Bennett v. Smith Bunday Berman Britton, PS

156 Wash. App. 293
CourtCourt of Appeals of Washington
DecidedMay 24, 2010
DocketNo. 62824-1-I
StatusPublished
Cited by6 cases

This text of 156 Wash. App. 293 (Bennett v. Smith Bunday Berman Britton, PS) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bennett v. Smith Bunday Berman Britton, PS, 156 Wash. App. 293 (Wash. Ct. App. 2010).

Opinion

Becker, J.

¶1 This accounting malpractice case settled before the trial court began to consider a pending motion for summary judgment and the sealed documents filed in support of it. Discovery documents that are initially designated as confidential pursuant to a protective order may be filed with the court under seal in connection with an anticipated decision by the court. To the extent they enter into the court’s decision-making process in making any ruling, the documents must be unsealed unless the proponent of secrecy can show a compelling interest justifying nondisclosure. Under the particular circumstances presented here, where the court did not read or decide the motion and did not consider the sealed documents for any purpose, the documents did not become part of the court’s performance that the public has a constitutional right to scrutinize. Accordingly, the court did not need to find a compelling interest to justify allowing them to remain sealed.

¶2 The underlying action began in October 2007 when Rondi Bennett and her father, Gerald Horrobin, filed an [297]*297accounting malpractice lawsuit against their former accounting firm, Smith Bunday Berman Britton PS. They complained that Smith Bunday had assisted Todd Bennett, the former husband of Rondi Bennett, in defrauding companies the Bennetts and Horrobin once owned together. Sharon Robertson, the accountant at Smith Bunday who handled their businesses, was also named as a defendant. We will refer to the defendants collectively as Smith Bunday.

¶3 The plaintiffs requested production of documents, including some that contained tax information concerning Todd Bennett and other nonparties. Smith Bunday objected that such information could not legally be disclosed without the consent of the nonparties. The parties resolved the dispute by stipulating, in early December 2007, to entry of a protective order under CR 26(c) allowing any party to designate as “confidential” any document containing confidential or proprietary information produced in discovery. The protective order required a party filing such a document with the court to file it under seal.

¶4 The court dismissed plaintiff Rondi Bennett’s claims in August 2008 in response to Smith Bunday’s motion for judgment on the pleadings. In October 2008, Smith Bunday moved for summary judgment dismissal of the remaining claims of plaintiff Gerald Horrobin. Horrobin identified accountant Ed Clark, intervenor and appellant herein, as an expert witness.

¶5 Horrobin filed a motion for an order removing certain documents from the protective order so that he could submit them in response to Smith Bunday’s motion for summary judgment. Smith Bunday opposed the motion. Horrobin replied that Smith Bunday had failed to identify any compelling reason why the documents should be filed under seal. On November 10, 2008, Superior Court Judge Jim Rogers issued an order deferring his ruling on the [298]*298motion to remove the documents until he had received the specified documents.1

¶6 Friday, November 14, 2008, was Horrobin’s deadline to respond to the summary judgment motion. As of that morning, Horrobin had still not filed his response or Clark’s declaration with the court. Throughout the day, the parties negotiated. By 4:27 p.m. they had reached a settlement and signed an agreement. Part of the agreement was that Smith Bunday’s motion for summary judgment would be stricken from the calendar. But at 3:18 p.m., Horrobin had already completed the electronic filing of his response to the motion, including Clark’s declaration. Attached to Clark’s declaration were some of the confidential documents attached to Horrobin’s earlier motion to remove. Horrobin thought he had filed them under seal, but he apparently neglected to do so. Several more documents were later filed with the court as additional attachments to Clark’s declaration; these were filed under seal.2

¶7 On Monday, November 17, 2008, Smith Bunday informed the court that the case had been settled and the motion for summary judgment withdrawn. A question then arose concerning the confidential documents that Horrobin filed without placing them under seal. Smith Bunday and Horrobin agreed by stipulation dated November 24,2008, to ask the court to order the confidential documents, Clark’s declaration, and Horrobin’s brief to be filed under seal and to replace the original versions in the public court file with redacted versions.

¶8 Clark was not a party to this agreement. He moved to intervene for the purpose of moving to unseal court records. Clark took the position that all the documents filed with the court, sealed or not, should be open to public inspection unless the court held a hearing and found a compelling [299]*299interest to justify sealing. Clark’s motion to unseal, filed on November 25, 2008, specifically designated the documents filed under seal in conjunction with the summary judgment motion, as well as the documents filed with Horrobin’s motion to remove. He also designated certain documents that had been filed with the court under seal on May 27, 2008, as exhibits to a declaration by Horrobin’s counsel Wright Noel in connection with a discovery dispute. Clark asserted that because all of these initially private documents had been filed with the court in anticipation of a court decision, they could not be sealed from public view unless Smith Bunday, as the party advocating secrecy, showed that sealing was justified under Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982).

¶9 The analytical approach of Ishikawa includes five basic factors:

1. The proponent of closure or sealing must make some showing of the need therefor.
2. Anyone present when the closure or sealing motion is made must be given an opportunity to object to the suggested restriction.
3. The court, the proponents, and the objectors should carefully analyze whether the requested method for curtailing access would be both the least restrictive means available and effective in protecting the interest threatened.
4. The court must weigh the competing interests of the parties and the public.
5. The order must be no broader in its application or duration than necessary to serve its purpose.

Ishikawa, 97 Wn.2d at 37-39. The Ishikawa factors, first set forth as a guide to ensuring the constitutional right of public access to court hearings, are now applied not only to the closure of courtrooms but also to the sealing of documents filed with a court. Rufer v. Abbott Labs., 154 Wn.2d 530, 544 n.7, 114 P.3d 1182 (2005); Dreiling v. Jain, 151 Wn.2d 900, 914, 93 P.3d 861 (2004).

¶10 The question in this case is whether the Ishikawa factors apply to documents filed with a court under seal if the [300]*300documents do not in some way become part of the court’s decision-making process. Clark argued below that the Ishikawa criteria have to be met for each sealed document whether or not the records are ultimately reviewed by a court or relied upon in connection with any motion, citing this court’s recent decision in

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Cite This Page — Counsel Stack

Bluebook (online)
156 Wash. App. 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-smith-bunday-berman-britton-ps-washctapp-2010.