dispositive or not) should be sealed or continue to be sealed only when the court determines—pursuant to Ishikawa—that there is a compelling interest which overrides the public's right to the open administration of justice.” Id. at 549, 114 P.3d 1182. The difference between Rufer and Dreiling is that Rufer dropped the “dispositive” distinction and required an Ishikawa analysis for sealing documents filed with the court in anticipation of any decision. We conceded this went beyond the federal cases but noted that our unique open courts provision provided “good reason to diverge from federal open courts jurisprudence.” Id. Thus, Rufer provided an extra level of protection for the openness of our courts but did not alter the underlying principles we established in Dreiling.

¶ 14 In the case before us, we are asked to extend the constitutional command that “[j]ustice in all cases shall be administered openly” to documents submitted in anticipation of a ruling by a court that was never made. Wash. Const. art. I, § 10. Perhaps more broadly, the question before us is: does the act of filing documents with the court itself render the documents presumptively public?

¶ 15 As we pointed out in Dreiling, “Our founders did not countenance secret justice. ‘[O]perations of the courts and the judicial conduct of judges are matters of utmost public concern.’ ” Dreiling, 151 Wash.2d at 908, 93 P.3d 861 (alteration in...