NICK CARTER, HOWARD D. DOROUGH, BRIAN LITTRELL, ALEXANDER J. MCLEAN, KEVIN RICHARDSON, BACKSTREET BOYS, INC., AN ADMINISTRATIVELY DISSOLVED FLORIDA CORPORATION, BACKSTREET BOYS, INC., A DELAWARE CORPORATION, BACKSTREET MANAGEMENT, INC., BACKSTREET PRODUCTIONS, INC., AND SYBIL "GALLER" HALL, APPELLANTS,
v.
CONDE NAST PUBLICATIONS, DENISE MCLEAN, LOUIS J. PEARLMAN, TRANSACTION, L.C., TRANSCONTINENTAL MEDIA, INC., TRANSCONTINENTAL RECORDS, INC., APPELLEES

Fla. 5th DCA | 2008-04-18
Nos. 5D07-3389, 5D07-3390
PALMER, C.J. and PLEUS, J., concur.
983 So. 2d 23 Florida District Court of Appeal, Fifth District (2008) Positive Treatment
Cited by 2 cases

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Synopsis

The Backstreet Boys and related parties appealed an order unsealing court records in a damages action, arguing the trial court improperly shifted the burden of proof to them to justify sealing. The Fifth District affirmed in part and reversed in part, holding that most documents sealed under a 2003 confidentiality agreement were properly subject to appellants' burden of proof, but one deposition sealed after a separate judicial order carried a presumption of correctness requiring the moving party to show good cause.


Holding

The court affirmed that documents sealed pursuant to the 2003 confidentiality agreement order were properly subject to appellants' burden of proof because that order merely established a mechanism for treating alleged confidential documents as sealed pending judicial determination of their status, not a final judicial sealing order. However, the court reversed as to Robert Carter's deposition, which was sealed after a separate judicial order following a hearing, as such a deposition carried a presumption of correctness requiring Conde Nast to show good cause for unsealing.


Headnotes

[1] A confidentiality agreement authorizing parties to designate documents as confidential and file them under seal does not prevent a court from later determining whether th…

[2] A trial court order approving a confidentiality agreement and allowing documents to be filed under seal does not require specific findings consistent with Barron v. …

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Key Quotes

“A party seeking to initially seal the filed records of court proceedings has the burden to establish that (1) closure is necessary to protect a recognized interest, (2) no reasonable alternatives to closure are available to achieve the desired result, and (3) the level of closure imposed is the least restrictive means necessary to accomplish its purposes.”

Establishes the three-part test for sealing court records initially, which the trial court should have applied but did not properly require.

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Facts & Procedural History

In 2002, Sybil Hall filed a damages action against the Backstreet Boys and related entities. The parties entered into a confidentiality agreement in 2…

The full statement of facts, procedural history, and disposition for this case are member content.

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Opinion of the Court
EVANDER, J.

EVANDER, J.

Appellants appeal from an order granting Conde Nast Publications’ motion to vacate an order sealing court records. We have jurisdiction. Fla. R.App. P. 9.130(4); see also Fla. R.App. P. 9.100(d). We affirm, in part, and reverse, in part.

In 2002, Sybil Hall filed an action for damages against Nick Carter, Howard D. Dorough, Brian Littrell, Alexander J. McLean, Denise McClean, Kevin Richardson, Backstreet Boys, Inc., An Administratively Dissolved Florida Corporation, Backstreet Boys, Inc., A Delaware Corporation, Backstreet Management, Inc., Backstreet Productions, Inc., Trans-Action, L.C., Transcontinental Media, Inc., and Transcontinental Records, Inc. The parties to the 2002 action subsequently entered into a confidentiality agreement for the stated purpose of preventing the improper disclosure or use of confidential information. The agreement authorized any party to designate a document (including a deposition) as “confidential.” Once a document was so designated, its contents could only be disclosed to a limited group of individuals. The agreement also authorized any party to file a document designated as confidential with the court “under seal.” Significantly, the agreement recognized that the designation of a document as confidential did not prevent another party from contesting its alleged confidentiality. If a party challenged the alleged confidentiality of a document, the document would remain confidential until the court ruled otherwise:

The agreement of the parties to this Order shall not be construed as a binding agreement or admission that any Confidential Discovery Material designated as being “CONFIDENTIAL” is, in fact, confidential or comprises a trade secret, and each party expressly reserves all rights to challenge as improper the designation by the other of information as “CONFIDENTIAL”. However, until such time as the dispute is resolved by agreement or by order of the court, the Confidentiality Discovery Material shall be treated as if the designation were valid.

