How, after all these years, did the truth about Bill Cosby finally come out? It happened on July 6, 2015 when a federal judge in Philadelphia ordered that documents filed in a lawsuit by one of Cosby’s accusers 10 years earlier be unsealed.[1] The unsealed records revealed that Cosby, in a deposition he gave in 2006, bragged about sedating women to have sex with them. The New York Times obtained a copy of the deposition and disclosed it to the public. The rest is (infamous) history.

Cosby’s attorney is understandably angry about the judge’s decision and its aftermath. For parties to litigation, the judge’s decision is unnerving because it casts doubt on the ability to keep confidential information contained in court records confidential.

Court records can be sealed if there is “good cause.” This generally means the harm caused by making information available to the public is greater than its benefit. For example, business information and trade secrets disclosed during litigation may be sealed and kept from public view. Information which identifies rape victims and juveniles may also be sealed and kept secret. In business litigation, parties often agree to keep certain information confidential, and the court will enter an order sealing references to that information in the court records.

So, why did the judge unseal the records in Cosby’s case?   Because balanced against Cosby’s public comments on moral issues and his denial of the claims against him, the judge believed the public has a right to know.

It is universally held that the public has the right to access records filed in judicial proceedings, unless there is “good cause” to seal those records. The judge in Cosby’s case commented, “[i]t is well-established that there exists, in both criminal and civil cases, a common law public right of access to judicial proceedings and records.”[2] “The public’s exercise of its common law access right in civil cases promotes public confidence in the judicial system by enhancing testimonial trustworthiness and the quality of justice dispensed by the court.”[3]

In Cosby’s case, the judge recognized that even public figures have certain privacy interests which are not surrendered at the courthouse steps. But because Cosby “donned the mantel of a public moralist and mounted the proverbial electronic or print soapbox to volunteer his views on, among other things, childrearing, family life, education, and crime,” Cosby “thrust himself into the vortex” of these public issues and voluntarily narrowed his zone of privacy.

Though few cases are as dramatic as the Cosby case, the public’s right to access court records is strongly protected in Tennessee. I have been involved in cases in which the court refused to seal records despite the parties’ agreement that the records should be kept from public consumption.

In one case, the court said that, “[p]arties are welcome to enter into Confidentiality Agreements by and between themselves, but the Court will not issue a Confidentiality Order unless it is presented with compelling reason(s) to justify such an Order.”[4]

In another case, the court said, “[t]his Court cannot place under seal any documents filed with the Court, even those designated as ‘confidential’ by the parties, absent good cause to do so as the public has a paramount interest in access to all court documents.” And, “[o]nce documents are filed with the Court, there is a ‘strong presumption that they should be open to the public.’”[5]

Lawyers who practice in the federal district court in the eastern part of Tennessee are familiar with Local Rule 26.4. This rule prohibits parties from filing any document under seal without first showing good cause to the satisfaction of the court. The court will reject a filing which does not comply with the “under seal” requirements.

Of course, parties can bind themselves by private agreements to keep information confidential. But is there a way to ensure that information will be kept confidential once it appears in the court record? Not without a court order permanently sealing the documents. If the circumstances and court permit, the parties could stipulate to a redacted version of a document to conceal the confidential information.

However, with the strong presumption in favor of public access to court documents, it is incumbent on parties and their attorneys to seek protection before filing confidential information in the court record. As Tom Potter recently said, “if you have to rely on what you need to conceal, you better be able to show cause to seal.”