Comments on OCA’s Proposed Rule of the Commercial Division Addressing the Sealing of Court Records

SUMMARY

The Communications and Media Law Committee (Charles S. Sims, Chair), Council on Judicial Administration (Carolyn E. Demarest, Chair), Litigation Committee (Barbara L. Seniawski, Chair), and State Courts of Superior Jurisdiction Committee (Adrienne B. Koch, Chair) issued comments on the Office of Court Administration’s proposed Rule 11-h of the Rules of the Commercial Division, addressing the sealing of court records. The Committees recognize that the protection of sensitive business information is a significant concern of many commercial litigants, especially as electronic discovery has increased the scope and volume of parties’ discovery disclosures and electronic filing and docketing provide easier public access to court filings. Nevertheless, they do not view proposed Rule 11-h as a suitable response to the concerns and objectives articulated by the Commercial Division Advisory Council.  The Committees substantially agree with the analysis set forth in the New York State Bar Association’s letter to OCA addressing the proposed rule and emphasizing the importance of the public’s right of access to court records under the First Amendment and common law. As an alternative, the Committees suggest the promulgation of guidelines that can be used to determine the scope of a reasonable confidentiality stipulation and protective order in a particular matter.