On September 30, 2003, the trial court accepted the parties’ agreement and ordered the parties to comply with its terms (“the 2003 order”). Numerous documents designated as confidential were filed with the court “under seal” pursuant to the agreement. In 2006, the parties reached a settlement and Hall voluntarily dismissed the case. On July 5, 2007, Conde Nast Publications filed a motion to intervene and a motion to vacate the order sealing records. The motion to intervene' was unopposed. At a hearing held on August 8, 2007, the parties advised the trial court that the Clerk of the Court had improperly sealed the entire court file — not just the documents filed under seal. After hearing argument, the trial court entered an order requiring the Clerk to immediately unseal all documents in the court file except for those documents previously filed under seal. The parties to the confidentiality agreement were given a limited amount of time to “assert confidentiality considerations” to the court for further ruling. Appellants then filed an objection to the unsealing of approximately three boxes of documents. Those documents were submitted to the court for an in camera review.

The parties reconvened for a hearing on September 5, 2007, at which time the court heard additional argument. The trial court subsequently entered an order granting Conde Nast Publications’ motion to vacate the order sealing court records.

In reaching its decision, the trial court found that the 2003 order approving the confidentiality agreement was legally insufficient to authorize the sealing of court records because the order did not include specific findings that were “consistent with the directive of Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988).” The trial court further found that appellants had not properly or adequately framed their numerous objections — particularly given that they had not filed a motion to make court records confidential in compliance with Florida Rule of Judicial Administration 2.420(d). This appeal followed.1

Appellants’ primary argument is that the trial court should have required Conde Nast Publications to show good cause to unseal the documents in dispute rather than place the burden on appellants to justify the initial sealing. The Florida Supreme Court has recognized that seeking to open records that have already been closed by a court is a substantially different task than seeking to close records in the first place. Times Publishing Co. v. Russell, 615 So. 2d 158, 159 (Fla.1993).

A party seeking to initially seal the filed records of court proceedings has the burden to establish that (1) closure is necessary to protect a recognized interest, (2) no reasonable alternatives to closure are available to achieve the desired result, and (3) the level of closure imposed is the least restrictive means necessary to accomplish its purposes. Barron, 531 So. 2d at 118.

By contrast, when records of court proceedings have been properly sealed the party seeking to unseal the records has the burden to establish good cause. Russell v. Times Publishing Co., 592 So. 2d 808, 809 (Fla. 5th DCA 1992).

Here, the trial court found that the disputed court records were not properly sealed because the 2003 order did not contain express findings regarding the factors set forth in Barron. The trial court’s conclusion would be a correct one if the sealing order had been entered into subsequent to April 5, 2007 — the date on which Florida Rule of Judicial Administration Rule 2.420 was adopted on an interim, emergency basis by the Florida Supreme Court. In re Amendments to Florida Rule of Judicial Administration 2420— Sealing of Court Records and Dockets, 954 So. 2d 16 (Fla.2007). Pursuant to Rule 2.420(d)(3), an order sealing court records must state, inter alia, the particular grounds for making the court records confidential, that the closure is no broader than necessary, and that there are no less restrictive measures available.2 However, we are unaware of any rule or case which imposed such requirement prior to April 5, 2007. See, e.g., Ocala Star-Banner v. State, 697 So. 2d 1317 (Fla. 5th DCA 1997). Accordingly, we agree with appellants that the lack of express findings in the 2003 order did not, in and of itself, render the order legally insufficient.

Our disagreement with the trial court on this issue does not mean, however, that the trial court erred in placing the burden of proof on the appellants as to those documents sealed pursuant to the 2003 order. That order authorized the parties to file documents designated as confidential under seal. However, the order did not bind the trial court to ultimately find that such documents were entitled to be exempt from public disclosure. We construe the 2003 order as simply establishing a mechanism whereby alleged confidential documents that were filed with the court would .be treated as confidential until the court could determine if the docu-merits, or any of them, were entitled to be exempt from public disclosure.

