By Michele L. Earl-Hubbard

Recent Washington case law indicates that the courts are setting higher standards for protective orders that effectively restrict public access to the courts and court records. These holdings are grounded in a simple statement:
“Justice in all cases shall be administered openly, and without unnecessary delay.”
Washington Constitution, Article I, ¤ 10

Coupled with the First Amendment of the U.S. Constitution, Art. I, ¤ 10 mandates that courts and court records be presumptively open and accessible to the public, though the right of access is not absolute.

In Washington, court closures and court record sealing are controlled by the five-part test created in 1982 in Seattle Times Co. v. Ishikawa.1 The case concerned a media challenge to closure of a hearing and sealing of records related to a motion to dismiss charges against a criminal defendant. The Ishikawa test includes the following elements:

1. The proponent of closure or sealing must make some showing of the need for doing so, and where that need is based on a right other than an accused’s right to a fair trial, the proponent must show a “serious and imminent threat” to that right.
2. Anyone present when the closure motion is made must be given an opportunity to object to the closure.
3. The proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests.
4. The court must weigh the competing interests of the proponent of closure and the public.
5. The order must be no broader in its application or duration than necessary to serve its purpose.2

Later iterations have clarified that trial courts must make particularized, nonconclusory findings showing that they considered competing interests and other less restrictive alternatives. The Washington Supreme Court and Courts of Appeal have applied the test in many contexts over the past two decades, but two recent applications by the Supreme Court merit special attention.

The first, Dreiling v. Jain,3 dealt with a protective order allowing the sealing of materials filed in connection with a motion to terminate a shareholder derivative action. Finding the motion equivalent to a dispositive motion, the court ruled the records could not be sealed even under the protective order unless the Ishikawa test was met.4 The court further held that parties seeking a protective or sealing order bear the burden of establishing on a document-by-document basis the need for secrecy and the harm that would result if a protective order were not granted.5

When third parties challenge the protective order, the court held that the trial court may not rest on its earlier order and that the parties’ prior reliance on confidentiality provisions did not foreclose discovery by intervenors “as it is not reasonable to expect the court to hold records under seal forever.”6 The court concluded that any material filed in connection with a dispositive motion was presumptively accessible to the public and may only be sealed in accordance with Ishikawa.7

Rufer v. Abbott Laboratories8 followed just two months ago. In Rufer, the Supreme Court was asked to consider the sealing of documents filed in connection with trial and both dispositive and non-dispositive motions. The case involved a young woman who had unnecessary radical surgery due to an incorrect diagnosis of cancer based on a false-positive blood test. At the close of trial, the test manufacturer moved to seal exhibits and selected deposition testimony, asserting trade secret protection. The plaintiff and another party opposed the motion. The trial court ordered that all materials would remain available for public inspection.

Rufer was the first occasion for the Supreme Court to examine access in the context of non-dispositive motions. Citing “the constitutional principle that it is the right of the people to access open courts where they may freely observe the administration of civil and criminal justice,”9 the court opened the door. It held that the public had a right to witness the complete judicial proceeding, including all records the court has considered in making any ruling, whether dispositive or not, and that the Ishikawa test must be applied to determine whether to seal or continue to seal records filed with the court.

Parties faced with existing sealing or confidentiality orders were cautioned to continue to file materials governed by those orders under seal, but with the understanding that such records may be unsealed unless the party seeking closure can meet the Ishikawa test. Thus, Rufer does not automatically unseal all previously sealed documents or void all prior sealing orders, but it does provide the appropriate framework to litigants and courts in the event a motion to unseal is brought. And, more importantly, it puts parties and trial courts on notice that the Ishikawa test and the presumption of access applies to all materials filed with a court, not just materials filed in connection with dispositive motions.10

Many types of proceedings are closed by virtue of state or federal statute. These statutes, for the most part, have not been challenged at the appellate level under the Ishikawa or federal tests. However, blanket closures that do not allow for individualized determinations have proven vulnerable in the face of the constitutional mandates.11

The law clearly favors disclosure over closure. As the developing case law further demonstrates, efforts to restrict public access to the courts and court records will be strictly scrutinized as the courts strive to swing the door open even more widely to protect the public’s constitutional right to bear witness to the legal process. n