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A movement to reduce the number of sealed records in courtrooms across the nation is gaining momentum as legislators, some state supreme courts and right-to-know advocates increase pressure on judges. Critics claim that judges are sealing records at an unprecedented rate, blocking access to everything from high-profile divorce records to products liability actions. What’s driving many of these sealings, lawyers believe, is the fear that sensitive information can wind up on the Web. The Florida Supreme Court ordered new rules this year aimed at curbing the wrongful sealing of court records after learning that hundreds of civil and criminal cases were hidden from the public. Florida closed or expunged a record 9,516 cases last year � more than triple that of 10 years ago � including child sex abuse cases, high-profile divorces and defamation suits, according to data from the Florida Department of Law Enforcement. The Washington Supreme Court also issued new rules this year that prevent judges from easily sealing court records. The court made the move after learning that hundreds of civil cases were improperly sealed during the past decade. In Nevada, legislators are lobbying the state Supreme Court to adopt rules that would make it tougher for judges to hide cases from the public. Legislation also has been proposed to establish stricter guidelines for sealing a case, such as requiring public hearings on the issue first. “I think the courts are really in many cases trying to take the easy way out, and the easy way out is to just seal the record, because then you don’t have the litigants furious at the court for exposing their records,” said Thomas Julin, a First Amendment lawyer in the Miami office of Richmond, Va.’s Hunton & Williams. “It’s gotten worse in recent years,” Julin said. “It started with all the terrorism stuff, but it really has been infectious and made it more common for judges to seal files.” Julin applauded Florida’s new record-sealing rules, passed in April, which require judges to specify in writing the grounds for sealing court records and to include findings that the secrecy was not broader than necessary. Sealing orders also must be posted on the court clerk’s Web site and at the courthouse. California First Amendment attorney Kelli Sager, who was successful in unsealing billionaire Ron Burkle’s divorce records last year, said she has noticed an increase in court record sealings, particularly in federal national security and terrorism cases. “The trend there has been more sealing than there used to be. There’s one case pending in the 9th Circuit where the entire file, including the docket, is under seal. If you look for the docket in this case, you will find nothing,” said Sager, a partner in the Los Angeles office of Seattle’s Davis Wright Tremaine who has filed an amicus brief to unseal the case. “It’s insane. Even our brief is sealed.” The case involves the guilty plea of a co-conspirator in the Duke Cunningham bribery scandal. Randy “Duke” Cunningham, a former Republican congressman from California, resigned from Congress in November 2005 after pleading guilty to taking more than $2 million in bribes in a criminal conspiracy involving defense contractors. Sager said secrecy also is a problem in family court, where parties, especially wealthy ones, try to keep divorce and custody records sealed. “Some judges have very strong feelings about the right of the public to know about these cases,” she said. “The idea of someone sitting at home in pajamas and reading about someone’s divorce, we hear that concern a lot from judges. They can’t accept the fact that some of this stuff would be on the Internet. It feels more invasive to them.” The subject of sealed court records gained national attention this fall when a public interest law firm and a private law firm challenged the sealing of a court case involving a toddler who was paralyzed after being hit by a drunken driver who was leaving a New York Giants football game. The girl’s family won a $115 million verdict, which was overturned. The case settled, but in June, a New Jersey state court sealed all future proceedings in the case at the request of the victim’s family. Verni v. Lanzaro, No. BER-L-10488-00 (Bergen Co., N.J., Super Ct.). The victim’s lawyer, David Freeman of Mazie Slater Katz & Freeman in Roseland, N.J., defended the sealing, saying: “The court in rendering its decision expressed significant and legitimate privacy concerns for the plaintiff and the family.” He declined to comment further. Lawyers pushing to have the case unsealed believe that the public’s right to know has been grossly violated. “What’s the public interest? It concerns allegedly a situation where a physically intoxicated person was sold alcohol at a sporting event . . . and if the settlement is a significant monetary amount, that should send red flags up to all concessionaires at all sporting venues that says, ‘Hey, be careful. Watch yourself,’ ” said Alan Y. Medvin of Newark, N.J.’s Medvin & Elberg, local counsel who is working with Public Citizen to unseal the case. Sealing records isn’t just about privacy matters. It’s also a tool for encouraging settlements, said Lori Grifa, an administrative and regulatory law attorney at Wolff & Samson in West Orange, N.J. “The reason courts are doing this is to encourage settlements. It’s in the interest in moving the process along,” Grifa said. “Here in New Jersey, we have about 400 judges and about 12,000 cases backlogged for trial . . . .It’s clearly in the interest of the judicial process to try to encourage settlements.” Getting it right? Michael Shapiro, a white-collar defense lawyer at New York’s Carter Ledyard & Milburn, believes that most judges are getting it right when deciding whether to seal cases. “I’ve had very few circumstances in which courts have gotten it wrong,” Shapiro said. “Most of the time, if you pick your battles carefully, you’re generally successful. Most judges are sensitive to these kinds of requests. On the other hand, if you’re going into court and seeking to have it sealed because you want to spare your client some sort of general embarrassment, that’s the kind of request that’s not going to be successful.” While Shapiro acknowledged that the public has a right to know about how courts work, he said that privacy rights sometimes outweigh the right to know. “Just because you go to court to resolve a dispute,” he said, “doesn’t mean that your entire life becomes an open book.”

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