Temple of Justice Update: When Do Confidential Discovery Documents Become Publicly Available in Civil Cases?

discovery documents
Attorney Paul Graves outlines Bennett v. Smith Bundy Berman Britton, PS.

discovery documentsThe Washington Supreme Court’s current term has seen a considerable focus on the requirement in Article I, Section 10 of the state Constitution, that “[j]ustice in all cases shall be administered openly.” The most recent decision discussing that provision is Bennett v. Smith Bundy Berman Britton, PS (No. 84903-0). The case settles one question about sensitive information produced in civil cases, but leaves several unanswered.


Under a long line of cases, the Washington State Supreme Court has set forth two standards for protecting information produced during civil litigation. When information is produced during discovery but not filed with the court, it may be protected from public disclosure “for good cause shown.” That relatively low standard recognizes that civil discovery is broad and it often involves confidential information only tangentially related to a case. But when documents become part of the “administration of justice,” a higher standard applies. In those situations, only a “compelling need” can justify sealing documents.

Bennett prompted the Court to answer when, exactly, a document becomes “part of the administration of justice.”


The case involved 2 owners of a business who filed suit against their accounting firm, alleging it helped a third owner embezzle corporate funds. During discovery, the plaintiffs requested tax records from non-parties. Before producing these sensitive records, the defendant requested (and the plaintiffs agreed to) a protective order that allowed the records to be marked “confidential” and treated as such. The trial judge signed the order and the defendant produced the records to the plaintiffs. Later, in response to the defendant’s summary judgment motion, the plaintiffs filed a declaration from their expert attaching the tax records. Under the terms of the protective order, the records were filed under seal. Just hours after they were filed, the parties settled the case and the defendant withdrew the summary judgment motion. Nonetheless, the expert whose declaration attached the records moved to intervene and asked that the records be unsealed and made public. (It is not clear why he did so, but it ultimately did not matter to the court.) The trial court refused to make the documents public.


The case eventually reached the Washington State Supreme Court, which held that the stricter “higher need” standard be applied in this situation. The lead opinion, written by Justice Chambers and joined by three other Justices, would employ the stricter standard only when information “becomes part of the court’s decision making process.” As the lead opinion explained, “[i]n order for documents to become part of the decision-making process, there must be a decision.” In other words, “some conduct by the judge or judiciary is necessary for the public’s constitutional interest in the proceedings to arise.” Because the trial judge took no action in Bennett, the stricter standard did not apply and the trial court properly sealed the documents.


But the lead opinion went further and discussed more generally the standards governing documents that do become part of the decision-making process. In particular, it explained that non-parties may often need to be heard both in support of public disclosure (the press often plays this role) and in support of sealing (the taxpayers whose information was disclosed in Bennett, for example). The lead opinion also recommended that parties and trial courts keep detailed logs of protected documents, including justifications for their protection.

Concurring Opinion

This extended discussion, however, garnered votes from only Justice Chambers and three others. Chief Justice Madsen, while concurring in the result, refused to go further and declaimed the lead opinion’s choice to do so. “Unfortunately,” she wrote, “without a legal and factual basis for an analysis of what should happen should the need arise, trial courts and litigants in future cases must make guesses about the meaning, force, and value of the court’s dicta.” She took special issue with any requirement of a detailed document log, labeling it “unnecessary and insulting to our trial judges, who routinely consider and decide parties’ motions.”


Four Justices dissented in an opinion written by Justice Stephens. In the dissenters’ view, it is the act of filing that triggers the strict standard of openness. They argued that “[d]ocuments thought relevant enough by a party to be used in support of a motion are part of the open court process subject to article I, section 10.” Notably, all four dissenters agreed with Chief Justice Madsen’s concurrence, calling the extended discussion in the lead opinion “meaningless.”

Questions Remain

Bennett answers one question clearly: documents filed with ultimately undecided motions may be protected under the more lenient “good cause” standard. It leaves several other questions open, however: must trial courts give notice to non-parties that may be interested in whether documents are sealed? If non-parties do not intervene, may trial courts consider their interests? Do counsel and courts need to keep a detailed log of sealed documents? To the undoubted chagrin of trial courts and civil litigants and their counsel, answers to those questions must wait for another day.

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