Sunday, April 8, 2018

Litigation Documents under Seal

Can a party to a Florida worker's compensation case file something with the Judge and not disclose the contents of that document? There are a couple of valid points to be discussed on this general topic.

It is important to note that all documents filed by attorneys with the Office of Judges of Compensation Claims "shall" be filed electronically:
All documents filed with the OJCC, except documents filed by parties who are not represented by an attorney, shall be filed by electronic means through the OJCC website. Rule 60Q-6.108(1)(a).
And, all documents shall be served:
In the event a represented party files a pleading or other paper with the OJCC by electronic means, that party shall be required to serve the other party or parties, or their designated representative, with a copy of that pleading or paper simultaneously by electronic means, if available. Rule 60Q-6.108(1)(b). 
Thus, it is not appropriate under the rules for an attorney to deliver documents to the assigned judge's office. In fact, any documents that are submitted in a manner not consistent with the electronic requirement are to be sent to Tallahassee:
Any document filed in paper form by U.S. mail, facsimile, or delivery shall be filed only with the OJCC clerk in Tallahassee. Rule 60Q-6.108(1)(a).
But, there are times when a document should be reviewed by a judge before its contents are disclosed to the other parties or their attorneys. Discovery in Florida workers' compensation litigation is controlled by the Florida Rules of Civil Procedure. Rule 60Q-6.114(2)(a), (3) and (4). Thus, a party may object to producing documents that are requested by another party

When that objection is raised, it may be appropriate for the assigned judge to conduct an "in-camera" review of the documents, in light of the context or basis for the objection (relevance, privilege, etc.). See Brandsmart v. Schaffer, 855 So.2d 145 (Fla. 1st DCA 2003). In Camera means "in chambers," or "when all spectators are excluded from the courtroom." In regards to an examination of documents, it means that the judge would review documents for the purpose or determining whether it is appropriate for them to be provided to the other parties to the case. 

Thus, it may be necessary to provide some document(s) to the judge without e-filing them. What is the best way to accomplish that? Simply stated, that is up to the assigned judge. And, the best way to ask the judge to answer a question during litigation is to file a motion. See Rule 60Q-6.115(1). See How do you Spell Relief, Follow Orders or Seek Relief, and Following Orders.

A party that wants an in camera review or inspection should file a motion that asks for that and explains why the review is needed or necessary. The judge may then enter an order on the motion (which should explain any issues associated with providing the document(s), such as e-filing, service, etc.). The party may then follow the judge's directions (comply with that order). 

Another issue that arises regards the filing of documents that a party may agree to sharing with other parties, but not with others. When this arises, parties are often in agreement that a document should not be generally view-able, particularly after the issue to which it is relevant has been compromised or adjudicated. 

The Rules of Procedure for Workers' Compensation Adjudications provide a method for protecting a document from view. Under Rule 60Q6.108 Filing and Service, a judge has the authority to order a document be placed under seal. The precise provision is 60Q6.108(i): 
(i) The clerk of the OJCC shall, upon order of the assigned judge, place a document under seal and render it thereby viewable only upon further order of the assigned judge. 
This rule allows items that could pose a potential for embarrassment or other harm to be “sealed.” That action (placing under seal) does not mean that the document 
(1) Is not a public record of the State of Florida (it likely is as soon as it is filed with the OJCC) or (2) Will not be produced by the OJCC in response to a public record request.
Sealing a document does not prevent its disclosure by the OJCC. Sealing only makes disclosure a multi-step process for someone to obtain it (as opposed to an attorney on a case just clicking on a link in the case docket). When it is sealed, the document does not “go away,” it is just stored elsewhere so a user's click will not open it. But it is still a public record. 

If a party wishes to have a document placed under seal, the party should file a motion. See Rule 60Q-6.115(1). The motion should state the legal basis for the motion, and the assigned judge should enter an order adjudicating that motion. The order, all orders, should be uploaded to the appropriate case docket. If the party has some reason for the OJCC not to publish an order on the case docket, the party should say so, provide legal authority for that suppression of the order, and the judge will decide whether the order is public or not. 

As a general proposition, all orders entered by the OJCC are viewable by the public on the case docket. This affords the public with transparency as to the operations of this office and the litigation of Florida workers' compensation cases. Transparency is of value to this Office, the State, and the people. 

As an aside, there is no method or practice for a judge to order that some portion of a document is “sealed.” Either the document is sealed in its entirety or it is not sealed at all. The parsing of a particular document to seal part, but not all, generally requires more resources than the OJCC can devote. Thousands of documents are filed each day. 

Therefore,  

(1) if a party wants to seal a filing, it should file a motion for the judge to enter an order to that effect, Rule 60Q6.108 Filing and Service. 

(2) if a party wants to seal an order, a judge might order that, if the party can through a motion provide both a valid reason to seal the order and a legal authority that justifies it. But, that authority must overcome the presumption of public access to public records. In other words, the party must cite law that overrides the law requiring public access (I am not aware of one, but it could exist).  

(3) If a party wants to seal part of a document, The OJCC simply cannot – the only solution is to seal the entire document as described in either (1) or (2). 

Fundamentally, secrets are not for government. The filings and orders in litigation before the OJCC are public records. Therefore, those records will generally be accessible to all. Preventing such access will be the exception, a rare and special exception, to that rule. 


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