We observe that recently-adopted rule 2.420 provides for a similar mechanism. Specifically, section 2.420(d)(1)(B) provides that court records subject to a motion to make court records confidential must be treated as confidential by the Clerk pending the court’s ruling on the motion. Thus, we find that the 2003 order only served to seal certain court records until the court held a hearing to determine if those records were entitled to be exempt from public disclosure. Accordingly, as to those documents sealed pursuant to the 2003 order, we find that the trial court properly placed the burden of proof on appellants.

There was, however, one deposition which was sealed after a telephone hearing held on October 1, 2004. After hearing argument, a predecessor trial judge found that the deposition of Robert Carter should be sealed. As to this deposition, the trial court’s sealing order carried a presumption of correctness. Scott v. Nelson, 697 So. 2d 207, 209 (Fla. 1st DCA 1997). Thus, Conde Nast Publications had the burden of proof to show good cause to unseal Robert Carter s deposition. It failed to meet this burden.

Except for Robert Carter’s deposition, we conclude that the trial court properly found that appellants were required to file a motion to make court records confidential in compliance with Rule 2.420(d)(1).3 That rule had been in effect for over four months prior to the trial court affording appellants the opportunity to “assert confidentiality considerations.” Furthermore, we find no error in the trial court’s determination that appellants had failed to file a motion in compliance with such rule.

We reverse the trial court’s order unsealing the deposition of Robert Carter. The trial court’s order is otherwise affirmed.

AFFIRMED in part; REVERSED in part.

PALMER, C.J. and PLEUS, J., concur. . The trial court appropriately stayed its order pending appeal.

. Rule 2.420(d)(3) provides:

(3) Any order granting in whole or in part a motion filed under subdivision (d)(1) must state the following with as much specificity as possible without revealing information made confidential:
(A) The type of case in which the order is being entered;

(B) The particular grounds under subdivision (c)(9)(A) for making the court records confidential;

(C) Whether any party’s name is to be made confidential and, if so, the particular pseudonym or other term to be substituted for the party's name;

(D) Whether the progress docket or similar records generated to document activity in the case are to be made confidential;

(E) The particular court records that are to be made confidential;

(F) The names of those persons who are permitted to view the confidential court records;

(G) That the court finds that: (i) the degree, duration, and manner of confidentiality ordered by the court is no broader than necessary to protect the interests set forth in subdivision (c)(9)(A); and (ii) no less restrictive measures are available to protect the interests set forth in subdivision (c)(9)(A); and (H) That the clerk of the court is directed to publish the order in accordance with subdivision (d)(4).

. Florida Rule of Judicial Administration 2.420(d)(1) provides:

(d) Request to Make Circuit and County Court Records in Noncriminal Cases Confidential.

(1) A request to make circuit and county court records in noncriminal cases confidential under subdivision (c)(9) must be made in the form of a written motion captioned "Motion to Make Court Records Confidential.” A motion made under this subdivision must:

(A) identify the particular court records the movant seeks to make confidential with as much specificity as possible without revealing the information to be made confidential: and (B) specify the bases for making such court records confidential.

Any motion made under this subdivision must include a signed certification by the party making the request that the motion is being made in good faith and is supported by a sound factual and legal basis. The court records that are subject to a motion made under this subdivision must be treated as confidential by the clerk pending the court's ruling on the motion. Notwithstanding any of the foregoing, the court may not make confidential the case number, docket number, or other number used by the clerk's office to identify the case file.


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  • Rocket Grp., LLC v. Jatib, 114 So. 3d 398 (Fla. 4th DCA 2013)
    …f a court allows confidential documents to be filed under seal, such an order merely establishes a way to file them pending the trial court’s determination that they are entitled to be exempt from public disclosure. See Carter v. Conde Nast Publ’ns, 983 So. 2d 23, 26-27 (Fla. 5th DCA 2008). We hold the trial court departed from the essential requirements of law in compelling Defendant to produce all the requested documents without first entering a confidentiality order that would provide a means for the par…

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