When reporter Teri Figueroa discovers the parties in a court case she's covering want to seal a file, her "Spidey sense" starts tingling.
When the hearing to determine if a file should be sealed is closed, she starts looking for her paper's media rights law attorney.
"What you say in a hearing — those things matter," she said.
Figueroa, a North County reporter for U-T San Diego, discussed sealing files in a civil case Wednesday as part of a panel sponsored by San Diego Superior Court, the San Diego County Bar Association and the local chapter of the Society of Professional Journalists.
San Diego Superior Court Judge Kevin Enright and attorneys Mike Battin and Pat Swan joined Figueroa in discussing a fictional scenario in which a research university and the biotech company it was suing for stealing trade secrets wanted to keep details of the case concealed.
"I know how to apply for admittance into juvenile court hearings," said Figueroa, who has covered criminal trials for U-T San Diego and the North County Times. "I've sat in open court and listened to children testify about horrible things, and those are open, so it never even crossed my mind that I could not come in here."
In civil cases involving trade secrets, the parties involved typically want to keep their competitors from having access to their research, which gives them an advantage in the marketplace.
"What we're about in the court system is trying to find that delicate balance between a party's right to privacy and the public's right to know," Enright said.
As Battin, a partner with Navigato & Battin, explained, a file cannot be sealed simply because both parties agree to it. A court order is required.
And in California, it is difficult to get a file sealed. California Rule of Court 2.550(c) states that "unless confidentiality is required by law, court records are presumed to be open."
A file can be sealed if, among other reasons, there's an overriding interest that overcomes the right of the public access to the record or the proposed sealing is narrowly tailored.
Battin said the parties might request that some of the hearings in the case be held in closed session.
"If you have a hearing in which you're attempting to convince the judge of the relevance and the impact of your evidence, it's tough to do that in the abstract," he said, "so it's helpful to have a closed hearing, where you can get in the weeds, if you will, about the evidence that you're trying to convince the judge of in a motion to compel."
The fictional scenario centered on a biotech company, founded by four university professors, that was being sued by the school for allegedly using propriety technology they developed while working at the university.
The school, the fictional University of La Jolla, was seeking images on company computers, emails and all materials generated during the professors' employment at ULJ. The parties made a joint request to seal the motions, declarations and exhibits.
Swan, a partner with Jones Day, said the defense team is typically the party that wants a file sealed.
"They're being sued," he said. "They haven't volunteered to come to court, and they don't want their proprietary information made public."
He said, however, the cost and difficulty of getting an order to seal in state court prevents a lot of his clients from entering a motion to seal.
"Frankly it's the reason why a lot of my clients put arbitration clauses in their employment agreements," Swan said, "so that they can avoid having their business matters aired in public."
Swan said sometimes discussing the need for a document to be sealed can alert the media and public to a sensitive file in the case.
"We're also concerned that statements we make in motion papers or in open court might disclose the trade secrets themselves," he said, "and be argued by others that we have waived the protection of a trade secret. You have to be really careful not to go past a certain point when talking about matters that are truly trade secrets."
Swan said he isn't opposed to talking to the press, but that he's guided by the California Rules of Professional Conduct, which are designed for preventing attorneys from tainting a jury or prejudicing the judge.
Enright said the court can help prevent trade secrets from being revealed, and still hold the case in open court, by referring to exhibits only by letter, or by referring to the exact page and line of a file and not reading it aloud.
Court proceedings may not be photographed, broadcast or recorded without a court order. And judges have a lot of discretion as to whether to allow cameras in the courtroom.
Enright said he would allow cameras in the fictional case, but he'd make sure the dignity of the court was preserved. He would make sure no cameras were running during court breaks.
Figueroa said she'd definitely want a camera in the courtroom because watching a witness give testimony can be very powerful.
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